Salt Lake City v. Industrial Commission

• Decision Date: 03 August 1943
• Docket Number: 6568
• Citation: 140 P.2d 644,104 Utah 436
• Court: Utah Supreme Court
• Parties: SALT LAKE CITY v. INDUSTRIAL COMMISSION et al

140 P.2d 644

104 Utah 436

SALT LAKE CITY v. INDUSTRIAL COMMISSION et al

No. 6568

Supreme Court of Utah

August 3, 1943

Original proceeding in certiorari by Salt Lake City to review an award made by the Industrial Commission to C. B. Temple for an accidental injury sustained by C. B. Temple while employed by Salt Lake City as a fireman.

Order sustained.

A Pratt Kesler, E. R. Christensen, and Homer Holmgren, all of Salt Lake City, for plaintiff.

Grover A. Giles, Atty. Gen., Herbert F. Smart, Deputy Atty. Gen and Allen G. Thurman, of Salt Lake City, for defendants.

WOLFE Chief Justice. McDONOUGH, MOFFAT, and WADE, JJ., LARSON Justice, concurring.

OPINION

WOLFE, Chief Justice.

Certiorari to review an award made by the Industrial Commission to C. B. Temple. Temple, who was employed by Salt Lake City as a fireman, filed an application on March 18, 1942, for compensation for the loss of his left eye. He alleged that while he was playing handball on October 22, 1940, he was struck in the left eye by a handball and that this blow caused sarcoma. The sarcoma necessitated the removal of the eye.

The evidence shows that Temple was employed as a fireman; that he worked 24 hours and was then off shift for the next 24 hours; that he was required by the employer to take exercise while on duty, and as part of this exercise the City encouraged firemen to play handball; and that, while playing handball at the station and while on duty, he was struck in the eye by a handball. This blow caused considerable pain and the eyeball became bloodshot. This injury apparently healed and all outward signs of injury disappeared in two or three weeks. He testified that in from one to six months the eye began to water and mucus would frequently collect in the corner of the eye. Temple testified that this watering of the eye continued for some six months, at which time he began to have difficulty in reading because his vision would blur. The field of vision was restricted so that he was missing handballs because he could not see them with this eye when he should have been able to see them. This impairment of vision became worse. About 14 months after the accident he sought medical aid and was informed that there was a growth extending into the eyeball so as to block about one-half of the field of vision of that eye. Various doctors, after examining the eye, informed the applicant that this growth was sarcoma of the choroid and that the only possible treatment was the removal of the eye. The eye was removed in February, 1942, and at that time a laboratory examination confirmed the diagnosis that the growth was sarcoma.

The commission found that the

"applicant suffered an accident on October 22, 1940, in the course of his employment, and that said accident consisted of a blow by a handball on the right side of the applicant's left eye."

It also found that the injury suffered by the applicant at this time either caused the sarcoma or was the activating force which accelerated the growth of the sarcoma and necessitated the removal of the eye. At the outset, the City contends that the claim is barred by virtue of Sec. 42-1-92, U. C. A. 1943, because of the failure of the applicant to give the City notice of the accident and the injury within one year from the date of the accident. That section, so far as material here, provides:

"When an employee claiming to have suffered an injury in the service of his employer fails to give notice to his employer of the time and place where the accident and injury occurred, and of the nature of the same, within forty-eight hours, when possible, or fails to report for medical treatment within said time, the compensation provided for herein shall be reduced fifteen per cent; provided, that knowledge of such injury obtained from any source on the part of such employer, his managing agent, superintendent, foreman, or other person in authority * * * shall be equivalent to such notice * * *. If no notice of the accident and injury is given to the employer within one year from the date of the accident, the right to compensation shall be wholly barred." (Italics added.)

