In re Grant

• Decision Date: 11 July 1939
• Docket Number: 2120
• Citation: 92 P.2d 563,54 Wyo. 382
• Parties: IN RE GRANT; v. GRANT CHRISTENSEN, STATE TREASURER
• Court: Wyoming Supreme Court

92 P.2d 563

54 Wyo. 382

IN RE GRANT;

CHRISTENSEN, STATE TREASURER v. GRANT

No. 2120

Supreme Court of Wyoming

July 11, 1939

ERROR to the District Court, Niobrara County; HARRY P. ILSLEY Judge.

Proceeding for compensation under the Workmen's Compensation Act by Neil Grant, an employee of Maurice Grant. To review a judgment awarding compensation, Mart T. Christensen, State Treasurer, brings error.

Affirmed.

For the plaintiff in error, the cause was submitted on the brief of Ewing T. Kerr, Attorney General; Harold I. Bacheller, Deputy Attorney General; and Arthur Kline, Assistant Attorney General, of Cheyenne.

The evidence was insufficient to show that the appendicitis was the direct result of the alleged injury. It was therefore not compensable under Section 124-107, R. S. 1931. A leading case on this point is Hawkins v. Bonner County (Idaho) 271 P. 327. Another case is that of Carlson v. Company (Idaho) 46 P.2d 1089. We also cite the following appendicitis cases, some of which are identical on the facts with the case at bar. Wolfe v. Grocery Company (N J.) 182 A. 625; Syde's Case (Maine) 142 A. 777; Tucker v. Wilson & Co. (Okla.) 258 P. 905; Reynolds v. City of Shreveport (La.) 155 So. 469; Cosen Dai v. Piggott Bros. et al. (Mich.) 240 N.W 722; Weaver v. Commission (Colo.) 209 P. 642; Tomovich v. Dept. of Labor, 218 P. 197. There are other cases holding that the workman was entitled to an award on the ground that there was a causal connection between the injury and the appendicitis, such as Shadbolt v. Department (Wash.) 209 P. 683; Clark v. Department (Wash.) 230 P. 133; Fritz v. Rudy Furnace Company (Mich.) 188 N.W. 528; Roland v. Employer's Casualty Company (Tex.) 290 S.W. 895. But all of these cases are distinguishable from the present case. There is no competent evidence of any injury sufficient to sustain the award of the District Court. We consider the situation as analagous to the facts in Engelbretson v. Commission (Cal.) 151 P. 421; Olson Hall v. Commission (Cal.) 295 P. 527; Allen v. Coal Company (Mich.) 108 N.W. 388. We feel that if this decision is affirmed, it will result in a deluge of cases in which a certain class of doctors and employees will urge compensation or fees from the Accident Fund.

For the defendant in error, the cause was submitted on the brief of Thomas O. Miller of Lusk.

The only question in this case is whether there is any competent evidence to sustain the award of the District Court. Plaintiff in error was represented at the hearing, cross-examined witnesses, and was afforded an opportunity to present evidence. The evidence shows that the claimant had never suffered an attack of appendicitis. Two physicians testified on behalf of claimant but they were unwilling to say that the injury was the sole cause of the appendicitis, but stated it was a pre-disposing cause. Hawkins v. Bonner County (Idaho) 271 P. 327 involved a case of diabetes, wherein the employee, having suffered injury to his foot, gangrene developed and the employee died. The hernia case of Carlson v. Atley and Company cited by plaintiff in error is not in point, since we have a special statute relating to hernia, Section 124-122, R. S. 1931, as amended by Chapter IV, Session Laws of Wyoming 1935. Many hernia cases are cited in 73 A. L. R. 520. The case of Clark v. Department (Wash.) 230 P. 135, cited by plaintiff in error was disposed of on a preponderance of the evidence and the same may be said of the case of Star Pub. Co. v. Johnson (Ind.) 146 N.E. 765 and also of Fritz v. Furnace Company (Mich.) 186 N.W. 528. We submit that the District Court was correct, in view of the evidence in this case, in granting an award to the injured workman.

Before Riner, C. J.; Kimball, J.; and Burgess, District Judge. KIMBALL., J., and BURGESS, D. J., concur.

OPINION

RINER, Chief Justice.

