Agsten v. Brown-Williamson Tobacco Corp.

• Decision Date: 08 February 1938
• Citation: 272 Ky. 20,113 S.W.2d 829
• Parties: AGSTEN et al. v. BROWN-WILLIAMSON TOBACCO CORPORATION.
• Court: Kentucky Court of Appeals

113 S.W.2d 829

272 Ky. 20

AGSTEN et al. v. BROWN-WILLIAMSON TOBACCO CORPORATION.

Court of Appeals of Kentucky

February 8, 1938

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Third Division.

Proceeding under the Workmen's Compensation Act by Ethel V. Agsten and others, claimants, for the death of Walter J. Agsten, the named claimant's husband, opposed by the Brown-Williamson Tobacco Corporation, employer. From a judgment setting aside an award of the Compensation Board in favor of the claimants the claimants appeal.

Judgment reversed, with directions to affirm the compensation board's award.

Joseph Solinger and Eli Berry, both of Louisville, for appellants.

Robert F. Vaughan, of Louisville, for appellee.

REES Justice.

Walter J. Agsten, an employee of appellee, Brown-Williamson Tobacco Corporation, received an injury in the course of his employment on August 2, 1934. He died September 24, 1934, and his widow, Ethel V. Agsten, filed a claim for compensation with the Compensation Board. The company resisted the claim on the ground that Agsten's death resulted from a disease not caused by, or connected with, the injury. The board found that Agsten came to his death as a result of a traumatic injury received by him in the course of his employment, and awarded compensation to his widow at the rate of $11.70 per week for a period of 335 weeks. The employer filed a petition for review in the Jefferson circuit court, where the award was set aside on the ground that there was no competent evidence of probative value to support the finding of the board. From the judgment setting aside the award, the claimant has appealed.

It is conceded that Agsten was injured August 2, 1934, and was given first-aid treatment by the company's physician, Dr Ira N. Kerns, who continued to treat him until August 17 when he sent Agsten to Dr. George E. Vaughn, an eye specialist. Dr. Vaughn found that he had decayed teeth, and sent him to a dentist. On August 21, 1934, Dr. S.D. Thompson, a dentist, extracted two teeth, and on August 24 extracted a third tooth. At the hearing before the Compensation Board, the parties stipulated certain facts, among them the following: "That on August 2, 1934, Walter J. Agsten sustained an injury by accident arising out of and in the course of his employment at the plant of the defendant, viz., while checking hogshead, his foot slipped from the loading platform, causing him to fall between the platform and the railway car, striking his left hip and elbow, resulting in contusion of elbow and hematoma (bruise) of the hip."

A certified copy of the certificate of death was made a part of the stipulation. Dr. D. E. Abraham, the attending physician, signed the certificate which gave "hypostatic pneumonia" as the principal cause of death, and "endocarditis complication" and "streptococcus infection of blood stream" as contributory causes. All the physicians who testified stated that the hypostatic pneumonia and heart trouble were caused by the streptococcus infection. Where they disagreed was as to the source or the cause of the infection. Some attributed the infection in the blood stream to the extraction of the teeth on August 21 and August 24, and others attributed it to the traumatic injury received on August 2. If the injury caused the streptococcus infection, then it is compensable. Kentucky Statutes, § 4880; Great Atlantic & Pacific Tea Company v. Sexton, 242 Ky. 266, 46 S.W.2d 87.

The dispute narrows to the single question: Was there any competent, relevant evidence having probative value tending to support the board's finding of fact that the blood stream infection which caused Agsten's death resulted naturally and directly from the traumatic injury? If such evidence was produced, the circuit court erred in setting aside the award.

"In determining a question of fact the Workmen's Compensation Board is not limited to direct evidence, but like other tribunals may consider all the circumstances." Diaz v. U.S. Coal & Coke Company, 270 Ky. 565, 110 S.W.2d 290, 292.

The proof shows that Agsten was apparently in good health prior to the accident August 2, 1934. He continued to perform light work until August 21, 1934, but during that period complained of pains in his injured leg and the back of his head. There was some proof that he had chills and night sweats about ten days after the accident and about a week before the extraction of his teeth. Dr. D. E. Abraham first examined Agsten on August 22. He saw him again on August 29, and frequently thereafter until his death. On September 14 Agsten was taken to the Kentucky Baptist Hospital, where he remained until September 24, when he died. The attending physicians suspected an infection of the blood stream, and on September 23 a specimen was taken from which Dr. John Allen, a physician and surgeon who specializes in bacteriology, isolated an organism known as "streptococcus viridans." A number of physicians who testified for the company stated that the germ known as streptococcus viridans is usually present in the mouth, and that its entrance into the blood stream is possible only through some aperture, and that the extraction of teeth affords the opportunity for such entrance. They stated that they had never known an instance where this germ entered the blood stream at any point in the body except the mouth or throat as the result of a traumatic injury, but did not state that the entrance of the streptococcus viridans into the blood stream as the result of an injury is impossible. Five physicians testified that streptococci viridans are usually present in the body, and that they colonize and incubate in weakened areas. Dr. Abraham, after stating that the streptococcus viridans usually is found in the mouth, although it may be found in other...