The uncontradicted evidence discloses that Lt. Thompson, who was in charge of the fire station at the time the injury occurred, was playing handball with the applicant at the time the handball struck the applicant in the eye. At that time, Thompson knew as much concerning the cause and the nature of the injury as did the applicant. Thus under the statute the City had the equivalent of notice of the accident and some injury. However, the City contends that this was not sufficient notice. In so contending it urges that the statute uses the term "injury" to mean an injury which has resulted in a disability which will entitle the employee to compensation. Under such a construction of the section the employee would be required, within a year from the date of the accident, to give his employer notice of the accident and also notice that this accident had resulted in an injury which had caused a compensable disability. Often accidental injuries do not result in disability within a year. It thus becomes evident that what the City is really contending is that Sec. 42-1-92 limits compensation to those accidental injuries which result within a year in disability. Those injuries which do not result in loss of work, require medical attention, etc., until more than a year after the date of the accident would, under this construction, be excluded from the scope of the Act.

This section, however, cannot be so construed. We find no cases, and none are cited, which have given such a construction to statutes requiring the employee to give the employer notice of the accident and the injury within a prescribed period of time. But quite to the contrary the cases uniformly hold that such statutes were designed to give the employer an opportunity to make an early investigation of the circumstances surrounding the alleged accident and to assure him the opportunity of giving prompt and proper medical aid where it is deemed necessary. Such statutes also protect employers against fraudulent claims and give them an opportunity to remedy defects so as to prevent similar accidents in the future. Littleton v. Grand Trunk R. Co., 276 Mich. 41, 267 N.W. 781; Hercules Powder Co. v. Nieratko, 114 N.J.L. 254, 176 A. 198; Kangas' Case, 282 Mass. 155, 184 N.E. 380; Burke v. Industrial Comm., 368 Ill. 554, 15 N.E.2d 305, 119 A. L. R. 1152; Armour & Co. v. Industrial Comm., 367 Ill. 471, 11 N.E.2d 949.

We have held that the Industrial Act must be liberally construed and that by such construction we should attempt to effectuate its beneficent and humane objects. North Beck Min. Co. v. Industrial Comm., 58 Utah 486, 200 P. 111. We therefore will not construe this provision, which was obviously designed to protect employers by requiring prompt notice of injuries and accidents, as a limitation on the scope and coverage of the Act. The plain language of the Act requires only notice of the "accident and injury."

In this case the employer had notice that the applicant had suffered an accident and some injury. It had ample opportunity to investigate the surrounding circumstances and to provide prompt and proper medical aid. It knew as much concerning the accident and the injury as did the applicant. We hold that the City had proper notice and that it was not necessary for this injury to become compensable within a year to come within the coverage of the Act.

The City also contends that (1) the injury did not arise out of or in the course of the applicant's employment; and (2) that if the applicant was injured in the course of his employment, there was not sufficient evidence to support the finding that the blow by the handball caused the sarcoma.

The first of these contentions is without merit. The evidence clearly shows that the applicant was required to take exercises while on duty. As part of this exercise, the City encouraged the men to play handball and provided them with a handball court for that purpose. The applicant was injured while thus playing handball. We think that in view of this evidence the commission was warranted in concluding that the applicant suffered an accidental injury in the course of his employment.

The second contention raises a more serious problem. In an attempt to ascertain whether the blow to the eye caused the sarcoma or aggravated or accelerated a pre-existing sarcoma three medical experts were called. There was little if any conflict in their testimony. They all freely admitted that the medical profession does not know the cause of sarcoma.

Dr. Fairbanks was called by the applicant. He testified that the blow which the applicant received on his eye with the handball "possibly" created all of the conditions in the applicant's eye which necessitated its removal. He stated that almost every doctor who deals with sarcoma forms his own theory as to its cause. He was then asked:

"Do you have an opinion? Is it your opinion that the sarcoma in the applicant's eye which caused its removal was caused by trauma or blow? A. I feel like it.

"Q. Is that your opinion? A. An opinion has to be based on something fundamental, with proof. If I was going entirely on my own thought that would be my thought.

"Q. That was your belief? A. That was my belief, as I told you based on nothing, because there is nothing to substantiate it in the literature...