Mr. FINKE. About the first week in November, last, I went to West Virginia at the suggestion of the People's Press to get this big story and to take a fair picture and learn what I could about this situation. I did not at the time think that this would run into such great length. I remained there 10 days and spent considerable time with Dr. Harless. He had three lists of names, in addition to records and jars containing the preserved lungs and X-rays and other records. He showed me one list containing 307 names of men who, he said, had died of silicosis. He showed me another list of about 250 names of men whom he had examined and found to have silicosis. In their behalf lawsuits were pending; they had not yet died.

Many of those men were living in and around Gauley Bridge. Some of them had gone back to their homes, but they were still suing Rinehart & Dennis, the tunnel contractors.

Dr. Harless had another list of more than 200 names of men whom he had examined once or twice and found them to possess symptoms of silicosis or other lung disorders. Most of those men had gone away. He told me that he had received letters from them from Johns Hopkins, from doctors in medical centers in New York City and elsewhere. Dr. Harless said he had those letters. I am sorry that I did not see the importance of the story at the time I was there, because I believe I could have gotten those records. At the time Dr. Harless had not been interviewed during more than a year, and he was, so to speak, off guard.

Mr. DUNN of Pennsylvania. Did Dr. Harless seem willing to give you the information?

Mr. FINKE. Yes; he seemed very willing to give me information at the time. I do not understand his present attitude, judging by the statement that has just been made.

Mr. DUNN of Pennsylvania. His statement about those workers having silicosis does not agree with the statements in his letters. Did you hear his letter read?

Mr. FINKE. Yes.

Mr. DUNN of Pennsylvania. What do you think about it?

Mr. FINKE. I think it is rediculous. I can, though, see why he has written a letter of that kind. He will not come here to this committee without compulsion, I am sure.

Mr. RANDOLPH. Do you think that the tunnel contractors, Rinehart & Dennis, have been there to see the doctor?

Mr. FINKE. Yes; there were many of the representatives of Rinehart & Dennis there before I arrived. They left only a day before we got there.

Mr. GRISWOLD. Do you know that they had conversation with Dr. Harless at that time?

Mr. FINKE. No; but I can assume almost anything.

Mr. DUNN of Pennsylvania. Perhaps somebody put pressure on the doctor.

Mr. FINKE. I have no doubt about that.

Mr. DUNN of Pennsylvania. Perhaps they have tried to intimidate him.

Mr. FINKE. Dr. Harless told me that the company knew very well what they were sending those workers into. When I asked him

why the men had been taken from the South and brought to West Virginia from Georgia, Alabama, and, possibly, Tennessee, he told me that the company knew very well what they were putting those men into, because 5 years before that tunnelling started he, Dr Harless, went to New York City to attend a conference of more than 500 engineers and doctors where this subject of silicosis was discussed. Dr. Hayhurst was there and when he was asked to address the conference he chose silicosis for his subject. Dr. Harless himself, he told me, heard that lecture.

I have since learned that every civil and mining engineer in the world knows what silicosis is. It is in the course they have to pursue. They have to contend with industrial disease and it is only natural for them to know about silicosis particularly. Even dentists know about silicosis, because they study occupational diseases. Dr. Hayhurst spoke an hour and a half at that gathering in New York on the subject of silicosis.

Mr. GRISWOLD. Do you mean to say that this is the same Dr. Hayhurst who was a member of the board of medical officers who examined the men in West Virginia, and that he spoke to that gathering of doctors and engineers in New York City for an hour and a half on the subject of silicosis?

Mr. FINKE. Yes.

Mr. GRISWOLD. And this same Dr. Hayhurst was at that time a company doctor, was he not?

Mr. FINKE. No; Dr. Harless was the company doctor. Dr. Hayhurst was invited to that conference, because of his eminent standing in that branch of medicine, occupational diseases. He was an expert in occupational diseases.

Mr. GRISWOLD. And he at that time lectured to that large gathering on the subject of silicosis.

Mr. FINKE. Yes; he did. He did not anticipate talking on the subject of silicosis especially. There may have been a reason why he picked the subject. Dr. Harless himself told me that Dr. Hayhurst spoke for an hour and a half to those doctors and engineers, all of whom were connected with the Union Carbide & Carbon Co. or its subsidiaries.

