Gotchy v. N. D. Workmen's Comp. Bureau

• Decision Date: 07 June 1923
• Citation: 194 N.W. 663,49 N.D. 915
• Parties: GOTCHY v. NORTH DAKOTA WORKMEN'S COMPENSATION BUREAU.
• Court: North Dakota Supreme Court

49 N.D. 915

194 N.W. 663

GOTCHY

v.NORTH DAKOTA WORKMEN'S COMPENSATION BUREAU.

Supreme Court of North Dakota.

June 7, 1923.

Syllabus by the Court.

Upon an appeal from a decision of the Workmen's Compensation Bureau, the cause is a proceeding not triable under the so-termed “Newman Act.”

Where a claim was filed by a claimant after 60 days from the time of the injury and death of an employee but within one year after his death, and where the bureau received such claim and dismissed the same upon the ground that the deceased was not injured in the course of an employment, it is held, for reasons stated in the opinion, that objections made concerning the time of filing are without merit.

Where no direct proof has been adduced concerning the means by which an employee was injured in the course of an employment, and where his declarations, made after the time of an alleged injury, established that his head received a blow through coming in contact with an iron pulley while he was engaged in constructing a unit in an elevator, it is held, for reasons stated in the opinion, that the declarations were properly admissible as part of the res gestæ.

Where an employee, a carpenter, had previously appeared to be active and healthy, and, while engaged in an employment, his head received a blow, more or less severe, from an iron pulley proximate, and where thereafter the deceased became ill, suffered an operation upon his cranium, and thereafter died, and where, pursuant to a post mortem examination and medical diagnosis made before and after his death, it appears that the deceased was suffering from a glioma, which, through the superinducing cause of an external blow, might cause a hemorrhage, so as to occasion his death, it is held, for reasons stated in the opinion, that the question of the proximate cause of the employee's death was one of fact, and that the findings of the trial court in that respect should not be disturbed.

Where the deceased, a carpenter, was intermittently employed by an elevator company in doing its carpenter work and general repair work, and prior to the time of his injury had been engaged for some 40 days in constructing a unit or leg for an elevator and doing some other general repair work, and where such carpenter was employed by the hour and his methods of prosecuting the work were in some respects subject to the control of the elevator company, it is held, for reasons stated in the opinion, that the decedent, at the time of his injury, was an “employee” of the elevator company engaged in the course of its business.

Upon an appeal from the decision of the Compensation Bureau, it is held, for reasons stated in the opinion:

(a) That the court has the power to determinethe right of the claimant and to fix the compensation within the limits prescribed in the Compensation Act.

(b) That the court has not the express power to award a lump sum.

(c) That, after judgment, the Bureau may not deny or reverse the right of the claimant thus established upon appeal.

(d) That, after judgment, the Bureau may increase or decrease the award, or may award a lump sum, all pursuant to and consistent with the judgment rendered and the continuing obligations and duties imposed upon the Bureau.

Appeal from District Court, Adams County; Lembke, Judge.

Proceeding under the Workmen's Compensation Act by Mrs. Frank L. Gotchy for compensation for the death of her husband. From a judgment in claimant's favor, rendered by the district court, on appeal from a decision of the Workmen's Compensation Bureau, the Bureau appeals. Judgment modified, and proceeding remanded.

C. A. Marr, L. J. Wehe, Philip Elliott, and Scott Cameron, all of Bismarck, and M. E. Remmen, State's Atty., of Hettinger, for appellant.

F. M. Jackson, of Hettinger, for respondent.

BRONSON, C. J.

This is a proceeding under the Workmen's Compensation Act by a claimant against the bureau. The bureau has appealed from a judgment of the district court in claimant's favor. The facts are:

