Gillette v. Harold, Inc.

• Decision Date: 11 February 1960
• Docket Number: No. 37809,37809
• Citation: 257 Minn. 313,101 N.W.2d 200
• Parties: Pauline GILLETTE, Respondent, v. HAROLD, INC., and Indemnity Insurance Company of North America, Relators.
• Court: Minnesota Supreme Court

Page 200

101 N.W.2d 200

257 Minn. 313

Pauline GILLETTE, Respondent, v. HAROLD, INC., and Indemnity Insurance Company of North America, Relators.

No. 37809.

Supreme Court of Minnesota.

Feb. 11, 1960.

Syllabus by the Court

1. A preexisting disease or infirmity of an employee does not disqualify a claim arising out of employment if the employment aggravated, accelerated, or combined with the disease or infirmity to produce disability for which compensation is sought.

2. Where an underlying physical disability is aggravated so as to result in disability of the employee, such disability is compensable as a personal injury where it results from the usual tasks ordinary to the employee's work.

3. Under M.S.A. § 176.021 it is no longer required that causes external to the employee himself which contribute to bring about the injury shall be in any way unusual where the injury is the proximate cause of disability for which compensation is sought and there is a direct causal connection between the employment and the injury, and recovery may be had for injury independent of preexisting weakness or disease.

4. Where a preexisting infirmity from which an employee suffered was aggravated as a result of the ordinary and necessary duties of the employment, the disability resulting from such aggravation is compensable as a personal injury under § 176.021.

5. On appeal in a workmen's compensation case the function of the court is to determine whether the evidence supports the commission's findings, and if the evidence supports such findings the reviewing court is bound thereby.

Mahoney & Mahoney, Minneapolis, for relators.

Vennum, Newhall, Ackman & Goetz, Minneapolis, for respondent.

MURPHY, Justice.

This case comes to us on certiorari to review an order of the Industrial Commission swarding compensation to an employee under the Workmen's Compensation Act. We are asked to determine if disability resulting from aggravation of a preexisting physical infirmity is compensable under M.S.A. § 176.021, subd. 1, as a personal injury under circumstances in which the preexisting physical infirmity is not causally connected with the employment but the aggravation of such infirmity is.

The employee has been employed for a period of more than 17 years as a saleslady by Harold, Inc., a ladies' ready-to-wear store. Her compensation is on a commission basis. It appears that her earnings have averaged $115 per week. She worked a full 40-hour week and was necessarily required to be on her feet standing and walking most of the time. At the time of this litigation she was 53 years of age, weighed approximately 118 pounds, and was about 5 feet 3 inches in height. It appears from the record that she became aware of a painful condition in her left foot in January 1952 as a result of a chip fracture of the 'lateral cuboid bone' of her left foot. There is also reference in the record to a gout condition from which she suffered at or about this time. The latter condition apparently cleared up and there was medical testimony to the effect that it had no relation to the condition of her foot which was found to be disabling. She continued to work until May 1957 when she was informed by an orthopedic surgeon that she had a permanent disorder in her left great toe that could be helped by surgery. The condition was diagnosed as a 'deteriorative disorder of the metatarsal phalangeal joint of the left great toe,' which resulted in stiffness of that joint. There was no evidence that this condition was in any way caused by her employment. About 2 months after surgery, which was calculated to alleviate the pain caused by this condition, the employee returned to work. There was medical testimony that at the time of the trial the head of the metatarsal bone and the phalange of the great toe had come together again causing a stiffening accompanied by pain. This will require further surgery. There was testimony that she would have to 'quit working, or have the joint stiffened.' The doctor testified that she sustained a 35-percent disability of the foot and that she would be away from work for a minimum period of 3 months. The medical testimony was that if she were to continue in her employment this additional surgery was necessary. The doctor testified, however, 'I think she could keep house and not have any operation.'

It appears from the record that while the underlying condition from which the employee suffers is an identifiable infirmity, the origin and cause of it is not known. It is a condition which may originate in a normal joint and 'it deteriorates in a microscopic amount daily until the condition becomes severe enough to produce symptoms.' The medical testimony was to the effect that the deteriorative condition progresses slowly over a period of time and 'the patient doesn't come to the doctor until it hurts.' There was evidence from which the commission could have found that it is not an arthritic condition, nor has the history of gout any particular bearing on it. It is a condition which occurs in men as well as women. 'It does not seem related to heavy work and is not particularly common in laboring people.' There was medical testimony on both sides that the continual use of the foot in bearing the weight of the employee aggravated the condition resulting from the underlying cause. There was medical testimony that such aggravation of the underlying cause was disabling.

