
    Industrial Commission of Ohio v. Rice.
    
      Workmen’s compensation — Tuberculosis resulting from inhaling fumes while incarcerated in furnace, compensable— Tubercular condition resulting therefrom and incapacity to work, sustained by evidence — Temporary total disability compensation to be reduced to partial disability, when — Sections 1165-79 and 1165-80, General Code — Attorney’s fees computed on percentage of compensation awarded — Section 1165-90, General Code.
    
    1. Finding that incapacity to work and tubercular condition of workman in foundry resulted directly from being forced to breathe heated fumes and gas when employe was trapped and incarcerated in furnace by falling door held sustained by evidence, in proceeding under Workmen’s Compensation Act.
    2. Incapacity of foundry employe to work and tubercular condition caused by being forced to breathe fumes and gas from oil burned in furnace, on account of employe’s incarceration in furnace due to falling door, held compensable as resulting directly from injury sustained in the course of his employment.
    3. Judgment allowing employe, who contracted tuberculosis, weekly compensation extending into future for temporary total disability, held to require modification under Workmen’s Compensation Act (Section 1465-80, General Code), so as to limit total recovery and permit reduction of weekly allowance in case disability ceases to be total and becomes only partial.
    4. On award of compensation for temporary total disability, attorney’s fees were properly allowable under Workmen’s Compensation Act (Section 1465-90, General Code) only on proportion of award covering payments then due employe, with additional weekly allowances to be ascertained and paid attorney in future, based on 10 per cent, of weekly payments' to employe.
    (Decided June 6, 1927.)
    Error : Court of Appeals for Erie county.
    
      
      Mr. Edward C. Turner, attorney general, Mr. R. R. Zurmehly, and Mr. Clarence Moyer, for plaintiff in error.
    
      Mr. H. L. Peeke and Mr. J. F. Hertlein, for defendant in error.
   Williams, J.

This proceeding in error is brought for a reversal of a judgment of the court of common pleas awarding compensation to Carey Rice, the plaintiff below, for an injury which he claims to have sustained December 29, 1924, while in the employ of the Farrell-Cheek Steel Foundry Company, of Sandusky, Ohio, as a laborer, by being trapped in a furnace by a falling door. The cause came into the court below on appeal from the Industrial Commission of Ohio, which disallowed the claim upon the ground that the disability was not due to an injury.

Was the disability of plaintiff compensable?

There is evidence tending to show that the plaintiff, prior to the alleged injury, was in good health and free from tuberculosis; that on the date named, while incarcerated in the furnace for a period of three minutes, he breathed heated fumes and gas from oil which had been burned as a fuel therein; that thereafter he was physically incapacitated to perform labor; that on January 2, 1925, his physician visited him and found that he had pain in his chest and was coughing, and that his lungs were congested; that thereafter tuberculosis resulted, which could have been caused, and according to the report of one attending physician was probably caused, by the breathing of the heated fumes and gas; and that, as appears by the reports of two attending physicians, the present disability is “due entirely to this injury.” There is evidence to the contrary, but we are of the opinion that the court was warranted in finding that the incapacity to work and the tuberculosis resulted directly from injury caused by inhaling such injurious substances, and that such finding is not manifestly against the weight of the evidence.

In Industrial Commission v. Burckard, 112 Ohio St., 372, 147 N. E., 81, the deceased was a chemist in charge of development work in the manufacture of certain chemicals by the use of iron dust and acid. “Due to faulty equipment and accidental mishandling of materials,” Burckard suffered an attack of aniline poisoning, which totally incapacitated him. He died a few weeks later. The claim was made by plaintiff in error that the death was caused by tuberculosis under such circumstances as would not be compensable. The court, however, held-that there was sufficient evidence in the record to show that the death was “occasioned by or followed as a result of physical injury; that it was not occasioned in the natural and ordinary course of his employment, but by an unusual and extraordinary happening in the course of such employment, which was both accidental and unforeseen.”

In Industrial Commission v. Roth, 98 Ohio St., 34, 120 N. E., 172, 6 A. L. R., 1463, it was held that “the accidental and unforeseen inhaling by an employe, in the course of his employment, of a specific, volatile poison or gas, resulting in injury or death, is not an ‘occupational disease,’ ” and that the death of a painter, caused by inhaling poison fumes from a bucket of hot paint while at work in the course of his employment, was the result of an injury and compensable.

It has been universally held that disease directly resulting from an injury sustained in the course of the employment is not an occupational disease, but is compensable on the theory that the condition is caused by the injury.

In Jasionowski v. Industrial Commission of Ohio, 22 Ohio App., 112, 153 N. E., 247, death caused by blood poisoning resulting from the contagion of a bacillus entering the blood stream through an abrasion of the skin near the mouth was held compensable.

In Renkel v. Industrial Commission, 109 Ohio St., 152, at p. 156, 141 N. E., 834, 836, the court say “that compensation may be awarded for incapacity by reason of disease only where it is shown that the disease was caused by or is the result or consequence of a compensable injury,” and that “such a disease is generally referred to by the authorities as a traumatic disease; that is, a disease which is caused by a physical injury.”

In Industrial Commission v. Cross, 104 Ohio St., 561, 136 N. E., 283, the court holds, in the third syllabus, that “the term ‘injury’ as used in Section 1465-68, General Code, does not include diseases which are contracted, as distinguished from diseases which are occasioned by or follow as a result from physical injury.”

It follows from the authorities cited that tuberculosis or the plaintiff caused by the fumes and gas, and any other disability caused thereby, is compensable.

Claim is made that the judgment is excessive as to amount and as to the amount of attorney fees allowed.

The court rendered judgment against the defendant for compensation at the rate of $18.75 a week for his temporary total disability, which aggregated, to March 20, 1927, the snm of $2,175, and ordered the Industrial Commission to pay to plaintiff the sum of $18.75 a week from March 20, 1927, till the 30th day of October, 1928. We think the order for the payments from and after March 20, 1927, should continue only during the time of such temporary total disability, under the provisions of Section 1465-79, General Code, and, if such disability ceases to be total, but becomes partial, then, upon application to the Industrial Commission of Ohio, the allowance for total temporary disability may be terminated and an allowance for temporary partial disability made, under Section 1465-80, to be paid so long as the temporary disability continues; but in no event shall the amount paid exceed in the aggregate $3,750. The judgment is, in this respect, erroneous, to the prejudice of plaintiff in error, and should be modified accordingly.

The court allowed attorney fees in the sum of $500. Section 1465-90, General Code, provides that the costs of legal proceedings may include an attorney fee to plaintiff’s attorney to be fixed by the trial judge, and taxed against the unsuccessful party, but further provides that such attorney fee shall not exceed 20 per cent, of any award up to the sum of $500, and 10 per cent, of any amounts in excess thereof, and in no event to exceed the amount of $500. The attorney fees to be allowed on a sum of $2,175 would amount to $267.50. The court therefore should have allowed an attorney fee not exceeding the sum of $267.50, plus 10 per cent, of the weekly payments accruing after March 20, 1927, to be paid as such weekly payments become due and payable after that date.

Judgment as to attorney fees will therefore be modified so as to allow attorneys for plaintiff $267.50 and 10 per cent, of weekly payments accruing and paid after March 20, 1927.

Judgment modified and affirmed as modified.

Richards and Lloyd, JJ., concur.  