Smith v. Cudahy Packing Co. , 145 Kan. 36 ( 1937 )

The opinion of the court was delivered by

Wedell, J.:

This was a workmen’s compensation case. The commission and the trial court found for claimant. The cáse comes here for review on contention of respondent, the claimant failed to sustain the burden of proof.

Under the compensation act it is the responsibility of the district court to find the facts. Whether the judgment is supported by substantial competent evidence is a question of law, as distinguished from a question of fact. (Fair v. Golden Rule Refining Co., 134 Kan. 623, 7 P. 2d 70; Paul v. Skelly Oil Co., 134 Kan. 636, 7 P. 2d 73; Whitaker v. Panhandle Eastern P. L. Co., 142 Kan. 314, 46 P. 2d 862; Hill v. Etchen Motor Co., 143 Kan. 655, 56 P. 2d 103.) We shall therefore proceed at once to an examination of the evidence.

In the instant case claimant was employed by respondent as a cattle butcher. On the date of his injury, June 25, 1935, he was “dropping hides,” a term applied in the trade to skinning cattle. He received a small cut, skin wound, about two centimeters in length, on the dorsal surface of his right forearm. He reported to the company doctor for treatment. The company doctor and nurse cleansed the cut and put an antiseptic and protective dressing on it. He was treated daily from June 25 to June 29, inclusive, on July 1, and released on July 2. The doctor testified the wound healed with first intention, and on July 2 it was well; there was no rawness about it, and no indication of any. fungus growth or ringworm. Claimant continued to work each day until July 5.

Claimant in substance testified: that on July 5 the company nurse told him to leave work because of a ringworm on his right leg and advised him to get a private doctor at once; the nurse had made two applications of mercurochrome; prior to the cut on his arm he had nothing wrong with him; ten days later there were a lot of white bumps on his leg, containing water; they broke out further down and then, also, further up; he had not been in company with people who were broken out with ringworm; he had just gone from home to work; he was left-handed, used the knife in his left hand and dropped the wet hides on his right arm; he worked positions numbers 1 and 3. At position number 1 there were generally diseased cattle which had been turned down by the government; there was blood, dirt and filth on the hides; the bandage became saturated and, at times, came off; when he cut himself he had no bumps on his arm. When he quit July 5 he had the trouble on his leg and arm; he quit by reason of the infection on his leg.

Claimant also testified he had sustained a scratch on his right leg during the week of June 17. It forms no part of the judgment and hence requires no further notice.

Claimant’s wife testified she knew of the breaking out on his body after the cut and that she never knew of any breaking out on his body before the cut.

The pertinent portion of the testimony of his private physician, Doctor Shippey, was in substance: He began treating claimant about July 1, and had studied his case thoroughly. The first time he saw claimant his leg was swollen twice its normal size; claimant has microsporons, which is a variety of fungus; there are hundreds of varieties of fungus disease; they have many different aspects, some fast, some slow; some involve a great deal of the surface of the body, some just a small amount; some molds are harmless, some are harmful; from the history given by claimant and from the rapidity with which it spread he considered the disease of claimant acute rather than chronic; at time of trial the disease was in its chronic stage; man or animal may have the disease. A hypothetical question was asked this doctor. The question and answer read:

“Q. Assuming this claimant worked at the packing house, and was working on cattle that had infection, marked condemned, and his work was a butcher, and in his work as a butcher he had to skin the hides from cattle; now assuming, Doctor, in skinning these hides from the cattle he cut himself on the arm; that he went to the clinic out there and they put some mercurochrome on it, wrapped gauze around it, one or two layers, that he went back to work and there continued the rest of the day to allow the skin, covered with blood and slime and What not, to rest upon that arm as he had been instructed, and then within a week or ten days he began to break out with what he termed as ringworm, or that infectious disease, do you think it is possible he could have become infected in that cut from allowing them hides to slip over there. A. He certainly could.”

