Kansas City Structural Steel Co. v. Yarber

RILEY, J. We are called upon in this ease to review an award of the State Industrial Commission in favor of respondent, T. C. Yarber, herein referred to as claimant, *122 and against petitioner, Kansas City Structural Steel Company, employer, and Globe Indemnity Company, insurance carrier, here, in referred to as petitioners. The award is for compensation at $15.39, per week for 34 weeks and three days from August 26, 1930, the date of the injury, less the five-day waiting period, to April 30, 1931, or a total of $530.95, and that the payments be continued at the same rate until compensation for the total period of 500 weeks has been paid. The findings are that claimant sustained an accidental injury by which he was rendered totally disabled for the performance of ordinary manual labor, and that: “Claimant is entitled to compensation for the period from the date he was injured, less the five-day waiting period, to April 30, 1931, being a total period of 34 weeks and 3 days, at the rate of $15.39 per week, or $530.95, for the permanent total disability above set out, being more particularly described as total loss of vision in the right eye and industrially blind in the left eye, and for continuing compensation until the compensation has been paid for the whole period of 500 weeks.” The contention of petitioner is : (1) That the findings of the State Industrial Commission are without competent evidence to support them; (2) that the award and findings are not supported by the evidence; (3) that the award is contrary to law. The record discloses that on and prior to August 26, 1930, claimant was employed by the Kansas City Structural Steel Company, conceded to be within and covered by the (Workmen’s Compensation Law; that on August 26, 1930, while engaged in striking rivets in a steel tank with a hammer, on or two small particles of steel became lodged in claimant’s right eye; he went bo a physician in Seminole, who removed one small particle of steel from his eye. He remained under his care for about a week, and was then sent to a specialist in Tulsa, Okla., and was examined and treated by Drs. White & White. Dr. Peter Cope White, of said firm, removed another small particle of steel from claimant’s right eye. He was treated there some four months, or until about December 31, 1930, at which time he had entirely lost the sight in his right eye and was practically blind in the left eye. It is not claimed that he received any direct accidental injury to his left eye. From September 6th to 26th, ■ tests made from time to time showed normal vision of the left eye, although the firm test made on September 4th showed 16 4/10 loss of vision in that eye. The test made on the same day revealed 80 per cent, loss of vision in the right eye. About October 3rd a test revealed about 80 per cent, loss of vision in the left eye, and thereafter until about December 31st, tests made from time to time showed loss of vision in the left eye varying from 80 per cent, to 93 per cent. About October 6th, because claimant complained of pain in the eyeball, which did not appear to be dué to any traumatic condition, and because of inability to dilate the pupil of the eye to any extent, a laboratory test was made. The Wasserman blood test made at that time showed 100 per cent, positive, indicating a systemic syphilitic condition of long standing. The contention of petitioners before the Commission was that the loss of vision in both eyes was due to the syphilitic condition entirely and was not attributable in any degree to accidental injury. Such is their contention here as to the left eye. No serious contention is here made that the accidental injury did not in some degree accelerate the existing syphilitic condition and contribute to some extent to the loss of the vision of the right eye. Petitioners say in their brief that there may be some possible ground for awarding compensation for the loss of the right eye, although they contend that such conclusion is not reasonably justified by the evidence. This court cannot weigh the evidence. As to questions of fact, the weight of the evidence is for the Industrial Commission to determine. There is some evidence reasonably tending to support the award as to the loss of the right eye. The uncontradicted evidence shows no accidental traumatic injury to the left eye. We are to determine whether there is any competent evidence to support the award in so far as the loss of the left eye is involved. The cause of the loss of the left eye is a question to be determined from medical or expert testimony alone. It must be attributable to one of two causes. First: The blood- condition of claimant due to syphilis, or as one of the witnesses put it: “A syphilitic iritis in both eyes and a syphilitic corea neuro reconilis in both eyes, that in more understandable English would be a syphilitic inflammation of the shutter of both eyes and a syphilitic condition of the retina and optic nerve of both eyes.” The syphilitic condition is also referred to in the testimony as “systemic condition.” The only other possible cause is what is termed a *123 sympathetic condition arising from the accidental injury to the right eye called “sympathetic ophthalmia.” Three medical or expert witnesses testified, one for claimant and two lor petition-» ers. Dr. Daniel W. White and Dr. Peter Cope