Opinion

Brown Shoe Company v. Fooks

  • 228 Ark. 815
  • 310 S.W.2d 816
  • 1958 Ark. LEXIS 629
Court
Supreme Court of Arkansas
Filed
Mar 3, 1958
Status
Published
Author
Holt
On the bench
Ward, McFaddin, Harris, Holt, Robinson, McFadbin
Cited by
4 cases
Authority
More cited than 10.5%

The opinion

J. Seabork Holt, J., dissenting. We have consistently held since onr earliest construction of our Workmen’s Compensation Law (as early as Birchett v. Tuf-Nut Garment Manufacturing Co., 205 Ark. 483 , 169 S. W. 2d 574 ) that it does not call for general accident insurance and was never intended so to do. In my view, the effect of the majority opinion here is to take steps on the road toward making our compensation law, in effect, general accident insurance.

Bursitis, under the Workmen’s Compensation Law, is listed as an occupational disease along with a long list of other occupational diseases. However, the following limitations for recovery of any compensation for any of these listed diseases (including bursitis) are set out in Ark. Stats., 1947, § 81-1314a, (7), and first must be met: “An employer shall not be liable for any compensation for an occupational disease unless such disease shall be due to the nature of an employment in which the hazards of such disease actually exist, and are characteristic thereof and peculiar to the trade, occupation, process, or employment, and is actually incurred in his employment. . . .”

Appellant’s liability, as I see it, must turn on the construction to be placed on the above statutory language, which appears not to have been heretofore construed by this court. Obviously, the lawmakers must have had some purpose in enacting it. To me it simply means what it says, and that is, before any occupational disease is com-pensable, the burden is on the claimant to show that her disability was within the terms of the act, and that the disease (bursitis) was due not only to the nature of the employment in which the hazard of the disease existed, but the burden was on her to go further and show that such disease was characteristic of such employment and peculiar to the particular disease. There is no prima facie presumption that appellant’s claim comes within the provisions of the law. See John Bishop Const. Co. v. Orlicek, 224 Ark. 182 , 272 S. W. 2d 820 . There is not one scintilla of evidence that I can find in this record that even tends to show that bursitis was characteristic of and peculiar to the kind of employment in which appellee was engaged. There was no evidence that any other employee at appellant’s plant, doing similar work as appellee, or of any other employee in any plant in the United States doing similar work, had ever suffered bursitis. ITow then can it be said that the employer here could have known, or must have known, that bursitis was characteristic of and peculiar to the occupation in which appellee was engaged here. It is also significant that among the literally thousands of stenographers, telephone operators, executives, lawyers, judges and other employees throughout this nation who do their work sitting in chairs, as appellee here, appellee has been unable to cite one single case in this nation similar to the one here and decided by an appellate court. Surely the legislature must have thought and intended in all fairness to employers, that they should first have fair warning of any hazards attached to the employment, such as we have here, before liability would be saddled on them.

I would reverse the judgment and remand to the Circuit Court with instructions to direct the Commission to dismiss the claim.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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