Thomas D. Dee Memorial Hospital Ass'n v. Industrial Commission

• Decision Date: 26 May 1943
• Docket Number: 6572
• Citation: 104 Utah 61,138 P.2d 233
• Parties: THOMAS D. DEE MEMORIAL HOSPITAL ASS'N et al. v. INDUSTRIAL COMMISSION et al
• Court: Utah Supreme Court

138 P.2d 233

104 Utah 61

THOMAS D. DEE MEMORIAL HOSPITAL ASS'N et al. v. INDUSTRIAL COMMISSION et al

No. 6572

Supreme Court of Utah

May 26, 1943

Original certiorari proceeding by Thomas D. Dee Memorial Hospital Association and the State Insurance Fund against the Industrial Commission of Utah and Bernhard Andersen to review an order awarding compensation to Bernhard Andersen.

Award affirmed.

F. A Trottier, of Salt Lake City, for plaintiffs.

Grover A. Giles, Atty. Gen., and Joseph E. Evans, of Ogden for defendants.

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

OPINION

WOLFE, Chief Justice.

This case comes to this court on writ of certiorari to review an order of the Industrial Commission awarding compensation to one Bernhard Andersen. The facts out of which the controversy arose are not in dispute. The applicant was an employee of the Dee Memorial Hospital Association. His usual duties were taking care of the boiler room, filling the hopper of the stoker with coal when it needed it, pulling the clinkers and carrying them out and doing any other miscellaneous odd jobs which he was asked to do during his shift.

On March 12, 1942, Andersen came to work at midnight. He looked over the boiler room and filled the hopper with coal. Between 30 minutes and an hour after his shift started he commenced to move some boxes which he had been instructed by his supervisor to move from one part of the basement to another. After he had moved approximately 12 boxes, which weighed from 50 to 100 pounds each, he suffered a sharp pain in his chest. He went to the boiler room and rested for a while. The pain subsided but did not completely disappear. After a short rest he returned to his work of moving the boxes; as he worked the pain became worse and he again rested. He continued to alternately rest and work throughout the remainder of his shift. During the shift he loaded about 40 of these boxes on a hand truck and moved them some 300 feet. He also, in order to get to the boxes, had to move 28 one hundred pound sacks of fire clay. In addition, he tended to his regular duties about the boiler room.

After his shift ended at 8 a. m., he went home and rested until afternoon. He then went to see Dr. Strandquist, who made a diagnosis that applicant had a coronary heart disorder. Andersen was confined to the hospital for the following two months and to his home for the next four months.

The evidence discloses that the applicant was suffering from a heart disease prior to March 12, the night this so-called accident happened. However, the heart ailment did not interfere with the performance of his regular duties prior to that date. He had been employed by the Dee Hospital as a furnace man for about 12 years. He worked seven days a week and with the exception of a two weeks vacation in the summer, worked every week. He was apparently very consistent about going to work and lost very little if any time because of illness. Since the day following this alleged accident and continuing up to the date of the Industrial Commission hearing, the applicant has been totally disabled.

Dr. Strandquist and Dr. Olsen both testified that work or overexertion contributed to the coronary occlusion, and their testimony is uncontradicted. The Commission found that the applicant had "suffered an accident which arose out of, or in the course of, his employment, by reason of the fact that he was called upon to exert himself physically, greatly in excess of the requirements of his normal duties," and that this "accident" or "unusual exertion" aggravated a previously existing heart disease and brought on a heart attack and coronary occlusion, and resulted in his total disability from March 12, 1942, to the date of the hearing, September 14, 1942.

As we stated in Graybar Electric Co. v. Industrial Commission, 73 Utah 568, 276 P. 161, 162,

"It is no longer an open question in this state that, other necessary conditions being present, a pre-existing disease or other disturbed condition of the physical structure of the body, when aggravated or lighted up by an accident, is compensable under the act. Tintic Milling Co. v. Industrial Comm., [infra]." (Italics added.) See, also, Grasteit v. Industrial Comm., 76 Utah 487, 290 P. 764; Gerber v. Industrial Comm., 91 Utah 479, 64 P.2d 1281. And, under the evidence and the findings of the Commission in the instant case, there can be no question but what the extra work or overexertion did aggravate a pre-existing heart ailment which resulted in a coronary occlusion. The real question involved in this appeal, therefore, is whether or not this extra work or overexertion constituted an "accident" within the meaning of Sec. 42-1-43, U. C. A. 1943.

