Lowder v. Standard Auto Parts Co.

Messmore, J. The plaintiff was granted an award by the compensation court in the original hearing, and on rehearing the court, sitting en banc, granted him an award for temporary disability, medical and hospital fees. The defendant appealed to the district court for Lancaster county, where its appeal was dismissed, the court finding from the record competent evidence to support the award, and from such order of dismissal defendant appeals to this court, where the case is tried de novo. The principal errors relied upon for reversal are: (1) That the award of the compensation court is based upon speculation and conjecture and not sustained by any evidence with reasonable certainty; (2) that the evidence clearly preponderates against the claim of the plaintiff. The plaintiff, 46 years of age, a metal cleaner employed by defendant, on the evening of July 30, 1937, between 5 and 6 o’clock, pursuant to an order given by defendant’s agents, started to replace a spring in a Model “A” Ford automobile. The car was jacked up, with the front wheels sitting upon two crank case pans. The motor was loose from the frame of the front end of the car. The tires were resting upon two oil cans. The plaintiff had to raise the front of the motor in order to get the front spring out, took hold of the jack and started to raise the front end a little higher; the car slipped off the pans and off the jack and struck the plaintiff on the right shoulder, bending him over to the left on the cement floor. At the time, he was in front of the radiator, his head being between the radiator and the bumper, with his left leg under him and his right leg straight out. After the accident the plaintiff was unable to tell his exact position. He stated that he got out from under the — 749 — car, but could not straighten up; that it was hard for him to get his breath; that he had shooting pains in his chest and in the upper and lower part of his left side; that he went to the office and related to his employer what had occurred and was immediately sent to the office of Doctor Hilton, who taped his lower left side and across his chest, gave him some medicine and some liniment to be applied, told him to go home and rest, and treatments were continued by application of heat from electric rays. On September 26, 1937, Doctor Hilton told plaintiff that he had done all he could for him and advised him to go to a hospital, presumably on account of tuberculosis. However, there is no testimony of Doctor Hilton in regard to any such statement. Plaintiff next consulted Dr. Czar Johnson, who immediately referred him to Dr. Arthur L. Smith, who has since treated him continuously. The disability complained of, as reflected by plaintiff’s petition in the compensation court, follows: After describ-ing the nature of the accident, the petition alleges that the accident caused a severe contusion of plaintiff’s left shoulder and left chest wall; fractured his left fifth rib, separated his right and left second rib from the sternum, producing a severe strain of the back, aggravating a pneumonitis, producing an active tuberculosis of the lungs, and aggravating a latent arthritis of the vertebrae. Defendant’s answer is that the plaintiff’s present disability was in no way caused by injuries sustained by the accident occurring July 30, 1937, but charges that his condition was caused by disabilities existing long prior thereto. The record discloses that the plaintiff had claimed service-connected disability by virtue of his service in the World War, and had, since 1918, been confined in different hos-r pitáis from a period of a few days to five months at a time; and, on occasions, was placed under observation, to determine whether or not he had pulmonary tuberculosis, for which compensation might be awarded by the federal government, but on each occasion the conclusion was contrary to his claim that he had tuberculosis. His condition, as far — 750 — as the government is concerned in awarding him compensation based upon a 45 per centum disability, has been diagnosed as moderate chronic bronchitis and neurasthenia. The plaintiff on various occasions had exhibited the symptoms of pulmonary tuberculosis. The plaintiff claimed to be in good health two years prior •to the accident; that he was off work from his present occupation a part of a day on account of illness. This claim is disputed by the testimony of his employer, who stated, in substance, that plaintiff had told him he was not physically able to do the kind of work that he was then doing; he coughed a great deal, and for convenience a place was fixed for him to work, to enable him to be out of doors a portion of the time. He had stopped work on numerous occasions, on account of illness, at various times of the day and had gone home. Previous to the employment with defendant, plaintiff had worked at intervals at different places, as shown by the record, but had not done much work, due, perhaps, to his physical condition and hospitalization. Plaintiff claimed that he carried a basket of metal to weigh in just prior to the accident. His employer stated that after the accident plaintiff carried the basket of metal, weighing 90 pounds, 90 feet, to be weighed in. . A summary of the medical testimony received in plaintiff's behalf follows: Dr. Arthur L. Smith, the attending physician, testified that he had made 