Kamrowski v. North Dakota Workmen's Compensation Bureau
| Decision Date | 23 May 1934 |
| Docket Number | 6238 |
| Citation | 255 N.W. 101,64 N.D. 610 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Stutsman County Jansonius, J.
Reversed.
P O. Sathre, Attorney General, and Milton K Higgins, Assistant Attorney General, for appellant.
The burden of proof is upon the claimant and an award cannot rest upon mere conjecture. Dehn v. Kitchen, 54 N.D. 199, 209 N.W. 364; Pace v. Bureau, 51 N.D. 815, 201 N.W. 348.
It is not enough to show a state of facts which is equally consistent with no right of compensation as it is with such right. Re Savage (Mass.) 110 N.E. 283; Ohio Bldg. Safety Vault Co. v. Industrial Bd. (Ill.) 115 N.E. 149; Hill v. Alabama Dry Dock & Shipbuilding Co. (Ala.) 104 So. 251; John A. Roebling's Sons Co. v. Industrial Acci. Commission (Cal.) 171 P. 987; Albaugh-Dover Co. v. Industrial Bd. (Ill.) 115 N.E. 834; United States Fuel Co. v. Industrial Commission (Ill.) 141 N.E. 401; Ritter v. Industrial Commission (Ill.) 184 N.E. 654; Creamery Package Mfg. Co. v. Industrial Commission (Wis.) 248 N.W. 140; Alexandria Metal Products Co. v. Newsome (Ind.) 185 N.E. 520.
"Claimant must produce credible evidence from which 'the only fair inference to be drawn was that the accident proximately contributed to death.'" Edge v. Pierre (S.D.) 239 N.W. 191; Saxton v. Sinclair Ref. Co. (Neb.) 250 N.W. 655; Paschke v. Backen, 249 N.W. 428; Voelz v. Industrial Commission (Wis.) 152 N.W. 830; Finlayson v. Dowd (S.D.) 243 N.W. 92.
Buck & Buck for respondent.
The Workmen's Compensation Act should be so construed that technical refinements of interpretation will not be permitted to defeat it. McGuire v. Phelan-Shirley Co. (Neb.) 197 N.W. 615; Parson v. Murphy, L.R.A.1918F, 479; Bordson v. Workmen's Comp. Bureau, 191 N.W. 839; Selders v. Cornhusker Oil Co. 196 N.W. 316; Hinrichs v. Davenport Locomotive Works, 214 N.W. 585.
Words "by accident arising out of and in course of employment" as used in Compensation Act, must be liberally construed. Chapman Price Steel Co. v. Bertels, 177 N.E. 76.
Every compensation case involving application of words "arising out of employment" should be decided on its own particular facts and circumstances. Leilich v. Chevrolet Motor Co. (Mo.) 40 S.W.2d 601.
Injury arises out of the employment when there is apparent to the rational mind, upon consideration of all circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. McNicol's Case, 215 Mass. 497, L.R.A.1916A, 306.
The statute is highly remedial in its nature and must be liberally construed to accomplish the purpose for which it was enacted. Kraker v. Nett, 130 N.W. 1014; State ex rel. Puhlmann v. Compensation Commission, 162 N.W. 678; Babich v. Oliver Iron Min. Co. 195 N.W. 784; Mudrock v. Washburn-Crosby Co. 246 N.W. 113; Dickinson v. Industrial Bd. 117 N.E. 438, L.R.A.1916F, 917; State ex rel. Rau v. District Ct. (Minn.) 164 N.W.916; Malone v. Detroit United R. Co. 167 N.W. 996; Bliss v. Swift & Co. (Minn.) 248 N.W. 755.
A workman who is injured by accident arising out of and in the course of the performance of his labor is entitled to compensation, although he cannot explain how the accident happened. Stuart v. Kansas City, 171 P. 913, L.R.A.1918F, 916.
Injury arises out of employment when result of risk involved in employment. Porter v. City of New Haven, 135 A. 293.
Injury arises out of employment when there appears to the rational mind on considering all circumstances, causal connection between conditions under which work must be performed and resulting injury. Michigan Transit Corp. v. Brown, 56 F.2d 200; Porter v. Traveler's Ins. Co. 43 S.W.2d 1066; Landon v. Industrial Commission, 173 N.E. 49; Price v. Kansas City Pub. Serv. Co. 42 S.W.2d 51; Paton v. Port Huron Engine & Thresher Co. (Mich.) 182 N.W. 800.
It is the province of the commission to draw legitimate inferences and weigh probabilities on questions of fact. Beer v. Brunswick Lumber Co. 241 N.W. 800.
