Robertson v. State Indus. Acc. Commission

• Decision Date: 28 April 1925
• Citation: 114 Or. 394,235 P. 684
• Parties: ROBERTSON v. STATE INDUSTRIAL ACCIDENT COMMISSION.
• Court: Oregon Supreme Court

235 P. 684

114 Or. 394

ROBERTSON v. STATE INDUSTRIAL ACCIDENT COMMISSION.

Supreme Court of Oregon

April 28, 1925

In Banc.

Appeal from Circuit Court, Multnomah County; Robert G. Morrow Judge.

Proceeding for compensation under the Workmen's Compensation Law by William L. Robertson, claimant. Decision of the State Industrial Accident Commission denying compensation was reversed by the circuit court, and the Commission appeals. Affirmed.

This is a proceeding under the Workmen's Compensation Act (Or. L § 6605 et seq.) On July 25, 1923, William L. Robertson, the claimant herein, was in the employ of Stockton Bros., who were engaged in construction work on the Troutdale road in Multnomah county, Or. On that date he suffered an accidental personal injury to his leg, arising out of and in the course of his employment. This much is conceded by the appellant. Within the time provided by the act, the claimant filed with the state Industrial Accident Commission of Oregon a report of his injury, wherein he sought to recover for pneumonia which he claimed resulted from the accidental injury to his leg. On October 2, 1923, the Commission entered its findings and final action, refusing to make any award to the claimant. The claimant appealed to the circuit court of the state of Oregon for Multnomah county. On trial before a jury testimony was adduced upon the part of the claimant, and, the defendant having offered no evidence, the jury returned into court, among other findings, the following:

"In the Matter of the Claim of William L. Robertson Claimant-Plaintiff.

"(1) Did the claimant, William L. Robertson, develop pneumonia as the proximate result of and by reason of the original injury involved herein, and does he now suffer total permanent disability which renders him incapable of performing any work at any gainful occupation by reason of the original injury received by him herein, and the pneumonia contracted and growing out of as a direct and proximate result of and from that original injury? A. Yes. * * *

"(2) Did William L. Robertson suffer an accidental injury by external means to his right leg while employed as a laborer and servant by Stockton Bros., and did this injury arise out of and in the course of his employment? A. Yes. * * *

"(9) Was William L. Robertson confined in a hospital as the result of said injury so received and because of the pneumonia growing out of and as the direct and proximate result of said injury to his right leg involved herein? A. Yes. * * *

"(10) If your answer to the preceding question is 'yes,' then state what period of time said William L. Robertson was confined in the hospital. A. Eight weeks. * * *"

In conformity with the verdict and answers to the questions propounded to the jury, the circuit court, on February 12, 1924, entered judgment in favor of the claimant.

The Commission, appealing, asserts that there is manifest error in the record, in this: That the notice of appeal fails to state a cause of action; that the record fails to disclose that any claim for compensation was filed within the statutory period; that the record fails to disclose a causal connection between the alleged accident and the succeeding illness. In its brief, however, the Commission confines its discussion to the last assignment.

I. H. Van Winkle, Atty. Gen., and James West and Miles H. McKey, Asst. Attys. Gen., for appellant.

McGuirk & Schneider, of Portland, for respondent.

BROWN, J. (after stating the facts as above).

That the claimant suffered an accidental personal injury arising out of and in the course of his employment is not disputed. The only controversy is as to whether the pneumonia which followed was the result of the injury.

If the record discloses evidence fairly tending to show that the pneumonia resulted from the accidental personal injury received by claimant in the course of his employment by Stockton Bros., the judgment of the circuit court must be affirmed. It is a declaration of our fundamental law that:

"No fact tried by a jury shall be otherwise reexamined in any court of this state, unless the court can affirmatively say there is no evidence to support the verdict." Article 7, § 3c, Oregon Const.

This is a mandate coming from the people. It is expressed in clear and concise language, and requires no elucidation.

