Woodbury v. Frank B. Arata Fruit C.

• Decision Date: 22 October 1942
• Docket Number: 7005
• Citation: 64 Idaho 227,130 P.2d 870
• Parties: ETHEL WOODBURY, Employee, Appellant, v. FRANK B. ARATA FRUIT COMPANY, Employer, and STATE INSURANCE FUND, Surety, Respondents
• Court: Idaho Supreme Court

130 P.2d 870

64 Idaho 227

ETHEL WOODBURY, Employee, Appellant, v. FRANK B. ARATA FRUIT COMPANY, Employer, and STATE INSURANCE FUND, Surety, Respondents

No. 7005

Supreme Court of Idaho

October 22, 1942

Rehearing denied November 30, 1942.

WORKMEN'S COMPENSATION-NOTICE OF INJURY-AGGRAVATION OF PRE-EXISTING DISEASE.

1. Where injury to employee developed gradually and employee did not know seriousness and nature of her condition until some weeks after accident and injury, and when nature and extent of injury became known employee reported knowledge to state insurance fund and gave notice of accident and injury to employer 51 days after accident, employee had reported "as soon as practicable" within meaning of statutes relating to notice of injury to be given by employee to employer. (I.C.A., secs. 43-1202, 43-1205.)

2. The words "as soon as practicable" as used in statute requiring injured employee to notify employer of accident and injury as soon as practicable should be given a liberal construction so as not to defeat, without just cause, the compensation to which a meritorious claimant is entitled. (I.C.A., secs. 43-1202, 43-1205.)

3. Evidence failed to support finding for employer that accident did not aggravate and accelerate cancerous condition with which employee was suffering at time of accident, and required an award for employee.

4. An injury resulting partly from accident and partly from a pre-existing disease is compensable if the accident aggravated or accelerated ultimate result, and it is immaterial that claimant would, even if accident had not occurred, become totally disabled by reason of disease.

Rehearing denied November 30, 1942.

Appeal from an order of the Industrial Accident Board denying appellant compensation and dismissing her claim.

Reversed and remanded, with instructions to enter an award in favor of appellant.

Order set aside, and cause remanded, with directions. Costs to appellant.

Elam &amp Burke and C. H. Higer for appellant.

In injuries resulting partly from accident and partly from pre-existing disease, it is compensable if the accident hastened or accelerated the ultimate result and it is immaterial that the claimant would, even if the accident had not occurred, become totally disabled by disease. (Young v. Herrington, 61 Idaho 183, 199 P. 441; Hanson v Independent School Dist., 50 Idaho 81, 294 P. 513; Beaver v. Morrison Knudsen, 55 Idaho 275, 61 P.2d 165; In re Larson v. Blackwell Lbr. Co., 48 Idaho 136, 279 P. 1087; Strouse v. Hercules Mining Co., 51 Idaho 7, 1 P.2d 7; Scarborough v. Beardmore, 52 Idaho 180, 12 P.2d 771.)

Where written notice and claim was filed within sixty days of the date of the accident, and as soon as claimant herself realized that her injuries were serious, notice was given as soon as practicable within the meaning of sec. 43-1202, I. C. A. (Arneson v. Robinson, 59 Idaho 223, 82 P.2d 249; Hines v. Norwalk Lock Co., (Conn.) 124 A. 17; Bates & R. Construction Co. v. Allen (Ky.) 210 S.W 467; McGuire v. Phelan-Shirley Co., (Neb.) 197 N.W. 615; Maryland Casualty Co. v. Robinson, (Va.) 141 S.E. 225; Hornbrook-Price Co. v. Stewart, (Ind.) 118 N.E. 315.)

Frank L. Benson for respondents.

No proceedings under the Workmen's Compensation Act shall be maintained unless written notice of the accident shall be given to the employer as soon as practicable but not later than sixty days after the happening thereof. (Sec. 43-1202, I. C. A.; Sec. 43-1203, I. C. A.; Wilson v. Standard Oil Co., 47 Idaho 208, 273 P. 758; Frost v. Idaho Gold Dredging Co., 54 Idaho 312, 31 P.2d 270.)

In order to justify compensation for disability resulting from cancer it is encumbent upon the compensation claimant to show that the trauma introduced some new factor into the course of the disease that would not otherwise be present. (Smith v. White Pine Lumber Co., 53 Idaho 808, 27 P.2d 965; Posan v. Industrial Commission of Ohio, (Ohio) 22 N.E.2d 1014; Schapiro v. Wanamaker, 189 N.Y.S. 343; McBrayer v. Dixie Mercerizing Co., (Tenn.) 156 S.W.2d 408.)

BUDGE, J. Givens, C. J., concurs, Holden and Morgan, JJ., concurring specially. Ailshie, J., dissents.

