F. H. Gilcrest Lumber Company v. Rengler
| Decision Date | 13 November 1922 |
| Docket Number | 22884 |
| Citation | 190 N.W. 578,109 Neb. 246 |
| Parties | F. H. GILCREST LUMBER COMPANY, APPELLANT, v. SAMUEL D. RENGLER, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Buffalo county: BRUNO O HOSTETLER, JUDGE. Affirmed.
AFFIRMED.
Pratt Hamer & Beynon and E. T. Morrison, for appellant.
W. T Thompson, contra.
Heard before MORRISSEY, C. J., ALDRICH, ROSE and FLANSBURG, JJ., REDICK and SHEPHERD, District Judges.
This is an appeal from a judgment of the district court awarding appellee compensation for an accident occurring to him while in the employ of appellant. The injury was caused July 3, 1920, by a bundle of maple flooring weighing about 50 pounds falling against appellee's leg, causing a slight bruise on his shin, but did not break the skin. He suffered no inconvenience from it except a little pain, and that night he examined it and found "a black and blue mark on the shin," reported to the office the 4th and 5th of July, but did little work, as they were holidays; worked all day Tuesday at his desk; Tuesday night suffered more or less pain; Wednesday morning reported he would not be down to the office as his leg had broken open; first time he noticed the skin had been broken, pajamas stuck to it a little; called a doctor, put on hot applications for 48 days, lost weight from 120 pounds to 89 pounds, September 14, when he left for California; has done no work since except a little gardening up to the time of taking his deposition in November, 1921; has been taking treatment ever since; there are still signs of a sore (November, 1921) not quite closed; no discharge for about four months; there was a slight discharge up to that time; his weight at this time was about normal. It is further shown that appellee had never had any trouble with his leg at the point of injury until after the occurrence of the falling lumber.
The evidence establishes the fact that, at the time of the accident, appellee was suffering from syphilis, and a year later the disease was found to be in its tertiary stage, being localized at the point of the injury to the leg, up to the time of which occurrence it had remained dormant; that an ulcer formed and had not entirely healed a year after the accident and appellee's disability arises from this ulcer in his leg. The district court allowed claimant for full disability up to the date of the decree and until such time as it is shown disability has ceased, and the employer has appealed.
The question of fact for determination is: What is the proximate cause of appellee's condition, the accidental injury to the leg or the disease? Appellant claims that it is solely due to the disease, and that therefore it did not arise out of the employment.
There is considerable discussion in the evidence and briefs as to whether in a syphilitic patient trauma aggravates the disease or the disease aggravates the trauma, but this presents a question more academic than practical. Doctors for both sides agree that the healing processes will be retarded by the existence of a syphilitic condition of the blood, that is, an open wound which without specific or other infection would heal in, say, ten days, might not heal in as many months if syphilis were present. That the ulcer on appellee's leg appearing only four days after the injury and not healing for over a year was occasioned by the condition of the blood seems beyond question. According to the medical testimony, in the absence of such condition an ulcer would not be expected, or, if present, would not develop for three or four weeks, and would heal in much less time.
The crucial question, then, is whether or not there is any causal connection between the trauma and the disability of appellee. If such disability is attributable only to the disease, that is the only proximate cause; if, however, the disability is the result of a combination of trauma and disease, the former is a part of the proximate cause.
Dr. French, called by appellant, testified that the injury described by appellee, in the absence of syphilis, would not have caused any disability, and that in his opinion the present disability was caused by the syphilitic condition and not the accident, and that he would expect to find the same condition of the shin bone if the accident had not happened. He also testified, however, that he would expect a different result for any injury such as appellee described in a person with syphilis and one without, and that "syphilis does aggravate the trauma," "because the slight disturbance we will say localized, upon any part of the body, will become aggravated by syphilis." Dr. Cameron testified that he diagnosed the case as periostitis, an injury to the covering of the bone, caused by a blow, and that thereby a running sore might be set up in a healthy person without breaking of the skin, and that he attributed appellee's condition in September when he left for California to both his blood condition and the injury to the leg.
We think the inference to be drawn from the testimony is that the primal cause of appellee's disability was the accident, aggravated by the disease from which he suffered. While Dr. French says he would expect to find the same condition of the shin bone if the accident had not happened he does not say that the condition he found was entirely independent of causes set up by the accident; it...
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