Young v. Herrington

• Decision Date: 17 February 1940
• Docket Number: 6607
• Citation: 61 Idaho 183,99 P.2d 441
• Parties: SARAH B. YOUNG, Administratrix of the Estate of RUSSELL YOUNG, Deceased, Appellant, v. Mrs. EDWIN HERRINGTON and STATE INSURANCE FUND, Respondents
• Court: Idaho Supreme Court

99 P.2d 441

61 Idaho 183

SARAH B. YOUNG, Administratrix of the Estate of RUSSELL YOUNG, Deceased, Appellant, v. Mrs. EDWIN HERRINGTON and STATE INSURANCE FUND, Respondents

No. 6607

Supreme Court of Idaho

February 17, 1940

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

1. Where there was no dispute as to injured employee's condition and extent of his injuries at time of hearing on his petition to modify award of compensation for temporary partial disability, nor any dispute that injuries aggravated or accelerated pre-existing disease in some measure, but only conflict in expert opinions concerned extent to which accident contributed to his later permanent partial disability or total disability, mixed question of law and fact was raised.

2. An employee's injury, resulting partly from accident and partly from pre-existing disease, is compensable if accident hastened or accelerated ultimate result, though claimant would have become totally disabled by disease even if accident had not occurred.

3. Positive testimony is entitled to more weight than negative testimony.

4. In injured employee's proceeding for modification of award of compensation for temporary partial disability by awarding additional compensation for total disability, three physicians' positive testimony that accidental injury contributed to claimant's total disability because of pre-existing spinal tuberculosis required such conclusion where two physicians, testifying for employer and in- surance carrier, admitted that injury had some effect on claimant's condition, but their testimony was inconclusive and not positive or definite as to extent to which injury contributed to such disability.

APPEAL from an order of the Industrial Accident Board.

Russell Young, deceased, sought a modification of a compensation award and from an order of the Industrial Accident Board denying said modification, his administratrix appeals. Reversed and remanded.

Reversed and remanded. Costs awarded to appellant.

E. B Smith and Dale Clemons, for Appellant.

An employee need not be in perfect health and physical condition to entitle him to compensation; if he had a pre-existing physical weakness and he thereby was more susceptible to injury, yet if he was able to do work and was employed, and in the course of employment sustained an injury to which his resulting incapacity is traceable, he is entitled to an award. (In re Soran, 57 Idaho 483, 67 P.2d 906; In re Larson, 48 Idaho 136, 279 P. 1087; Fealka v. Federal Min. & Smelt. Co., 53 Idaho 362, 24 P.2d 325; Beaver v. Morrison-Knudsen Co., 55 Idaho 275, 41 P.2d 605.)

The courts have generally held that where a weakened, abnormal or diseased condition of a workman is aggravated, or a new lesion is accelerated, by accidental injury arising out of and in the course of his employment, compensation must be paid for his resulting incapacity; nor will a showing of disease, abnormality or previous weakness of the injured part deprive a claimant of the right to recover compensation where the injury aggravates the previous weakness or disease. ( In re Soran, 57 Idaho 483, 67 P.2d 906; In re Larson, 48 Idaho 136, 279 P. 1087; Taylor v. Federal Min. & Smelt. Co., 59 Idaho 183, 81 P.2d 728; Robbins v. Original Gas Engine Co., 191 Mich. 122 157 N.W. 437; Hurley v. Selden-Breck Const. Co., 193 Mich. 197, 159 N.W. 311; Tintic Milling Co. v. Industrial Com., 60 Utah 14, 206 P. 278, 23 A. L. R. 325.)

Clarence L. Hillman, for Respondents.

A personal injury by accident arising out of and in the course of employment does not include a disease except as it shall result from the injury and in order for appellant to be entitled to an award, the burden of proof is upon him to establish that the tuberculosis from which he is suffering is the result of the injury resulting from the accident of February 16, 1935. (I. C. A., secs. 43-1809, 43-1810; Reinoehl v. Hamacher Pole & Lbr. Co., 51 Idaho 359, 6 P.2d 860; Allith-Prouty Co. v. Industrial Com. et al., 352 Ill. 78. 185 N.E. 267; Reader v. Milwaukee Lbr. Co., 47 Idaho 380, 275 P. 1114.)

GIVENS, J. Ailshie, C. J., and Holden, J., concur. Morgan, J., did not sit at the hearing and took no part in the decision of the case. Budge, J., did not sit.

OPINION

GIVENS, J.

