Nyberg v. Little Falls Black Granite Co.
| Decision Date | 04 February 1938 |
| Docket Number | 31,347 |
| Citation | 277 N.W. 536,202 Minn. 86 |
| Parties | REGINA NYBERG v. LITTLE FALLS BLACK GRANITE COMPANY AND ANOTHER |
| Court | Minnesota Supreme Court |
Certiorari upon the relation of Little Falls Black Granite Company, employer, and Consolidated Underwriters insurer, to review an order of the industrial commission awarding compensation to Regina Nyberg as widow and dependent of Olof Nyberg, employe. Affirmed.
See 192 Minn. 404, 256 N.W. 732.
Workmen's compensation -- injury arising out of and in course of employment.
1. There is sufficient competent evidence to sustain the industrial commission's decision that a tubercular infection which developed in an employe's knee and his subsequent death from pulmonary tuberculosis were due to an injury to his leg suffered in the course of his employment.
Workmen's compensation -- proceeding for compensation -- limitations -- proceeding by dependent after death of employe.
2. The workmen's compensation act contemplates only one proceeding to enforce the compensation rights of both the employe and his dependents arising from the one casualty, and the commencement of this proceeding by the employe during his lifetime tolls the limitation provisions of 1 Mason Minn. St. 1927, § 4282, relating to proceedings by dependents. Proceedings by the latter after death of the employe are a reopening or continuance of the proceeding commenced by the employe, and not new, separate, and distinct proceedings.
Sweet, Johnson & Sands and Roy J. Brumfield, for relators.
Frederick J. Miller and Leonard L. Sumner, for respondent.
Certiorari to review an award of compensation to Regina Nyberg, widow and sole dependent of Olof Nyberg.
A somewhat elaborate statement of facts is necessary. November 16, 1926, Nyberg, then 53 years old, was working in one of relator's quarries and on that day was on the ground in the quarry holding a bull set, which is a tool used in cutting and trimming stone. It has a metal head with a chisel edge on one end and a pounding surface on the other. Attached to this head is a handle for holding the tool. Nyberg was in a squatting position, holding the handle of the bull set in both hands, with his left elbow resting on his left leg somewhere near the knee. His son was pounding the bull set with a sledge hammer, and as he struck it the blow jarred the handle and jerked Nyberg's left elbow causing a stinging sensation in his left knee. He threw down the tool, rubbed his knee for a few moments, and then returned to work. He felt some pain and a rather numb feeling for the balance of the day and the following few days, but continued at his work. However, about four or five days after the incident his knee began to swell and become discolored, and the pain became more intense. He went to see a Dr. Hall, who diagnosed the condition as water on the knee and suggested operating. Nyberg wished to avoid an operation if possible, so hot water applications and an iodine treatment were prescribed. This treatment was not successful, and December 16, 1926, he was operated on by Dr. Hall, who then diagnosed the leg condition as an acute stage of traumatic bursitis. He was discharged from the hospital about a week later, but testified that his knee was large and swollen for some time thereafter, and he could not notice much improvement.
Nyberg returned to work for the relator March 1, 1927, but quit again within a week. Thereafter he worked for short intervals for various granite or stone companies until March, 1930. He did not work again after that time. During the period from March, 1927, to March, 1930, his knee was swollen and sore and became progressively worse. The pain, discomfort, and inconvenience increased until he was no longer able to stand on his leg. During all this time be consulted several doctors, one of them diagnosing the knee ailment as a low-grade inflammatory condition in the joint.
Nyberg continued to have trouble with the leg. Early in 1933 X-rays revealed a definite destruction of the knee joint and cartilage and a bulge, which was a cold abscess, in the popliteal space. This abscess broke in March, 1933. A sputum test made April 4, 1933, was positive for pulmonary tuberculosis. X-rays taken shortly thereafter revealed an advanced stage of pulmonary tuberculosis and also the existence of a tubercular left knee. The left leg was amputated above the knee in August, 1933, following which Nyberg was removed to the state tuberculosis sanitarium at Walker, Minnesota. He remained there until his death March 15, 1935. The primary cause of death was pulmonary tuberculosis.
