Purity Biscuit Co. v. Industrial Commission

• Decision Date: 17 January 1949
• Docket Number: 7096
• Citation: 115 Utah 1,201 P.2d 961
• Court: Utah Supreme Court
• Parties: PURITY BISCUIT CO. et al. v. INDUSTRIAL COMMISSION et al

201 P.2d 961

115 Utah 1

PURITY BISCUIT CO. et al. v. INDUSTRIAL COMMISSION et al

No. 7096

Supreme Court of Utah

January 17, 1949

Original Proceeding By The Purity Biscuit Company, Employer, And The Liberty Mutual Insurance Company, Compensation Insurance Carrier, To Review An Award of The Industrial Commission In Favor of R Irwin Vincent, Claimant.

Award sustained.

Critchlow & Critchlow, of Salt Lake City, for plaintiffs.

Grover A. Giles and Herbert F. Smart, both of Salt Lake City, for defendants.

Wade Justice. McDonough, J., concurs. Wolfe, Justice (concurring specially). Latimer, Justice (dissenting). Pratt, C.J concurs in the views expressed by Latimer, J.

OPINION

Wade Justice.

The plaintiffs, Purity Biscuit Company, the employer and Liberty Mutual Insurance Company, the compensation insurance carrier, obtained this writ for a review of an Industrial Commission award of compensation and payment for medical attention to defendant R. Irwin Vincent an employee of the Biscuit Company.

There is no dispute in the evidence either on the facts as they occurred or on the cause of the injury. There is some question as to what inferences should be drawn from the known facts. At the time of the injury, Vincent had been employed by the biscuit company for a year and seven months as a delivery truck driver, and as such, his duties required him to lift as much as 70 pounds in taking the packages which were to be delivered from the truck to the places of business of his employers customers and in helping to load his truck in the warehouse. Thus his employment entailed some heavy lifting and in doing so at times constant stooping and bending of his back.

On March 14, 1947, while driving his truck east on 4th South Street in Salt Lake City, Utah, on his route making deliveries for his employer, as he approached 3d West Street he stopped for a stop sign by applying his foot to the brake. In starting, as he raised his foot from the brake pedal, he was seized with a violent pain in the small of his back and down both legs. At first he was unable to move his legs but managed to drive the truck eastward for a distance of five blocks across State Street where, being unable to put his foot on the brake pedal, he drove into the curb and stopped at the Utah Oil Station at the intersection of 4th South and State Streets. There an attendant of the station called the biscuit company and he was picked up and taken to its plant and later to Dr. Okelberry's Salt Lake Clinic where Dr. Okelberry examined his back and legs and took X-ray pictures of his lumbar spine, then sent him to the L. D. S. Hospital where he remained until the 17th or 18th of March. When the Doctor first examined him, he was suffering severe pains in his back and his legs were paralyzed. On March 20th, Vincent returned to Dr. Okelberry who again examined him and found him greatly improved and without paralysis of the legs or acute pain. At that time the doctor recommended to Vincent and sold him a belt to wear around his waist, and advised him to avoid all work in the future which required any heavy lifting. Thereafter applicant asked the biscuit company for work not entailing heavy lifting but was told that they had no such work available for him, whereupon he enrolled in the L. D. S. Business College under the G. I. Bill of Rights which school he was attending at the time of the hearing.

Apparently the Industrial Commission found that the constant stooping and bending in lifting heavy packages required by his work aggravated and contributed in causing an unhealthy diseased condition in his spine. That such condition reached the critical point where, at the time he suffered this acute pain in his back and legs, the pressing of his foot on the brake pedal and then releasing it with the necessary movements accompanying that operation caused an acute rupture or sudden protrusion of the cartilaginous tissue known as the intervertebral disc into the spinal ligaments and nerve roots thereby causing paralysis of his legs and the severe pains in the back. It we conclude that the evidence justifies such a finding then we must determine whether such a finding is sufficient in law to sustain the award.

