Pittman v. Pillsbury Flour Mills

• Decision Date: 13 July 1951
• Docket Number: No. 35536,35536
• Citation: 234 Minn. 517,48 N.W.2d 735
• Parties: PITTMAN v. PILLSBURY FLOUR MILLS, Inc. et al.
• Court: Minnesota Supreme Court

Page 735

48 N.W.2d 735

234 Minn. 517

PITTMAN v. PILLSBURY FLOUR MILLS, Inc. et al.

No. 35536.

Supreme Court of Minnesota.

July 13, 1951.

Syllabus by the Court.

1. Where it is proved that an apparently healthy employe was injured in the course of his employment; that cancer developed at the point of injury; that subsequently he became totally disabled and later died of cancer; and it was the opinion of qualified medical experts that the injury either initiated the cancer or aggravated an existing cancer, the industrial commission's finding that the employe's disability and death resulted from his injury was justified by the evidence. Notwithstanding the lack of adequate medical knowledge relating to cancer, in the present case it cannot be said that the industrial commission's finding rests upon speculation and conjecture.

2. The amount of death benefits to which an employe's dependents are entitled under the provisions of M.S.A. § 176.12, subd. 19, is governed by the law in effect at the time of the employe's death.

Snyder, Gale, Hoke, Richards & Janes, Minneapolis, for relators.

Samuel I. Sigal, Minneapolis, for respondent.

LORING, Chief Justice.

This case comes to us on certiorari to the industrial commission to review an award of compensation to a widow, Rose Pittman, whose husband, Ernest F. Pittman, died of cancer. Hearings were held before a referee, who made findings in favor of respondent, the widow. Relators, the employer and its insurer, appealed from the referee's findings. The industrial commission affirmed the referee's findings, but made certain arithmetical changes in his determination of damages. Relators were held liable for compensation during dependency not to exceed the total sum of $10,000.

May 1, 1946, Ernest F. Pittman, who was then about 47 years of age, was employed by Pillsbury Flour Mills, Inc., as a safety man. His work consisted of going through employer's mill, checking dangerous places, and making and installing guards to protect employes of the mill. May 1, 1946, he was making a metal guard and, in the process, was drilling a piece of heavy iron with an electric drill using a 1/4-inch bit. The piece of iron was in a vise. The drill was of the hand type with a trigger like a pistol. He had the drill in his right hand, with his right index finger on the trigger and his left hand supporting the drill. He was leaning his body against the back of the drill, which was hexagon-shaped and weighed approximately six pounds.

When a hole is drilled through a piece of metal, the bit of the drill may catch on a small particle of metal and will then go through faster than it is drilling. When the bit encounters a slightly thicker piece of metal, it may catch and stop, but the motor continues. This causes the drill to jump. While employe was drilling iron on the day in question, his drill jumped, presumably in the manner described above. In any event, the drill suddenly turned in his hands, and the body of the drill hit him on the nipple of the right breast. He had immediate pain in the right breast, and it was particularly sharp for a few minutes after the accident. However, he continued to work the remainder of the afternoon until quitting time at 4:30 p.m. By 5:15 p.m., the area that had been struck by the drill began to swell and discolor a little. That same evening, about 7 or 8 p.m., employe's wife massaged the injured area first without alcohol and later with alcohol. The injured area was swollen and red but not hard. By bedtime that evening, there was an area of swelling and discoloration which the Pittmans estimated to be approximately 1 1/2 inches in diameter around the nipple of the right breast. Employe had never had any swelling or discoloration in the right breast prior to the accident.