That section provides:

"Every employee mentioned in section 42-1-41 who is injured * * * by accident arising out of or in the course of his employment * * * shall be entitled to receive, and shall be paid, such compensation for loss sustained on account of such injury." (Italics added.)

A rather comprehensive discussion of the term "accident" as used in compensation statutes may be found in the case of Tintic Milling Co. v. Industrial Comm., 60 Utah 14, 206 P. 278, 23 A. L. R. 325. The court quoted with approval from Honnold Work. Comp., Vol. 1, pp. 274-278 a definition of the term "accident" which has been subsequently cited by several Utah cases. According to Honnold:

"The word 'accident' refers to the cause of the injury, and it is here used in its ordinary and popular sense, as denoting an unlooked for mishap, or an untoward event, which is not expected or designed by the workman himself, as a physiological injury as a result of the work he is engaged in, an unusual effect of a known cause, a casualty. It implies that there was an external act or occurrence which caused the injury or death. It contemplates an event not within one's foresight and expectation resulting in a mishap causing injury to the employee."

This same definition was quoted with approval by this court in the case of Bamberger Coal Co. v. Industrial Comm., 66 Utah 203, 240 P. 1103, a case which is cited by the employer, Dee Hospital, in support of its contention that the award must be reversed. The facts of the instant case are very similar to those present in the Bamberger case and it is doubtful that the cases can be distinguished. In the latter case, we denied recovery. The facts disclosed that the deceased employee started work in the morning unloading a car of coal. While he was working someone made the remark that "this man will give out at the rate he is going on that coal." He continued to so work until about noon, at which time he went into the office of the employer apparently exhausted, complaining of pain and asking for assistance to get home. There was no evidence to show a fall, or a strain and nothing out of the ordinary happened to the deceased during the time he was unloading the car. The attending physician testified that he thought that the unloading of the car of coal and lifting big lumps was the "immediate cause" of the death. The court in applying to the facts of the case the principles laid down in the Tintic Milling case and the definition given by Honnold of the term "accident" stated:

"No showing is made that anything out of the ordinary happened to the deceased during the time he was unloading the car. Assuming, without so holding, that the statements to the truckman by Mr. Tullgren as he was being driven home that he had overexerted himself can be considered to have any probative value, that testimony nevertheless fails to show anything out of the ordinary or any accident or untoward or unexpected thing that happened during the work of unloading the car. No time or place is given which can be seized upon as showing anything unexpected or unusual happening during the course of the work."

Even though there appears to be no logical basis for distinguishing the instant case from the Bamberger case on their facts, the Bamberger case is not controlling for it has been subsequently overruled. In the case of Hammond v. Industrial Comm., 84 Utah 67, 34 P.2d 687, 694, we reversed an order of the Commission which denied compensation under the following facts: The deceased was 51 years of age. He had been an employee of Salt Lake City as a watchman and patrolman looking after reservoirs and water supplies of the city for nine or ten years. Among other duties he was required to look after and clean reservoirs, weirs, and screens, etc., and patrol a portion of the canyon looking after the city water supply. On July 14, 1932, the deceased with two other men was cleaning out some reservoirs and weirs. The work was heavy and required a lot of lifting. In opening one weir the deceased was lifting hard and felt a sharp pain in his chest. As he worked on during the day the pain grew worse and he became weakened and ill. The following day he again continued his work but the pain got progressively worse. He died at 2 a.m. the morning of the sixteenth. One doctor concluded that the deceased "had strained his heart from a prolonged and continued effort" and that he had what is called a "heart collapse" of an "acute dilatation." Another doctor testified that the symptoms were those typical of coronary arterial occlusion. He also testified that if it was established that the deceased did have a strain and at the time of his "overexertion" he felt a pain within the region of the heart, the strain might be a contributing cause but not the primary cause of the death. The primary cause being the hardening of the arteries.

The plaintiff, Dee Hospital, contends that the Hammond case is distinguished from the instant case in that in the Hammond ...