OPINION

BUDGE, J.

This appeal is from an order of the Industrial Accident Board denying appellant's claim for compensation. The facts are substantially as follows:

Appellant, a married woman fifty-seven years of age, was employed during the fruit season by the Frank B. Arata Fruit Company, the building being owned jointly by Frank B. Arata and John Dewey. In the early part of July, 1940, while engaged in sorting apricots, in the course of her employment, she was struck on the left breast by what is known as a facer pan, which flew off the end of an overhead track. Appellant describes the accident as follows:

"A. It [the facer pan] came off of the end of the track--all the stop that had been there was a little piece of wood, I believe from the side of a cherry crate, a very light piece, and it had been broken in two and the small piece stuck through, and the one on my side had been knocked down. They had been hollering to shove the plates harder so the buster gave it a tremendous shove, sent it the full length of the track and as there was only one peg it hit that and deflected it to me, from me it hit the table and on to the floor.

* * * *

"Q. When this pan struck you, did it hurt?

"A. It certainly did.

"Q. Just describe what the pain was.

"A. In plain words, it knocked the breath out of me."

On the afternoon of the same day, appellant noticed a rigidity in the breast. Shortly thereafter a yellowish-green discoloration appeared over the place where she was struck. From the date of the accident, appellant testified, she continued to feel a sense of rigidity in the breast, and during the latter part of August she began to experience shooting pains radiating from the breast to the arm pit. With respect to claimant's injury, the board found:

"That the night after claimant was struck on the left breast as above stated, she noticed a rigidity in said breast and about one week later noticed a yellowish-green discoloration; that the breast was not overly sore, but the greenish color stayed, and the breast became more rigid; that about August 20 she felt a pulling sensation and about September 1 noticed shooting pains that went from her breast to her arm."

On the 4th day of September, 1940, she consulted Dr. R. A. Goodwin, a practicing physician and surgeon at Emmett. At the time of the doctor's first examination, there was no external evidence of cancer; there was no evidence of any swelling in the axilla or arm pit. At the time of the second examination, some two weeks later, there was still some discoloration, and also evidence of a small swelling. On subsequent visits, the doctor discovered a swelling in the arm pit, following which Dr. Goodwin performed an operation for the purpose of taking a biopsy. Upon examination of the tissue thus removed, the doctor concluded that appellant was afflicted with cancer of the breast.

Following this preliminary examination Dr. Goodwin, assisted by Dr. Carver, performed a radical breast operation, described by Dr. Goodwin as follows:

"A. The entire breast tissue and the muscles underlying the breast tissue and all the skin over lying the breast and including other tissue about the large vessels in the arm pit and the lymph nodes in the arm pit were all removed."

Dr. Goodwin further testified that the yellowish-green discoloration which he noticed at the time of the first examination was undoubtedly caused by a direct blow or injury, and further testified that it was his positive opinion that the blow suffered by appellant aggravated and accelerated an existing cancerous condition. He further testified that:

"A. It is impossible for me to say it would or would not cause a cancer. I, and I don't believe anyone knows what causes a cancer but I believe if such a condition existed it would be aggravated by a trauma, a direct injury.

"Q. A direct injury would aggravate or accelerate such a condition?

"A. Yes."

* * * *

"Q. Your opinion is if the claimant had had a blow on the breast on the date she said she had, it would aggravate the condition of cancer? You are assuming the condition of cancer existed at that time?

"A. With your statement, I am."

* * * *

"Q. From what examination you made, isn't it your opinion that the cancer had existed for a long period of time?

"A. Would you be more definite and say how long? I can't answer unless you do.

"Q. Well, for several years, be coming on gradually?

"A. No, I would say definitely not.

"Q. For a year?

"A. I would say definitely not a year.

"Q. You say that the cancer commenced probably at the time she said she had the blow?

"A. I would say that is possible.

"Q. Do you not think it is probable?

"A. No.

"Q. It is your opinion she had a cancer there over a period of time. Is that correct?

"A. * * * * after the operation was done I thought probably the cancer had existed there for a period longer than the history of the injury. That is a possibility. I don't know how--we don't know how fast these develop. There is no way of telling."

* * * *

"Q. As to the time in which cancer develops you don't deny, do you, that cancer may develop over a period of years?

"A. It may.

"Q. As a matter of fact it ordinarily does, cancer of the breast?

"A. Ordinarily it does, although I have seen cases of cancer of the breast where the first thing you noticed was a small lump in the breast and six months later the patient would be dead."

Dr. Popma testified as follows:

"Q. I will ask if from your examination, if you could tell how long the condition had been present, or approximately?

"A. It is difficult to say how long the...