Between May 1, 1946, and July 25, 1946, Mrs. Pittman frequently massaged the injured area. The discoloration of the injured area was at first reddish, later slightly bluish, and still later slightly yellowish. The swelling increased, becoming a little harder or tighter between May 1 and July 25, 1946. Soreness in the injured area continued for one week or more after the accident. The soreness disappeared, but the swelling slowly continued. July 25, 1946, employe went to Dr. Edward Alger, employer's company doctor. At the time, the swollen area was becoming a little hard, and the nipple of the right breast had sunk back a little into the swelling. On the same day, Dr. Alger referred employe to Dr. A. T. Hays, who made a general physical examination, which showed employe's health to be essentially normal, except for the condition of his chest. Dr. Hays made the following statement about Pittman's breast injury: '* * * There was noted on his chest at examination and in the right breast underlying the tissues a mass underlying the tissues approximately 2 1/2 in diameter. It is firm and feels somewhat nodular and underlies the nipple and areola and extends outward peripherally and it is not tender and it is attached to the underlying skin with evidence of dimpling and retraction of the nipple. It does not appear to be attached to the underlying fascia. There were no palpable axillary infra or supra clavicular nodes. The left breast was normal. Blood examination was done at that time which revealed a hemoglobin of 94, white blood cell count of 7,000 and a red blood count of 5,000,000. Urine examination was also done which was found to be normal. X-ray was taken of his chest at Dr. Hanson's office which was reported as being normal chest.'

An examination of the abdomen was also made at the same time. 'With respect to this examination, Dr. Hays reported as follows: 'An examination of the abdomen revealed no masses, tenderness or hernia. The liver is not palpable nor are there any palpable masses beneath the rib region. The spleen was not palpable.'

After making the above examination, Dr. Hays made a tentative diagnosis of employe's ailment as being tumor of the right breast and possible carcinoma. He recommended surgery to remove the tumor and such other treatment as might be indicated by a microscopic identification of the tumor.

A few days later, August 1, 1946, employe was admitted to Northwestern Hospital, and an operation was performed on that date. A right breast tumor and the nipple of the right breast were removed. A radical mastectomy or resection was performed. A frozen section or biopsy was performed on the tumor. The pathologist reported a microscopic specimun showing a tumor measuring 5 cm. in diameter, grossly malignant, with axillary nodal involvement. In the microscopic specimen, the glandular elements on the breast showed malignant degeneration. A section of the axillary node revealed cords and glandular structure replacing most of the normal structure. The diagnosis by the pathologist was carcinoma of the right breast, scirrhous type, with axillary metastasis.

The employe was confined in Northwestern Hospital from August 1 until August 30, 1946. On October 14, 1946, he returned to work. After he returned to work, his right arm remained painful and weak. If he worked too hard, his right arm would swell and become tight. In April 1947, he went to Rochester, Minnesota, for an examination at the Mayo Clinic. He continued working from October 14, 1946, until November 24, 1949, except for a fourmonth period in 1948 and a three-day period in 1949 when he was suffering from skin trouble and unable to work.

On November 24, 1949, employe was compelled to cease work because of coughing and weakness. He remained away from work continuously from November 24, 1949, until he died February 26, 1950. During his last illness, when he suffered from coughing and weakness, he was being treated by Dr. W. A. Sawatzky.

February 28, 1950, an autopsy was performed. The autopsy findings, as testified to by Dr. Moses Barron, were as follows: '* * * The right breast was absent; lymph nodes were enlarged and involved definitely with the tumor; the lungs were not only destroyed, but they were really enlarged with the massive infiltration. Then the rib that was very greatly involved with a large mass of tumor and involvement of both adrenals, the findings were very obvious. Very massive metastatic carcinoma, most likely primary in the breast which had been operated on, with the report that came from the operation of an adenocarcinoma of the scirrhous type.'

Respondent called four doctors as expert witnesses; relators called two, one of them a pathologist. Their testimony will be set forth as it becomes pertinent.

1. Relators' principal assignment of error is that the evidence is insufficient to support the industrial commission's finding that employe's total disability from November 24, 1949, to February 24, 1950, and his death on February 26, 1950, resulted from his accidental injury on May 1, 1946. The gist of relators' contention in this case is that, because of inadequate medical knowledge relating to cancer, it is impossible to prove that this particular cancer was either caused or its course of development accelerated by the injury which plaintiff's husband sustained in his work; hence, that any finding on these matters rests entirely upon speculation and conjecture. It is relators' contention that employe's cancer predated his injury; that at the time of the injury the cancer had already spread to such an extent that successful operation was impossible, and that employe's ultimate disability and death from the cancer were certain, in all events, and most likely to occur within five years. The principal point which relators seek to make is summarized in the following excerpt from page 31 of their brief: '* * * It has been our purpose to direct the attention of this Court to the testimony as to this particular case--to the lack of any facts to show that this cancer was either actually aggravated by the alleged accident and to the fact that we could have had exactly the same...