Russell Young was employed as fireman and janitor at an apartment house. While so employed he wrenched or strained his back. For this he sought and received compensation for temporary partial disability from respondent State Insurance Fund, insurance carrier for his employer Mrs. Edwin Herrington.

Three years later Mr. Young petitioned for a modification of the above award on the ground of changed physical condition, contending the injury to his back aggravated and accelerated a tubercular condition of his spine, and had caused a crushing of the two vertebrae of the lumber region and that he was thereby at least permanently partially disabled if not so totally disabled.

The board denied additional compensation on the ground the accident hereafter described, did not affect or produce his present condition. Since the hearing Mr. Young died and his widow has been substituted as appellant.

The clinical history, shown by the evidence, reflected in hypothetical questions and as found by the board, is as follows: Mr. Young at the time of the hearing, March 11, 1938, was about 66 years old, and prior to the day of the accident he had had no trouble with his lungs or back and performed manual labor and had always been well except when about 14 he injured his right wrist which thereafter bothered him and 40 years ago had it operated on. The wrist later stiffened and ankylosed and for the last 35 years would sometimes puff and swell. He had no boils or sores on his wrist until the spring of 1937 when one appeared thereon. February 16, 1935 while moving a 300-pound box about 4'x3'x3', upending, sliding and rolling it along a cement platform in the apartment house basement, he lifted in a leaning position and felt a sudden sharp pain in his back and straightening up felt a slipping sensation in the small of his back. From then on his back got progressively worse until he became bed-ridden in 1937.

Five doctors examined him, three of whom treated him for his back injury. All agree he was totally disabled at the time of the hearing and suffering from tuberculosis of the spine and that there existed a compression fracture of the second and third lumber vertebrae. The only difference of opinion is as to what extent, if any, the accident contributed to his condition at the time of the hearing.

Doctors Falk and Smith, who treated Mr. Young for his subsequent back injury (not accident) positively stated the accident did contribute to his condition:

"Dr. Falk:

"Q. I will ask you to take into consideration all the facts I have stated (hypothetical question elaborating above history) and take into consideration your own physical findings made by you on your examination and treatment of Mr. Young and ask you to state whether or not you have any opinion what was the cause of the condition which you found him to be suffering from in the region of his first and second vertebrae?

"A. I have.

"Q. What is that opinion?

"A. Tuberculosis of the first and second lumbar vertebrae.

"Q. Will you state what your opinion is as to the cause of this condition?

"A. I consider it--consider the cause of this condition as I found it in July, 1937 was the accident that he reported as of February 1937.

"Q. February 16, 1935, is that the one you have in mind?

"A. Yes. February 16, 1935. That is the date he gave. "

"Dr. Smith:

"A. I believe in view of the fact that Mr. Young had over a period of years an infection of the wrist, that he must have had either before or after the injury an infection more or less metastatic in the first and second lumber vertebral body and that his injury tremendously accelerated this disease and the bone destruction which went with it and his resultant disability.

"Q. What injury are you speaking of?

"A. I am speaking of the injury suffered by Mr. Young in lifting the heavy box on February 16, 1935.

"Q. What is you opinion as to whether or not that injury had anything to do with the condition existing in the region of the first and second lumber vertebrae as shown by defendant's exhibit # 2 on which you stated was the compression fracture?

. . . .

"A. That injury resulted in a compression fracture of the two vertebral bodies."

Dr. Dedman, who examined Young at the time of the accident and gave minor treatment therefor, testified to substantially the same effect.

Dr. Swindell did not treat or examine Mr. Young but testified as an expert on tuberculosis generally, as follows:

"Q. Will you state whether or not you have an opinion as to whether trauma aids in the development of infection in a bone?

"A. Yes. I do.

"Q. Will you state what your opinion is in that regard? And also your reasons for your opinion.

"A. I think that trauma is a multiple factor not in producing the tissue changes such as you see in tuberculosis but in producing a point of least resistance whereby the tuberculosis bacillae can grow and multiply whereas under normal conditions they would not be able to survive.

. . . .

"Q. Now if tubercle bacillae was present in the body and one would have a trauma of a bone or bones, such as in the vertebrae, consisting of a strain, or sprain, what would be the probable result?

"A. Well, I think a person under those conditions would be more likely to develop tuberculosis at the site of the injury than one who didn't have organisms in his body.

"Q. If the area of the vertebrae which was strained or sprained was infected with tuberculosis, what would be the...