Is the evidence sufficient to sustain such a finding? Dr. Okelberry gave his opinion that the pressing and releasing of the brake in stopping the truck was not the primary cause of Vincent's back injury. He said that it was possible that

"a little forward tilting of the body, a little bending of the back and a little manipulation of the legs would bring a sudden protrusion of a previously damaged disc, or a previously diseased disc,"

but that would not be the original primary cause. He further testified that 75% of such cases are preceded by an injury to the back which the patient recalls, usually while lifting in a bending position, but "there may be a lot of months or years before a complete protrusion" and disablement occurs, that some times these previous injuries may be trivial but still cause or be a contributing factor in producing a later damaged or diseased condition. According to his testimony, these previous injuries to the back would either cause or contribute to producing a disturbance in the blood supply to this disc which eventually would result in a degenerative change which would create the necessary condition for the protrusion to occur. When the necessary condition for a protrusion exists in the back, whether brought on by damage from lifting or through other causes, or from disease, almost anything may be the immediate cause of the protrusion. A little bending, or twisting of the back or almost any trivial or ordinary movement may cause the protrusion of this vertebral disc into the nervous system and tissues of the spine and thereby bring on acute pain and complete disablement. If Vincent's back was in the condition described by the doctor, he gave it as his opinion that the movement of his legs in applying and releasing the brakes in stopping and starting the truck would be sufficient to cause the protrusion and produce his disablement which he described.

The doctor made no claim that there was any possibility of this protrusion occurring without some movement of the back or the muscles leading thereto. He does not even suggest such a possibility either in a normal back or one which has been damaged by bending and lifting or by disease or both. His whole theory for accounting for or determining what had happened was that defendant's back had been weakened or deteriorated by disease or by bending and lifting or both until it had reached the condition where a slight movement of the back would and did cause this disc to protrude into the nerves and ligaments of the spine which caused the pain and disablement of the defendant. Defendant's counsel do not contend otherwise. The evidence was sufficient to support a finding to that effect.

Defendant's counsel contends that the commissioners' decision was to some extent made in reliance upon the doctor's testimony that the condition of decedent's spine might have been aggravated by the bending and lifting which he was required to do in his work. He contends that the evidence does notsupport a finding to that effect, and even if it did, such a finding would not aid in supporting the award. Since the conclusion we have reached is not based on such being the fact, it is not necessary for us to discuss or express any opinion on the question of whether the evidence would sustain a finding that such was the fact or on whether such fact would tend to sustain an award.

Do the facts which we have shown to be supported by the evidence justify the award? Such facts show that the movements of the body normally required to perform the tasks of his job was the immediate cause and contributing factor in producing an internal failure or breakdown in defendant's body. Had defendant been in normal health such movements would have caused him no harm. Such movements were merely the normal exertions required every day in his work and were no heavier than are required by the normal activities of life during leisure hours. The evidence here shows that there normal exertions were a contributing cause of an internal failure on defendant's spine which completely disabled him for a short time. Our problem is to determine whether such facts constitute a compensable accidental injury. This court has twice discussed this problem but has never directly determined it. See Dee Memorial Hospital Ass'n v. Ind. Comm., 104 Utah 61, 138 P. 2d 233; Robertson v. Ind. Comm., 109 Utah 25, 163 P. 2d 331.

In Dee Memorial Hospital Ass'n v. Ind. Comm., supra , the applicant suffered a heart attack after continuous overexertion while doing much heavier but the same type of work that he usually did. There was no exact time or effort which could be fixed upon as the one which caused the attack but experts testified that the exertion was a contributing cause in producing it along with a previous heart ailment. Mr. Chief Justice Wolfe wrote the opinion of the court and after an exhaustive review of our previous decisions and the decisions of the English courts and the courts of other states of this country, in which he pointed out that the decisions of the English courts and the courts of many of the states of this country hold, quoting from the article cited below, that

"'nothing more is required than that the harm that the plaintiff has sustained shall be unexpected. * * * The element of unexpectedness inherent in the word "accident" is sufficiently supplied * * * if, though the act is usual and the conditions normal, it causes a harm unforeseen by him who suffers it.'"

See "The Drafting of the Workmen's Compensation Acts" by Francis...