Mr. MARCANTONIO. Did Dr. Harless himself attend that lecture? Mr. FINKE. Yes; there was an item in the Pittsburgh Press about Dr. Harless' having attended that lecture. It may not have been the Pittsburgh Press, but it was some newspaper. I know that Dr. Harless has told the same story about this to others.

Mr. GRISWOLD. If there are no further questions, that is all Mr. Finke. We thank you very much for coming before the committee. The chairman wishes to advise the committee that tomorrow Senator Holt will be with us and the chairman hopes that all members of the committee will be prompt in arriving at 10:30.

After Senator Holt shall have been heard, we intend to hear two experts from the United States Public Health Service.

Mr. MARCANTONIO. I wish to offer for inclusion in the record an analysis of the workman's compensation in West Virginia, which law makes silicosis a compensable disease. I want to point out that under the statute the most an employee may recover is $500 and, perhaps, $1,000, but no more, though he may die of silicosis. This

analysis was prepared by the International Juridical Association and it appears in that organization's monthly bulletin for December 1935, beginning at page 4. I want to offer that in evidence so that members of the committee may study the analysis and observe the defects in the statute.

As a matter of fact, one of the things which the statute did not correct is the 1-year statute of limitations. They have taken the 1-year statute of limitations over to the compensation statute. The article in question reads as follows:

WORKMEN'S COMPENSATION IN WEST VIRGINIA

On March 8, 1935, the West Virginia Legislature enacted a law1 purporting to provide workmen's compensation for cases of silicosis, a lung disease caused by breathing in silicate dust. The statute also contains a special provision setting up a reserve fund for catastrophes. West Virginia had already witnessed its catastrophe of deaths due to silicosis. The State supreme court by its decisions had severely restricted the right of the workers and families of dead workers to recover damages. Both the catastrophe and the decisions made legislation imperative. The adequacy of the statute must therefore be viewed in the light of the facts which gave rise to its enactment.

THE CATASTROPHE

In 1927, the New Kanawha Power Co., a subsidiary of Union Carbide & Carbon Co., undertook a 30,000-horsepower hydro-electric project on the New and Kanawha Rivers at Hawk's Nest, W. Va. The plans involved constructing a tunnel 4 miles long and 32 feet in diameter to divert the waters which for the greater part of its length would go through pure silica rock. Because the Federal Power Commission asserted jurisdiction over the project and threatened court action to require licensing, work on the project was hastened. The Rinehart & Dennis Co., Inc., construction engineers, were engaged, and in a race against court action by the Commission, proceeded to erect dams and build the tunnel. Work on the tunnel was started in 1930. Over 2,000 workers were employed on the tunnel in the 2 years of construction. As the pure silica dust caused by blasting and drilling filled the tunnel, workers became ill and left the job; the company sent in Negroes. No safety measures

*

1 Workmen's Compensation for Silicosis, Laws 1935, c. 79, amending sec. 23 of the West Virginia Code. "In general terms this process may be stated in an untechnical way as follows: The fine particles of dust when inhaled, lodge on the moist surface of the interior of the lungs * make their way through the lining membrane of the air spaces into surrounding lymph channels. Eventually, in progressive cases, many of the original essential structures of the air and circulatory channels are damaged beyond repair and replaced by scar tissue medically known as fibrosis * * * and there is then loss of elasticity, diminution of effective lung surface, and impeded blood circulation through the parts, all combining to produce shortness of breath and labored heart action, which may be sufficient in the end to cause death. Together with these direct effects of the silica particles, the changes they initiate interfere with protective mechanisms against micro organisms and thus favor the development of infections, especially bronchitis, pneumonia, and tuberculosis.

"Depending upon the duration and intensity of the exposure to the dust, the size of the particles, the intercurrence of infections and the like, the disease may develop within a comparatively few months or may take many years and may even manifest itself only after the lapse of several years following cessation of employment. In its manifestations it may stimulate heart disease or other varieties of lung diseases, and in earlier stages it may present but few and ill-defined signs in the stethoscope and the X-ray examination. Under these circumstances it is natural therefore that the disease should be frequently overlokoed, not only by the sufferer himself but also by his physicians. Marsh v. Industrial Accident Co., 18 P. (2d) 933, 935 (Cal. Sup. Ct. 1933).

The facts are set forth in People's Press, Dec. 7, 14, 21, 1935.