This cause arose under the Workmen's Compensation Act of this State and is a proceeding in error brought by the State Treasurer to review an award made by the district court of Niobrara County, in favor of the workman and claimant, Neil Grant, for temporary total disability, in the sum of $ 192.64. No question is presented concerning the amount of the award. The facts involved are briefly these:

The claimant was employed by his brother, Maurice Grant, from July 7, 1938, to July 18 of that year, to assist in doing some plowing with a tractor. These men were engaged in excavating ground in order to level off some yards around houses at an oil company's plant in the Lance Creek Oil Field. On the date last mentioned, in the afternoon, Maurice Grant was driving the tractor to which a plow was attached in order to supply the necessary operating power, and Neil Grant was holding the handlebars of the plow, which was of the road or "breaking plow" variety. When the plowing work was almost completed the plow struck a hard lump of dirt, which, as the claimant testified, suddenly "raised the plow up, and, of course, I was braced and had my weight against it, trying to hold it in the best I could, and it throwed me down. The plow never struck me, but it threw me off to one side--it came so fast when it came." Immediately after this strain, according to claimant's testimony, he experienced "terrible cramps and pain" in the region of his stomach. He nevertheless endeavored to continue working, but shortly thereafter, about four o'clock, was obliged to stop on account of the pain. About eight o'clock that evening he was taken to Lusk to consult a physician. By that time the pain had become to a large extent localized on the right side of claimant's abdomen. The doctor diagnosed the ailment as appendicitis and sent claimant to a local hospital. Treatment with ice packs on his side and stomach was applied continuously until about seven o'clock on the evening of the following day, the 19th of July, when claimant submitted to an operation for appendicitis. There were no cuts, visible bruises or discolorations on claimant's body as a result of the strain and fall aforesaid. Prior to this strain and fall herein above described, claimant had always experienced good health and had never had any pain in his stomach, abdomen or side.

The surgeon who performed the operation testified that the claimant's blood count showed "an elevation of the white blood corpuscles or blood cells"; that the operation was performed upon the diagnosis that the claimant had "an acute appendix and that was exactly what we found"; that the appendix when removed was discovered to be "moderately inflamed"; that it had not reached the stage of pus formation or the stage of rupture; that it would be possible for the injury the claimant received when he was thrown, after hanging on to the plow, and being strained, to cause the condition which finally resulted in the removal of claimant's appendix; that he could not say that the injury suffered by claimant "was the sole cause of this appendicitis--nobody can say that--but it is listed as a possible, predisposing cause"; that if claimant received a sudden wrench and strain, whereby he was thrown to the ground "the rupture of certain blood vessels internally could have caused this condition of the appendix."

The claimant's attending physician and a former State Health Officer of this State for some eight years, testified that when claimant was strained and thrown by the plow this may have caused "this condition of the appendix." No additional medical evidence was submitted by any of the parties.

The employer's report was to the effect that the workman would claim compensation; that the accident "grew out of his employment," and that it was not due solely to his culpable negligence.

The trial was to the court on November 28, 1938, without a jury, and it was found in substance that the workman was injured while in the employ of Maurice Grant on July 18, at Lance Creek, Wyoming, resulting in acute appendicitis, and that an award should be made, and accordingly was made, as hereinabove stated.

The only question presented is whether upon this record the order of the district court adjudging the award is sustained by sufficient competent evidence. The question arises in view of Section 124-106-7, W. R. S., 1931, as amended by Section 2 of Chapter 128, Laws of Wyoming, 1937, subdivision "(m)", which reads:

"The words 'injury and personal injury' shall not include injury caused by the wilful act of a third person directed against an employe for reasons personal to such employe, or because of his employment; nor a disease, except as it shall directly result from an injury incurred in the employment."

More precisely the contention of the State Treasurer is that the record in this case is devoid of any proven causal connection between the accident which befell the claimant during the plowing and the attack of appendicitis.

The following authorities briefly reviewed will, we think, supply aid in reaching a proper disposition of this case.

In Associated Seed Growers, Inc. v. Scrogham, 52 Wyo. 232, 73 P.2d 300, where the medical evidence was "that the strain of lifting could produce" a rupture of weak blood vessels in a workman's eye and that the workman "would notice red color when looking at a light immediately upon a hemorrhage taking place," a sensation which the workman in that case testified he had experienced after lifting a heavy sack of beans, it was held that the court could properly infer that the workman suffered an accidental compensable injury.

An accident occurred, as stated by the court, in Watkins v Brunswick Restaurant, 123 Neb. 212, 242 N.W. 439, "when the plaintiff was standing on a table in the restaurant so that she might reach the overhead shelves. And while in this position, she grasped a board which became loosened...