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Quigley v. Industrial Accident Commission

District Court of Appeals of California, Second District, Second Division
Aug 30, 1934
35 P.2d 544 (Cal. Ct. App. 1934)

Opinion

Hearing Denied by Supreme Court Oct. 29, 1934.

Proceeding under Workmen’s Compensation Act by Eugene Debs Quigley, claimant, opposed by the Ward Chandler Building Company, employer, and the Pacific Indemnity Company, insurance carrier. Finding and order by the Industrial Accident Commission denying claimant compensation, and claimant petitions for a writ of review.

Finding and order denying compensation annulled, and case remanded, with instructions.

COUNSEL

Ethel H. Harradine, of Los Angeles, for petitioner.

Everett A. Corten and Emmet J. Seawell, both of San Francisco, for respondent commission.


OPINION

ARCHBALD, Justice pro tem.

Proceeding to review a decision of respondent commission denying petitioner’s application for compensation for an injury which he claims to have sustained in the course of his employment.

Petitioner was employed as a janitor by respondent Ward Chandler Building Company. On the afternoon of July 21, 1933, he was moving a desk, and, as he was down on his hands and knees, quoting herein from petitioner’s testimony before the commissioner, "and kind of twisted," he "tried to lift the end of the desk" to put some wires under it, "and as I did so I felt something, felt like it gave way in my chest, and I fell back on my hands. I said at the time to Miss White (his superior) it felt like something broke inside." He said it "felt like something pulled loose, more than anything else," and "for about five or ten minutes kind of a dull pain in there." He continued with his janitor work, but did no more lifting on the desk, and felt "no more pain until about twenty-four hours or less-on Saturday shortly after noon," when, as he was stooping over cleaning out a washbasin, he found that he could not straighten up. He then felt "a very severe pain * * * like a rib doubling over the other." He stayed on the job until about five o’clock p. m., but "didn’t do work." The pain continued "the rest of the day and all night Saturday night." He went back to work Sunday night at 7 o’clock, as a night watchman, but all he did "was run the elevator." Monday morning petitioner went to the office of Dr. Flamson, who was employed by the insurance carrier of petitioner’s employer, and, in the absence of the doctor, the nurse gave him some attention and told him to go home and put hot compacts on his side. He reported that at the office of his employer and went home. Tuesday another doctor was called in by petitioner’s family, who sent him to the Santa Féhospital, in Los Angeles, immediately. Petitioner was there nine days at the expense of the employer’s insurance carrier, the latter then apparently on the report of the attending physicians disclaiming liability. He was then taken to the county hospital, where he remained twenty days, after which he was made an "out-patient," and was being so treated at the time of the hearing before respondent commission.

The commission found, and the evidence supports it without conflict, that petitioner "sustained a spontaneous pneumothorax," but it also found that it was not caused by injury arising out of and occurring in the course of the applicant’s employment. The sole question presented by the petition is whether there is any substantial evidence in the record to support this latter finding.

Two of the doctors whose testimony was apparently given favorable consideration by the commission were not specialists in lung diseases, but were physicians and surgeons who cared for the applicant, apparently at the request of respondent insurance carrier, while he was in the Santa Féhospital. Another was a specialist in chest diseases, who investigated the case at the request of such insurance carrier approximately six and one-half months after petitioner left the county hospital and about a month after the rehearing but before decision; and the fourth, at the request of the commission, made a report after examining the statements made by the others, as well as the testimony given at the rehearing by the doctors favorable to petitioner’s claims. Two of the latter were specialists in chest diseases on the staff of the county hospital, who examined and treated petitioner after he was admitted there. A third doctor, whose conclusions were favorable to petitioner, made an examination and report apparently at the request of petitioner’s attorney, about two weeks after report was made by the doctor appointed by the commission, such report being largely the result of examinations and tests made as to the presence of tuberculosis. Petitioner urges that the conclusions of the doctors whose opinions are the sole support of the questioned finding and award are based on conjecture and not on facts; that such doctors arbitrarily ruled out the industrial accident as the cause of the injury, and based their conclusions on a false premise to wit, the existence of tuberculosis, "which they admit they cannot find present," and that there is no substantial conflict with the evidence showing that the disabling injury had its origin in an industrial accident.

