Harriet T. Burton v. Holden & Martin Lumber Company And the Travelers Insurance Co.

• Decision Date: 13 May 1941
• Citation: Harriet T. Burton v. Holden & Martin Lumber Company And the Travelers Insurance Co., 20 A.2d 99, 112 Vt. 17 (Vt. 1941)
• Parties: HARRIET T. BURTON v. HOLDEN & MARTIN LUMBER COMPANY AND THE TRAVELERS INSURANCE COMPANY
• Court: Vermont Supreme Court

20 A.2d 99

112 Vt. 17

HARRIET T. BURTON v. HOLDEN & MARTIN LUMBER COMPANY AND THE TRAVELERS INSURANCE COMPANY

Supreme Court of Vermont

May 13, 1941

February Term, 1941.

Workmen's Compensation.---1.Expert Testimony Not Necessary for Common Matters.---2.Expert Testimony Necessary on Matters Beyond Layman's Knowledge.---3.Possibility of Cause of Death Not Sufficient Alone.---4."Possibility" May Corroborate Other Testimony.---5.Causation Not Proved by "Possibility" Alone.---6.Possible Cause Must Exclude Other Causes.---7.Conclusion Reached on "Possibility" Alone Entirely Speculative.---8.Speculative Result from Insufficient Evidence.

1.The requirements of the law of evidence may be met without expert testimony where the facts to be proved are such that any layman of average intelligence, from his own knowledge and experience, could reach the necessary conclusions.

2.But where, as in the case at bar, the physical processes are obscure and abstruse and concerning which a layman could have no well-founded knowledge and could do no more than indulge in mere speculation there is no proper foundation for a finding by the trier without expert medical testimony.

3.The mere fact that an infection could have been a possible contributing cause of death, does not, alone, warrant a finding that it was---there must be created in the mind of the trier something more than a possibility, suspicion or surmise as to the cause and the inference from the facts proved must be at least the more probable hypothesis, with reference to the possibility of other hypotheses.

4.In the case of injuries so naturally and directly connected with an accident that proof of causation does not depend upon expert testimony, medical testimony of "possibility" may corroborate other testimony.

5.Unless the evidence without medical testimony of possibility fairly warrants the conclusion that an injury resulted from the accident, causation is not established by medical testimony of "possibility."

6.A possible cause cannot be accepted as the operating cause between an accident and the injury unless the evidence excludes all other causes or shows something in direct connection with the occurrence.

7.Unless other evidence in the case fairly warrants a finding of causation or excludes all other causes, a conclusion based upon medical evidence of "possibility" would be entirely speculative.

8.Evidence of a man 61 years old in normal health having localized infection from a sliver in his thumb and within a short time dying of cerebral thrombosis, with no evidence as to its cause or nature other than that the infection could possibly have caused the fatal disease, allows a trier only to speculate as to whether the injury caused the disease and death.

APPEAL from award by commissioner of industrial relations, Howard E Armstrong, commissioner, awarding compensation to claimant as widow of deceased employee.The defendants appealed directly to the Supreme Court, Windham County, on certified questions.The opinion states the case.Reversed.

Judgment that the order of the commissioner of industrial relations awarding compensation to the claimant should be and the same hereby is, annulled, set aside and held for naught.Let the defendants recover their costs in this Court.Let the result be certified to the commissioner of industrial relations.

Osmer C. Fitts for defendants.

A F. Schwenk and I. S. Kendall,(Barber & Barber on brief), for claimant.

Present: MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.

OPINION

SHERBURNE

This is an appeal from an award made by the commissioner of industrial relations.The claimant is the widow of Frank F Burton.

On April 9, 1940, Burton, aged 61, was examined by a physician for hospital benefit insurance, and was found to be in normal condition for a man of his age, and no material hardening of the arteries was observed.On April 11, 1940, he got a sliver in his left thumb while working in the lumber yard of defendant employer.He was first treated by a doctor on April 18, following, who testified that Burton was then suffering from an infection of the injured thumb; that the infection was localized and did not go into his system at any time, and, although serious as far as the function of the thumb was concerned, was not serious as far as his system was concerned; that the thumb healed perfectly well, but continued to be more tender than the other thumb, which was to be expected inasmuch as there was new scar tissue there and the thumb had gone through a process of inflamation; that ten days to two weeks after the thumb had healed he was again called upon to treat Burton and found that he had difficulty in walking, had been a bit confused, was unable to get about his house without some help, and was in a weakened condition; and that he was taken to the hospital where he remained three weeks until he died of cerebral thrombosis on June 19, 1940.The doctor further testified that in his opinion the infection could have been a possible contributing cause of the thrombosis.

The question certified for review are:

1.Whether the evidence concerning the alleged causation of death by the injury to decedent's thumb, that the infection was localized and did not go into the system at any time, and that the infection could have been a possible contributing cause of the thrombosis, is legally sufficient to support the finding that the injury to decedent's thumb resulted in his death.

There are many cases where the facts proved are such that any layman of average intelligence would know, from his own knowledge and experience, that the injuries were the cause of death.In such a case the requirements of law are met without expert testimony.State v. Rounds, 104 Vt. 442, 456, 160 A. 249.But where, as here, the physical processes terminating in death are obscure and abstruse, and concerning which a layman can have no well founded knowledge and can do no more than indulge in mere speculation, there is no proper foundation for a finding by the trier without expert medical testimony.Ryder v. Vt. Last Block Co., 91 Vt. 158, 167, 99 A. 733;LeClair v. Montpelier & Wells River R. R., 93 Vt. 92, 97, 106 A. 587;State v. Rounds, supra;Howley v. Kantor, 105 Vt. 128, 133, 163 A. 628;Laird v. State of Vermont Highway Dept. et al., 110 Vt. 195, 199,3 A.2d 552.

The mere fact that the infection in decedent's thumb resulting from the sliver could have been a possible contributing cause of his death, does not alone warrant a finding that it was.Wellman, Admr. v. Wales.98 Vt. 437, 440, 129 A. 317;Dooley v. Economy Store, Inc., 109 Vt. 138, 142, 194 A. 375.There must be created in the mind of the trier something more than a possibility, suspicion or surmise that such was the cause, and the inference from the facts proved must be at least the more probable hypothesis, with reference to the possibility of other hypothesis.Boguski, Admr. v. City of Winooski, 108 Vt. 380, 387, 187 A. 808;Wellman, Admir. v. Wales, supra;Gero v. John Hancock Mut. Life Ins. Co., 111 Vt. 462, 18 A.2d 154, 161.

The commissioner recognized that the cause of death was obscure that expert medical testimony could alone lay a foundation for his award, and that the testimony of the doctor that the infection from the sliver could have been a possible contributing cause of death, without more, was not enough to support an award.But by taking into consideration all of the evidence, not only the expert testimony but also all the circumstances of the case as shown by the evidence, he concluded that he was justified in finding that the sliver was the...