Petition for Writ of Certiorari — Cifolo v. General Electric Co.

INDEX

PAGE

Opinions Below

Jurisdiction

1

2

Statutes Involved 2

Statement 2

2

3

A. Proceedings Below

B. Statement of Facts

C. The Nature of the Disease and Condition of

Partially Disabling Silicosis 5

Question Presented 14

Reasons for Granting the Writ 14

ConcLusiIon 20

Appenpix A 21

TABLE OF CASES

Barrencotto v. Cocker Saw Co., 206 N. Y. 189 (1935)... 16

Donnelly v. Minneapolis Manufacturing Co., 161 Minn.

240, 201 N. W. 305 (1924) 17

Farnum v. Garner Print Works & Bleachery, 229 N. #

554 18

Moffett v. Harbison-Walker Refractories Co., 339 Pa.

112

ii

Mountain Timber Co. v. Washington, 243 U. S. 219

N. Y. Central R. R. Co. v. White, 243 U. S. 188 (1917)..15, 16

Sweeting, Matter of, v. American Knife Co., 226 N. Y.

199 18

Truax v. Corrigan, 257 U. S. 312 15

STATUTES

Constitution of New York:

Article 1, Section 18 15, 24

New York Labor Law:

Section 200 2, 3, 22

Section 299 2, 3, 22

Section 310 2, 3, 23

New York Workmen’s Compensation Law:

Section 3(2) 2, 14, 16, 21

Section 11 2, 14, 16, 21

Section 39 2, 22

AUTHORITIES

3 Duke Bar Association J ournal, 96 (1935)... 17

Encyclopedia of Medicine, Surgery and Specialties,

Mayer and Rappaport 11

Encyclopedia of Medicine, Surgery and Specialties,

Vol. 8, 1951 6,7

Journal of Industrial Hygiene and Toxicology of

March 1937, Dr. L. U. Gardner 11

iil

PAGE

Journal of Industrial Hygiene of May 1933, Drs. Henry

K. Pancoast and Eugene P. Pendergrass 12, 13

Lung Dust Lesions versus Tuberculosis, 1948, Dr.

Lewis Gregory Cole

Report of the Miners Pthisis Medical Bureau, 1929,

Dr. L. G. Irvine

Silicosis and Its Prevention, Adelaid Rose Smith, Spe-

cial Bulletin No. 198, New York State Department of

Labor

The Mortality Experience of an Occupational Group

Exposed to Silica Dust, Compared With That of the

General Population and an Occupational Group Ex-

posed to Dust Not Containing Silica, Collis, E. L.

and Yule, G. U.

The Prevalence of Silicosis in the General Population

and Its Effects Upon the Incidence of Tuberculosis,

Lanza, A. J. and Vane, R. J. (Am. Rev. Tubere.

29, 8, 1934)

United States Public Health Bulletin No. 259 WW.

Workmen’s Compensation, 321-322, Horowitz.

Workmen’s Compensation Act—Bar of Common Law

Recovery for Non-Compensable Injuries, 14 North

Carolina Law Review 199

9, 10

7

12

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1953

JoHn CrroLo, Frep Cops, et al.,

Petitioners,

= No. 316

GENERAL ELEectric CoMPANyY,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF APPEALS FOR THE STATE

OF NEW YORK

Petitioners * respectfully pray that a writ of certiorari

issue to review final orders of the Court of Appeals of

the State of New York entered on April 9, 1953.

Opinions Below

The opinion of the New York State Supreme Court is

reported in 101 N. Y. S. 2d 46; the opinion of the Appellate

Division of the Supreme Court is reported at 279 App.

* The decision of the New York Court of Appeals applied to two

cases, Cifolo et al. v. General Electric Company and Cope et al. v.

General Electric Company. Since this is a consolidated petition the

cases below shall be designated as the Cifolo case and the Cope case.

The petitioners are John Cifolo, Joseph Cisulo, Pierce Felpal, John

Gabriele, Emil Konetsky, Louis Koutny, Stephen Labsky, Nancy

Madonna, Alwandro Mazzucco, “* phen Mullen, Edward Reisinger,

Philip Stagnitta, Walter Tuniszewski, Stanley Zalucki, M. Zom-

browski and Gustave Zulke, Fred Cope, Charles Davis, Lyle Dean,

Fred De Witt, Alexander Grey, Salture Jennings, Leo Luke, Michael

Luzak, Henry Margeit, Atley Moore, Joseph Petti, Glenn Saxbury,

Anthony Sherant and Leroy Woodruff.

Div. 517, 110 N. Y. S. 2d 759; the opinion of the Court of

Appeals of the State of New York is reported at 305 N. Y.

209.

Jurisdiction

The final orders of the Court of Appeals were entered

on April 9, 1953. On July 1, 1953 Justice Jackson ex-

tended the time for filing these petitions until September

9, 1953. The jurisdiction of this Court is invoked under

28 U.S. C. 1257(3).

Statutes Involved

The relevant provisions of the following statutes which

are involved here appear in Appendix A, infra.

a) New York Workmen’s Compensation Law, See. 3(2).

b) New York Workmen’s Compensation Law, See. 11.

ce) New York Workmen’s Compensation Law, See. 39.

d) New York Labor Law, See. 200.

e) New York Labor Law, See. 299.

f) New York Labor Law, Sec. 310.*

Statement

A. Proceedings Below

The action in the Cifolo case was instituted by 16 indi-

viduals employed in the respondent’s plant at Schenectady,

New York. The complaint sought damages for partially

disabling silicosis contracted in the plant by each of the

petitioners as a result of the violation by respondent of

the duties imposed upon it by Secs. 200 and 299 of the

* This statute applies only to foundries and hence is involved only

in the Cope case.

