Opinion
No. 7003.
May 13, 1942
APPEAL from the Industrial Accident Board.
Appeal from an order of the Industrial Accident Board denying compensation. Reversed and remanded with instructions.
James James, for Appellant.
To constitute "accident" within Workmen's Compensation Act, it is not necessary that the workmen trip or fall, or that machinery fail, but an "accident" occurs in doing what workman habitually does, if any unexpected, undesigned, unlooked for, or untoward event or mishap, connected with or growing out of the employment takes place. ( Pinson v. Minidoka Highway District, 61 Idaho 731 (5) ( 106 P.2d 1020.)
The death of a person, pre-disposed to heart disease, brought about or accelerated by bad air conditions or high altitude, is an industrial accident. ( Carroll v. Industrial Accident Commission, 195 Pac. (Colo.) 1097 (2); Nicholson v. Round-Up Coal Mining Co., 257 Pac. (Mont.) 270 (10); Knock v. Industrial Accident Commission, 253 Pac. (Cal.) 712 (2).)
Expert's testimony as to his opinion is not evidence of fact in dispute, but is only advisory, and is admissible only to assist triers of fact to understand and apply the testimony of other witnesses. From this it follows that a conflict in the opinion of experts does not create a conflict in the evidence. ( Evans v. Cavanagh, 58 Idaho 324, 73 P.2d 83 (1), a very similar case; Suren v. Sunshine Mining Co. (Idaho) 70 P.2d 399 ( 58 Idaho 101, at 108); Watkins v. Cavanagh, 107 P.2d 155 at 156, ( 61 Idaho 720).)
Positive expert testimony will prevail over negative expert testimony. ( In re. Soran, 57 Idaho 483 (5) ( 67 P.2d 906).)
Frank L. Benson, for Respondents.
The mere showing of a bad air condition is not sufficient to justify compensation. It must be proven that such air condition was the approximate cause of the death or disability. ( Elkhorn Coal Co. v. Kerr (Ky), 263 S.W. 342; Meade Fiber Corp. v. Starnes (Tenn), 247 S.W. 989; Gordon v. Travelers Ins. Co. (Tex), 287 S.W. 911; Taggart v. Ind. Com'n. (Utah), 12 P.2d 356.)
Where there is conflict in medical testimony finding of the Board on medical questions will not be disturbed. ( Rand v. Lafferty Transportation Co., 60 Idaho 507, 42 P.2d 786.)
A finding of the Board that deceased died from coronary thrombosis and not from accident will not be disturbed on appeal. ( Knight v. Younkin, 51 Idaho 612, 105 P.2d 456.)
Findings of the Board substantiated by facts will not be reversed on appeal. (Const., art. 5, sec. 9, as amended 1937 Laws, p. 498; I. C. A. secs. 43-1407, 43-1408, 43-1409 (As amended 1937 Laws, c. 175, pp. 288, 289); Golay v. Stoddard, 60 Idaho, 168, 89 P.2d 1002; Potter v. Realty Trust Co., 60 Idaho, 281, 90 P.2d 699.)
Appellant, widow of deceased, Julian Aranguena, was by the Industrial Accident Board denied compensation for her husband's death on the theory that the same was not accidental.
Deceased was about 50 years old and had been working for the respondent mining company 4 years. He was a strong, vigorous, robust man, never having complained of pain in his heart or chest, and having missed only 3 days because of illness up until August 20, 1940, at which time he was laid off because of a broken ankle. The day of his death, October 9, 1940, was the first day he had returned to work after breaking his ankle. On this day deceased and one McPherson had gone to work at 6:30 p. m. on the 770 foot sub-level, about 2000 feet from the surface of the mine, some 500 or 600 feet from the main inclined shaft. Deceased was braking and operating the clutch of a tugger, which required about 25 to 30 pounds of pressure. At 10:30 deceased and McPherson ate lunch. They returned to work, deceased started coughing, said he felt as if he were going to throw up, walked about 15 feet from the tugger and vomited. McPherson went to him and found deceased on his hands and knees, acting as if he couldn't get his breath, his eyes rolling back. He made no complaint, his face was not discolored, and he died immediately.