The New Kanawha Power Co. filed its declaration of intention to construct a waterpower project on the New River on May 10, 1927. It was not until Jan. 26, 1934, that a finding was made by the Commission that interstate commerce would be affected, and on Mar. 20, 1934, the Attorney General was requested to institute action. Federal Power Commission Fourteenth Annual Report (1934), p. 172. Re Docket DI-102. The legal division of the Commission reported in 1934 that it was engaged with an injunction suit in the District Court in West Virginia, idem, p. 21. The Federal Government has spent more than $25,000,000 in work on the New River which will be rendered valueless by the project.

were taken and the tunnel was finished in 1934 before any successful court action was commenced by the Federal Power Commission.

As a result, 472 workers on the tunnel are known to have died from silicosis, and hundreds more are doomed.

THE COURT DECISIONS

In 1933 Dora Jones brought an action for damages arising out of the death of her son from silicosis; she charged negligence in the operation of the tunnel project. The Rinehart & Dennis Co. claimed that the Workmen's Compensation Act was a complete defense to the action whether or not silicosis was compensable under the act, and stated that it had elected to come under the act and paid premuims. The West Virginia supreme court, however, with one judge dissenting, ruled that silicosis was not within the act, since it is an occupational disease and not an accidental injury,' and that, therefore, the action of wrongful death was available, subject to all the common-law defenses, including assumption of risk by the employees.

8

The second case arising out of the catastrophe was decided May 28, 1935. Lewis Scott, a worker, brought suit for personal injuries due to silicosis. Scott did not start suit until more than a year after he left the job, but he alleged that he had sued immediately after he learned or had cause to learn of his diseased condition. The defense was that his claim was barred by the 1-year statute of limitations for personal-injury actions' which began to run from the last date of employment. It is an accepted medical fact recognized by the courts that the physiological process whereby silicate particles destroy lung tissue does not generally set up symptoms within a year and frequently not for several years. Nevertheless, the dissenting judge in the previous case, now writing for a unanimous court, sustained the defense on the ground that the "right of action accrues when the wrong is committed and, in the absence of some act of concealment by the wrongdoer, the mere ignorance of the injured party of the actionable wrong will not suspend the statute." "

10

As a result of the court's decisions, only dead men do not burden their families. Widows of workers who died from silicosis are granted rights, though subject to common law defenses." But the wives and families of those workers who are only completely disabled are remediless because personal-injury claims are barred altogether.

In reply to the contention that its decision worked an injustice as a practical matter in that it deprived workers who contracted silicosis of any recovery, the court adopted defense counsel's argument that occupational diseases were always known to exist and yet the legislature had never made an exception in the statute of limitations to cover such cases."

There was

5 Jones v. Rinehart & Dennis Co. (113 W. Va. 414, 168 S. E. 482, 1933). another defendant, not disclosed, probably Electro Metallurgical Co., a subsidiary of Union Carbide & Carbon Co., which would be the chief user of the power developed by the project.

This is a customary construction that has required further legislation to cover occupational diseases.

7 The case went to trial, resulted in a hung jury, and the company settled. The foremen who testified at the trial that there was no dust at all in the tunnel have since died of silicosis.

8 Scott. v. Rinehart & Dennis Co., Inc., et al. (180 S. E. 276, Supreme Court W. Va., May 28, 1935). There were several similar cases which depended upon the outcome of this case.

9 West Virginia Code (1931), ch. 55, sec. 2, subd. 12.

10 See note 2, supra.

11 The same result has been reached in New York but there the statute of limitations is 3 years (Wiersychki v. Pratt Co. 151 Misc. 207, 271 N. Y. Supp. 36, 1934; Michalek v. U. S. Gypsum Co. 76 F. (2d) 115, C. C. A. 2, 1935), applying to the New York law. The theory of the decision is that the action accrues when the duty is breached and the duty here was on the part of the employer to provide a safe working place which could not continue beyond the time of employment. However, in all workmen's compensation cases where the period runs from the date of injury, it is disability resulting from the disease that marks the beginning of the period within which the claim must be presented (Marsh v. Industrial Accident Commission, note 2, supra).

By contrast, the Virginia supreme court construing the same statute of limitations involved in West Virginia held that an action for nuisance in the pollution of a stream accrued not when the pollution began but when the stream became a nuisance (McKinney v. Trustees, 117 Va. 763, 92 So. 687, 1915).

12 The fact thatt he person injured is barred by the statute of limitations while alive does not bar action for wrongful death by his administrator (Hoover v. Chesapeake R. Co., 46 W. Va. 268, 335 S. E. 244, 1899).