3

Labor Law of the State of New York (AR. 15-19).* The

action in the Cope case was initiated by 14 individuals em-

ployed in respondent’s foundry at Elmira, New York. The

complaint sought damages for partially disabling silicosis

contracted in the foundry by each of the petitioners as a

result of the violation by respondent of duties imposed by

Sees. 200, 299 and 310 of the Labor Law of the State of

New York (BR. 14-18). Without answering, respondent

moved for judgments dismissing both complaints and each

of the causes of action therein on the grounds that each

of the said causes of action was legally insufficient, and

that the court lacked jurisdiction of the subject matter of

the actions. Following a hearing before the Supreme Court

of the State of New York the motions aforesaid were

granted.

The orders granting the motions to dismiss were affirmed

by the Appellate Division of the Supreme Court of the

State of New York with one justice thereof dissenting and

by the Court of Appeals with two justices dissenting.

B. Statement of Facts

1. The Cifolo case. The complaint of petitioners, the

allegations of which must be taken to be true (112 N. E.

2d at 202) contains 16 causes of action brought by 16 em-

ployees of the Schenectady plant of the General Electric

Company. These employees were engaged in the produc-

tion of porcelain products (AR. 15-56).

Each of the causes of action alleges violations by the

respondent of the Labor Law of the State of New York,

through the negligent operation by respondent of its plant

facilities in respect to these 16 employees and respondent’s

failure to provide and maintain proper health and safe

working conditions. It is alleged that the respondent

failed to provide and maintain the necessary devices, equip-

* We thus refer to the record in the Cifolo case. The record in

the Cope case is referred to as BR.

SSG ERE RS RET PEER OG aT Se OCC

4

ment and processes essential to the protection of the lives,

health and safety of workers laboring in the plant (AR.

16-17, 21, 23, 26, 28, 30, 33, 35, 37, 40, 42, 44, 47, 49, 51, 54).

Specifically, respondent neglected to maintain proper

and sufficient ventilation and proper degrees of tempera-

ture and humidity, as well as prescribed devices and ap-

pliances for reducing the excessive heat in its factory and

workrooms. The machinery was not equipped with proper

hoods and pipes connected to exhaust fans of sufficient ca-

pacity and power to remove dust, gases, fumes, vapors,

fibers, and other impurities; exhaust fans were not kept

running continuously while machinery which releases and

generates dust and other impurities is in use; suction de-

vices which remove dust and other impurities at their point

of origin by means of proper hoods connected to conduit

and exhaust fans were not provided (AR. 18, 21, 23, 26, 28,

30, 33, 35, 37, 40, 42, 44, 47, 49, 51, 54).

Because of respondent’s failure to comply with these

statutes, dust, gases, fumes, vapors, fibres and other im-

purities, including free silica dust, were released in the

workrooms of respondent’s plant, and excessive heat was

created. These dusts, gases, fumes, vapors, fibres and

other impurities, including free silica dust, were concen-

trated in the air of the workrooms of the plant and created

a danger to the lives, health and safety of petitioners. The

excessive heat created in the workrooms of respondent’s

plant created a danger to the lives, health and safety of

petitioners (7d.).

Petitioners were employed by respondent for periods

ranging from 8 to 25 years preceding March 22nd, 1950,

and were constantly exposed to the hazard of free silica,

a hazard created and continued by respondent’s failure to

comply with the labor law of the State of New York and

by respondent’s negligent action indicated above for from

one to twenty-five years. As a result petitioners have

during the course of their employment inhaled great quan-

tities of dust and other impurities which have created the

mae te sag

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injury and condition known as partially disabling silicosis

(AR. 19, 21-22, 24, 26, 28-29, 31, 33, 35-36, 38, 40, 42-43,

45, 47, 49-50, 52, 54).

As a result of this condition petitioners have suffered

extensive physical disability. Their health and bodily

strength have been seriously impaired and their life ex-

pectaney reduced. Their resistance to disease has been

wholly or partially destroyed with the consequence that

they have been subject to many illnesses and infirmities.

Extensive medical treatment has been required due to the

loss of petitioners’ resistance and will continue to be re-

quired in the future (AR. 19-20, 22, 94, 26-27, 29, 31, 34, 36,

38, 40-41, 43, 45, 47-48, 50, 52-53, 55).

|

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The complaint further alleges that the specific disease

and injury suffered by petitioners is not an injury or oc-

cupational disease within the meaning of the Workmen’s :

Compensation Law of the State of New York and is not an )

injury or disease for which that law provides any basic

liability or coverage by way of compensation benefits,

medical benefits or otherwise. The Workmen’s Compen-

sation Law provides no remedy for the condition suffered

by these petitioners. As a consequence petitioners insti- :

tuted this action at law for damages resulting from re- -

spondent’s negligence and violations of the labor law of

the State of New York (id.). :

a

action instituted by 14 individuals employed at respond-

ent’s Elmira, New York foundry (BR. 14-51). The allega-

tions are substantially similar to those contained in the

complaint in the Cifolo case.

| 2. The Cope case. The complaint alleges causes of

EE MEE ene wee

C. The Nature of the Disease and Conditien of

Partially Disabling Silicosis

Medical authorities have long used the word silicosis as

a generic term to denote various lung conditions arising

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6

from the inhalation of free silica. Free silica is a erystal-

line matter and is chemically identified as silicon dioxide.