Deceased claimed compensation shortly after the accident and injury in 1926. He was paid $140 for seven weeks' compensation, and also received his medical and hospital expenses incurred during that period. These were the only payments made to him. Thereafter he demanded additional compensation and medical benefits, but after investigation relator filed a denial of liability with the industrial commission. November 7, 1932, Nyberg commenced the instant proceedings before the commission, and the matter was referred to a referee. Upon stipulated facts, relator moved for a dismissal on the ground that the proceedings were not instituted within two years after filing of the report of injury by the relator with the commission. The denial of this motion was ultimately affirmed upon certiorari from this court. Nyberg v. Little Falls Black Granite Co. 192 Minn. 404, 256 N.W. 732.
Thereafter the matter was again referred to a referee. The hearings were adjourned from time to time and extended over a period of about a year. Upon Nyberg's death, his widow, respondent herein, moved to be substituted in his place as petitioner and asked for permission to litigate her dependency claim in these proceedings, in addition to the claim of her husband for compensation and other benefits to which he was entitled during his life. This motion was granted over relator's objections. After the conclusion of the hearings, the referee made findings in favor of the respondent and awarded the compensation found owing to Nyberg during his lifetime, dependency benefits, and medical and funeral expenses. These findings were adopted by the commission, one commissioner dissenting, and certiorari was thereupon issued from this court to review the award.
The first question raised relates to the sufficiency of the evidence to sustain a finding of causal relationship between the accident November 16, 1926, and the subsequently diagnosed tuberculosis of the left knee. Eleven medical experts testified in the proceedings below. Those testifying on behalf of the petitioner stated that in their opinion there was a definite and direct connection between the trauma and the tubercular knee. It was their opinion that a dormant or arrested tubercular condition existed in Nyberg's knee at the time of the accident, which was aggravated or excited into an active state as the result thereof. It is conceded that if this is what occurred the resulting disability is compensable.
It appears that joint tuberculosis is a secondary infection to pulmonary tuberculosis. There is evidence that the area directly under the place where Nyberg injured his knee is a likely and fertile ground for dormant tuberculosis germs. All experts testifying in the case agreed that a dormant tubercular condition could exist in the knee and that a slight trauma could aggravate or light it up into activity. Those testifying on behalf of the relator conceded that this may have happened in Nyberg's case. However, they were of the opinion that the existence of the tubercular condition in the injured knee was mere coincidence and not the result of any causal relationship between the injury and the tuberculosis, while the experts testifying for petitioner were of the opposing opinion, already stated.
The tuberculosis in the knee was not diagnosed until 1933. If the inference therefrom was that the tuberculosis did not develop until shortly prior to its diagnosis, petitioner's case would be materially weakened, perhaps to the point of defeating her claim to compensation. However, the evidence almost conclusively establishes that the tuberculosis in the knee became active shortly after the accident, although it was not correctly diagnosed until several years later. Many medical experts expressed an opinion that such was the case. One medical witness testified that the knee X-rays could have easily been misinterpreted, even in the late stages of tuberculosis, and that the symptoms revealed thereby might appear to be arthritis. Another, testifying for the relator, stated that in 1928 he diagnosed Nyberg's knee condition as a low-grade inflammatory reaction. However he admitted that this could indicate a tubercular condition, and also stated that in his opinion an X-ray taken of the knee in 1928 undoubtedly disclosed a tubercular condition, and that this condition was consistent with tuberculosis of two years' standing. A Dr. Wynne, testifying for relator, frankly admitted that he erroneously diagnosed Nyberg's knee condition in 1928 as a low-grade infectious arthritis, and that deceased then had a tubercular infection in the knee which was consistent with the starting...
To continue reading
Request your trial