Golden v. Wilson and Company

• Decision Date: 09 November 1929
• Docket Number: 28,771
• Citation: 281 P. 860,129 Kan. 100
• Parties: BERTHA GOLDEN, Appellant and Cross Appellee, v. WILSON AND COMPANY, Appellee and Cross Appellant
• Court: Kansas Supreme Court

281 P. 860

129 Kan. 100

BERTHA GOLDEN, Appellant and Cross Appellee, v. WILSON AND COMPANY, Appellee and Cross Appellant

No. 28,771

Supreme Court of Kansas

November 9, 1929

Decided July, 1929.

Appeal from Wyandotte district court, division No. 4; CHARLES A MILLER, judge.

Cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. WORKMEN'S COMPENSATION ACT--Proceedings by Widow--Duties as to Post-mortem Examination. The proceedings considered in an action by a widow for compensation for death of her husband, and held, she rested under no statutory duty to notify the employer of a post-mortem examination of her husband's body made immediately following his death, and a physician who assisted in the autopsy was a competent witness.

2. SAME--Death from Accidental Injury--Evidence. The evidence considered, and held, a finding that death of the employee resulted from accidental injury was sustained by substantial evidence.

3. SAME--Degree of Dependency--Calculation. The evidence considered, and held, the degree of claimant's dependency was sixty-six and two-thirds (66 2/3) per cent.

James L. Hogin, of Kansas City, and James G. Smith, of Kansas City Mo., for the appellant and cross appellee.

Arthur J. Stanley, Arthur J. Stanley, Jr., both of Kansas City, and A. K. Gembick, of Chicago, Ill., for the appellee and cross appellant.

OPINION

BURCH, J.:

The action was one by the widow of a deceased employee for compensation. She recovered, but appeals from the judgment on the ground the degree of her dependency was not correctly determined, and consequently the amount of compensation allowed was too small. The employer notes a cross appeal on two grounds: First, that the employee's death was not the result of accidental injury; and second, that certain important evidence offered by plaintiff was improperly received. These objections to the judgment will be considered in reverse order.

The employee, Elihu Golden, was injured on January 5, 1926, by a fall which caused a pain in the upper part of his back. He continued to suffer pain there, was obliged to quit work, and entered Bell Memorial hospital as a charity patient. An X-ray examination disclosed that the transverse portion of a dorsal vertebra had broken down until it was about one-third normal thickness. On April 3, 1926, the Albee spinal graft was performed, bone for the purpose being taken from the tibia. The expectation was that the bone graft would grow in place and enable the weakened vertebra properly to perform its function. Golden remained in the hospital for about two months, and was never able afterward to resume his employment or to do other work. On April 5, 1927, he died in Wheatly hospital, of thrombosis, a sort of exaggerated embolism. After death his body was removed to an undertaking establishment, where an autopsy was held. Dr. B. M. Colby, a physician specializing in pathology and diagnosis and a laboratory director of the American Biochemical laboratory, assisted at the autopsy. It was found the bone graft was mostly absorbed and was holding well, but a pus pocket had formed there which contained a quantity of pus, and exploration disclosed the pus was coming from the bony structure. Examination of the heart disclosed it was enlarged, the pericardium was thickened and was distended by a quantity of fluid, and the mitral valve showed vegetative growths on each cusp. A blood clot the size of an egg was found in the brain. The clot was surrounded by mushy brain tissue, and a smaller clot also surrounded by degenerated tissue was found in the right parietal region. Doctor Colby took specimens from the spine abscess, from the vegetative growths on the heart valve, and from the brain substance surrounding the clots. Microscopical examination and culture made from the specimens revealed staphylococcus aureus.

Plaintiff's theory was that the injury established a focus or feeding ground for the staphylococcus organisms, and the organisms were disseminated from the spinal pus pocket to the heart and to the brain. An alternative theory was that if a focus existed at the time of injury, it did not impair the workman's efficiency, and the injury aggravated the conditions and caused the staphylococcus organisms to be disseminated from the diseased vertebra to the heart and to the brain, by the blood stream. In either event death resulted from the injury.

Doctor Colby was called as a witness for plaintiff. He told what was done and what was found at the autopsy, and told what he did by way of identification of the staphylococcus aureus organisms in the specimens he took. On the fact foundation thus established expert testimony was given supporting plaintiff's theory that Golden's death resulted from the injury he sustained in January, 1926. Defendant objected to Doctor Colby's testimony on the ground the doctor was not a competent witness. Disqualification was predicated on the provisions of R. S. 44-515, 44-516 and 44-517. The contention was defendant was not given reasonable opportunity to have a physician present at the autopsy.

It is not necessary to print the sections of the statute here. R. S. 44-515 relates to examination of an injured employee by a physician on request of the employer, and to right of the employee to have a physician of his own selection present at the examination. The section also provides that "either party" may, on demand and on payment of a fee, require report of any examination made by a physician selected by the "other party." The context shows the terms "either party" and "other party" refer to employee and employer and to examination during pendency of the employee's claim for compensation, and during receipt by the employee of payments under the compensation act.

R. S. 44-516 contemplates existence of a proceeding for compensation pending before an arbitrator or court, and authorizes the arbitrator or court to employ at the expense of the parties a neutral physician to examine the injured person. Appointment of a neutral physician is made in response to a petition for his appointment. While the statute authorizes petition by employer, employee, or both, or dependents, it relates to examination of the injured workman as a person.

R. S. 44-517 relates to examination of the employee by a physician or surgeon selected by employer or by employee, and disqualifies the physician selected by either employer or employee, as a witness, unless the other had reasonable opportunity to have his physician present. The examination referred to is an examination by "either party" under the provisions of R. S. 44-515.

The result of the foregoing is that the statute does not in terms apply to an autopsy, and this court interprets disqualifying statutes strictly. The statute does not, even by implication, apply to an autopsy when no proceeding for compensation is pending between a dependent and the employer. In no event could the statute apply to the autopsy which became material in this case.

Dr. Don Carlos Peete, an interne and the house doctor in surgery took care of Golden while he was in...