Opinion
No. 5534.
June 30, 1930.
APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. W.F. McNaughton, Judge.
Action for compensation. Judgment for the defendant. Affirmed.
Frank Langley, for Appellant.
Under the workmen's compensation law the acceleration or aggravation of a latent bodily defect or disease through injury sustained by accident in course of employment is compensable. ( Larson v. Blackwell Lumber Co., 48 Idaho 136, 279 Pac. 1087; Pinyon Queen Min. Co. v. Industrial Commission of Utah, 59 Utah, 402, 204 P. 323.)
Absolute proof that disability resulted from injury is not required. ( McNeil v. Panhandle Lumber Co., 34 Idaho 773, 203 P. 1068.)
On appeal from award by industrial accident board and from judgment of district court, the supreme court will set aside the same if not supported by substantial and competent evidence. ( Larson v. Blackwell Lumber Co., supra; Brady v. Place, 41 Idaho 747, 242 P. 314, 243 P. 654.)
R.M. Cummins and Harry M. Morey, for Respondents.
The burden is on the claimant in compensation cases, just as in common-law actions, to prove his case, that is, to prove that he had an injury by accident and that the disability resulted therefrom. ( Singlaub v. Industrial Acc. Com., 87 Cal.App. 324, 262 P. 411; Aetna Life Ins. Co. v. Industrial Commission of Utah, 64 Utah, 415, 231 P. 442; 28 R. C. L., p. 812, par. 99; Hawkins v. Bonner County, 46 Idaho 739, 271 P. 327.)
Oscar Larson, while working for the respondent, received an injury by a board falling on his leg for which he received compensation. Some fourteen months thereafter he suffered a stroke of paralysis from which he soon after died. Prior to his death, however, he filed a petition with the Industrial Accident Board to reopen his case on the ground of a change in conditions occasioned by the paralysis, which he claimed was caused by the leg injury. The Industrial Accident Board denied the petition and this was affirmed by the district court. The decedent's widow, as administratrix of his estate, has been regularly substituted as the claimant and appellant in this appeal.
Respondents contend that the evidence does not sufficiently establish that the accident was the cause of Larson's death. The criterion governing such a situation has been laid down by this court in Hawkins v. Bonner County, 46 Idaho 739, 271 P. 327, 328, as follows:
"The burden is on a claimant to produce competent evidence that death resulted from an injury for which the statute provides compensation, and it is not sufficient to establish a state of facts which is as consistent with as against a right to compensation."
See, also, Simpson Const. Co. v. Industrial Acc. Com., 74 Cal.App. 239, 240 P. 58; In re Sanderson's Case, 224 Mass. 558, 113 N.E. 355; 28 R. C. L. 812.
The respondent introduced no evidence. Several physicians testified for appellant, the material part of their testimony being as follows:
Dr. Dwyer:
"Q. Do you think the facts I have related would accelerate any latent weakness that might have, previous to the time of the injury, existed in his system — do you think that it would have accelerated that tendency to the stroke of apoplexy? A. It is possible that it did so."
Dr. Teed:
"Q. Now doctor, did you mean to say in answer to Mr. Morey's question that this injury might have accelerated the claimant's stroke of apoplexy, or that in your opinion it did accelerate it? A. Well the idea I meant to convey was that it is possible that it did, or it could hasten the condition like Mr. Larson has.
"Q. Would you say that it probably did hasten it? A. Well I might just hesitate to say that but it is possible that it could."
Dr. Sturgis:
"Q. Do you think the injury had anything to do with bringing on his present condition and if so, what? A. All I could say is that it might have. . . . ."
Dr. Mowery:
"Q. What are your conclusions as to whether or not an injury suffered by the claimant in December, 1927, caused or tended to hasten the development of his present condition? A. Well, in my candid opinion, gentlemen, it certainly is a most pitiable case but in my opinion the possibility of connecting this injury with the present condition is rather remote — it is not very probable."
Tested by the above rule, this evidence is insufficient to show that the accident caused the death.
The court therefore did not err in denying compensation.
Judgment affirmed. Costs to respondent.
Lee and Varian, JJ., and Johnson, D. J., concur.