17 physical examinations of the plaintiff, had taken 13 X-ray pictures, had made 114 hospital calls, had attended the plaintiff for a period of five months and had taken tuberculin and sputum tests. His history of the case showed a bubo opened in 1909, tonsillotomy, appendectomy, and herniotomy in 1924, and right thumb removed in 1930. The tuberculin test resulted in a positive tubercular reaction upon a concentrated dilution of tuberculin, .005 milligrams; the reaction to the ordinary test, .002 milligrams, was negative. At this point it is proper to state that, as a general rule, an arrested tuberculosis will show a positive tuberculin test in the ordinary-dilution, for the reason that generally — 751 — there is a slight sensitivity to it, and therefore a concentrated dose of tuberculin is not ordinarily required, under such circumstances, to bring a positive reaction. Doctor Smith found fractures of three ribs, which, however, were not discovered by him until after the first hearing in the compensation court. This fact is significant, considering the physical examinations and calls made by the doctor, and, further, that Doctor Hilton treated plaintiff from July 30, 1937, to September 26, 1937, and the evidence contains no statement by him of fractured ribs. Doctor Smith also found evidence of tubercular trouble, such as old hardened lesions, manifested by deposits of calcium in various parts of the lungs, and concluded that plaintiff had a fracture of three ribs on the right side, an aggravation of arthritis in the fifth dorsal vertebra, a separation of the second left and right costo-cartilages from the sternum margin, and an activation of an old tubercular condition, all of such conditions the result of the trauma suffered in the accident of July 30, 1937. There also appears in the evidence a signed statement by Dr. Roscoe L. Smith, dated April 29, 1929, that the plaintiff had a chronic fibroid tuberculosis, as well as a signed statement of Dr. Miles J. Breuer, dated January 5, 1930, under the heading, “Present Illness“Comparison of present condition with condition ten years ago; cannot work now, could not work then; is more nervous, has more pains in the chest,” and Doctor Breuer’s diagnosis was: “Chronic low-grade tuberculosis with severe allergic manifestations and no extensive pathological changes.” A statement in the record by Dr. L. J. Owen follows: “I diagnosed him as having tuberculosis;” the activity was “in the right upper lung.” This was in 1932, and the records of the city clinic show that there was an active pulmonary tuberculosis on December 19, 1932. Doctor Owen testified that in March, 1937, in examining an X-ray picture taken at the city health department under his direction and control, there was no evidence of active tuberculosis, that the apexes were clear so far as the ordinary signs of activity are concerned; that, — 752 — if there is any evidence of any tubercular condition ever having been in the chest, it was at that time in an arrested stage. Dr. Allan Campbell, in speaking of the X-ray pictures of March, 1937, testified: “Left apex clear, right apex shows fibrous hilar shadows, * * * suggests complete arrest of activity;” “denies any signs of activity.” Dr. Czar Johnson, witness for the plaintiff, did not pose as an expert in diagnosing tuberculosis, and left the matter to the judgment of Dr. Arthur L. Smith. Dr. Carl Kail did not testify, but a written statement signed by him (exhibit 15), in reference to the chest, relates that there was some evidence of “old tuberculosis infection.” Contra to the foregoing testimony, Dr. L. J. Owen, who took certain X-ray pictures in February, 1938, and wrote reports thereon, testified that he found no evidence of a tubercular condition activated by the accident of July 30, 1937, and no apparent change from the previous condition of the plaintiff. Drs. John C. Thompson, Clayton Andrews and W. W. Carveth made an extensive and complete examination of the plaintiff on February 28, 1938, and obtained a complete history of the plaintiff, who gave the same reluctantly. The blood pressure of the plaintiff was taken during the time he was being questioned and was found to be in an aggravated state for a man of his age, so much so that the examining physicians each took his blood pressure, .and within a period of a few moments, when the questioning ceased, the blood pressure had dropped to 118. Considering the blood-pressure tests, as given, together with the history recited by the plaintiff and the examination made by the doctors, the examining physicians concluded that the plaintiff was not sincere in his claim. The doctors first gave him a test to determine what injury, if any, was sustained in plaintiff’s back. He reacted favorably to the test, which indicated to the doctors clearly that he had no back injury that was a result of the accident. They found no evidence of fracture of the ribs and nothing upon which a finding that plaintiff’s ribs were fractured can be based. They did find an indication of childhood tuberculosis, which — 753 — had not been active for a long period of time, a complete absence of adult tuberculosis, and no cavities in the lungs indicative of adult tuberculosis; that the breath sounds were not feeble but loud over the area supposedly involved. The plaintiff had gained in weight. Had there been activity he would, ordinarily, have lost