Hauser v. Industrial Commission

CHERRY, C. J. Jacob Hauser, an employee of Royal Baking Company, died after a surgical operation on September 7, 1927. His dependents, the plaintiff herein, contending that his death resulted from accident arising in the course of his employment, applied to the Industrial Commission for compensation on account of his death to be paid out of the state insurance fund by which the employer was insured. From an order denying compensation, the dependents have brought *420 the case here by writ of review, contending that the Industrial Commission arbitrarily and capriciously denied the plaintiff’s claim in disregard of conclusive and uncontra-dicted evidence. The questions of fact involved are whether the deceased sustained an injury by accident, and, if so, whether the injury resulted in his death. The Industrial Commission found against the dependents upon both questions. Jacob Hauser, at the time of his death, was 58 years of age. For 6 or 7 years prior to his death he was employed by Royal Baking Company as a flour mixer in its bakery at Salt Lake City. A part of his duty was to carry bags of flour weighing 98 pounds each from one floor of the bakery to the next floor below down stairs or steps. It is claimed by the plaintiff that, while carrying a bag of flour down the steps, the employee slipped and fell, and thereby sustained a traumatic hernia on his left side, necessitating a surgical operation from which he afterwards died. There were two separate hearings of the claim. After the first hearing, compensation was denied. Later, upon stipulation a rehearing was granted. Upon the last hearing, evidence was taken on two separate occasions, and the hearing again adjourned for three weeks when the applicant produced further evidence. Compensation was again denied. The evidence of accident was in brief as follows: The wife of the employee testified that her husband came home about August 4th and complained of pain, and said: “I hurt myself again on the left side, lifting heavy barrels”; that he went to see his doctor the next day; that he worked two or three days and quit; that he was operated on the Saturday morning after he was hurt. At the later hearing, this witness said about two weeks before he was operated on her husband came home and said he had had an accident; that, while carrying a sack of flour he had slipped on the steps and had a rupture on the left side, and that his old one was out again; that he showed her lumps in both groins and varicose veins on the left side; that he did not have lumps *421 on the left side before; and that he did not stop work or stay at home then. A fellow employee testified that in August the employee told him that he had slipped on the top steps and hurt himself in the left leg; that he complained from day to day, and about three weeks later went to a hospital. The employer’s manager testified that on August 23d the employee, when called in the office, stated that about two weeks previously he had had an accident; that, while carrying a bag of flour down, he had felt a sharp sudden pain. He did not say he had slipped. The employee’s physician stated that the employee first came to see him on August 20, 1927, complaining of pain in his left groin, and told him that he had hurt himself handling heavy sacks of flour, and later said he had slipped on the stairs while at work. At the last session of the rehearing, a witness named Balli, 64 years old, was produced for the first time. He testified he was working in the dough room at the bakery in August, 1927, had been employed there for 18 years; that Hauser, the deceased employee, brought flour to him from the upper floor; that, about the middle of August, Hauser, while carrying a sack of flour down the steps, slipped and fell, and let drop the sack and hurt himself in the side; that the witness helped him up; that he could not stand up alone; that his face was all over white; that he said he was hurt, and put his hand on his left groin; that he could not work any more because he was hurt too much; that he never came back to work; that he knew Hauser died, but did not attend the funeral. About a week or so after he died he told Mrs. Hauser how he fell. Mrs. Hauser was recalled to the stand, and said that the first she knew that Balli had seen her husband fall down in the bakery was in the summer of 1928 when she met him on the street and he told her about it. *422 With respect to the injury, it appeared that 5 or 6 years prior to his death the employee had suffered from a hernia on his right side, at which time a surgical operation was performed to correct it. Two years before his death the hernia on the right side had recurred. On August 20, 1927, the employee went to his own physician, complaining of pain in his left groin. An examination disclosed a large mass of varicose veins in the left groin, a small incomplete hernia on the left side, and a recurrent hernia on the right side. He was taken to a hospital and on August 27th was operated by his own physician. This physician