White, both of Tulsa, testified for petitioners, and their testimony is positive and unequivocal to the effect that the loss of the left eye was due wholly to the syphilitic or systemic condition of claimant, and they were both quite positive that there was no sympathetic ophthalmia >or sympathetic inflammation. The reasons for their conclusions are stated in their testimony. The award as made, in so far as it applies to the left eye, is wholly without support so far as the testimony of these two experts is concerned. We must then look to the testimony of Dr. Braswell, who testified for claimant. A careful examination thereof forces us to the conclusion that there is nothing therein from which it can be reasonably inferred that the loss of the left eye was due in any degree to the accidental injury. Dr. Braswell, in his testimony, when called upon to give his opinion or conclusion as to whether claimant’s loss of sight was due or attributable in any degree to the accidental injury, always qualified his answers in such a way as to say that such might have been the case in the absence of a systemic or syphilitic condition. As to the right eye he testified: “Q. Doctor, would the condition in his right eye be attributable to any injury sustained? A. The right eye could have resulted from an injury. Q. Taking into consideration that the man received an injury to the right eye by a piece of steel being imbedded in that right eye, and having no improvement thereafter, and the further fact that his vision was positive previous to the accident. *'* * (continued) would it not be reasonable to presume that the impairment was due to the accident he sustained on August 26, 1630, unless there was something specific to the contrary? A. If there was nothing to the contrary. By the Court: Q. You never found it? A. There was a report in the laboratory — a laboratory test made, and I think there was a positive blood Wasserman. Q. Was there any evidence of systemic trouble — any evidence of syphilis? A. I think not — there was no luetic evidence. By Mr. Graybill: Q. At the time you examined him there was no evidence of syphilis causing it? A. I would not say it is attributable to syphilis.” But on cross-examination he admitted that he did not make a blood test or any other scientific test to determine whether or not there was any systemic luetic infection or condition. He admitted, however, that he knew a Wasserman blood test had been made, and that it showed positive, indicating existence of syphilis. While he did not say that in his opinion the condition of the right eye was attributable to syphilis, he did not say it was not. In other words, his testimony was, in effect, that he did not know and had no opinion as to whether or not the condition of the right eye was due to accidental injury or to syphilis; that he did not know whether or not claimant was afflicted with syphilis for the reason he had made no test to determine that question. As to the left eye he testified: “Q. Doctor, considering the fact that his left eye was good prior to the time this injury was sustained, and taking into consideration the condition it was in when you first examined him and the condition it has been in ever since, is there reason to suppose that a sympathetic condition could have caused it? A. Could have caused it. Q. Sympathetic condition from the right eye? A. It could have caused it. Q. In the absence of any other cause for this condition, and you found no other cause, the conclusion would be that the injury was the cause of his trouble? A. The only one debatable point would be his blood Wasserman. Q. You found no evidence of that? A. There was none I found.” And upon cross-examination he testified as follows: “Q. Doctor, you stated you could find no evidence of a syphilitic condition upon your examination — I’ll ask you, Doctor, if you made an examination for a syphilitic condition, to determine whether or not he had it? A. There was a report from one of the laboratories in this building. Q. But you testified you could find no syphilis? A. I made the statement that it was positive. Q. But you yourself could find no evidence of a syphilitic condition at that time? A. I did not see any. Q. You did not see any — if you made that statement at that time and that test was positive, you would have to admit that said condition was existing at the time you examined him? A. If there was any presence of syphilis? Q. Yes. A. Certainly. Q. If this man had that condition existing that could have caused this condition from which he was suffering at the time you made this examination, his last treatment? A. His eye findings would have showed luetic symptoms. Q. But did they have that? A. It would from a systemic standpoint.” And when examined by the Commissioner he testified as follows: “Q. But it is reasonable to believe that *124 from the history given you by the claimant, laboratory findings, examination and treatments, that the disability he is now suffering with is due to this alleged injury, is that correct? A. ¡With the history of the whole thing, without any luetic involvement, would certainly give you the grounds for assuming that.” In connection with the testimony of Dr. Braswell it is well to state that the word “luetic” is defined as “pertaining bo, or afflicted with lues.” The word “lues” is defined: “(a) Any pestilential disease, (b) Syphilis.” So