McKinnon v. North Dakota Workmen's Compensation Bureau

• Decision Date: 28 August 1941
• Docket Number: 6743
• Citation: 299 N.W. 856,71 N.D. 228
• Court: North Dakota Supreme Court

299 N.W. 856

71 N.D. 228

MRS. HESTER McKINNON, Respondent, v. NORTH DAKOTA WORKMEN'S COMPENSATION BUREAU, Appellant

No. 6743

Supreme Court of North Dakota

August 28, 1941

Syllabus by the Court.

1. The Workmen's Compensation Act, Laws 1919, c. 162, § 1 et seq., does not cover diseases contracted by an employee outside of his employment; and where compensation is sought on the theory that the death of the employee was caused by disease, it must be shown that the disease was approximately caused by the employment.

2. Where the alleged origin of such disease is purely speculative and the disease may equally well have been caused by factors unconnected with the employment, the burden of proof has not been sustained, and no compensation can be allowed.

3. Evidence examined, and it is held : The plaintiff has failed to show that the disease from which the worker died was approximately caused by his employment.

Appeal from District Court, Nelson County; P. G. Swenson, Judge.

Proceeding under the Workmen's Compensation Act by Mrs. Hester McKinnon, claimant, to recover for the death of Ronald McKinnon, an employee of the North Dakota State Highway Department as an engineer. The claim was rejected by the North Dakota Workmen's Compensation Bureau, and the claimant appealed to the district court. From a judgment of the district court for the claimant, the North Dakota Workmen's Compensation Bureau appeals.

Judgment of the district court reversed and action dismissed.

Alvin C. Strutz, Attorney General, and A. M. Kuhfeld and Lynn G. Grimson, Assistant Attorneys General for appellant.

Burtness & Shaft, for respondent.

Burr Ch. J. Christianson, Morris, Burke, and Nuessle, JJ., concur.

OPINION

BURR

On March 2, 1939, Ronald McKinnon, while an employee of the North Dakota state highway department as an engineer, died from lobar pneumonia. The plaintiff, his wife on behalf of herself and her infant child, applied to the bureau for compensation, which was denied on the ground the disease was not "approximately caused by the employment." Plaintiff appealed, and the matter was tried to the court without a jury. Judgment was ordered for the plaintiff, and defendant appeals.

The record shows the employment of the deceased began in July, 1938, when he worked at Larimore, and later at Hillsboro. During this time he lived at Grand Forks, and drove back and forth every day to Larimore and to Hillsboro. Thereafter he worked in snow prevention work around Finley. In the following December he was assigned to a job near Petersburg. Here, in February, 1939, he was working at a gravel pit. The camp car was about six feet by eight feet, had a single layer of siding, was heated by a coal laundry stove, which would overheat the car, so the door had to be opened. It was part of his business to go out to the pit to test gravel. Several employees made use of the office, and some of them had common colds.

During this month, the temperature ranged from 39 degrees above to 33 degrees below zero. While the record showed 32 below on the twentieth of February and 18 below on the twenty-fourth of February, these were the night records. The high records for the same period were from 4 below to 33 above. The deceased had a cold for some time, and drove to Grand Forks on February 27 to consult Dr. Robertson, who found no chest congestion. The next day he left his job and drove in an automobile from the camp to his home near Clyde, North Dakota, a distance of approximately one hundred miles, as he was accustomed to do each week-end.

The following day Dr. Mulligan was called. The deceased had developed a temperature which went as high as 105, and the doctor diagnosed his case as pneumonia. He found the deceased "congested throughout the whole chest."

Section 1, chapter 286 of the Session Laws of 1935, amending § 2, chapter 162 of the Session Laws of 1919, provides, with reference to injuries which are compensable, "The term 'injury' includes in addition to any injury by accident, any disease approximately caused by the employment."

The sole question here is whether the plaintiff has shown the lobar pneumonia was "approximately caused by the employment."

There is a distinction between a physical injury occurring in the course of employment and a disease approximately caused by the employment. A compensable injury need not arise out of the employment, nor be caused by the employment. However, the injury is compensable if received in the course of employment. But a disease from which a worker dies must be one approximately caused by the employment in order to be compensable.

Five doctors testified -- three produced by the plaintiff and two by the defense. There is little vital difference in the testimony of these experts. All were agreed that the time of origin of the trouble was a matter of speculation; that there are many different factors entering into the subject.

From these experts we learn there are thirty-two types of pneumococci pneumonia, and approximately twenty-five other kinds; the germs may be latent in a patient for an indefinite time; large numbers of people carry them about all of the time; just where these come from cannot be told; they become active according to place, condition, extent of resisting power, and many other factors. As Dr. Robertson, one of plaintiff's witnesses, shows, the practitioner forms a conclusion as to "the type of spread (of the infection) depending upon whose book you happen to read." He further stated that the authorities agree the germ is present in the throat under normal conditions. He later testified: "The controversial part, as to whether or not lowering of resistance, or of cold, as you are interested in, can cause this, again you find evidence on both sides, and Osler, I believe, and McCurry, who later revised his text, is a good authority. He states that such is the case. In Tice's series he states that such is the case. In some of the more recent articles appearing in magazines they state that it is not true, that the bug is there always and just enters by way of lowered resistance or by over-powering the affection it attempts to assume. This is not a discourse, but I want to get it off my chest. They will say that bronchial pneumonia probably is caused, or is more likely to take place in thermal changes, that is, exposure to changes in temperature, that lobar pneumonia does not so frequently occur this way. And again the same individuals state that lobar pneumonia at the start is essentially a bronchial pneumococci condition. There again you can have your choice."

This is typical of the testimony given by all of the experts. After listening to a lengthy hypothetical question, embracing most, if not all, of the facts adduced with reference to exposure, Dr. Robertson was asked as to the "most probable precipitating cause of his contracting pneumonia." He answered, "I would say this: I would not say that is the cause, but it is my sincere conviction that it could be the cause."

Plaintiff's witness Dr. Mulligan, when asked if he could tell "when the pneumonia took a hold," answered, "No, I couldn't tell you." When asked, "You couldn't tell about how advanced it was?" he answered, "It was a fulminating thing, very fulminating. I don't know how long he had been feeling badly." In a question addressed to him, it was stated, "We want to know whether it was just a plain case of pneumonia or whether it could be proximately caused by his employment on the highway." The doctor answered, "Of course, I certainly would hate -- It is impossible to give a definite statement. It is certainly possible. I don't know under what condition he was working. If he would be working outside and didn't get warm and go outside again, it certainly is possible that...