Opinion
38402.
DECIDED SEPTEMBER 7, 1960. REHEARING DENIED SEPTEMBER 27, 1960.
Workmen's compensation. Habersham Superior Court. Before Judge Smith. May 6, 1960.
Kimzey Kimzey, Herbert B. Kimzey, for plaintiff in error.
Stewart, Sartain Carey, Joe B. Sartain, Jr., contra.
1. Where an employee covered by the Workmen's Compensation Act is injured as the result of an accident arising out of and in the course of his employment as the result of a contact with a substance not listed in the act of 1946 (Ga. L. 1946, pp. 102, 106; Code Ann. § 114-803), the employee is not entitled to compensation for an "occupational disease."
2. Where an employee covered by the Workmen's Compensation Act skins his hands as the result of an accident arising out of and in the course of his employment, and such abrasions come in contact with a "cleaning agent" used on his job and dermatitis results so that the employee suffers a "loss of use" of his hand, such employee is entitled to compensation under the Workmen's Compensation Act.
DECIDED SEPTEMBER 7, 1960 — REHEARING DENIED SEPTEMBER 27, 1960.
Charlie Shore filed a claim for workmen's compensation against his employer Terry Poultry Company. The insurer is Pacific Employers Insurance Company. The deputy director hearing the claim rendered the following award: "The above styled case was called for a hearing before the undersigned at Clarkesville, Georgia, on November 18, 1959, to determine liability, disability and medical. It was stipulated by the parties that the claimant, Charlie Shore, was an employee of the Terry Poultry Company at an average weekly wage of $41.57 per week. The main question for decision in this case is whether or not the claimant in this case has met with an accident and injury within the meaning and terms of the Occupational Disease Act which arose out of and in the course of his employment with the defendant and that it resulted in the disability which the claimant alleges. In all claims for compensation, it is necessary for the claimant to carry the burden of proof in order to establish his claim for compensation. The evidence in this case shows that the claimant had been employed by the Terry Poultry Company for a period of six to eight months and performed the duties of cleaning up the plant and running a steam gun. The evidence disclosed that about March 9, 1959, the claimant skinned his hands while working and this developed further into a breaking out or rash on his hands, and he was treated by Dr. Ariail of Cornelia. The deposition of Dr. Ariail shows that when the claimant came to him on March 9, 1959, he found him suffering from contact dermatitis involving his hands. It was the doctor's opinion that Mr. Shore had a pre-deposit allergy to some solution that he was in contact with, and this allergic reaction caused the rash on the claimant's hands. The counsel for both sides in this case agreed to the submission in evidence of a letter from the Bio-Lab Manufacturing Company which furnished the chemicals used in cleaning at the plant, and none of the chemicals contained elements listed as an occupational disease in Code Section 114-803 of the Annotated Code of Georgia, and the medical evidence clearly showed that claimant had contact dermatitis and had not suffered from an accident or injury as contemplated by the Workmen's Compensation Act, and although contact dermatitis or an allergy might be construed as an occupational disease, the medical evidence and facts show that the claimant does not have an occupational disease which is compensable under the provisions of the Act, and the claimant having failed to carry the burden of proving an accidental injury under the terms of the Occupational Disease Act, Code Section 114-803, and therefore the evidence demands a finding that the claimant has failed to carry the burden of proof, and his claim is hereby denied." To this award adverse to him the claimant appealed to the Superior Court of Habersham County where such award was affirmed. It is to this judgment adverse to him that the claimant now excepts.
1. The General Assembly in an act approved January 31, 1946 (Ga. L. 1949, pp. 102, 106; Code Ann. § 114-803), listed various "agents" for which an employee covered by the Workmen's Compensation Act would be compensated as having occasioned an "occupational disease" if poisoned by any of such "agents." A comparison of the "agents" used by the claimant in the performance of his duties, as shown by the record, and the list shown in the above act demands a finding that the claimant did not suffer a compensable "occupational disease" as defined by such act.
2. While it is well settled that where an award of the State Board of Workmen's Compensation is supported by competent evidence neither the superior court nor this court, on appeal, may disturb such award, it is equally as well settled that an award of such board based on an erroneous conclusion of law must be reversed. See Cook v. Department of Revenue, 100 Ga. App. 172 ( 110 S.E.2d 552); Crawford W. Long Hospital v. Mitchell, 100 Ga. App. 276 ( 111 S.E.2d 120); Liberty Mutual Insurance Co. v. Simpson, 101 Ga. App. 480 (1) ( 114 S.E.2d 141).
From the transcript of the record it is apparent that the claimant was not relying, as a basis for recovery, on an "occupational disease" but was relying on an accidental injury which was aggravated by the "agent" (a cleaning compound), used by him in the course of his employment. The deputy director hearing the case found that "about March 9, 1959, the claimant skinned his hands while working and this developed further into a breaking out or rash on his hands, and he was treated by Dr. Ariail."
In Williamson v. Aetna Casualty c. Co., 101 Ga. App. 220 ( 113 S.E.2d 208), it was held that where an employee received "acid" burns to his legs which resulted, after the burns had healed, in dermatitis of the area of the legs burned, compensation for "loss of use" of the legs was allowable although there was no monetary loss to the claimant at the time of the hearing.
The deputy director found that there had been an accidental injury to the claimant while on the job, and presumably he intended to find that such injury arose out of and in the course of his employment, but then he found that since the aggravation, which he also found to have occurred, did not occur as a result of an "occupational disease" as defined by the Workmen's Compensation Act, no recovery could be had for the resulting dermatitis. Under the decision in the case of Williamson v. Aetna Casualty c. Co., 101 Ga. App. 220, supra, this finding was based on an erroneous conclusion of law, and the judgment of the superior court affirming such award must be reversed with direction that the case be remanded to the State Board of Workmen's Compensation for further determination in accordance with this opinion.
Judgment reversed. Felton, C. J., and Bell, J., concur.