An autopsy disclosed an arterial sclerosis and a thrombosis in the right coronary artery, occluding the same about an inch from where the same comes from the aorta. The doctor performing the autopsy stated the thrombosis had been developing for some time, possibly a year. The death certificate gave as the cause of death this thrombosis and over-exertion following the convalescence from the fracture of the ankle. Another doctor was of the opinion the bad air and exertion were the precipitating cause of the fatal occlusion. A heart specialist called by respondent stated categorically in response to a hypothetical question that the fractured ankle, exercise, and bad air had nothing to do with contributing to or causing the death, but stated on cross-examination that while the bad air would cause a person to breathe faster, thus tending to prevent the occlusion of a coronary thrombosis, he would not place a person with coronary thrombosis where there was a shortage of oxygen, and men with arteriosclerosis should not work in a mine.
The board found: "that the air in said raise [where deceased was working] was quite warm and was deficient in oxygen and the men perspired quite freely while engaged in their work; that the ventilation in said raise was not very good" and in finding 5 that: "the death of said Julian Aranguena was caused by thrombosis of the coronary artery and that said disease was not caused, aggravated or accelerated by the work done by the said deceased on the 9th day of October, 1940."
The concluding fact, therefore, that the thrombosis was not caused, aggravated, or accelerated by the work was not a comprehensive finding or conclusion in that it did not cover the effect of the bad air, heat, or lack of ventilation.
Respondent contends the board's findings adverse to appellant upon disputed and contradictory facts, under the statute and the constitution, are binding upon this court. If supported by competent, substantial evidence, that is true. If not, it becomes a question of law; or, if there is a lack of substantial, probable evidence, there is insufficient support for the order. The board having found that there was bad air, lack of ventilation, and that the workmen were sweating because of these conditions, whatever conflict may have existed in regard to this situation becomes of no importance. These findings stand.
Two doctors, one of whom performed the autopsy, concluded these conditions deleteriously affected the thrombosis or embolus and caused it to completely close the coronary artery. While the answers to the hypothetical questions of the other physician, who never saw the deceased, disputed this, the cross-examination devitalized this apparent conflict. The appropriate rule of law has thus been stated in Fackenthall v. Eggers Pole Supply Co., 62 Idaho 46 108 P.2d 300, at 302:
"We should not overlook the fact that sometimes there may be a difference between degrees of expert testimony and opinion evidence. The expert often testifies as to the effect or result of natural or scientific facts, which have been proven or demonstrated by him or by acknowledged leaders of his profession and which may not be known or fully apprehended by the layman unskilled in the profession of the particular expert. Dougherty v. Milliken, 163 N.Y. 527, 57 N.E. 757, 79 Am. St. Rep. 608; Copenhaver v. Northern Pac. Ry. Co., 42 Mont. 453, 113 P. 467, 470. On the other hand, the expert may apply his scientific knowledge to a hypothetical state of facts and thereby express an expert opinion. It has also been held 'proper for a qualified expert witness to give his opinion as to whether certain assumed facts were the cause of a subsequent condition.' Hayhurst v. Boyd Hospital, 43 Idaho 661, 671, 254 P. 528, 530. There should, and there ordinarily will be, more weight given to the testimony of one who testifies from first hand knowledge than will be given to the one who testifies alone on a hypothetical state of facts. Kelly v. Perrault, 5 Idaho 221, 232-240, 48 P. 45; Note, 39 L.R.A. 333."
The board should have given the positive testimony of the doctor who performed the autopsy and saw deceased controlling weight, as against the negative, weakened, opinion testimony, and not having done so, the order is contrary to law. Suren v. Sunshine Mining Co., 58 Idaho 101, 70 P.2d 399; Evans v. Cavanagh, 58 Idaho 324, 73 P.2d 83; Nistad v. Winton Lumber Co., 61 Idaho 1, 99 P.2d 52; Watkins v. Cavanagh, 61 Idaho 120, 107 P.2d 155.