the testimony of Dr. Braswell, so far as the left eye is concerned, is that it might be assumed that the loss of sight was due to the accidental injury, that is, sympathetic ophthalmia, only in the absence of systemic luetic involvement, or, in other words, in the absence of syphilis. He admits knowledge of the laboratory test positively showing the existence of syphilis. Therefore he expresses no opinion whatever that the loss of the left eye was due to sympathetic conditions or was in any way connected with the accidental injury. There is, then, no evidence whatever to support the finding of the Commission as to the loss of the left eye. It is only upon evidence tending to show that the accidental injury to the right eye might have excited, and probably did excite, or set up more actively, existing syphilis, that the award can be upheld as to the loss of the right eye. Strict construction of the Workmen’s Compensation Law would require that compensation even as to the right eye be limited to that percentage of the loss which could be traced or attributed to the accidental injury, leaving the claimant without compensation for that part of the loss attributable to preexisting systemic conditions. But the law will not make these fine distinctions. Besides, it would be difficult indeed, if not impossible, in most cases to prove the percentage of loss due to each cause. By a more liberal construction or application of the Compensation Law, compensation is awarded for not only the loss attributable directly to the injury itself, but also for disability occasioned by reason of accidental injury exciting to virulence or activity dormant systemic conditions or theretofore unknown or latent diseases. Unfortunate indeed is the laborer who, in order to provide the necessities of life for himself and those dependent upon his labor, engages in an occupation which exposes him to the danger of contracting diseases peculiar to the particular occupation, known as occupational diseases, and contracts that disease and thereby becomes permanently totally disabled from performing tabor of any kind. He and his family may become charges upon public charity. The Workman’s Compensation Law is not applicable, and he can obtain no benefits therefrom. Equally unfortunate is the laborer who, through his own folly, or under circumstances beyond his control, contracts a social disease which when not properly treated or arrested eventually totally disables him from performing tabor of any kind. The Workmen’s Compensation Law cannot be made to apply in his case. It may be applied in so far as accidental injury augments, excites to virulence, or accelerates the ravages of the social disease, but it may not be applied so as to give relief occasioned wholly apart from and not attributable to some accidental injury received in the course of any growing out of such employment. The award in the instant case is for permanent total disability, “more particularly described as total loss of vision of the right eye and industrially blind in the left eye.” The loss of both eyes, in the absence of conclusive proof to the contrary, constitutes total disability. But the loss of one eye is a specific injury for which compensation is payable at the rate of 66 2/3 per cent, of the average weekly wages (in this case $15.39) per week for a period of 100 weeks, regardless of the extent of disability occasioned thereby. The total amount that can be awarded under the evidence in this case is 100 weeks for the loss of one eye, and $15.39 per week for temporary total disability during what is usually termed the healing period, which means during the time claimant is actually disabled on account of the injury until the injury is healed, or until such time as it is determined that the loss of the eye is complete and permanent. In this case the evidence discloses that the loss of the right eye was complete and permanent on December 31, 1930. Benefits provided for in section 7288, O. O. S. 1921, as amended by section 5, ch. 61, S. L. 1923, are also payable. It is stipulated in the record that compensation has been paid at the rate of $15.39 per week up until December 29, 1930. It was therefore error to award compensation from date of the injury less five-day waiting period to the date of the hearing without allowance for the amount already paid. The Commission also made finding “that *125 $1,000 is a fair and reasonable attorney fee in this connection.” There is no showing in the record of any agreement between claimant and his attorney relative to the fee being submitted to the Commission for its approval, but if such agreement is on file and approved by the Commission, owing to the fact that the award must be modified and reduced materially, we deem it essential that this finding and approval as to attorney’s fee should be vacated in order that the matter may be adjusted in connection with the award as modified. The findings and award of the Commission are reversed and the cause remanded, with directions to award compensation not in excess of the amount indicated herein, and in accord with the stipulations entered into, and with the further directions to strike the findings with reference to the attorney fee. LESTER, C. J., and HEFNER, CULLISON, and SWINDALL, J.T., concur. KORNEGAY, J., concurs in conclusion. CLARK, V. C. J., and McNEILL, J., dissent. ANDREWS, J., absent.