(dissenting).
I respectfully dissent.
In my opinion the plaintiff failed to establish a compensable claim under our Occupational Disease Disablement Act.
Section 59-11-20, N.M.S.A.1953 (2nd Repl.Vol. 9, Part 1) provides:
“The occupational diseases hereinafter defined shall be deemed to arise out of the employment, only if there is a direct causal connection between the conditions under which the work is performed and the occupational disease, and which can be seen to have followed as a natural incident of the work as a result of the exposure occasioned by the nature of the employment, and which can be fairly traced to the employment as the proximate cause. The disease must be incidental to the character of the business and not independent of the relation of employer and employee. The disease need not have been foreseen or expected but after its contraction must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a natural consequence. In all cases where the defendant denies that an alleged occupational disease is the material and direct result of the conditions under which work was performed, the workman must establish that causal connection as a medical probability by expert medical testimony. No award of compensation benefits shall be based on speculation or on expert testimony that as a medical possibility the casual connection exists.”
Section 59-11-34, N.M.S.A.1953 (2nd Repl.Vol. 9, Part 1) provides:
“In all cases where injury results by reason of an accident arising out of or in the course of employment, no compensation under this act [59-11-1 to 59-11^12] shall be payable, nor shall any compensation be payable under the Workmen’s Compensation Act [59-10-1 to 59-10-37] for any occupational disease.”
The plaintiff went to work for the defendant, Fluor Utah, Inc., on Monday, September 9, 1973. He testified that by that evening he was experiencing chest pains. On Tuesday his stomach was very upset and he couldn’t eat. The chest pains continued and he was vomiting. Symptoms on Wednesday and Thursday were worse; he felt exhausted. On Friday he worked from 7:00 to 9:00 A.M. When he could no longer work, he was taken to the Grant County Medical Center.
Of the four and a half days that plaintiff worked for the defendant, all but twenty minutes of that time was spent painting outdoors between fifty and eighty feet above the ground. The twenty minute period was spent painting indoors. The plaintiff did not know what kind of paint he was using. Dr. Novosad obtained a label from one of the paint cans, but it did not give any information as to the composition of the paint. The only information the plaintiff was able to give his doctor was that it had a very strong odor. None of the four doctors who examined the plaintiff gave him any tests to determine whether he was allergic to paint and, if so, what kind. Dr. Novosad said he was afraid to test him for fear of the reaction that might be produced.
Plaintiff told Dr. Smith, one of the doctors who examined him on behalf of defendants, that approximately three years before the time in question he had developed a rash. An allergist he consulted told him he was sensitive to wool and mold. He told Dr. Novosad, his personal physician, that about six years previously he had had an asthmatic-type attack. What this attack was due to the record does not disclose.
Plaintiff had worked as a painter since 1969. During those years he had used various kinds of paint, stain, varnish, paint thinners, etc. He was asked the following question:
“Q. Okay. Now, up to this point [the days in question] had you ever gotten sick being around paint or paint fumes, had any reaction to that?
A. Never. Never.”
Dr. Novosad first saw the plaintiff on September 24, 1973 and treated him for several months. When questioned as to his findings, he said that at that time plaintiff had rhinitis, chronic bronchitis, or stated in another way, reactive small tubular disease, flank pains, and some renal involvement due to his allergic, reaction to paint. As a conclusion he stated: “I personally, medically feel, unequivocally that he has an occupational disease and that he is allergic to paint.”
There is no doubt that plaintiff suffered an acute allergic reaction to something. However, to say that this was a reaction to paint is sheer speculation. He had not, according to his own testimony, suffered any reaction to paint before. Therefore, a more reasonable, but equally speculative inference to be drawn from these circumstances is that his reaction was due to some airborne pollen or dust, or perhaps that he came in contact with some wool or mold somewhere.
As can be seen, § 59-11-20, supra, includes the specific prohibition that “No award of compensation benefits shall be based on speculation or on expert testimony that as a medical possibility the causal connection exists.”
Section 59-11-20, supra, gives the definition of an occupational disease as including “ . . . any disease peculiar to the occupation in which the employee was engaged and due to causes in excess of the ordinary hazards of employment as such . . . [Emphasis mine]. There is nothing in this record which indicates that an acute allergic reaction with the usual attendant results is peculiar to the occupation of painting. I believe that plaintiff’s injury and disability did not ensue because of an “exposure occasioned by the nature of the employment” as required by § 59-11-20, supra, but because of plaintiff’s allergic sensitivity. In my opinion the trial court drew the wrong legal conclusions from the facts stated.
I think that the plaintiff may have misjudged his remedy and that his claim more correctly comes under our Workmen’s Compensation Act. An injury accidentally sustained by a workman in the course of his employment is compensable even though it would not have occurred had not the employee been predisposed to such an injury through some preexisting physical defect or condition. See Reynolds v. Ruidoso Racing Association, Inc., 69 N.M. 248, 365 P.2d 671 (1961). I believe that his complaint contains all of the essential allegations for a claim under our Workmen’s Compensation Act, with possible minor amendments. See Holman v. Oriental Refinery, 75 N.M. 52, 400 P.2d 471 (1965). I would therefore remand this case to trial court with instructions to reconsider as a claim under our Workmen’s Compensation Act.