Wilson v. Doehler-Jarvis Division of National Lead Co.

• Decision Date: 15 July 1958
• Docket Number: DOEHLER-JARVIS,J,No. 15,15
• Citation: 91 N.W.2d 538,353 Mich. 363
• Parties: Edna WILSON, Guardian of Sharon Louise Bentley and Ronald Bentley, Minor Children of James A. Bentley, Deceased, Plaintiff and Appellee, v.DIVISION OF NATIONAL LEAD COMPANY, Defendant and Appellant. anuary Term.
• Court: Michigan Supreme Court

Page 538

91 N.W.2d 538

353 Mich. 363

Edna WILSON, Guardian of Sharon Louise Bentley and Ronald Bentley, Minor Children of James A. Bentley Deceased, Plaintiff and Appellee, v. DOEHLER-JARVIS DIVISION OF NATIONAL LEAD COMPANY, Defendant and Appellant.

No. 15, January Term.

Supreme Court of Michigan.

July 15, 1958.

Warner, Norcross & Judd, Grand Rapids, for appellant.

Marcus, Kelman, Loria, McCroskey & Finucan, Muskegon, Benjamin Marcus & Robert Libner, Muskegon, for appellee.

Before the Entire Bench.

EDWARDS, Justice.

James A. Bentley died as a result of metastasized cancer at 59 years of age. He left behind a divorced wife who is the plaintiff here as guardian of deceased's two minor children.

Prior to his lengthy last illness, Bentley had worked for 10 years for Doehler-Jarvis Corporation in the traffic department, bringing materials from the storeroom to the plant.

It is undisputed on this record that Wilson's death was caused by squamous-cell cancer which infiltrated and developed a large tumor in the area of the submaxillary gland below his left jaw. It appears apparent that it was this tumor which caused Bentley's disability from work in August of 1952 and, after failure of radiological and operative treatment, led to his death on February 18, 1955.

The medical reports agree, however, that the site of this 'explosion' of the cancer was not the primary site of cancer in Wilson's body. Plaintiff's claim is based on the identification of a small hard area located just below Bentley's lower lip which was biopsied in the search for a primary site for cancer.

Bentley's testimony at trial identified the spot of this small hard area as the site at which he had suffered a blow to the lower lip in January, 1951, 1 1/2 years before his disability. The company first-aid records were brought in to prove that such a blow indeed did take place. But the record submitted indicated merely that the injury was to Bentley's 'face below the nose,' and was dated August 18, 1950.

These four disputed issues of fact are argued to us with plaintiff claiming, and defendant denying, the truth of each assertion below:

1. That the small inactive hard place described on Bentley's lower lip was squamous-cell cancer;

2. That the squamous-cell cancer in the area of the submaxillary gland which caused Bentley's death was occasioned by metastasis from the primary site described above;

3. That Bentley suffered an injury to his lower lip during January, 1951;

4. That the blow to Bentley's lip in January, 1951, plus subsequent re-injury thereto, either caused or precipitated the squamous-cell cancer which eventually led to his death.

As to all of these factual issues, the workmen's compensation appeal board found for the plaintiff:

'From the record before us we find as follows: deceased was a 58 year old divorced man, paying more than 50% of the support of 2 of his children, (Ronald and Sharon) in January 1951. He was first employed on March 17, 1943 and last worked on June 2, 1953. On or about January 1951, deceased worked in the traffic department. His job required him to fill orders for supplies for the shop. As he was tipping off a bundle of cardboard cartons from the top of a pile, 1 of the cartons fell and struck him against the left side of his lower lip cutting the lip and causing it to bleed. He then notified his foreman, Joe Pieckiel, of his injury. Subsequently he bumped the lip on other occasions sufficient to open the bump of the unhealed wound but in a manner and extent that could have been unnoticed had the lip been fully healed. The cut failed to heal for about 6 months and then after healing a white spot appeared and was noticeable for about 3 months. Thereafter a numbness was noted in the area. A bump developed which deceased thought was a boil or carbuncle and he sought medical attention. A biopsy of tissue taken from the injured lip was made. The tissue showed leukoplakia with apparent regeneration of the squamous eqithelium, with marked chronic inflammation and definite islands of neoplastic tissue showing evidence of squamous cell carcinoma. A biopsy of tissue of the submaxillary area shows squamous cell carcinoma. Deceased was unable to work from July 1952 to November 1952. After returning to work in November 1952 his condition grew worse and he had to cease work on June 2, 1953. He subsequently died on February 18, 1955 from a metastasized squamous cell carcinoma. The primary source of the squamous cell cancer was the lip lesion with metastasis downward and deeper. The medical testimony establishes a causal relation between the trauma received in January 1951 during the course of decedent's employment with defendant company and the resulting metastasized cancer which ultimately caused death. The evidence establishes a cause and effect relationship between the injury received and the death on February 18, 1955.' (Emphasis supplied.)