13 The court said: "Occupational diseases have been well recognized as long as we have had occupations, the oldest books mention stonecutter's asthma, miner phthisic, grinders' phthisic, lead poisoning, tobacco poisoning, and various other ailments consequent upon the occupations of man. Often men have suffered injuries slight and inconsequential

THE STATUTE

The remedial effect of the statute can be tested by three conditions: (1) Whether it affords workers who may contract silicosis sufficient opportunity to present claims, (2) whether it leaves available to the employer defenses that would in general defeat the right to bar compensation, and (3) whether the amounts awarded are adequate. These taken toegther appropriately determine whether the purpose of workmen's compensation laws to make injuries to works a part of the cost of industry is effectuated."

15

The West Virginia statute provides that all claims must be presented within 1 year "from the date of the last exposure to silicon dioxide dust in harmful quantities." It thus retains the same bar that existed prior to its enactment. But what is worse, death claims must likewise be presented within 1 year. And as a further condition, a worker must have been employed for 2 years in the same employment."

16

If any claim should satisfy these conditions it may be barred under the statute if the employee has been guilty of wilful self-exposure. This is defined as including (1) failure to observe rules adopted by the employer and approved by the Silicosis Commission and posted in a "conspicuous place"; (2) failure or omission to state truthfully to the employer the place, duration, and character of previous employment; (3) failure or omission to answer truthfully inquiry by the employer for "full information about the previous status of his health, habits, and medical attention that he or his blood relatives may have reecived." 18

The "necessity" for such complete definition of wilful self-exposure arises out of the fact that other courts have generally held that mere disobedience of working rules does not constitute wilful self-exposure."9 In effect, the West Virginia silicosis law has retained the defense of assumption of risk which because it practically defeated the common-law liability of employers, was a major reason for the passage of workmen's compensation laws. By contrast with these provisions, "the deliberate intention" to produce silicosis which subjects an employer to additional damages is defined to mean "conscious and wilful determination." 20

The compensation scheme " is unique. Three stages of silicosis are defined: (1) when earliest detectable specific signs of silicosis are present, whether or not capacity to work is impaired"; (2) when capacity to work is impaired; (3) when silicosis is accomapnied by tuberculosis of the lungs. The compensation for the first stage is $500. It is unnecessary to consider the moderate compensation for the second and third stages, since payment of $500 awarded to a claimant operates as a full and final payment and is a complete bar to any future compensation whatever for silicosis."

If a worker has worked for 2 years in the same employment, if he presents his claim within 1 year after leaving his job, if he has given his life history in all detail to the employer, if he has never broken any safety rules, he may recover $500, perhaps $1,000, but no more though he should later be dying of silicosis.

apparently in their inception which have resulted seriously and fatally after long lapses of time. No new situation is created here, and there is not presented any occasion for changing the well-established rules of law. * * * Any change in the statute as it has been judically construed is a legislative matter." Scott v. Rinehart & Dennis Co., supra, note 8).

14See the U. S. Supreme Court cases sustaining the constitutionality of workmen's compensation legislation (N. Y. Central R. R. Co. v. White, 243 U. S. 188, 1916; Hawkins v. Bleakley, id. 210; Mountain Timber Co. v. Washington, id. 219; 1 Schneider, Workmen's Compensation Law, ch. 1).

16 Laws 1935, ch. 79, sec. 5.

16 Ibid.

17 Ibid.

18 Laws 1935, ch. 79, sec. 6.

19 Schneider, op. cit., supra, note 14, sec. 282.

20 Laws 1935, ch. 79, sec. 6.

21 Idem, sec. 7.

The usual rule is that aggravated injuries constitute a new claim (Schneider, op. cit.. supra, sec. 138). The compensation in the second stage is $1,000, and in the third stage it depends upon disability and is governed by the schedule in the regular workmen's compensation law. But any payment in any stage is a complete release. The statute (sec. 7) provides:

"Five hundred dollars as compensation in full * ** * final payment and operates as a full release by the employee for * * * any claim against the employer that the employee may thereafter have for silicosis and irrespective of whether the employee thereafter continues in the same employment, he shall not have the right to receive any further compensation or make any claim because of silicosis either to the Commission or against his employer, anything to the contrary in this chapter notwithstanding" (sec. 7).