weight. The foregoing medical testimony substantiates the diagnosis made by the government doctors in reference to the disability for which plaintiff receives compensation. Doctor Carveth had previously examined the plaintiff and treated him in 1929, 1931 and 1932. He testified that plaintiff did not suffer any disability in the chest or any place in his body as the result of the accident. He thought in 1929 that plaintiff might have tuberculosis, but that it cleared up quickly, and he now knows that plaintiff did not have it. Dr. Allan Campbell testified that the records of the city clinic showed that there was no evidence of any tuberculin test performed by them in March, 1937; that there was a blood test made and an X-ray picture taken, and that he had never made a tuberculin test of the plaintiff personally. Doctor Smith testified that he relied upon the tuberculin test performed by the city clinic, in fact by Doctor Campbell personally, and that he saw it in the report. He testified he was present and supervised the taking of the X-ray pictures at St. Elizabeth Hospital on February 14, 1938, and that Doctor Owen was not present. We have the testimony of Doctor Owen that he was present, took the X-ray pictures, and that Doctor Smith was not present. The record is void of evidence that tubercular bacilli were ever found in the sputum by any examining physician. The plaintiff testified to coughing up blood and pus on numerous occasions. He is the only witness so testifying. He states that his wife is the only other person who has seen him cough up blood and pus. However, she did not testify. The record further shows that plaintiff’s last attending physician, who diagnosed his case as active tuberculosis, which was lighted up by the accident, did not give the plaintiff medicine for such disease from September 26 until No — 754 — vember 12, when he entered St. Elizabeth Hospital. The same physician testified that he obtained a history from the plaintiff which assisted him in his diagnosis. He took the plaintiff’s general statement as to hospitals in which he had been treated and been under observation, accepted Doctor Breuer’s statement, appearing in the record, and relied upon it extensively. He inferred that the history, or the number of hospitals the plaintiff had been in previously, would make no difference. Then the plaintiff, himself, testified that during, the period of time that he worked for the defendant he walked 16 blocks each way to and from work and walked a mile or so each evening after work, attended parties and danced. His previous physical condition, the testimony of his employer as to conditions under which he worked, and the complaints made by him certainly disclose a conflict and inconsistency in the plaintiff’s testimony and the testimony offered in his behalf. Plaintiff had been examined by Dr. Charles Arnold and Doctor Breuer in reference to his chest condition, and also by Dr. H. H. Johnson. However, plaintiff did not see fit to call any one of these three physicians. Many other discrepancies and inconsistencies are disclosed by the record. From an examination of the entire record, the great weight of the evidence is that there was no activation of an arrested pulmonary tuberculosis as a result of the accident, and the evidence fails to show any activation in any preexisting condition, whether it be tuberculosis, moderate chronic bronchitis, arthritis, neurasthenia, or any other alleged condition. The X-ray pictures taken before and after the accident show that the same condition existed at both times, according to the testimony of Doctors Thompson, Andrews, Carveth and Owen. The law of this state on the burden of proof in a compensation case is properly stated in Saxton v. Sinclair Refining Co., 125 Neb. 468, 250 N. W. 655, which held that, in order to recover in a compensation case, the burden is upon the plaintiff to show with reasonable certainty that his ailment was caused by the injury sustained, and this proof — 755 — must be made by substantial evidence leading either to the direct conclusion or to a legitimate inference that such is the fact. Cases so holding are too numerous to require citation. It will thus be seen that the burden of proof is on the plaintiff in this case to prove by a preponderance of the evidence that the injuries complained of and the disability accruing therefrom resulted from the accident of July 30, 1937, and this tribunal is bound by the principle that awards for compensation cannot be based on possibilities or probabilities. Bartlett v. Eaton, 123 Neb. 599, 243 N. W. 772; Townsend v. Loeffelbein, 123 Neb. 791, 244 N. W. 418. See, also, Milton v. City of Gordon, 129 Neb. 888, 263 N. W. 208. Plaintiff may have received some injuries of a temporary nature as a result of the accident. He has failed to meet the burden of proof, as required of him by the law of this state, as to the disabilities claimed by him in his pleadings. The court, in determining cases of this character on issuable facts, must take into consideration the credibility of the witnesses, the weight of the testimony, and the motivating circumstances surrounding a given situation; otherwise, the workmen’s compensation law of this state would become an effective instrument of exploitation. The judgment of the district court is reversed and the action dismissed. Reversed and dismissed. Eberly, J., dissents.