The only other medical testimony offered by claimant was that of Doctor Van Cleve, who specialized in dermatology. Claimant was first examined by him on July 31. A portion of his testimony in substance was: He made a diagnosis of infectious eczematoid dermatitis, which means an allergic infection, and in common terms is an infection of the skin; claimant at that time had an extensive eruption over the right arm, scaly, quite red; on his right leg, which was swollen half again its size, was an eruption which was scaly, red and had numerous infected papules; it was a skin infection; the infection was local and not systemic. This fungus may be had by man or animal and may be transferred from one to the other; it is possible for a man to get the infection by rubbing against an animal or person infected with the disease. A hypothetical question, answered by Doctor Van Cleve, was as follows:

“Q. Now, Doctor, if this claimant here received a cut on his right arm about a week or ten days prior to the time this first broke out, and was handling cattle at that time, that was infected at the packing house, do you think it would be possible for him to receive an infection from the diseased cattle? A. It would be possible.”

The trial court found:

“Claimant met with personal injury by accident arising out of and in the course of his employment on or about June 25, 1935, when claimant received a small punctured wound on the dorsal surface of the right forearm; that as a result of said accident claimant contracted a microsporon-dermatitis infection from diseased cattle, which infection resulted in ten and one-third compensable weeks temporary total disability.”

Respondent contends the evidence does not support this finding. The nature of the claim was for an infection known as ringworm. The disease is infectious. It is true, there can be no recovery under the workmen’s compensation act for disease alone. (Gilliland v. Cement Co., 104 Kan. 771, 180 Pac. 793; Taylor v. Swift & Co., 114 Kan. 431, 219 Pac. 516; Echord v. Rush, 124 Kan. 521, 261 Pac. 820; Barker v. Shell Petroleum Corp., 132 Kan. 776, 297 Pac. 418.)

That claimant suffered an accident, a cut on the arm, and that this accident arose out of and in the course of his employment is admitted. Respondent, however, contends the evidence only shows it was possible the accident caused the disease or contributed to the contracting of the disease. It is urged proof of possibility is insufficient, and that the evidence must at least show the disease was probably caused by the cut, or that the cut probably contributed to the contracting of the disease. In support of the contention we are directed to Fair v. Golden Rule Refining Co., supra; Zimmerman v. Weinroth, 272 Pa. St. 537, 116 Atl. 510; Mauchline v. State Ins. Fund et al., 279 Pa. St. 524, 124 Atl. 168; McCoy v. Jones & Laughlin Steel Co., 275 Pa. St. 422, 119 Atl. 484; Gausman v. Pearson Co., 284 Pa. 348, 131 Atl. 247; Frank Marra Co. v. Norton, 56 F. 2d 246.

The evidence most favorable to claimant disclosed he had no ringworm infection prior to the cut on his arm; there was nothing wrong with him prior thereto; he had not been in communication with any person who was infected with the disease; he had gone only from home to work; the hides of condemned cattle, which had some kind of infection, had been thrown over the cut arm; the bandage had become saturated with blood, dirt and filth from the hides; at times the bandage came off; and that it was certainly possible for him to have thus become infected with the disease.

The majority of the court regard this evidence as proof of more than possibility the infection resulted from the wound. The evidence made certain the possibility of contracting the disease and practically eliminated every other source of infection than infection arising out of and in the course of employment.

Respondent calls attention to other testimony of claimant’s own witness, Doctor Van Cleve, which testimony was unfavorable to claimant. That testimony dealt with the question of probability of the cut causing or contributing to the fungus infection. On review of findings of the trial court, it has been held, this court is concerned only with evidence which supports or tends to support the findings of the trial court or jury and does not consider evidence unfavorable to such findings. (Shattuck v. Pickwick Stages Corp., 135 Kan. 602, 11 P. 2d 996; Bergman v. Kansas City Public Ser. Co., 144 Kan. 27, 58 P. 2d 110.)

In view of this situation it follows the judgment must be affirmed. It is so ordered.