The claimant is the widow of Frank Gotchy, deceased. There are four dependent children, aged, respectively, 6, 8, 12, and 15 years. For many years the deceased was a carpenter. He resided with his family on a farm about two miles distant from Reeder, N. D. The Reeder Co-operative Equity Exchange, a corporation, has maintained at Reeder for many years an elevator. There it is engaged in the general business of handling grain, flour, feed, and coal. For several years the deceased had worked for this Exchange as a carpenter whenever his services were required, in doing repair work or in construction. About August, 1919, the Exchange desired and determined to install a new leg in its elevator for purposes of facilitating the handling of grain. The deceased was employed by the Exchange as a carpenter to do the work of construction. In August and September, 1919, he was thus employed. In doing this work he received some assistance from the secretary of the Exchange and the son of the secretary. In making this construction it was necessary for work to be done underneath the elevator at the bottom of a bin. Access was secured through a hole in the floor and down a ladder. Proximate to this place there was an iron pulley about 2 1/2 feet in diameter, which was used in the operation of the elevator. No witnesses specifically saw any injury happen to the deceased; but, on September 4, 1919, as he came up from this hole, he made the statement to the manager of the elevator, while rubbing his head like one who had bumped his head, and while he appeared at that time to be in pain, that he had nearly “broke” his head; that his head was hit against this big pulley. When he returned from work that day, he complained to his wife that he had been hurt, and was struck on the head by a timber or pulley at the elevator. He complained of terrible pains in the back part of his head and of dizziness. His head was tilted slightly forward. He acted like a sick man. His wife called the doctor over the telephone and applied home remedies. The next morning the deceased got up at 5 a. m. complaining of headache and of being dizzy. Often he would hold his head with his hand. He returned to his work, but came back that morning. He showed a lack of appetite and acted in an unnatural way, sitting down and holding his head in his hands. During the morning of September 5th he met the secretary of the Exchange in the driveway and complained to him that he nearly knocked off his head yesterday; that as he was coming up from the first floor he struck his head on the pulley. The wife testified that, up to that time, he had never been sick a day since she had known him, and always had been in the best of health. On the second day he went back to the elevator and tried to do some work for a time. Then, during that day, he went to a local doctor in company with his wife. He was examined. He was given a prescription. Thence the doctor visited him at various times. He continued to suffer from severe headaches. Opiates were given to relieve the pain. The symptoms indicated irritation in the brain tissue or a lesion in the brain. Various tests were made. The patient became more or less comatose and physically wasted away. Finally he was taken to a hospital in Minneapolis for an operation. He was there about three weeks. There, in November, 1919, an operation was performed upon his skull. A piece of bone was removed. This relieved the pressure on the brain. Little relief resulted. The patient returned on November 29, 1919. Gradually he became weaker; the coma became more pronounced. Finally he died on February 10, 1920.

The local doctor removed his brain and sent the same to a pathologist and bacteriologist, a doctor at the University of North Dakota. This doctor made an examination. His testimony is to the following effect:

In the back part of the cerebrum, on the right side, about the middle of the brain, in the lateral ventricle, there was a tumor, designated as glioma. The large blood vessel ascending had passed this growth, and in that portion of its course an old blood clot was found. The cause of the clot was rupture of a blood vessel. The cause of the hemorrhage was a weakened wall of a blood vessel, together with some external violence, which would raise the pressure and thus cause the weakened wall to break. The secondary cause of death was cerebral hemorrhage. This tumor had grown around the artery and had weakened the walls of the artery. It was quite possible that external violence resulted in the hemorrhage. It might have caused the rupture. His experience had taught him that a hemorrhage such as occurred is due primarily to an injury; that possibly the deceased might have lived throughout his life without a rupture occurring, until some excitement or something raised the pressure, so as to induce a rupture. How long this tumor had existed he could not state-whether six months or two years. His opinion was that the rupture of the blood vessel was probably occasioned by external violence.

The local doctor who removed the brain found an adhesion of the scalp to the cranium bone on the right side about 3 1/2 inches back, at right angles from the lobe of the ear. It was his opinion that the direct cause of the death of the deceased was hemorrhage, superimposed by external violence. Further, he testified that glioma is a malignant tumor of the brain tissue, cancerous in its nature; that best medical authorities assume that it is due either to chemical or physical irritation.

Another doctor testified to the following effect: He made a puncture of the spinal column. Upon examination the fluid therefrom disclosed intercranial pressure. A glioma is a tumor of rapid or slow growth. Under irritation, it may become malignant and rapid in growth; without irritation, it may be of very slow growth. It might come from application of violence without, and a blow on the head might produce such a condition. A...