The term silicosis, therefore, indicates the type of dust

particularly involved, causing one of many lung conditions.

There are in fact several different classifications of lung

conditions arising from exposure to free silica, each being

a separate, identifiable pathological entity. In certain of

these diseases total disability may result, while in other

types, either no disability or moderate disability only is the

sequelae of the exposure to free silica.

The problems presented by the various diseases result-

ing from exposure to harmful dust are indeed important

from the public health aspect in terms of the number ex-

posed, the possibilities of contracting said diseases, and

the effect upon exposure not only to the lungs but also

other organs of the body. For those exposed te certain

types of lung disease caused by contact with free silica, the

mortality statistics are grimly high.

Using silicosis in its generic sense one finds that the

exact number of those exposed to free silica has not been

finally ascertained. As of 1940, 1,140,000 workers in the

United States were potentially exposed to free silica dust

and another 639,000 to mixed coal and silica dust (U. S.

Public Health Bulletin #259). Taking into consideration

the increase of working population in the United States

and the movement of employees to various industries, one

could approximate at the present time that more than 2,000,-

000 employees are exposed to silica and coal dust. This

hazardous exposure arises not only in the foundry but in

many other industrial activities wherein the material used

in one form or another contains free silica.

Dr. Edgar Mayer (one of the members of the State

Board of Chest Consultations for the State of New York)

and Dr. Israel Rappaport have estimated that the incidence

of clinical silicosis or pneumonoconiosis is 25 to 30% in

the silica hazard industries and 15 to 20% in the mixed dust

7

hazard industries (Encyclopedia of Medicine, Surgery and

Specialties, Vol. 8, 1951). These figures include the vari-

ous type of lung disease and pathological entities identified

by the generic term silicosis.

All analysis of mortality statistics among those exposed

to silica point to the increased frequency of death from

tuberculosis and associated lung infection among silicotics.

A report based on a study of silicoties reveals that:

“the occupations showing the highest ratios of actual

to expected deaths from tuberculosis were in order:

Underground lead and zine miners, granite and sand-

stone cutters, copper miners and gold and silver miners.

“All of these workers were exposed to a serious

silica hazard. The ratio of actual to expected deaths

from tuberculosis were respectively 1,833 per cent, 913

per cent and 804 per cent. There were actually 60

deaths from tuberculosis among these men as against

six expected. Tuberculosis was responsible for one-

half of all the deaths of lead and zine miners, 29 per

cent of the deaths of copper miners and 20 per cent of

those among gold and silver miners. In all these three

mining classes, deaths from tuberculosis exceeded

deaths from accidential injuries. Among iron miners

who are, on the whole, probably less exposed to silica

dust than are the other mining classes mentioned, we

find that the ratio of actual to expected tuberculosis

deaths is only 260 per cent. There were 16 deaths from

tuberculosis among granite cutters as against 1.7 ex-

pected.”

(Lanza, A. J. and Vane, R. J.: “The prevalence of

silicosis in the general population and its effects upon

the incidence of tuberculosis” (Am. Rev. Tuberc. 29,

8, 1934.)

Similarly, Dr. L. G. Irvine, in the 1929 report of the

Miners Pthisis Medical Bureau, said:

“A measure of the extent of the predisposition to

tuberculosis in cases of silicosis is afforded by the

fact that of all deaths that had occurred (among 1,623

silicotics), some 75 per cent have been due directly

to tuberculosis.”

8

A comparative analysis made by E. L. Collis and G. U.

Yule revealed that there are definitely increased ratios

of diseases of the heart, gastro-intestinal tract and kidneys

among those exposed to silica. So striking was the differ-

ence that they declared silica to be a general body poison

similar to lead. (Collis, E. L. and Yule, G. U., “The mor-

tality experience of an occupational group exposed to silica

dust, compared with that of the general population and an

occupational group exposed to dust not containing silica”

Jour. Ind. Hyg. 15, 395, 1933.)

The gravity of the problem of silicosis indicated by the

widespread incidence and attendant complications of the

disease is enhanced by the fact that it is not reversible and

curable by any treatment known so far.

The disease is not, however, an inevitable accompaniment

of employment in dust hazard industries. Available means

of preventing hazardous dust concentration in the air in-

haled by the worker include wetting processes to precipitate

the dust at its point of origin; exhaust ventilation to con-

stantly reduce the concentration of dust at its point of

origin; use of masks and respirators by workers exposed

to inhalation of dust where its concentration is not re-

ducible to safe levels; substitution of non-silicosis-produc-

ing material in industrial processes, such as the use of

metal abrasives instead of sand; and enclosure of dusty

processes.

Apart from the prevention of dust disease through the

radical elimination of dust hazards in industry, to the per-

son already affected by the disease the only courses open

are removal from exposure to further inhalation of dust

and prevention of complicating infections. Little can be

done for a worker suffering from totally disabling silicosis.

