Haskin v. Hennepin County, Glen Lake Sanatorium, 39141

• Decision Date: 10 April 1964
• Docket Number: No. 39141,39141
• Citation: 127 N.W.2d 522,268 Minn. 21
• Parties: Emmett F. HASKIN, Respondent, v. COUNTY OF HENNEPIN, GLEN LAKE SANATORIUM, et al., Relators.
• Court: Minnesota Supreme Court

Page 522

127 N.W.2d 522

268 Minn. 21

Emmett F. HASKIN, Respondent, v. COUNTY OF HENNEPIN, GLEN LAKE SANATORIUM, et al., Relators.

No. 39141.

Supreme Court of Minnesota.

April 10, 1964.

Syllabus by the Court

1. Where an employee of a tuberculosis sanatorium is in contact with patients and a medical expert is of the opinion that an active case of tuberculosis was contracted by such employee by virtue of such contacts, a finding of the Industrial Commission that such disease is causally connected with the employment will not be reversed even if there is medical testimony to the contrary.

2. Where compensation benefits to an employee in a county sanatorium are awarded under Minn.St. 251.041 to 251.045, medical and hospital benefits are payable by the Department of Public Welfare and not by the employer or its insurer.

Robb, Robb & Van Eps, William M. Robb, Minneapolis, for relators.

Walter F. Mondale, Atty. Gen., Galen M. Cadle, Asst. Atty. Gen., St. Paul, amicus curiae on behalf of Department of Public Welfare.

Carroll & Perbix, Hopkins, for respondent.

KNUTSON, Chief Justice.

Certiorari to review an award of compensation and hospital and medical benefits by the Industrial Commission.

Petitioner was a pharmacist employed part time by Glen Lake Sanatorium from 1934 to 1951 and full time from 1951 to November 1, 1960. Between December 1960 and March 1961, he was found to be afflicted with an active case of tuberculosis and was hospitalized at Glen Lake Sanatorium until he was discharged in November 1961. He was awarded compensation in the total sum of $4,118.74 for partial and total disability during his period of incapacity, and his employer's insurer was also ordered to pay to the County of Hennepin, Glen Lake Sanatorium, $5,615.83 for medical and hospital expenses.

The questions presented here are whether the commission's finding that petitioner's active tuberculosis was causally connected with his employment is supported by the evidence and whether hospital and medical benefits are payable by employer's insurer.

Prior to the hearing on the claim petition, employer's insurer made a motion that the Department of Public Welfare, State of Minnesota, be joined as an additional party. This motion was denied by the commission. Inasmuch as the liability of the Department of Public Welfare for hospital and medical benefits is directly involved in the proceeding, we are of the opinion that the motion should have been granted. However, the question involves purely a question of law, and we have permitted the Department of Public Welfare to appear here as amicus curiae, so its position is before us on this appeal.

While we do not have the policy of insurance before us, it is conceded by amicus curiae that it was a standard workmen's compensation policy, which provides:

'I. Coverage A--Workmen's Compensation. To pay promptly when due all compensation and other benefits required of the insured by the workmen's compensation law.

'Coverage B--Employers' Liability. To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury by accident or disease, including death at any time resulting therefrom, sustained in the United States of America, its territories or possessions, or Canada by any employee of the insured arising out of and in the course of his employment by the insured either in operations in a state designated in Item 3 of the declarations or in operations necessary or incidental thereto.'

It is the contention of relators that petitioner's disabling tuberculosis was the result of an endogenous infection which had its origin prior to his employment rather than to an exogenous infection contracted while he was employed by Glen Lake Sanatorium.

As usual, the outcome of the case depends mainly on which of divergent medical opinions the commission was willing to accept as most credible.

