Utah Fuel Co. v. Industrial Commission

• Citation: 102 Utah 26,126 P.2d 1070
• Decision Date: 18 June 1942
• Docket Number: 6445
• Court: Supreme Court of Utah
• Parties: UTAH FUEL CO. v. INDUSTRIAL COMMISSION et al

126 P.2d 1070

102 Utah 26

UTAH FUEL CO. v. INDUSTRIAL COMMISSION et al

No. 6445

Supreme Court of Utah

June 18, 1942

Proceedings under the Workmen's Compensation Act by Mrs Eliza L. Jensen, for the benefit of herself and five minor children of Lyman C. Jensen, deceased, for compensation for the death of the deceased opposed by Utah Fuel Company. From an order of the Industrial Commission awarding compensation the Utah Fuel Company brings certiorari.

Affirmed.

H. J. Binch, of Salt Lake City, for plaintiff.

Grover A. Giles, Atty. Gen., and Marl D. Gibson, of Price, for defendants.

WOLFE, Justice. MOFFAT, C. J., LARSON and McDONOUGH, JJ. and LESTER A. WADE, District Judge, concur. PRATT, J., on leave of absence.

OPINION

WOLFE, Justice.

Certiorari to the Industrial Commission to review an order awarding compensation to the widow and five children of Lyman C. Jensen, deceased. The Utah Fuel Company, petitioner herein, is a self insurer under the Workmen's Compensation Act, Rev. St. 1933, 42-1-1 et seq.

Lyman C. Jensen, deceased, was an employee of the petitioner. He entered into employment with petitioner in September, 1940, at which time he submitted to a "whole physical examination" and was employed. On January 3, 1941, deceased, while prying down some top coal in the course of his employment, stood upon a saw horse, or a box placed on a saw horse, which slipped causing him to fall and strike his right testicle on the bar he was using, or on a piece of coal.

Upon returning home that afternoon deceased complained to his wife of the pain and she observed a bruise on his right testicle. The deceased saw Dr. Long, the company doctor, that evening or the evening of January 4, 1941, there being some conflict as to these two dates. In his report, Dr. Long stated "contusion of the right testicle." The deceased Jensen continued work without loss of a working day, but on January 14, 1941, the pain became so severe he was forced to stop work. He was sent to the hospital February 1, 1941, and died on May 3, 1941. An autopsy was performed and the cause of death was diagnosed as "primary carcinoma of right testicle with carcinomatosis."

The Industrial Commission found in favor of the applicants on the following three issues:

"First, did the deceased suffer an accidental injury? Second, did the accident arise out of or in the course of his employment? Third, did the accidental injury cause the death of the deceased or did it aggravate and accelerate a pre-existing condition which resulted in the death of the deceased?"

This court cannot say that the Commission erred in finding that the deceased suffered an accidental injury, nor that the accident arose out of or in the course of his employment. It is not the duty nor the right of this court to say what inferences or conclusions must be drawn from the facts as long as there is competent evidence to sustain them. This proposition has been reiterated so often in numerous decisions that further citation of cases is unnecessary.

In the instant case there is observation evidence as to the presence of a bruise or "contusion" on the right testicle. Mrs. Jensen and Dr. Long testified as to the presence of such a bruise. There is competent evidence in the form of statements by the deceased to Dr. Long made in connection with the pain as to how he contracted the injury. The employer's first report, and Dr. Long's report both stated the injury occurred January 3, 1941, 11:30 A. M., No. 2 Mine, 3rd left. Furthermore, liability was admitted by the employer until the seriousness of deceased's illness was determined, approximately one month before his death, when liability was then denied.

As the commission indicated in its findings, the deceased was probably suffering from carcinoma at the time of the trauma. Dr. Ogilvie's testimony establishes the cause of the death of the deceased as "primary carcinoma of the right testicle with carcinomatosis," but as to the question of the injury accelerating the pre-existing cancerous condition, the doctor refused to speculate, stating that "sometimes trauma greatly accelerates the growth of cancer but sometimes it does not." The medical profession has been unable definitely to determine the cause and cure of cancer. The profession is hesitant to make any positive statements concerning it. We have here a situation in which the deceased received an injury to his right testicle. Swelling and pain immediately developed which became progressively worse, ending with the death of the deceased. The circumstantial evidence indicates that the injury aggravated and accelerated the cancerous condition contributing to the death of the deceased. This is the more probable and rational explanation of the factors leading up to the death of the deceased.

In Silcox v. Industrial Commission, 101 Utah 438, 121 P.2d 901, a most favorable interpretation of the testimony of the doctors for the applicant revealed a conflict of that testimony as to the fact of whether the disability was caused by the accident or due to an arthritic condition. Such being the case, the conflict was for resolution by the Commission even though the beginning of the disability was...