Improvement in the lungs’ self-cleansing efficiency may

be expected, concurrent with reduction of exposures, to rid

one of much dust which would otherwise lead to further

aggravation. In cases affected by one of the distinct types

9

of the disease associated generally only with partial dis-

ability, limitation of exposure significantly limits that type

of lung pathology.

The most detailed and recent classification of the differ-

ing types of silicosis has been made by Dr. Lewis Gregory

Cole, former president of the American Roentgen Ray

Society and Professor of Roentgenology at the Cornell

Medical College, in Lung Dust Lesions versus Tuberculosis

(1948). Dr. Cole distinguishes six types of diseases em-

phasizing again and again the distinct and separate char-

acter of each. Thus, in the introduction of his classifica-

tion he declares, at page 113:

“This great variety in the roentgen findings means

that the morbid changes are different, and * * * that

the clinical findings and the social and economic prob-

lems of each of these typs are also different.” (Em-

phasis in original.)

And again, at page 141:

“The three types of lesions—vesicular, nodular and

tuberculoid—constitute different pathological entities,

run different courses, and present different social and

economic problems.”

As the statement above reveals, the term silicosis encom-

passes varying lung diseases, wherein different patholog-

ical changes take place with differing degrees of disability.

Dr. Cole in his findings has set forth the varying kinds

of lung diseases resulting from exposure to silica dust.

Dr. Cole identifies as Type I the peribronchial-perivascu-

lar lymph node manifestation (Pan-coast) manifested

roentgenologically by accentuated hilar and linear mark-

ings. These are due to deposits of dust, dust-laden phago-

cytes and collagen which are laid down as sheaths sur-

rounding the larger and medium-sized bloodvessels and

bronchi. In the vast majority of cases these morbid

changes cause moderate symptoms.

10

Type II is the vesicular type. While in Type I dust,

dust-laden phagocytes and collagen form sheaths around

the larger blood vessels and bronchi, in Type II, they do

so around the smaller blood vessels and bronchi and in the

tissue of the lung between the end lung lobules. Dr. Cole

divides cases of this type into three subdivisions:

(a) those which are more closely associated with

the peribronchial-perivascular type;

(b) those where the roentgenograms have a ground

glass appearance, more closely associated with the

parenchymal type; and

(c) those manifested by a coarse granular appear-

ance that is more closely associated with the nodular

type.

Dr. Cole points to the fact that roentgenologists have

often recognized a difference between findings of this type

and of the nodular type, using such terms as “fine nodula-

tion” and “ground-glass appearance” to designate them.

Type III is the nodular type of lung dust lesion, evi-

denced by small, round, clear-cut shadows that bear no

relationship to the blood vessels and bronchi. These sha-

dows are caused by collagen laid down in whorls like the

layers of an onion.

Type IV is called tuberculosis pneumonoconiosis. Its

roentgenological and pathological findings look like pul-

monary tuberculosis but is not of bacillus origin. Like

tuberculosis it has two varieties: acute or rapidly develop-

ing and chronic or slowly developing. The advanced stages

of the latter are evidenced by massive lesions.

Type V is the cystic or “pockmarking” type, which is

manifested by air cysts formed by the dilation of the ter-

minal lung lobules. Bronchioles and terminal air passages

are compressed by deposit of collagen laid down in the

form of whorls or laminae in such a manner that they have

ry

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By

11

a ball-valve action, allowing air to be drawn in, while there

is not sufficient elasticity of the lung to expel it.

Type VI is called parenchymal pneumonoconiosis. It is

the acute or rapidly developing type of silicosis. It is

evidenced roentgenologically by a general haze or cloudi-

ness which obscures the normal markings of the lung. This

is caused by the incomplete filling or consolidation of the

air cells and passages. Collagen deposits in any form are

relatively absent and the lack of this protective mechanism

tend to allow the lesion to progress rapidly to a fatal

determination.

The classifications referred to above clearly reveal sili-

cosis is not an entity in itself, but rather a general name

applying to distinct and separate diseases, some of which

are associated with total disability and even inevitable re-

sultant death, whereas others are associated with symptoms

incurring no or partial disability.

In referring to massive conglomerate fibrosis, Dr. L. U.

Gardner wrote in the Journal of Industrial Hygiene and

Toxicology of March 1937:

«* * * T> the conglomerate type of reaction there

is often massive emphysema with large bulbous blebs

along the free borders of the lungs. Pleurisy may also

be considered a complication of both form of simple

silicosis but in the discrete type the pleural reaction

is restricted to the surface of individual nodules. Ad-

hesions do not develop. When a conglomerate focus

of fibrosis impinges on the pleural surface more ex-

tensive dense fibrous adhesions develop.”

On the complication of emphysema, Mayer and Rappa-

port wrote:

«“* * * severe emphysema is usually found in asso-

ciation with conglomerate and confluent fibrosis of sili-

cosis, tuberculosilicoses, anthrasilicosis, asbestosis, ete.

Much lesser areas of emphysema are observed in dis-

crete nodular fibrosis of simple silicosis depending of

course on the density of the lesions” (Encyclopedia of

Medicine, Surgery & Specialties).

