Boswell v. Kearns Garden Chapel Funeral Home

• Decision Date: 14 November 1939
• Docket Number: 44954.
• Citation: 288 N.W. 402,227 Iowa 344
• Parties: BOSWELL v. KEARNS GARDEN CHAPEL FUNERAL HOME et al.
• Court: Iowa Supreme Court

288 N.W. 402

227 Iowa 344

BOSWELL v. KEARNS GARDEN CHAPEL FUNERAL HOME et al.

No. 44954.

Supreme Court of Iowa.

November 14, 1939

Appeal from District Court, Black Hawk County; A. B. Lovejoy, Judge.

This was a proceeding to recover under the Workmen's Compensation Statute. Code 1935, § 1361 et seq. The opinion states the facts.

Affirmed.

OLIVER, C. J., and RICHARDS, J., dissenting.

F. W Edwards, of Waterloo, for claimant, appellant.

P. H Frank, of Waterloo, for insurance carrier, appellee.

HAMILTON Justice.

R. L. Boswell was an employee of Kearns Garden Chapel Funeral Home. The National Casualty Company was the insurance carrier. Boswell had a ringworm infection on his left hand which had been of long standing. It would flare up from time to time, get better and then become worse. In July, 1937, it had one of these flareups at which time Dr. Ridenour of Waterloo, Iowa, was called. The doctor treated him for some time during which time the irritation, which is referred to as dermatitis, would get a little better and then become a little worse. In January, 1938, they had a general housecleaning at the funeral parlors in which commercial cleaning compounds, caustics, soap and commercial wall paint cleaner were used. Part of Boswell's duties involved the use of such compounds, etc., in cleaning up the preparation room where bodies are prepared for burial and embalming. Shortly after this housecleaning operation, his hand " became swollen and pussed" and very painful and was so bad that he was unable to work from the 25th of January to the latter part of April. Dr. Smith was called in to look at the hand. Smith sent Boswell to the Allen Memorial hospital in Waterloo, Iowa, where he remained for about a week, and, thereafter, Dr. Smith treated the hand for several days and finally directed Boswell to a skin specialist, Dr. Normland, at the State University hospital, who examined the hand and gave claimant some medicine and directed him to resume his treatments with Dr. Smith, who continued to treat Boswell until the claimant was able to go back to work the following May. Plaintiff Boswell commenced his action by filing his claim with the Iowa industrial commissioner, predicated on a dermatitis infection to his left hand which he alleged had arisen out of and in the course of his employment. Appellees' defense was a general denial that such injury arose out of and in the course of appellant's employment and that the alleged condition of claimant's hand was in no way attributable to his employment. There was an award of compensation by the deputy industrial commissioner which, on review, was affirmed by the commissioner. On appeal, the district court reversed the commissioner and claimant has appealed.

There is but one question involved, namely: Was there evidence showing causal connection between the condition complained of and the alleged infection? The burden of proof, of course, rests upon the employee to establish his case by a preponderance of the evidence. Where the facts are in dispute, the court ordinarily refuses to disturb the finding of the commissioner, but, where the facts are not in dispute, the court may review the conclusion of the commissioner based upon such undisputed facts for the purpose of determining whether or not there is sufficient competent evidence in the record to support the commissioner's decision. Guthrie v. Iowa Gas & Elec. Co., 200 Iowa 150, 204 N.W. 225; Sparks v. Consolidated Indiana Coal Co., 195 Iowa 334, 190 N.W. 593.The award may not be permitted to stand if the evidence goes no farther than to show a possibility of causal connection. In other words, as stated in the case of Slack v. C. L. Percival Co., 198 Iowa 54, 199 N.W. 323, 326:" In actions of this character it is the universal rule that the claimant has the burden to establish by a preponderance of the evidence a right to compensation. In other words, the matter cannot be left wholly to surmise or conjecture. A legal right is involved. It must be established in a legal way and not by guess or speculation."

Dr. Ridenour, the first physician called to examine the hand, testified that, when he first came, there was a lesion on the back of claimant's hand and down between his fingers, and further stated that: " It was scaly, inflamed lesion and as I recall I believe there were vesicles and I took it to be ringworm probably associated with dermatitis-there was really no question about the dermatitis which is an inflammation of the skin. After about three treatments it began to clear up and I instructed him carefully how to care for his hand, keep it out of strong solutions of any kind as that invariably makes it worse. You have to be so careful of these conditions as anything that would be the least bit irritating would make it flare up, such as getting the hands in a strong solution of any kind or even by work. * * * you have to keep using the preparation at times or you will have a recurrence of the infection. In the condition his skin was when I was caring for it was very susceptible to infection or germs and would be more liable to infection when doing housecleaning. * * * In all of those cases vesicles are present, and those vesicles fill with pustules and you would say that it is an infection of some kind, but it is merely an irritation from the organism and that is what you always get from ringworm infection. * * * I gave him an ointment to use and told him to keep his hand bandaged or wear rubber gloves as even warm water could cause a flare-up of the chronic condition in a ringworm infection. I did not see the hand after the middle of January."

The housecleaning took place in the middle of January and it was about the 30th of January that Dr. Smith was called. He testified that:

" * * * I examined the hand, found it swollen, indurated, the back of the hand was pustular and he seemed to have some temperature. He gave a history of a chronic skin condition for several months which had flared up shortly which I advised him to use wet packs to clear up the infection. The hand continued in a very bad shape and he developed lymphangitis and I advised him to go to the hospital which he did. * * * The infection would seem to subside and then flare up again * * * From the history Boswell give of a chronic skin condition, following this the history of the housecleaning it is possible that he picked up an infection on the super imposed infection of this chronic skin condition. Any skin with a lowered resistance is more subject to infection than a normal skin, in fact any irritation or sore would make infection more susceptible.

Q. And then, as I understand it, it is your opinion that he had what you would call this infection, a secondary infection? A. You mean the infection that I was treating him...