Carlson v. F. H. Deatley & Co., 6196

Decision Date06 July 1935
Docket Number6196
Citation46 P.2d 1089,55 Idaho 713
CourtIdaho Supreme Court
PartiesALBERT CARLSON, Employee, Appellant, v. F. H. DEATLEY & COMPANY, Employer, and STATE INSURANCE FUND, Surety, Respondents

WORKMEN'S COMPENSATION LAW-STATE INSURANCE FUND-AWARD, MODIFICATION OF-EVIDENCE-BURDEN OF PROOF.

1. Recognition by State Insurance Fund that hernia was compensable, providing for operation and payment of compensation until employee was deemed to have recovered held not admis- sion that employee's subsequent condition was due to operation so as to require fund to prose cessation of compensable disability (I. C. A sec. 43-1407).

2. On employee's appeal from judgment denying compensation on ground that condition was not due to operation for compensable hernia, only testimony received at second hearing could be considered where testimony taken at first hearing was excluded by Compensation Board (I. C. A., sec. 43-1407).

3. Evidence held to sustain finding that employee's condition was not due to operation for compensable hernia but that disability resulted from other and noncompensable causes (I. C. A., sec. 43-1407).

4. Burden is on employee to show a present compensable disability, and he may not recover where the evidence is evenly balanced (I. C. A., sec. 43-1407).

5. To obtain compensation, employee must show a probable, and not merely a possible, connection between his condition and causes which would entitle him to compensation (I. C. A sec. 43-1407).

APPEAL from the District Court of the Tenth Judicial District, for Idaho County sitting in Nez Perce County. Hon. Miles S. Johnson, Judge.

Appeal from denial of compensation under Workmen's Compensation Act. Affirmed.

Judgment affirmed. Costs to respondent.

J. H. Felton and E. A. Stellmon, for Appellant.

Where employer and surety in a workmen's compensation case have admitted liability for an accidental injury causing total disability, and seek to terminate such liability by showing that the continuance of such total disability is the result of some cause other than the accident, such employer and surety have the burden of proving an intervening cause for such continued disability by clear and convincing evidence beyond a mere preponderance, and the opinion of a doctor or expert that there might be another and later cause for the continued disability is insufficient. (Employers' Liability Assur. Corp. v. Coffman, 147 Okla. 227, 296 P. 395; Sanders v. Rock Island Coal Min. Co., 138 Okla. 45, 280 P. 290; Brittain v. Department of Labor & Industries, 178 Wash. 499, 35 P.2d 49; Channing v. Payton, 152 Okla. 153, 4 P.2d 1; Matela v. Department of Labor & Industries, 174 Wash. 144, 24 P.2d 429.)

Where discontinuance of compensation is claimed on ground that present disability is caused by arthritis or by disease, presumption arises that disability resulted from accidental injury. (Brittain v. Department of Labor & Industries, supra; Channing v. Payton, supra.)

Erb & Erb, for Respondents.

"In determining whether there is sufficient evidence to support a finding of the Board the same rules are applied by an appellate court as are applied when a verdict of a jury or finding of a court is reviewed.

"The determination of a question of fact is for the Board and a finding supported by either positive evidence or logically inferred from circumstances will not be disturbed." (Butler v. Anaconda Copper Min. Co., 46 Idaho 326, 268 P. 6; McNeil v. Panhandle Lumber Co., 34 Idaho 773, 203 P. 1068; Pfister & Vogel Leather Co. v. Industrial Com., 194 Wis. 131, 215 N.W. 815.)

GIVENS, C. J. Budge, Morgan, Holden and Ailshie, JJ., concur.

OPINION

GIVENS, C. J.

June 18, 1932, appellant suffered a concededly compensable hernia for which he received compensation from July 7, 1932, to September 25, 1932, and medical, surgical attendance and hospital service from the State Insurance Fund, paid without any hearing or order by the Workmen's Compensation Board. Thereafter, February 14, 1933, appellant applied for a hearing contending that he was totally disabled by reason in substance of defects in the operation. The Fund resisted the claim for compensation on the ground that if appellant was suffering any disability it was the result of other causes and not a result of the operation or anything connected therewith. A hearing was had April 13, 1933, and the Board granted compensation to December 1, 1932, apparently upon the theory that appellant had not completely recovered from the immediate results of the operation until that time, but found as a fact that his then disability was the result of sciatic or gluteal and lumbar myalgia and not the hernia or operation. No appeal was taken from the order of May 2, 1933, made following the first hearing. Thereafter, December 26, 1933, appellant asked for a further hearing under I. C. A., sec. 43-1407. The Fund did not resist the application, though questioning the sufficiency thereof, and a second hearing was had February 28, 1934, when the Board again reaffirmed its previous holding and denied compensation. Such order was sustained on appeal to the district court and now brought before us on this appeal.