12

In Silicosis and Its Prevention, by Adelaid Rose Smith,

Special Bulletin, No. 198, 1946, New York State, Depart-

ment of Labor, scientific data are presented describing the

pathological condition of the silicotic lungs and the high

susceptibility to tuberculosis and other diseases:

“Tt seems possible, in view of the statistical analysis

made by Collis and Yule, that the presence of silica

in the body in undue amounts not only predisposes to

pulmonary tuberculosis, but has an unfavorable effect

on other organs. Comparing mortality statistics in a

large group of industrial workers exposed to silica

dust with another industrial group not so exposed and

with the general population, they found definitely in-

creased rates for diseases of the heart, gastro-intes-

tinal tract and kidneys among the former” (p. 14).

“In addition to tuberculosis and pleurisy, which are

the commonest and the most important complications

of silicosis, certain other associated conditions are of

interest. A tendency to recurrent chest colds with pro-

longed cough is rather characteristic. Some authori-

ties believe that chronic bronchitis is present in all

cases where the disease is well advanced. * * * Bron-

chiectasis, lung abscess and gangrene occur frequently

in hard-rock mines, according to Prooke and Sayers,

who believe that prolonged inhalation of silica dust

contaminated with organisms from the mouth, paves

the way for bacterial attack upon the bronchial mucous

membranes. Emphysema is a common complication of

silicosis and tuberculosis” (pp. 39-40).

The association of complications further emphasizes

their separate and distinct character. Dr. Henry K. Pan-

coast and Dr. Eugene P. Pendergrass in the Journal of

Industrial Hygiene of May, 1933, specifically taking issue

with the old classifications wrote in connection with what

they termed the perivascular-peribronchial lymph node

type:

.

“There may be some excuse for continuing to call

this the first stage, but continued experience with cases

of pneumonoconiosis developing in various industries

13

has led us to question the wisdom of designating any

appearance of pneumoconiosis by any term denoting

numerical stages of progress. In this particular in-

stance under discussion the individual may develop the

appearance in a comparatively short period of from

1 to 5 years, or not pass beyond it, on the other hand,

in fifty years. Moreover, it is not apt to be distinguish-

able as a stage of the past in more progressive period

of the condition, and in some industries it may be in-

significant or indistinguishable as a state at all. We

prefer to designate the appearance by a term which

implies its pathological nature and to call it not a stage

but the perivascular-peribronchial lymph node type or

preponderance of the condition.”

Referring to the nodular type, they stated:

“It is conspicuous by its absence or insignificance,

however, in many industries, notably the granite cut-

ter, sandblaster, sandstone, and asbestos workers. It

is especially likely to be absent or inconspicuous in

those who are developing silicosis rapidly, such as in

those working with pulverized sand without adequate

protection.

“Tf this appearance is absent or nearly so as a stage

of progress in so many industrial silicoses, why desig-

nate it as a numerical stage of progress at all?”

Qualitative differences exist between the various types.

They have in common with each other solely their origin

in silica dust and the body organ that they affect.

The varying types of lung pathology generally identified

as silicosis including those causing partial disability and

usually referred to as partially disabling silicosis are

fraught with shocking destructive consequences for the

worker or his family. To the afflicted worker it means a

serious loss of health, a sharp reduction of resistance to

many other diseases, constant and expensive medical treat-

ment and hospitalization and a decided lessening of life ex-

pectancy. To the worker’s family it means an impairment

of economic support and livelihood, the heavy burden of

14

medical expenses and the ghastly prospect of observing

slow and insidious and inevitable decay of husband or

parent.

The existence of the varying types of lung pathologies

or diseases with the varying resultants upon the affected

. worker and the concomitant disabilities, either partial or

total, must be considered in evaluating the questions posed

by these petitions. These scientific facts have specific bear-

ing in determining whether or not the Workmen’s Compen-

sation Law is an exclusive remedy for certain diseases not

encompassed by the terms of the statute.

Question Presented

The court below construed Section 3(2) of the New York

State Workmen’s Compensation law to deny petitioners a

compensation remedy for silicotie injury or injury caused

by other dust diseases except where the injury results in

total disability or death. It likewise construed Section 11

of the statute to bar relief at common law for such injury

even though the injury resulted from and was in the course

of employment and even though it was caused by the em-

ployer’s negligence and violation of duties created by

statute to prevent the very injury which petitioners suf-

fered. The question thus presented is whether the New

York State Compensation law as construed to deny peti-

tioners both a statutory and a common law remedy is valid

under the Fourteenth Amendment to the Constitution.

Reasons for Granting the Writ

1. It is clear that, absent the New York Workmen’s

Compensation statute, petitioners would enjoy a common-

law remedy for the substantial injuries which they have

suffered. If the State of New York had eliminated this

remedy outright, there would be a plain denial of due

15

process of law under the Fourteenth Amendment. See, for

example, 7'ruax v. Corrigan, 257 U. S. 312.