That the disability results from the continued use of the foot in walking or standing is established by the undoubted evidence that the employee's toe became stiff and painful particularly toward the end of the workday. On the basis of the evidence submitted, the referee found--

'That in the fall of 1956, said employe noted some pain at the base of her left great toe (at the head of the metatarsal joint) particularly at the end of a work day; that the degree of said pain of the left foot continued to increase to the degree the employe, on May 3, 1957, consulted Dr. John F. Pohl who, on the 18th day of June, 1957, performed surgery at the Abbott Hospital, Minneapolis. That said condition of the left foot was aggravated by personal injury which arose out of and in the course of her said employment.

'That as a further result of said injury, this employe has sustained a 35 per cent permanent partial disability of the left foot.' (Italics supplied.)

He awarded compensation to the employee. This award was upheld on appeal to the Industrial Commission and the decision of that body is now brought before us for review.

At the outset it may be noted that we are not dealing here with an occupational disease within the meaning of § 176.011, subd. 15, which defines 'occupational disease' as one which arises out of and in the course of employment 'peculiar to the occupation in which the employee is engaged * * *.' There is nothing in the record to sustain a finding that this condition is peculiar to the occupation of a saleslady or due to causes in excess of the hazards of that employment. If the order is to be sustained, it must come within the purview of § 176.021, subd. 1, which provides:

'* * * Every such employer (one subject to the provisions of the act) is liable for compensation according to the provisions of this chapter and Is liable to pay compensation in every case of personal injury or death Of his employee arising out of and in the course of employment without regard to the question of negligence, * * *.' (Italics supplied.)

We must inquire if the employee's disabling condition, which the referee and commission have found to be caused by the aggravation of the preexisting infirmity, is a 'personal injury' compensable under the act. It is the contention of the relators that a disease which in the ordinary course of work progresses so as to finally disable an employee does not become a 'personal injury' under the act merely because it reaches a point of disablement during the period of employment. They argue that there is no direct causal connection between the exertion of the employment and the injury and that it occurred in the performance of usual work in the usual manner. They argue that the employee's disability here is one which merely arises contemporaneously with the employment or collateral to it and point to the language sued in Senske v. Fairmont & Waseca Canning Co., 232 Minn. 350, 362, 45 N.W.2d 640, 649, to the effect that:

'* * * Degenerative diseases such as arteriosclerosis Which progress normally and exist independently of an accidental injury do not constitute a preexisting disability within the meaning of the compensation act.'

1. It is well recognized that a preexisting disease or infirmity ofthe employee does not disqualify a claim arising out of employment if the employment aggravated, accelerated, or combined with the disease or infirmity to produce disability for which compensation is sought. Common examples include hypertrophic arthritis (Casey v. Northern States Power Co., 247 Minn. 295, 77 N.W.2d 67; Enkel v. Northwest Airlines, Inc., 221 Minn. 532, 22 N.W.2d 635); cancer or malignant tumor (Pittman v. Pillsbury Flour Mills, Inc., 234 Minn. 517, 48 N.W.2d 735; Erickson v. Knutson, 237 Minn. 187, 54 N.W.2d 118); degenerative process involving the brain (Swanson v. American Hoist & Derrick Co., 214 Minn. 323, 8 N.W.2d 24); paresis accelerated by injuries to the head (Walker v. Minnesota Steel Co., 167 Minn. 475, 209 N.W. 635); hernia (Balow v. Kellogg Co-op. Creamery Ass'n, 248 Minn. 20, 78 N.W.2d 430); and innumerable phases of heart difficulties, the most recent of which is Golob v. Buckingham Hotel, 244 Minn. 301, 69 N.W.2d 636. See, 21 Dunnell, Dig. (3 ed.) § 10397; 17 Minn.Dig., Workmen's Compensation, Key Nos. 554, 555, 556, 557.

2. The relators argue that the foregoing authorities have no application to the facts before us. They point out that the cases holding that disability due to aggravation of preexisting infirmity is...