Appellant's principal contention is that the Fund in effect so acknowledged and accepted liability for compensation by paying to September 25, 1932, as to have cast upon it the burden of proving the cessation of compensable disability which they have not sustained, citing Employers' Liability Assurance Corp. v. Coffman, 147 Okla. 227, 296 P. 395; Sanders v. Rock Island Coal Min. Co., 138 Okla. 45, 280 P. 290; Brittain v. Department of Labor & Industries, 178 Wash. 499, 35 P.2d 49; Channing v. Payton, 152 Okla. 153, 4 P.2d 1; Matela v. Department of Labor & Industries, 174 Wash. 144, 24 P.2d 429.

A careful review of these cases, however, discloses that the acknowledgment of liability for compensation, giving rise to the asserted rule, rested therein on more than payment. The Fund herein recognized the hernia as compensable and paid therefor and until it evidently considered appellant had recovered from the operation. That was not such an acknowledgment, however, of liability for or recognition of his subsequent or present disability as having arisen from or been caused by the operation as to cast upon the Fund the burden of proving they were entitled to cease payments.

In Employers' Liability Assurance Corp. v. Coffman, supra, the insurance carrier said in its brief: ". . . . that as a result of the said injury the claimant became totally disabled . . . ." and likewise in Channing v. Payton, supra, at page 3 the court said: "However, we also have the admission that the accidental injury caused the disability in the first instance."

No such admission has been made herein as to the present disability. Sanders v. Rock Island Coal Min. Co., supra, if anything, holds against appellant, the court saying:

"Payment does not estop the commission in making further orders; surely payment should not estop a review by this court of an original order of award made by the Commission. Strong v. Sonken-Galamba I. & M. Co., 109 Kan. 117, 198 P. 182, 18 A. L. R. 415."

To hold that payment alone would thus cast the burden of proof on the insurer as urged by appellant would injuriously affect the employee, as the insurer could not with impunity pay beyond the earliest date of immediate recovery without being subjected to such burden. No question as to the burden of proof as to the Board can arise as no burden of proof rests on the Board, although it should be and is an investigating body charged with the duty of seeing that the employee receives compensation when he is entitled thereto equally with not making an award against the insurer when there is no injury arising out of and in the course of the employment.

The sole question remaining is whether there is sufficient evidence in the record to sustain the Board's finding and conclusion that appellant's present disability did not result from the hernia or operation therefor, and to determine this we may look only to the testimony in the second hearing because while the Fund offered the testimony taken at the first hearing upon objection of appellant it was excluded by the Board.

Appellant contends his disability is caused by the inguinal ring being closed too tightly at the operation, thus pressing on the spermatic cord, resulting in pain in that region, swelling of the testicle, pains in the back and inability to perform the sexual act, walk or work.

Dr. Johnson, who assisted at the operation and who has been treating appellant during all of the period covered herein, testified on direct examination with regard to the effect of the operation on appellant's right testicle, pain and discomfort in that region, and resultant inability to work as follows:

"A. Well, it (inguinal ring) has to be closed tightly enough and still not be too tight, of course. The spermatic cord has to pass down through this ring, and if it is closed too tightly it causes constriction of the cord.

"Q. And that would cause swelling in the testicle, I take it?

"A. Yes, it could.

"Q. And if it is closed too loosely no cure results?

"A. There would probably be a hernia later.

"Q. But, now then, you have testified that from the time, or within a week of the operation, to the present time he has consistently complained of a soreness in the testicle and trouble with his sexual feelings on that side, has he not?

"A. He has not said anything to me about sexual feelings at all.

"Q. How about the testicle?

"A. Yes. He has complained with his testicle.

"Q. And you have examined that testicle, have you?

"A. Yes.

"Q. Have you found it in a swollen condition at certain times?

"A. Yes.

"Q. Now, what disability...

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