An appellate court will not review the findings of the commission, any more than it will the finding of a jury, where the evidence is conflicting upon substantial matters, (Smith v. Belshaw, 89 Cal. 427, 26 P. 834; Gamberg v. Industrial Acc. Comm. (Cal.App.) 32 P.2d 413, 466); and the conclusions of an expert based upon an incorrect or faulty history are of no practical value (Gamberg v. I. A. C., supra.)

One of the two doctors who treated petitioner in the Santa Féhospital, in his history of such occurrence, says: "He (petitioner) felt a sensation in the lower chest well in front and he described it as a ‘heavy pressure ,’ and it felt like ‘two objects rubbing together.’ (Italics ours.) There was no sharp pain; it lasted only momentarily and he paid no further attention to it. No discomfort followed. He continued with his usual activities." The doctor then describes the occurrences of the second day, and concludes that the inception of the pneumothorax "was apparently while he tried to arise from a stooping position while cleaning a wash basin on July 22d. I do not believe there was anything unusual about arising from a stooping position" while cleaning a basin. "This condition, the hæ mo-pneu-mothorax, is in a great majority of cases a complication of old or active tuberculosis."

The other doctor who treated petitioner in the Santa Féhospital gives practically the same history. He says: "Because of patient’s critical condition a complete physical examination was not made." Under "Original Injury," he says: "There is no definite history of injury." The statement then recites the occurrence on the 21st as heretofore given and what occurred on the 22d, adding: "At that time (the 22d) he did not slip or fall and no external object struck him," and concludes: "I find no evidence in this case that patient’s left lung collapsed as a result of his employment. I believe this is a classical spontaneous left pneumothorax unassociated with patient’s employment."

The chest specialist who concurred with the conclusions of such doctors gives practically the same history. Under "Discussion," he says statistics show that 90 per cent. of these cases are due to tuberculosis, and that in approximately 98 per cent. there are "immediate and acute symptoms, excruciating pain comparable to the pain of an angina pectoris, and there is always that fear of impending dissolution. I have never known this condition to develop in a patient whose lungs were normal and healthy." The report shows that this specialist, from the physical build and characteristics of petitioner and the X-ray indications of "old healed pleural thickening at the left apex, considerable searing in the right lung and the tension in the left shoulder group of muscles which is indicative of activity," had "grave suspicions" of the presence of tuberculosis, although "the information at hand from the physical findings is not sufficient to definitely state that this boy has an active tuberculosis at this time. * * * It is the most probable conclusion that tuberculosis is the underlying cause."

The doctor appointed by the commission, as heretofore stated, examined the reports of the other doctors, but did not examine the patient. He says: "As physicians, we are all aware that generally the condition is precipitated by a tuberculosis lesion, active or quiescent, in the lung. I do not believe that the lifting act of July 21, 1933, was the precipitating cause of the development of a spontaneous pneumothorax, with the acute symptoms not manifesting themselves until 24 hours after this particular physical effort."

It will be seen that the facts upon which said four doctors predicated their conclusions are approximately the same, and that they agree that the lifting on the 21st did not originate the disabling injury but that its origin was on the 22d, when petitioner cleaned the washbasin, at which time the symptoms of great pain exhibited themselves; and they exclude such effort as the cause, apparently because, either inferentially or expressly, they are of the opinion that tuberculosis was the active provoking cause of the lesion and not the physical effort exerted at that time.

In the first history shown above it is evident that the doctor ascribes the sensation described as a "heavy pressure" and "two objects rubbing together" as occurring on the lifting of the desk. Such descriptions apply more closely to petitioner’s description of the sensation occurring on the second day, at the time fixed by such doctor as the beginning of the pneumothorax; and, in addition to the facts set forth in the history upon which the four doctors based their conclusions, petitioner testified that on the lifting of the desk on July 21st it "felt like it gave way in my chest"; that he told Miss White at the time that "it felt like something broke inside," "like something pulled loose more than anything else"-"with a kind of dull pain" for a few minutes; that the desk weighed about 400 pounds, and that he may have had one leg of it off the floor; that he had never had pains in that region before; that he very seldom worked in the afternoon "because I do my work in the morning and get it all done"; that the pain on the 22d continued "the rest of the day and all night Saturday night"; that all he did Sunday night was to "run the elevator"; that another fellow "did all my work for me"; that he was not able to go back to work Monday, "on account of pain in my left chest." Additional facts upon which the two specialists in the county hospital based their conclusions are as follows: That petitioner "was in normal physical health up to the time at which he lifted the desk, and at that time he experienced pain in his left chest"; that "there is no history and no evidence of tuberculosis in repeated examinations and X-rays."

