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Burton v. Rockwell International10/30/1998
Review of the judgment of the Court of Appeals in an unpublished decision filed February 6, 1998. Appeal from the Workers Compensation Board. Judgment of the Court of Appeals is affirmed. Judgment of the Board is affirmed in part, reversed in part, and remanded with instructions.
In this workers compensation appeal, Harry Burton questions whether apportionment of an award is required under K.S.A. 44-5a01(d) when both occupational and nonoccupational factors combine to cause disability.
The Workers Compensation Board (Board) affirmed a finding that Burton was permanently and totally disabled from adult-onset asthma and bronchitis caused by both smoking and dirt, dust, and chemical fumes at his place of employment, but upheld the administrative law Judge's (ALJ) determination that Burton was only entitled to 25% of the disability award under the apportionment provisions of the occupational disease statute.
In an unpublished split decision filed February 6, 1998, the Court of Appeals reversed the Board, finding the apportionment statute did not apply under the facts of this case.
We granted the employer's, Rockwell International's, petition for review, which contended the Court of Appeals' majority had not distinguished our prior contrary opinion of Weimer v. Sauder Tank Co., 184 Kan. 422, 337 P.2d 672 (1959).
The Court of Appeals' decision set forth the facts, which we quote from its opinion:
"Burton worked for Rockwell at a steel foundry from 1955 until January 7, 1991. During his employment, Burton was exposed to dust, dirt, and other chemical fumes. Burton was also an avid smoker, smoking approximately one pack of unfiltered cigarettes a day for over 30 years until quitting in 1991."
"In the first 7 years of his employment, Burton worked as a chipper/grinder at the facility. Burton's job entailed shaving sharp edges off iron castings by using an air hammer with a chisel and then smoothing the castings with a grinder. At the end of a typical workday, Burton's clothing would be covered with black dirt and dust, and he would be so congested from breathing in the environment that he could produce a black sputum.
"Following his job as a chipper/grinder, Burton worked for the next 20 years primarily as a welder. Burton's duties entailed welding cavities in metal and putting various metal pieces together. Burton later worked on a government project in which he checked castings to determine if they complied with the appropriate standards. While working on this project, Burton was also assigned to work at the shake-out table. The shake-out table is a vibrating table where debris from the floor is sorted to find metal pieces that could be reused. Burton stated that the environment around the shake-out table was particularly dirty and, by the end of the day at this position, he would be congested.
"When Burton started working at the foundry, Rockwell did not provide protective breathing devices to the employees. In the 1960's, Rockwell offered cotton dust masks, which could be changed throughout a day as the mask collected dust and dirt. Burton was required to wear a mask when welding and was encouraged to wear one when performing other tasks at the foundry. However, Burton said the masks did not completely prevent him from breathing dust because black dirt continued to accumulate in his breathing passages.
"In the 1970's, automatic air helmets were provided to the welders as a substitute for the cotton dust masks. Burton acknowledged that the air helmets helped "quite a bit" but stated that he still noticed the dust.
"During the final years of his employment, Burton became
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