The pertinent facts are that petitioner, during his employment, delivered drugs to various parts of the building. He would pass patients in the halls, ride with them on elevators, and encounter them at various other places in the building. X rays of petitioner's chest and lungs were taken in 1934, 1935, 1936, and 1937, all of which appear to be negative. In 1937, petitioner reacted positively to a Mantoux test, indicating that at some time prior thereto he had been infected with tubercle bacilli. It was impossible to tell how long prior to 1937 he had been a positive tuberculin reactor to the Mantoux test. Lesions of his lungs were first visible on the 1941 X rays, and, although he was not positive, Dr. Ejvind Fenger, who was called by petitioner, was of the opinion that the lesions appearing on the 1941 X rays probably were tuberculous lesions. Dr. Fenger was unable to tell whether these lesions represented adult-type lesions or childhood lesions, but he believed that petitioner may have been infected by tubercle bacilli in childhood. A significant change occurred in December 1960, and it was Dr. Fenger's opinion that the tubercle bacilli may have been in the area before July 7, 1960, but that it was between that date and December 14, 1960, that a newly appearing lesion developed sufficiently to be visible on X rays. While Dr. Fenger conceded that it was possible that the active tuberculosis discovered in December 1960 had its origin prior to petitioner's employment, he was of the opinion that the active tuberculosis had its origin from contacts with patients during his period of employment.

Dr. J. A. Myers, who was called by relators, was of the opinion that the lesions of the lungs shows by the 1941 X ray were lesions of the adult type and that the tuberculosis discovered in 1960 had its origin in the tubercle bacilli shown by the positive Mantoux test in 1937 and the lesions discovered in 1941. In other words, it was his opinion that the active tuberculosis was the result of a breakthrough of an endogenous infection rather than the exposure to tubercle bacilli during petitioner's employment.

1. This phase of the case rests largely on a determination of whether petitioner's active tuberculosis in 1960 resulted from the liberation of capsulated bacilli imprisoned from a time prior to his employment or from the invasion of germs entering his body as a result of contacts with patients during his employment. Determination of this question, of necessity, must rest largely on the acceptance of one of two divergent opinions of doctors experienced in this field. No one can demonstrate beyond dispute which of these two possibilities caused the active tuberculosis. The necessary inference to be drawn must be based on the factifinder's belief that the opinion of one doctor is more credible and more probable than the other.

In Golob v. Buckingham Hotel, 244 Minn. 301, 304, 69 N.W.2d 636, 639, we said:

'* * * (U)ntil the time comes when medical knowledge has progressed to such a point that experts in the field of medicine can agree, causal relation in determining compensable injury or disease will have to remain in the province of the trier of fact. Where qualified medical witnesses differ as they do here, it ordinarily is not for us on appeal to say that one is so eminently right and the other so clearly wrong that the fact finder was obliged to accept the opinion of one and discard the opinion of the other. The determination of this question is like the determination of any other question of fact, and it must depended to a large extent upon the credibility attached by the trier of facts to the opinion and testimony of the various witnesses who are expressing their opinions.' ¹

In Hush v. Ancker Hospital, 245 Minn. 22, 27, 70 N.W.2d 850, 853, we said:

'* * * It would be placing an almost impossible burden on a person who contracted tuberculosis while employed in a hospital to require such person to prove that she contracted the disease by contact with a precise person or persons. It should be enough when she goes as far as to show the presence of tubercular patients in the place where she worked and the necessary contact with such patients. When, coupled with such showing, doctors familiar with the disease state that in their opinion the disease was contracted while so employed, it should be sufficient under the rules which we have frequently announced so that the findings of the industrial commission should be sustained.'

That Dr. Fenger was a qualified expert in this field no one denies. That he could have an honest difference of opinion with Dr. Myers as to the causal relation between the active tuberculosis discovered in 1960 and the employment of petitioner is also apparent. The commission chose to accept the opinion of Dr. Fenger, and on the basis of the evidence in the case this finding clearly is sustained by the evidence in the light of our former decisions.

The provisions under which the award was made contain the following exclusionary section, Minn.St. 251.044:

'Laws 1949, Chapter 558, shall not be construed to apply in the case of employees known to have had tuberculosis as demonstrated by tuberculous lesions of the adult type or by demonstration of the germs of tuberculosis in such employee's secretions or excretions previous to or at the time of employment in said institutions. * * *'

Dr. Fenger testified that in his opinion the lesions found to exist in petitioner at an early date were not of the adult type. Dr. Myers was of the opposite opinion. We need say nothing more than that it was for the commission to determine who was most probably right.

2. A more difficult question arises as to the payment of hospital and medical expenses by employer's insurer. Petitioner undoubtedly was eligible for...