2. The Workmen’s Compensation system makes com-

pensable only those injuries incurred in the course of

employment which are industrially disabling, whether tem-

porarily or permanently. Where basic compensation cov-

erage is extended, compensation relief is exclusive and the

common-law remedy is superseded. The identifying char-

acteristic of the compensation system is that it substitutes

for an unfair, unadministrable and haphazard common-law

remedy a system which relates in a rational and meaningful

way the remedy for industrial injury to the central fact

of the worker’s life—his earning power. Indeed it was this

“fair exchange” which originally persuaded this Court to

give its constitutional blessing to the compensation system

when it was in its infancy. Thus, in upholding Section 18

of the New York Constitution in N. Y. Central R.R. Co.

v. White, 243 U.S. 188 (1917), this Court expressly pointed

out that it upheld the section upon the assumption that

while remedies were changed, none were taken away.

“Nor is it necessary for the purposes of the present

case to say that a state might without violence to the

constitutional guaranty of ‘due process of law’ sud-

denly set aside all common law rules respecting lia-

bility as between employer and employee without pro-

viding a reasonably just substitute. Considering the

vast industrial organization of the State of New York,

for instance, with hundreds of thousands of plants

and millions of wage earners, each employer on the

one hand having embarked his capital, and each em-

ployee on the other having taken up his particular |

mode of earning a living in reliance upon the probable

permanence of an established body of law governing

the relation, it perhaps may be doubted whether the

state could abolish all rights of action on the one hand,

or all defenses on the other, without setting up some-

thing adequate in their stead. No sch question is

here presented, and we intimate no opinion upon it”

(at p. 201).

Se ta

SRE Re RINE) RR etd! RAI nals Ph ees a

16

Indeed, the Court felt it necessary to insert a similar

caveat later in the same opinion:

“This is not to say that any scale of compensation

however insignificant on the one hand or onerous on

the other would be supportable” (p. 205).

See, also, Mountain Timber Co. v. Washington, 243 U.S.

219, 241.

3. Where, as here, there is no basic compensation cover-

age in the sense in which we have used this term—i.e., for

industrial injury resulting in loss of earning power—it is

well settled that the common law remedy remains.

The leading case is Barrencotto v. Cocker Saw Co., 206

N. Y. 139 (1935).

ee

In that case a workman claimed that he had contracted

a silicotic disease condition in the course of his employ-

ment due to his employer’s negligence. At that time Sec-

tion 3, subdivision 2, of the Workmen’s Compensation Law

specifically covered twenty-seven (27) occupational disease

conditions, but failed to list or specify the particular sili-

eotie injury. The New York Court of Appeals sustained

the workman’s right to maintain an action at law for dam-

ages, holding that Section 11 of the Workmen’s Compensa-

tion Law did not bar workers’ suits for damages against

their employers when the particular injury was not cov-

ered by compensation liability.

RSS ae os

Shi Raatadindesikad ede A ae

Speaking for a unanimous Court, Justice Lehman stated

(at pp. 145 and 146):

“Here the action is brought for an industrial injury

entirely outside the scope of the statute. The statute

provides that the statutory benefits for injury or death

shall be exclusive and in place of any other liability

‘on account of such injury or death’ (court’s emphasis).

4 By no construction, even though forced, can these

: words be found to mean that the right to compensa-

tion in case of certain injuries should be exclusive and

in place of liability for other injuries. * * *

Or eb ee aa :

17.

“*** There still is a field in which the statute fails

to impose liability, on the part of an employer, to pro-

vide compensation for injury or death, regardless of

fault; and in which an injured person may seek dam-

ages by action at law, where there has been fault.”

Horowitz on Workmen’s Compensation refers to this rule

and states (at pp. 321-322):

“The compensation statute is a complete replace-

ment or substitute for the common law on the subject

which it covers and so far as it goes. But it does not

effect rights or wrongs not within its purview, or

which by implication or express negation are excluded.

Thus, where the injured employee or dependent is not

entitled to Workmen’s Compensation under the act, the

act cannot be used to deprive him of pre-existing or

other common-law or statutory rights. * * * + he Com-

pensation Act should not be interpreted to take away

common law or other rights and give nothing in re-

turn. * * *” (Italics ours.)

As stated in 3 Duke Bar Association Journal, 96 (1935) :

“The employee should not be made to suffer by giv-

ing up all his common law rights for an incomplete

system of compensation * * *.”

See also, Workmen’s Compensation Act—Bar of Com-

mon Law Recovery for Non-Compensable Injuries, 14

North Carolina Law Review 199.

The underlying rationale of this fixed proposition that

the Workmen’s Compensation Law constitutes the “exelu-

sive remedy” only with respect to those particular injuries

within the basie liability scope of the statute was analyzed

cogently by the Minnesota Supreme Court in Donnelly vy.

Minneapolis Manufacturing Co., 161 Minn. 240, 201 N. W.

305 (1924):

“* * * the compensation law, so far as it covers the

field of rights and remedies as between employers and

employees, is exclusive. * * * The statute is a substi-

tute for the common law on the subject which it covers

a a a a i ae a

18

and so far as it goes. But it does not affect rights

and wrongs not within its purview, or which by impli-

cation or express negation are excluded” (at p. 243).

“* * * the humane and progressive purpose of the

compensation law does not permit the denial of all

remedy to employees who contract non-compensable

diseases through the negligence of their employers,

particularly the violation of a statute intended for the

protection of employees * * *” (at pp. 244-245).

It must moreover be pointed out that the cases relied

upon by the court below (Matter of Sweeting v. American

Knife Co., 226 N. Y. 199; Farnum v. Garner Print Works

€& Bleachery, 229 N. Y. 554; Matter of Gorle v. Alfred E.