It is interesting to note that even in the case of the two chest specialists at the county hospital, notwithstanding the history of no tuberculosis, and in view of the apparently well-known fact that most of such cases have their origin in such a pathology, they checked the history by many examinations and tests until they found that it was corroborated; and tuberculosis was excluded by not only the history but by such examinations and tests.

Two of the four doctors who, on the sketchy and incomplete history before them and the apparently very superficial examinations made by them, ruled out industrial accident as the cause of injury, were examined on the stand in the rehearing before the referee. One was the physician and surgeon petitioner first tried to see and who treated him in the Santa Féhospital; the other was the chest specialist. It is significant that the physician and surgeon testified that a spontaneous pneumothorax "can happen under most any circumstances, walking, sitting in a chair, lifting ," apparently excluding the lifting here, because the pain did not persist from that time. "They (the patients) know when it starts because they feel it, and it does not stop hurting, it keeps on hurting."

In view of such testimony it is equally significant that the chest specialist, who also ruled out the industrial accident as the cause of injury, testified on cross-examination as follows:

"Q. As to these delayed symptoms, would not the size of the tear or rupture which occurred at his first strain on July 21 have some effect upon the amount of pain he experienced at the time?

A. It is usually a large tear; usually provokes symptoms more rapidly than a small one .

"Q. And the amount of seepage of air or blood into the pleural cavity determines the length of time it takes before fully developing all disabling symptoms?

A. Until your compression symptoms become great enough to incapacitate-yes ."

He also said that statistics on pneumothorax show that in 98 per cent. of the cases the symptoms develop at once; that he had "never seen a case otherwise"; that he "could not say definitely" that "this did not occur on the day he (petitioner) was lifting the desk," although he had never seen a case "provoked by an effort syndrome," and that in his opinion "it (spontaneous pneumothorax) never occurs in a well lung."

"Q. In medicine we are always finding things that are always happening that never happened before?

A. Yes.

"Q. So you could not say as a scientific man that it could not happen, or did not happen?

A. I could not be certain that it could not happen.

"Q. Or. that it did not happen?

A. I have to quote my own conclusions and findings.

"Q. And you are basing your conclusions as to the possibility of tuberculosis causing this condition in Mr. Quigley upon the statistics which you have?

A. 90 per cent of cases of spontaneous pneumothorax is due to tuberculosis.

I am basing my conclusion upon this, upon the physical make-up of the boy, the spare, lean individual, flat chested, red headed; red headed people are notoriously tuberculous. The scar in the left chest, tension of the shoulder girdle muscles in the left side lead me to my suspicions ." (Italics ours.) In his filed statement such specialist says: "If tuberculosis is ruled out we must then think of a ruptured bleb from an emphysema, subdiaphragmatic inflammation or a rupture of the esophagus. The above-mentioned are all causative factors but the patient’s history rules out the latter so we must almost necessarily fall back on tuberculosis as the underlying cause. * * * It is the most probable conclusion that tuberculosis is the underlying cause. * * * There must be a lesion before man can have a pneumothorax. * * * A scientific conclusion cannot be drawn that the effort in moving a desk, which was made by this patient, increased the air pressure to an extent which caused his pneumothorax."

The specialist’s frank statement that there must be a lesion before man can have a pneumothorax, that a large tear provokes symptoms more rapidly than a small one, and that the amount of seepage of air or blood into the pleural cavity determines the length of time it takes before developing all disabling symptoms, has great significance when considered in connection with the evidence of the two specialists who had petitioner under their care for a long period of time, who had a complete history of the case, and apparently made thorough and many examinations that seemed to exclude the idea of a tubercular pathology. Their finding in that regard is supported by the statement of the doctor who reported the result of his tests to petitioner’s attorney. His conclusion after apparently very thorough tests was: "There is no evidence in any way, shape or manner of tuberculosis, open or concealed, in Mr. Quigley."