testified as a witness for the dependents, and stated that he first operated the left side and found a tender, fragile, thin sac, which was removed, and the wound closed in the usual way without complications or involvements. Then the right side was operated, where was found “a sac dense, white, tough, and adhesions in the neck of this hernia. It was down and could not easily be reduced. We found the appendix and a knuckle of gut adherent in the neck of the hernia. This made it necessary to remove these. It was very dense, and because of the ad-hesions of the appendix at this source, the appendix was also removed and it was closed in the ordinary way.” On the third day thereafter, the patient developed symptoms of iliac paralysis, and his abdomen was again opened to flush the intestines. On September 7, 1927, the patient died from iliac paralysis, or paralysis of a portion of the small bowel. This medical witness 'further stated that the patient had chronic appendicitis; that the hernia on the left side was of recent origin and the probable result of a fall or strain; that he did not think the fall made the condition on the right side worse, but probably caused a more pronounced recurrence of the right hernia; that there was nothing to indicate that the right hernia was of recent traumatic origin. Another physician who assisted in the operation of August 27th gave it as his opinion that the hernia on the left side was recent; that the operation on the left side was normal, with no complications, adhesions, or involvements, and noth *423 ing to cause apprehension of death therefrom; that the operation for the hernia on the right side turned out to be a very serious and dangerous one; that in his opinion the death of the employee resulted, not from the operation on the left side, but from the complicated operation on the right side. Another physician who had examined the patient after his supposed injury and witnessed a part of the operation stated that there was no indication that either hernia was of recent origin; that the hernia on the left side was very small, and the patient did not know it existed until it was discovered by a careful medical examination; that the varicose veins had existed for years; and that the patient’s death resulted from the operation for appendicitis and adhesions. Two other medical experts testified, and, in answer to hypothetical questions, gave their opinions, one, that the more probable cause of death was the operation on the right side, and the other, that there was nothing to show that death resulted from the operation on the left side, but that in his opinion it resulted wholly from the operation on the right side. The question to be decided is whether upon the evidence recited the Industrial Commission was bound to find that the employee sustained injuries by accident which resulted in his death. The rule is settled by many decisions of this court that affirmative findings of fact made by the Industrial Commission on conflicting evidence will not be reviewed except to ascertain if the findings are supported by competent evidence. And, with respect to negative findings, we are committed to the rule that such will not be disturbed, unless it appears that the commission has arbitrarily or capriciously disregarded the uncontra-dicted evidence. Kavalinakis v. Industrial Comm., 67 Utah 174, 246 P. 698. *424 *423 Although the question is vigorously disputed, we may assume, without deciding, that the evidence conclusively established the fact that the employee slipped and fell while carry *424 ing flour down the stairs as claimed by the plaintiff. That, however, is but one of the essential facts required to be established. To warrant an award of compensation, it was incumbent upon the dependents to prove that the accident caused injuries which resulted in the employee’s death. And upon this subject we think it plain that the evidence was conflicting. That the employee previously sustained and was suffering from a severe hernia with adhesions on the right side, and with chronic appendicitis, was clearly proved. Whether the hernia on the left side was of recent origin or of long standing was a matter upon which the medical experts differed. One physician at least was of the positive opinion that it was not traumatic or recent. And it was generally agreed that the hernia on the left side was slight and incomplete. Added to this is the preponderance of medical opinion that the operation for the left hernia was not the cause of death, but that death resulted from the operation on the right side which, on account of old ailments, was complicated and dangerous. There was no satisfactory proof that the recurrence of the old hernia and the necessity for surgical treatment thereof was occasioned by accident. Upon the whole, we cannot say that the Industrial Commission, in finding that death by accident was not proved, acted arbitrarily or capriciously. On the other hand, its conclusion upon the facts was legitimate, and must be sustained. Order affirmed. FOLLAND, J., concurs.