Our review of disputes of fact in workmen's compensation proceedings is, as we have repeatedly noted, distinctly limited; and these findings are, of course, binding upon the Court if the record contains evidence to support them. C.L.1948, § 413.12 (Stat.Ann.1950 Rev. § 17.186); Hood v. Wyandotte Oil & Fat Co., 272 Mich. 190, 261 N.W. 295; Thornton v. Luria-Dumes Co-Venture, 347 Mich. 160, 79 N.W.2d 457; White v. Michigan Consolidated Gas Co., 352 Mich. 201, 89 N.W.2d 439.

The crucial finding of fact of the appeal board acdepted plaintiff's testimony that he had suffered a blow in January, 1951, and that it had been to his lower lip. The appeal board likewise accepted plaintiff's medical testimony to the general effect that the hard place on plaintiff's lower lip was cancerous and was the primary site from which the fatal spread of the cancer occurred.

All of these findings are in conflict with substantial testimony presented by the defendant; but our review of this record indicates that there was likewise competent evidence from which these findings of fact could have been made.

The crucial finding of the appeal board, however, is contained in these two sentences:

'The medical testimony establishes a causal relation between the trauma received in January 1951 during the course of decedent's employment with defendant company and the resulting metastasized cancer which ultimately caused death. The evidence establishes a cause and effect relationship between the injury received and the death on February 18, 1955.'

The record contains the testimony of plaintiff's expert witness, Dr. Gabriel Steiner, who is identified as a specialist in neuropathology and pathology.

Dr. Steiner was asked to answer a hypothetical question containing these facts, which we have reviewed against this record and found supported there 'Mr. James Bentley, born in approximately January of 1896, was an employee of the Doehler-Jarvis Corporation. While so employed, in approximately January of 1951 while working in a narrow area, he cut his lip.

'During his lifetime he testified for us and stated that the lip did not completely heal for 5 or 6 months, and that during that time and because of the tightness of the place in which he had to work, between 2 narrow vertical walls in which material was stored, he had bumped his lip many times. He stated that he didn't lose any time because of it and when it finally healed, which was 5 or 6 months later--A. You said 5 to 6 months later?

'Q. Five to 6 months later, the white spot over the site of the trauma was still there. That went away, but a numb spot remained there, and as he said, never went away.

'In May of 1952 he noticed a lump in the submaxillary area and during a vacation period he consulted a Dr. Bruggema. It was in August of 1952 that we have the first biopsy of the submaxillary area, which has been referred to by yourself and read, being exhibit H.

'He was then referred to Dr. Fellows, a radiologist at Grand Rapids, as of August of 1952 for further care. He instituted a further search, and in September of 1952 a biopsy of the lip was had which has been identified as exhibit K.'

After some discussion of the difficulty of the problem, Dr. Steiner's answer was:

'* * * it is my firm belief that in the case of this man, the repeated injuries produced or were an essential factor in the production of his squamous cell carcinoma of the lip. (Emphasis supplied.)

'Q. Then you previously stated that your opinion was that the area in the submaxillary region was secondary to the lip, and that death resulted from the entire--A. Spread of the cancer.

'Q. Whould it then follow that this man's disability and death from the cancer was related in your opinion or could reasonably be related to these injuries as described? A. Yes.

'Q. Doctor, what medical significance is there to the testimony that the lip never healed for approximately 5 or 6 months? What does that indicate to you? A. That could indicate already the cancerous character of this lesion. I think it is probable, but I have no definite proof for that.'

Dr. Steiner had previously testified that the slide taken on biopsy of the lip lesion showed squamous-cell carcinoma, and that, on the medical history given, the lip lesion was the probable primary site of the cancer which resulted in Bentley's death.

There is direct disagreement with Dr. Steiner's testimony in this record, particularly that contained in the testimony of defendant's expert witness, Dr. A. James French, pathologist of the University of Michigan hospital. Dr. French stated that he could not make a diagnosis of carcinoma on the material contained in the slide taken from the first biopsy of the lip lesion suffered by Bentley. Dr. French also expressed skepticism about trauma having a relationship to lip cancer. But having identified the condition he saw in the slide of the lip lesion as possibly pre-cancerous, he concluded in answer to plaintiff's hypothetical question:

'I think that there is no reason to state that...