Pfeiffer v. N.D. Workmen's Comp. Bureau, 5591.

• Decision Date: 10 November 1928
• Docket Number: No. 5591.,5591.
• Citation: 57 N.D. 326,221 N.W. 894
• Parties: PFEIFFER v. NORTH DAKOTA WORKMEN'S COMPENSATION BUREAU.
• Court: North Dakota Supreme Court

57 N.D. 326

221 N.W. 894

PFEIFFER

v.NORTH DAKOTA WORKMEN'S COMPENSATION BUREAU.

No. 5591.

Supreme Court of North Dakota.

Nov. 10, 1928.

Syllabus by the Court.

While one, claiming the right to be compensated by the Workmen's Compensation Bureau for the result of an injury received in the course of employment by one insured, has the burden of proof to show that the accident caused or accelerated the effect of the affliction from which he is suffering, and cannot be permitted to recover upon a purely speculative basis, nevertheless if competent evidence traces a causal connection between the accelerated condition of the affliction and the accident, and no other cause of acceleration is shown, his claim is not to be rejected simply because the medical profession can only speculate upon the origin of the affliction itself. Even though the origin of such affliction may not be known, if the affliction be in existence at the time of the accident and be accelerated by the accident, the claimant may recover.

Where present knowledge regarding an affliction is such that it is shown an injury could cause such affliction, and no other cause is shown, the claim is not to be rejected as speculative simply because the medical fraternity may be unable to tell or understand how the injury causes the affliction, or explain the processes through which it passes.

Additional Syllabus by Editorial Staff.

In action to recover compensation for injury received during course of employment, evidence held to sustain finding that injury accelerated existing glioma and caused blindness, whereas without injury it would have remained dormant for long period.

Appeal from District Court, Barnes County; A. T. Cole, Judge.

Action by R. A. Pfeiffer against the North Dakota Workmen's Compensation Bureau. Judgment for plaintiff, and defendant appeals. Affirmed.Scott Cameron, of Bismarck, for appellant.

Ritchie & Ployhar and A. F. Greffenius, all of Valley City, for respondent.

BURR, J.

As stated in the brief of the counsel for the appellant:

“This appeal is from a judgment of the district court finding that the plaintiff is entitled to compensation under the Workmen's Compensation Act being in the employ of an employer who had complied with the law relative to the payment of premium at the time of the alleged injury.”

It is conceded that the only issue before the court was whether the blindness of the defendant was caused by an injury received during the course of his employment, or that his condition at that time was such as was accelerated by the injury and therefore caused his blindness. It is conceded his employer was insured and that the plaintiff received the blow during the course of employment. The bureau says that the present condition existing is not the result of this blow and that the blow was so slight as to have no appreciable effect.

In the trial of the case in district court, counsel for the defendant, after the issues had been stated, said:

“I think it is a question whether he is suffering as a result of an injury or disease; if he is suffering from injury there is one or two courses open to the court, either to determine the amount of recovery, or certify it back to the Bureau. If he is suffering from an ailment of the brain which was not induced or aggravated by the injury as we claim, there can be no recovery.”

It is conceded that after the injury complained of had been received, the plaintiff was examined by several physicians, and it was found he was suffering from a glioma and that this glioma caused his blindness. The injury was received on June 28, 1926. Prior to this time, and as early as January of 1926, the vision of the plaintiff had been examined by Dr. Pray of Valley City. It appears that while the defendant was “under an automobile for the purpose of adjusting and repairing the same, the wrench which he was using for the purpose of repairing and adjusting said automobile slipped off from the burr that he was attempting to turn off, fell out of his hand, first striking the frame of the car, and then struck the claimant in the left eye.” This injury dazed him for some time, and in about an hour his employer sent him to one Dr. Spicer. Later the plaintiff went to Owatonna, Minn., and consulted Dr. Senn. From there he went to the Mayo Clinic at Rochester, Minn., where in July, 1926, he was examined by Drs. Adson and Benedict, and subsequently Dr. Benedict operated on him. Later in July of 1926 he was examined by one Dr. Smersch.

Dr. Pray is a qualified and experienced physician and surgeon of over 30 years' practice. He says he has had experience with the growth commonly called glioma; that in January, 1926, he examined the plaintiff for life insurance and during this examination examined his eyes. He found his vision normal. He testified that a glioma was generally believed to be a malignant growth, but it might remain dormant for some time; that such malignant growths lying dormant “are often wakened up by an injury”; and that it is possible a blow could influence it by reason of the locality; that with reference to the testimony of Dr. Adson as to the position of the glioma, a blow struck on the left eye could accelerate it, assuming that it was lying dormant; that such an injury to one eye might cause trouble to the other eye. He also said that if prior to the blow the plaintiff had had his vision corrected by glasses it would indicate the glioma was a dormant one; that such tumors may be of rapid or slow growth. He also stated he did not believe it was necessary to have a blow severe enough to fracture the skull before it would increase the activity of a glioma. He admitted the medical profession did not know yet what was the starting point of such tumors; it was difficult to tell just when they begin or what was the cause, the same as other cancerous growths. He admitted the doctors disagree on some of these points, and stated that when doctors did disagree the lawyers decide. He said that this blow which the plaintiff received might or might not have caused activity of the glioma.

Dr. Senn showed that he had had a good deal of practice, was more or less familiar with such tumors, and said that probably the blow might cause a hemorrhage on what was called the optic sheath. He said that a tumor as outlined might develop under certain conditions between the 28th day of June, 1926, and the 21st day of August, 1926, so as to impair the sight; that some of them were of slow growth and some of them rapid; that mechanical irritation might hasten its rapidity, and it might be possible for the blow to cause the hastening of the failing of the sight. He also stated that a blow of the kind received would probably aggravate the tumor and make it develop, and that without the blow it was quite possible the tumor might have lain dormant for a great many years. He further said that the total blindness of the plaintiff might have been superinduced by the blow on the eye, and that this was his opinion at that time. He showed that in 1922 or 1923 he treated this plaintiff, testing his eyes for glasses; at that time the vision of the left eye was not normal; and that in the summer of 1926 he had had a 20 per cent. vision in his left eye, which was corrected by glasses. He testified that a hemorrhage in the back part of the eye might take place twelve hours after the blow; that it was quite possible the injury plaintiff received “caused the lack of vision without there being any signs of an injury.” He further testified that when he fitted the glasses the sight was fairly good in the left eye, and that he would not have expected to have found such a glioma in the plaintiff's brain at that time; otherwise it is not likely that his vision would have been corrected with the glasses. He said that the troubles the plaintiff experienced at that time were taken care of by the lenses given him.

Dr. Smersch said that he examined the plaintiff on July 5, 1926; that he was told the patient had received an injury by being hit with the wrench; that he examined his right eye at that time and the vision was good; that the vision in the left eye was very slight, the patient being able to read with that eye the largest letters on a chart at a distance of about 20 feet. He saw the abrasion on the left of the left eye right over the cheek bone. He saw him when he came back from Rochester. He had advised him to go to Rochester, and he testified that he believed it was possible for the injury the plaintiff received on the 28th day of June to cause a glioma within the length of time it was discovered. He testified that when he examined...