To my mind the majority opinion is a clear case of reasoning from effect to cause and, with the utmost deference, the conclusion therein reached is based almost entirely upon the statement therein made that the claimant was exposed to sand dust in quantities "from which this record does not exclude the presence of silica * * *". Of course, no burden rests upon employer to "exclude the presence of silica * * *". To the contrary, the claimant must show, among other things, that he was "exposed to silicon dioxide dust in harmful quantities". This I think he has failed to do. Admittedly the claimant has silicosis and admittedly he has worked for his present employer for fifteen years. It does not necessarily follow that his employment caused him to be exposed to silicon dioxide dust in harmful quantities nor that his condition occurred "in the course of, and resulting from his employment". True, silicosis is an occupational disease and hence our act makes it compensable without the showing of a definite event causing injury that would otherwise be necessary. That proposition does not, however, do away with the necessity that the disease result from the employment: not from the individual claimant's susceptibility. To my mind it is perfectly clear that there is where the majority opinion bases compensability in silicosis cases and by doing so makes the uniform operation of the act impossible. The most lavish expenditures and the highest degree of care would not fully protect the employer from indirect liability under the act if he employed a person highly sensitive to silicon dioxide poisoning, as this claimant appears to be. The employer is surely entitled to know *Page 22 before injury, not afterward, what he must do to provide safe working places. There is no direct proof in the record before us that this claimant was ever actually exposed to more than one per cent of silicon, and that was in rock dust used as a protective measure for settling coal dust. The proof does show that he was exposed to other dust, coal and sand, for hours daily, but if they contained silicon dioxide, it is not shown. A showing of exposure to silicon dioxide in harmful quantities is absolutely lacking, unless the fact that claimant has silicosis proves that fact as well.
The act does not provide compensation for all persons who contract silicosis while employed at the specified localities and times. Its benefits are restricted to those exposed to silicon dioxide in harmful quantities, making it plain that within the meaning of the act there are harmful exposures and exposures not harmful. That fact should not be ignored. It is the basis upon which a workable criterion must be erected. What is a harmful exposure and what is an exposure not harmful? To say that contracting silicosis proves that the exposure was harmful makes the individual the test, and does away with the differences in exposure plainly recognized by the act. A person unusually sensitive to silicon dioxide can contract the disease from an exposure not harmful to others. But what amount of silicon dioxide in the atmosphere is dangerous to the average person continually exposed during working hours? That, to my mind, is the measure of what harmful exposure means. In my judgment, in order to be susceptible of uniform operation, our silicosis act must rest upon that foundation. Otherwise its validity may be questionable.
The fact that the employer elected to pay premiums into the silicosis fund, that Henley has silicosis, and that the circumstances are pathetically tragic are matters that should not be allowed to affect the question under consideration.
Since the Court's opinion does not recognize what I regard as essential proof, I dissent. *Page 23