The following statement by one of the specialists from the county hospital who testified at the rehearing, filed in answer to the report of the doctor appointed by the commission, shows the position of the two specialists who found in the lifting effort of petitioner the cause of the pneumothorax: "The conclusion of Dr. Jones that he does not believe the lifting act of July 21, 1933, was the precipitating cause of the development of spontaneous pneumothorax, with the acute symptoms not manifesting themselves until twenty-four hours later is not well founded. As brought out in the testimony of the undersigned, it is not a question of belief or opinion, but it is a matter of fact that Quigley was in normal physical health up to the time at which he lifted the desk, and that at that particular time he experienced pain in his left chest. This is shown by the testimony and by the history taken at the General Hospital. It is not a question of opinion, but it is the fact that delayed symptoms do occur and not infrequently, following spontaneous pneumothorax. It is also a fact that spontaneous pneumothorax at times is not recognized until delayed symptoms appear, causing the patient to go to a physician and have an X-ray examination of his chest. In the case of Quigley, tuberculosis is not to be considered because there is no history and no evidence of tuberculosis in repeated examinations and X-rays. It is a known fact, and not a mere opinion, that spontaneous pneumothorax does develop without the previous existence of pulmonary tuberculosis. Dr. Jones states that he finds no explanation of a twenty-four hour period elapsing before the onset of acute disabling symptoms. In the testimony of the undersigned, under cross-examination, the reason for such delayed symptoms was fully gone into. In brief, the reason for these delayed symptoms is that a minimal tear existed in the damaged lung, and the seepage of blood was so small in amount, and protracted over a period of time, that no symptoms manifested themselves until twenty-four hours later, when the amount of blood in the pleural cavity had accumulated to such an extent as to produce compression symptoms. This was shown in the history of the case and the X-rays taken shortly after Quigley was admitted to the General Hospital. It is reasonable to assume that if an X-ray had been taken within the chest a few hours after the tear of the lung tissue took place, no fluid would have been discernible, but a pneumothorax would have been present. It is obvious, from experience in the use of artificial pneumothorax, that the entire lobe or lobes of one side of the chest and a partial collapse of the lung on the opposite side of the chest can be present in the patient without the patient manifesting any untoward symptoms. Experience teaches that in the type of cases here under consideration, acute symptoms do not develop immediately afterward, but over a period of time, and this is due, first to the loss of blood in the pleural cavity, and secondly, to compression symptoms interfering with circulation. This type of case (as the Quigley case is) is not the unusual one, and it is obvious that the symptoms, or the acuteness of the symptoms, and the disability, depend entirely upon the size of the tear in the lung tissue and the ensuing hemorrhage producing secondary anæ mia." The language of the last two sentences is directly in accord with the statement, in different language, of the specialist whose conclusions were different.

In our opinion, the two specialists who fixed the origin of petitioner’s pneumothorax as of July 21st had before them evidence which was not before the physicians who came to a different conclusion, and had a better opportunity to study the patient and form their conclusions and that there is no conflict between the differing conclusions.

It is not disputed that the pneumothorax completely incapacitated petitioner from working on and after the 24th day of July, 1933, that he was so incapacitated at the time of the rehearing, and that such condition would continue for some time thereafter. Neither was there any question as to the amount charged for hospital and other services rendered him up to that time, nor as to his salary being $75 per month.

Giving the statute (Stats. 1917, p. 877) the liberal construction required of the courts under section 69 thereof, we are of the opinion that petitioner is entitled to compensation.

The finding and order denying compensation are annulled, and the case is remanded, with instructions to the commission for further action on the record before them in accordance with the views herein expressed.

We concur: STEPHENS, P. J.; CRAIG, J.


Summaries of

Quigley v. Industrial Accident Commission

District Court of Appeals of California, Second District, Second Division
Aug 30, 1934
35 P.2d 544 (Cal. Ct. App. 1934)
Case details for

Quigley v. Industrial Accident Commission

Case Details

Full title:QUIGLEY v. INDUSTRIAL ACCIDENT COMMISSION et al.[*]

Court:District Court of Appeals of California, Second District, Second Division

Date published: Aug 30, 1934

Citations

35 P.2d 544 (Cal. Ct. App. 1934)