Cases closely in point are Carroll v. Industrial Commission, 69 Colo. 473, 195 P. 1097, where a person suffering from a heart ailment similar to the one involved herein, while pitching hay in excessive alfalfa dust, died. The same contentions were made as herein, but the board held the death was accidental. This case has been cited with approvel in Aldrich v. Dole, 43 Idaho 30, 249 P. 87; In re Larson, 48 Idaho 136, 279 P. 1087; Ramsay v. Sullivan Mining Co., 51 Idaho 366, 6 P.2d 856; Sullivan Mining Co. v. Aschenbach, (Ida., 9th Cir., Dietrich) 33 F.2d 1; and in other jurisdictions by Tintic Milling Co. v. Industrial Commission, 60 Utah 14, 206 P. 278; Ellermann v. Industrial Commission, 73 Colo. 20, 213 P. 120; Cherdron Const. Co. v. Simpkins, 61 Utah 493, 214 P. 593; Graybar Electric Co. v. Industrial Commission, 73 Utah 568, 276 P. 161; Hartford Accident Indemnity Co. v. Industrial Commission, 38 Ariz. 307, 299 P. 1026; United States Fidelity Guaranty Co. v. Industrial Commission, 96 Colo. 571, 45 P.2d 895; Industrial Commission of Colorado v. Wetz, 100 Colo. 161, 66 P.2d 812; Brown's Case, 123 Me. 424, 123 A. 421; Pace v. North Dakota Workmen's Compensation Bureau, 51 N. Dak. 815, 201 N.W. 348; Schirmer v. Cedar County Farmers Telephone Co., 139 Neb. 182, 296 N.W. 875; Wright v. Louisiana Ice Utilities Co., 19 La. App. 173, 138 So. 450; Smith v. Incorporated Village of Sea Cliff, 263 N.Y. S. 679.
( Knock v. Industrial Accident Commission, 200 Cal. 456, 253 P. 712, held that the exertion of walking over rough ground at a high altitude, following which death occurred from heart trouble similar to that involved herein, was accidentally occasioned, discussing at length the interpretation of conflicting views as involved herein, sustaining the pronouncement herein that there was not substantial evidence creating a conflict, followed by Fogarty v. Department of Industrial Relations, (Cal.) 269 P. 641, reaffirmed in 206 Cal. 102, 273 P. 791. The above case was followed and approved in In re Larson, supra; Beaver v. Morrison-Knudsen Co., 55 Idaho 275, 41 P.2d 605, 97 A.L.R. 1399; Thoreau v. Industrial Accident Commission, 120 Cal.App. 67, 7 P.2d 767; and such theory is further elaborated in Nielsen v. Industrial Accident Commission, 220 Cal. 118, 29 P.2d 852. This case also considered that testimony of the physician, who performed the autopsy and actually saw the deceased, that the conditions at the time of death accelerated and aggravated and brought to a lethal conclusion the thrombosis, was entitled to greater weight than the testimony of the expert not based upon anything except theoretical, hypothetical questions. Consequently, they are not on a parity. Mark v. Industrial Accident Commission, 29 Cal.App.2d 495, 84 P.2d 1071. Particular attention is called to Blankenfeld v. Industrial Accident Commission, 36 Cal.App.2d 690, 98 P.2d 584, at 587.
In Nicholson v. Roundup Coal Mining Co., 79 Mont. 358, 257 P. 270, the court held that a miner subjected to extremely cold air in passing out of a mine suffered an accident where immediately his heart, though previously impaired, gave way, and that the same constituted an accident. The board herein, in failing to take into consideration, or at least in not making any specific finding with regard to the bad air, the heat, and the lack of ventilation, did not make a sustainable order. Birdwell v. Three Forks Portland Cement Co., 98 Mont. 483, 40 P.2d 43.
The order is therefore reversed and the cause remanded with instructions to enter an award in favor of appellant on the ground that the only substantial, preponderating evidence in the record discloses that the conditions at the time of deceased's death at least so accelerated and aggravated the thrombosis as to constitute a compensable industrial accident.
Costs to appellant.
Budge, Morgan, Holden, and Ailshie, JJ., concur.