At the time of the accident William L. Robertson, the claimant, had been an employee of Stockton Bros., builders and contractors, of Gresham, Multnomah county, Or., for a number of years. On that date, both employer and employee were subject to the provisions of the Workmen's Compensation Act, and were contributors to its fund.

It is conceded by the Commission's brief that Robertson, while in the course of his employment, sustained an accidental personal injury to his right leg between the ankle and knee, and that he was entitled to compensation for a brief period of time.

At the time of the accident, Robertson was a strong man, in apparent robust health, weighing about 220 pounds. At the time of the hearing of this case in the court below, his weight was 140 pounds. On the occasion of the injury he was wheeling a load of cement in a wheelbarrow, and, while pushing the heavily loaded wheelbarrow, it struck some object and suddenly stopped. Robertson testified:

"The wheelbarrow came up with a chug and stopped, and as I went to take a step I whacked it [his leg] right into the [iron] crosspiece on the wheelbarrow."

He further testified:

"It was a new wheelbarrow. It had not been used to wheeling, and the handle was a little bit shorter and the bar was a little bit lower down on the legs, and I hit the crossbar there and knocked the skin off of my leg and it made me sick at my stomach. * * * I had to stop for a few moments and sit down. I was sick. Then I went ahead and finished up that day. I felt bum all that day * * *and then the next day. * * * That night I went home and I sat down to eat supper, and I couldn't eat no supper. I was so sick. And I went to bed and I had a chill, and my leg was--right here there was a big place blue and watery places came up on it, and the next morning it wasn't no better. * * *

"Q. What doctor did you get? A. Dr. Hughs.

"Q. What did he do for you, so far as you know? A. Why, he had my wife to put on hot applications onto my leg and keep them on continually. * * * He has attended to me ever since this up to the time I went to the hospital. * * * I was in the hospital eight weeks."

Witness thus described the condition of his leg after the injury:

"It was tight along the bone, along here, and hard like as near as I can tell you, outside of the blisters and the blue. * * * I was limping all the rest of the time until I went to bed until afterwards. It still pains.

"Q. What is your condition at this time, if you know? A. It ain't very good. When I was at the hospital I had an operation and they tapped me on the side and drew off a lot of pus out of my side and my side is still running. * * *

"Q. What had been your condition as to health previous to the 25th of July, 1923, when you were injured? A. I was never sick a day in my life."

Dr. H. H. Hughs, claimant's attending physician, testified that he was called to see Mr. Robertson at his home; that:

"He was in bed. Mr. Robertson had, on his right leg over his right shin bone, a lesion--an infected abrasion I call it--showing an inflammation about three or four inches above and below this lesion, and considerable pain and a fever. I put on wet boric acid pack and ordered him to stay in bed until he was better. * * *

"Q. Was there any condition that developed after that infection there in the leg? A. There was pneumonia and a pleurisy development afterwards."

He then testified as an expert, whose qualifications the state admitted, that in his opinion pleurisy, and pneumonia resulted because of the lowered resisting power of the patient. This testimony was not controverted.

The law under consideration relates to accidental personal injuries to employees arising out of industrial occupations. The Workmen's Compensation Law is not a scheme of health insurance, nor was it devised to insure against occupational or general diseases. Iwanicki v. State Industrial Accident Commission, 104 Or. 650, 205 P. 990, 29 A. L. R. 682. Before the State Industrial Accident Commission is empowered to compensate a claimant by reason of pneumonia, such disease must be traceable to an accidental personal injury arising from and in the course of his employment. It may be said in general that disease arising in the course of employment is not within the embrace of the compensatory provisions of the act. However, if the disease arises from an accidental personal injury received in the course of his employment in a hazardous occupation, as defined by the law, such disease does come within the embrace of the Compensation Act.

In the case of Iwanicki v. State Industrial Accident Commission, supra, this court, speaking through Mr. Chief Justice Burnett, said, at page 664 (205 P. 994):

"No one disputes that if an accident

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