Maryland Casualty Co. v. Industrial Commission of Utah

• Decision Date: 09 May 1929
• Docket Number: 4801
• Court: Utah Supreme Court
• Parties: MARYLAND CASUALTY CO. et al. v. INDUSTRIAL COMMISSION OF UTAH et al

278 P. 60

74 Utah 170

MARYLAND CASUALTY CO. et al. v. INDUSTRIAL COMMISSION OF UTAH et al

No. 4801

Supreme Court of Utah

May 9, 1929

Original proceeding by the Maryland Casualty Company and another against the Industrial Commission of Utah and Margaret Reeves to review an award under the Workmen's Compensation Act in favor of last named defendant.

AWARD ANNULLED.

Bagley Judd & Ray, of Salt Lake City, for plaintiffs.

George P. Parker, Atty, Gen., and M. Logan Rich, Asst. Atty. Gen for defendants.

CHERRY C. J. STRAUP, ELIAS HANSEN, EPHRAIM HANSON, and FOLLAND, JJ., concur.

OPINION

CHERRY, C. J.

This proceeding is to review an award of compensation made by the Industrial Commission under the Workmen's Compensation Act (Comp. Laws 1917, §§ 3061-3165, as amended) in favor of Margaret Reeves, upon findings that she sustained an accidental injury to her back in the course of her employment by S. H. Kress & Co. in its store at Salt Lake City, which resulted in her disability.

The award is assailed upon the grounds (1) that there was no substantial evidence to support the finding of the commission that the disability of the employe was caused by, or was the result of, an accident, and (2) that the claim was barred by the statute of limitations. The evidence of the accident and its causal connection with the disability is brief and undisputed. At noon on October 12, 1926, the employe, in the course of her employment, was going down stairs to her work when she slipped and fell and struck upon her back. She thought the injury not serious, and declined to go to a physician. She worked the afternoon of the day of the accident, but remained at home for the succeeding three days. She then resumed work, and continued in her employment until December 19, 1927, when she discontinued work. On June 23, 1928, she filed her application for compensation. She testified that when she fell she struck her back, that since that time she had some trouble with her back, and that it has been growing progressively worse; in December, 1927, she was operated on for appendicitis, which gave her no relief, and that since she has been under the care of Dr. Van Scoyoc.

Dr. Van Scoyoc testified that he first examined the employe on February 28, 1928; that she gave him a history of having been sick for quite a while and of being in the County Hospital to have her appendix out; that she had not been relieved by the operation; that she had thereafter been treated by Dr. Alexander, who thought he found something in her lung, and he sent her down to the witness for examination with special reference to the lungs. Dr. Van Scoyoc examined her, and thought he found some sort of a mild infection in her right lung, but could not prove it without an extensive study of X-rays. He stated:

"I went over this back situation that she complained of. First I put her in bed and thought that she would clear up by rest in bed. I went to see her a number of times. I used to go out there about twice a week or something like that. I examined her back carefully one day out there and she seemed to have some tenderness down on the right side and as near as I could make out, it extended down over the sacro iliac joint, and some of the pains seemed to be higher. At that time I learned--I learned her back history. At the office she told me of the fall she had at the store. She rather minimized that herself, but her mother told me she was off three days with it, and her mother saw the lady who had charge down at the store."

Upon being asked if he would care to venture an opinion whether her trouble in her back was the result of the fall, the doctor replied:

"No, other than the history is like that condition, she didn't think she hurt herself enough for medical attention. They wanted to send her a doctor, but she was opposed to doctors, as I remember. Her back hurt her, she said, for about three days, and her condition has gradually grown worse since that time, according to her story. I would not want to make a positive statement, but I would not be surprised from her history, if that wasn't due to some injury. Whether it was or not, I don't know."

It was then agreed that Dr. Van Scoyoc should obtain X-ray pictures, consult with Dr. D. K. Allen, and submit in writing his opinion as to the present disability of the employe and the cause thereof. Later a report of X-ray examination dated August 3, 1928, was filed with the commission as follows:

"Examination of lumber spine shows no definite abnormality. The right sacro iliac joint is less clear out in appearance than the left. There is rudimentary spina bifida at the top of the sacrum.

"Suspicious of right sacro iliac arthritis."

Drs. Van Scoyoc and Allen signed and filed a report dated August 8, 1928, as follows:

"Relative to the examination of Margaret Reeves, employee of Kress Company, we are unable at this time to make a definite diagnosis.

"This claimant has tenderness of the lumbar muscles on the right side, with more or less oedema, she has some tenderness over a right sacro iliac joint as well as tenderness over the dorsal vertebra.

"We are unable to say whether this infection is traveling down into the lumbar muscles from this area or not, but it is suspicious of a condition of this type.

"We recommend that this claimant be placed in a hospital for a month for observation and treatment as her condition warrants hospitalization."

On August 20, 1928, without any further evidence or medical reports concerning the nature of the physical condition of the employe, or the cause thereof, the commission made its findings to the effect that the employe in the course of her employment sustained an accidental injury resulting in sacroiliac arthritis, causing disability on and after December 19, 1927, and awarded compensation from that time.

We think the evidence is insufficient to support a finding that the employe is suffering from a disability caused by the accidental fall. The evidence amounted to only a suspicion that she was affected with sacroiliac arthritis. The doctors were unable to make a definite diagnosis, and recommended further observation. The physical cause of her disability is therefore left in doubt. The accident occurred over a year before the disability. Appendicitis and lung infections were shown to have intervened. The doctors were unable to discover from what physical ailment the employe was suffering, or what disabled her. To say from this evidence that she was suffering from sacroiliac arthritis, which was the result of an accidental fall occurring more than one year before, is mere surmise. It is not a conclusion based upon any reasonable basis of fact, and cannot be sustained.

The next question is whether the employe's claim for compensation is barred because not presented or filed with the Industrial Commission within one year from the date of the accident. The accident occurred October 12, 1926, and the claim was filed June 23, 1928. While the Workmen's Compensation ...