Joy Co., 230 N. Y. 595) all provide for basic compensation

tiability and hence do not support the court’s endorsement

of the constitutionality of a dual denial of compensation

and common-law remedies.

4. In analogizing petitioners’ plight to that of the injured

worker who in certain cases is forced to wait for seven

days before he receives compensation relief (Matter of

Gorle v. Alfred E. Joy Co., supra) or who cannot recover

for pain and suffering (Sweeting v. American Knife Co.,

supra) the court below, as we have noted, ignores the fact

that there is, in both these cases, basic compensation cover-

age. And can these deprivations be seriously compared to

the permanent injuries to body and mind resulting from

the ravages of an incurable disease? Nor can these per-

manent injuries be divorced from earning power for the

steadily weakening effects of petitioners’ condition sharply

impair earning power.

5. Nor is it a justification, constitutional or otherwise,

for suppression of this substantial right to urge that relief

will be approved at the time of permanent disability. It is

simply unsound law to suggest that the victim of wrong-

doing is to be denied relief until he suffers more. As Judge

19

Conway wrote in his dissenting opinion * (211 N. E. 2d at

203) :

“The mere statement of the thought is its refutation

for it would be monstrous to say that such sufferers

were to be economic derelicts and without aid from any

source as they coughed their way to total disablement.

To so hold would be violative of * * * the Fourteenth

Amendment to the United States Constitution.”

Nor has the point any factual basis. We have already

established that the term “silicosis” is purely a generic

term and covers various types of lung diseases or path-

ologies, each of which has its distinctive characteristics

as evidenced by X-ray, each has its distinctive symptom-

atology and each has its unique sequelae including the

nature of the resultant disability.

Since we are not dealing with the kind of injury which

necessarily produces physical consequences of a “progres-

sive” character leading ultimately to total industrial dis-

ability, the availability of a compensation remedy at that

ultimate stage can in any case not justify the statutory sup-

pression of petitioners’ common law rights.

6. The compensation system was adopted to avoid the

social risks of industrial injuries and gained constitutional

acceptance for that reason. In this case it has become an

instrument for achieving the very objective it was intended

to prevent. Limitations upon common-law recovery for in-

juries of the sort involved here have already made their

way into the statutes of thirteen States. 112 N. E. 2d at

200. As the court below noted, approving opinions have

been rendered in two cases. Masich v. United States Smelt-

ing, Refining & Mining Co., 113 Utah 101, appeal dismissed

335 U.S. 866, and Moffett v. Harbison-Walker Refractories

Co., 339 Pa. 112. But in both these cases, as in the instant

case, vigorous dissents were entered.

* The dissent was joined by Judge Lewis who has since become

Chief Judge of the Court of Appeals.

5 ig ana

yee ee ‘ Si

¥: Fe ey en EP T e

PRS PET. yp ALLS ANT aba Ue ane Gr kl ie eT a gene aS Lak ae Scare TIS hy

20

The problem presented here is one of pressing importance

—particularly for thousands of employees in the extractive

industries and foundries. It should be reviewed by this

Court.

CONCLUSION

For all of the foregoing reasons, it is respectfully sub-

mitted that the petition for a writ of certiorari should be

granted.

September 3, 1953.

Respectfully submitted,

Davip Scripyer,

11 East 51st Street,

New York City,

ArtHur Kinoy,

Frank J. Donner,

104 East 40th Street,

New York City,

Attorneys for Petitioners.

Of Counsel:

Davin Scripyer,

Donner, Kinoy & PeR.in,

By Frank J. Donner,

Rosert Z. Lewis,

104 East 40th Street,

New York City.

21

APPENDIX A

Statutes Involved

New York Workmen’s Compensation Law, Section 3(2)

“Occupational Diseases. Compensation will be payable

for disabilities sustained or death incurred by an employee

resulting from the following occupational diseases.

Cot. ONE Cot. Two

Description of Disease Description of Process

28. Silicosis or other dust 28. Any process involy-

diseases resulting in total ing exposure to silica or

disability or death. other harmful dust.”

New York Workmen’s Compensation Law, Section 11

“Alternative remedy. The liability of an employer pre-

scribed by the last preceding section shall be exclusive and

in place of any other liability whatsoever, to such employee,

his personal representatives, husband, parents, dependents

or next of kin, or anyone otherwise entitled to recover dam-

ages, at common law or otherwise on account of such injury

or death, except that if an employer fail to secure the

payment of compensation for his injured employees and

their dependents as provided in section fifty of this chapter,

an injured employee, or his legal representative in case

death results from the injury, may, at his option, elect to

claim compensation under this chapter, or to maintain an

action in the courts for damages on account of such injury;

and in such an action it shall not be necessary to plead or

prove freedom from contributory negligence nor may the

defendant plead as a defense that the injury was caused

by the negligence of a fellow servant nor that the employee

assumed the risk of his employment, nor that the injury

was due to the contributory negligence of the employee.”

| ae PEEL DELETE, SPP Te EIN ENG 22 eR LET IRON ARAN ART EAN LY OT Rea ae

22

New York Workmen’s Compensation Law, Section 39

“Right to Compensation. If an employee is disabled or

dies and his disability or death is caused by one of the |

diseases mentioned in the subdivision two, Section Three,

and the disease is due to the nature of the corresponding

employment that it describes in such subdivision in which

such employee was engaged and was contracted therein,

he or his dependents shall be entitled to compensation for

his death or for the duration of his disablement in accord-

ance with the ‘provisions of Article Two except as herein-

after stated: providing, however, that compensation shall

not be payable for partial disability due to silicosis or other

diseases * * *.”