That injury arose out of and in course of employment may be inferred when facts suggested justify inference. Carson Beyson Co. v. Industrial Commission, 173 N.E. 184.
Finding, in absence of evidence to the contrary, may be supported by circumstantial evidence alone. DeMoss v. Evens (Mo. App.) 37 S.W.2d 961.
Where facts are not equally consistent, and respective probabilities may be balanced, arbitrator is justified in drawing more probable inferences. Heyworth v. Industrial Commission (Ill.) 151 N.E. 920.
The test is whether there is evidence on which reasonable minds might base the conclusion that injury arose from employment. Carroll v. Industrial Commission (Colo.) 195 P. 1097, 19 A.L.R. 107; Flesch v. Philips Petroleum Co. 244 N.W. 925.
That the injury arose out of and in course of employment may be shown by circumstantial as well as direct evidence. Peoria R. Terminal Co. v. Ind. Board, 116 N.E. 651; Ohio Bldg. Safety Vault Co. v. Industrial Bd. 115 N.W. 149; Dixon v. Andrews, 103 A. 410.
Expert opinion evidence is not always essential to making sound findings of fact regarding course of employee's incapacity. Craivley's Case, 153 A. 184.
A motion to dismiss the appeal, based upon alleged delay on the part of appellant to have settlement of the statement of the case made, briefs filed, and the record transmitted to this court within the time prescribed by law, was made prior to the argument on the merits. There was delay on the part of the appellant, but in our judgment, the showing made as to change in politicial administration, the re-organization of the Attorney General's department and the consequent delays incident thereto, excuses the delay and the appellant is entitled to have the case heard upon the merits.
For over twenty years the plaintiff has been an employee of the State "working at his trade as a butcher at the state hospital for the insane at Jamestown, North Dakota."
It is the contention of the plaintiff that in the course of employment he injured his right eye so that he "has lost at least 90% of the vision of that eye, and is permanently and severely injured, and has suffered pain and suffering because thereof, and has been required to expend large sums of money for medical attention to said eye." The bureau disallowed the claim and on appeal to the district court the case was heard without a jury.
The court found that the injuries were sustained during the course of the employment and allowed plaintiff compensation for one hundred weeks at the rate of $ 14.17 per week, allowed medical expenses incident to the injury in the sum of $ 140.33, and allowed him $ 150.00 as attorneys' fees. Judgment in accordance with these findings was entered and the defendant appeals.
The sole issue is whether the plaintiff has established that he received his injury during the course of employment.
"The burden is upon the claimant to prove, by a proponderance of the evidence, that the injury, for which compensation is claimed was received in the course of the employment." Dehn v. Kitchen, 54 N.D. 199, 209 N.W. 364; Pace v. North Dakota Workmen's Comp. Bureau, 51 N.D. 815, 201 N.W. 348. Such burden "is not sustained by mere surmise or conjecture, and a purely speculative case is not within the protection of the statute." Pfeiffer v. North Dakota Workmen's Comp. Bureau, 57 N.D. 326, 338, 221 N.W. 894.
On appeal the findings of the trial court are presumed to be correct. Gotchy v. North Dakota Workmen's Comp. Bureau, 49 N.D. 915, 194 N.W. 663.
In September 1931 the defendant noticed that his right eye had become inflamed. A year before this an ulcer had formed in the eye, a scar was caused, and he had received treatment for inflammation. The record shows however, that this first affection had been cured. However, the second was somewhat similar and it was discovered that the cornea was inflamed at a spot near where the previous inflammation had been. The plaintiff was treated by various doctors and there is no question but what his eye is permanently injured to the extent found by the trial court.
The one doctor who testified stated that he never knew the cause of the accident; that in the course of the treatment the patient did not tell him the cause of the accident and, apparently, did not know what caused the injury; that nothing was said about it; that the ulcer had been caused by some break in the cornea which would permit entrance of germs and thus an infection start; that an object such as a cinder, a grain of sand, or a fine piece of glass sharp enough to penetrate the eye ball could cause the abrasion; that some time prior to this second infection plaintiff had been vaccinated and possibly by means of rubbing the eye some vaccine had reached the eye; but that so far as he knew the infection which caused this ulcer would not come from vaccination. He thought if there had been an injury to the eye prior to vaccination, and some of the vaccine was rubbed into the eye by means of the finger, it would have a tendency to inflame the eye; but was positive there was no connection between the two injuries.
Letters written by doctors connected with the clinic in St. Paul were introduced and in one of the letters the doctor stated that the "second ulcer is undoubtedly dependent upon the former and may have broken down without any attending injury." He stated that the cause ...
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