New York Labor Law, Section 200

“General duly to protect health and safety of employees.

All places to which this chapter applies shall be so con-

structed, equipped, arranged, operated and conducted as

to provide reasonable and adequate protection to the lives,

health and safety of all persons employed therein. The

board shall make rules to carry into effect the provisions

of this section.”

New York Labor Law, Section 299

“Ventilation, heating and humidity.

i. Every work room in a factory shall be provided with

proper anc@ sufficient means of ventilation, natural or

mechanical or both, as may be necessary, and there shall

be maintained therein proper and sufficient ventilation

and proper degrees of temperature and humidity at all

times during the working hours. If owing to the nature

of the manufacturing process carried on in the factory work

room excesssive heat be created therein, there shall be

provided, maintained and operated such special means or

appliances as may be required to reduce such excessive

heat.

SESE GU ETE IM AIS LASS PERMITS a ERO NS RO GME GI RE SE LIM Sg enbite ae Ne REI _-

Dina iio ig oe recog pigite P ee iaes aa Sant ok

23

2. All machinery creating dust or impurities in quan-

tities tending to injure the health of employees shall be

equipped with proper hoods and pipes connected to an

exhaust fan of sufficient capacity and power to remove

such dusts or impurities; such fan shall be kept running

constantly while such machinery is in use. If the board

decides that such apparatus is unnecessary for the health

and welfare of the employees, or that other means of pro-

tection may be provided to safeguard the health and wel-

fare of the employees against such injurious dusts or

impurities, it may adopt rules excepting such machinery

from the operation of this sub-division, or prescribing such

requirements as will effectuate the intent of this subdi-

vision.

3. If dust, gases, fumes, vapors, fibers or other impuri-

ties are generated or released in the course of the business

carried on in any workroom of a factory, in quantities tend-

ing to injure the health of the employees, suction devices

shall be provided which shall remove such impurities from

the workroom, at their point of origin where practicable,

by means of proper hoods connected to conduits and

exhaust fans. Such fans shall be kept running constantly

while the impurities are being generated or released.”

New York Labor Law, Section 310

“Foundries. Foundries shall conform to the provisions

of this chapter relating to factories and also to the follow-

ing requirements:

“1. Entranees and windows shall be constructed and

maintained so as to minimize drafts.

“2. Gangways shall be constructed and maintained of

sufficient width to make the use thereof by employees rea-

sonably safe and shall not be obstructed during the prog-

ress of casting.

Pikes sorsaren secure LO ET Ieee Se NA eR eee

24

“3. Smoke, steam or gases generated in foundries shall

be effectively removed therefrom in accordance with rules

adopted by the board. The milling and cleaning of cast-

ings and the milling of cupola cinders shall be done under

such conditions to be prescribed by the rules of the board

as will adequately protect the employees from dust. The

use of heaters discharging smoke or gas into the work

rooms is prohibited except that open fires may be used

under conditions prescribed by the board in its rules. Suit-

able provision shall be made for drying the working clothes

of employees.

“4, All apparatus, tools, implements and equipment shall

be kept in proper condition and repair.

“9d. A first aid kit shall be provided for the use of em-

ployees in case of burns or accidents.

“6. Where ten or more persons are employed (a) there

shall be provided suitable and convenient wash rooms ade-

quately equipped with hot and cold water. Such wash

rooms shall be kept clean and properly heated. (b) Lock-

ers shall be provided for the employees’ clothing. (c) If

outside watercloset or privy accommodations are permitted

by rules of the board, they shall be properly heated and

the passageway leading from the foundry thereto shall be

so constructed and protected that employees using the pas-

sageway shall not be exposed to the outdoor atmosphere.”

Constitution of New York, Article 1, Section 18

“Nothing contained in this constitution shall be econ-

strued to limit the power of the legislature to enact laws

for the protection of the lives, health, or safety of em-

ployees; or for the payment, either by employers, or by

employers and employees or otherwise, either directly or

through a state or other system of insurance or otherwise,

of compensation for injuries to employees or for death of

employees resulting from such injuries without regard to

PICU Ae ah eR RAN ——

25

fault as a cause thereof, except where the injury is occa-

sioned by the wilful intention of the injured employee to

bring about the injury or death of himself or of another,

or where the injury results solely from the intoxication

of the injured employee while on duty; or for the adjust-

ment, determination and settlement, with or without trial

by jury, of issues which may arise under such legislation;

or to provide that the right of such compensation, and the

remedy therefor shall be exclusive of all other rights and

remedies for injuries to employees or for death resulting

from such injuries; or to provide that the amount of such

compensation for death shall not exceed a fixed or deter-

minable sum; provided that all moneys paid by an em-

ployer to his employees or their legal representatives, by

reason of the enactment of any of the laws herein author-

ized, shall be held to be a proper charge in the cost of

operating the business of the employer.”

" see A ORIN

co Fa eh PL ial te a a Fa i inte ee ATA SR Re ht ON