Baker v. State Industrial Accident Commission , 128 Or. 369 ( 1929 )

On April 17, 1926, Baker was in the employ of the Coates Driving Boom Company, a corporation engaged in logging and lumbering operations in Tillamook County, Oregon, both employer and employee being subject to the provisions of the Workmen's Compensation Act. On that date, in the course of his employment, and in performing his duty as an employee, he undertook to make a coupling between a locomotive engine operated by the company and a car loaded with logs and belonging to the company. While he was engaged in coupling the loaded car to the engine, he was caught by a log that extended beyond the end of the car, and suffered a fracture of the left clavicle. The defendant immediately caused him to be placed in a hospital at Tillamook and under the care of Dr. R.G. Boals, a physician and surgeon employed by defendant, where he remained as a patient until his death. After Baker was received at the hospital the attending surgeon caused an anesthetic to be administered and reduced the fracture, and, on June 21st, he again administered an anesthetic, for the purpose of making a correction in the reduction. During this time, the patient had considerable trouble with his stomach, suffered loss of appetite, became unable to retain food to any extent, and gradually lost in weight and strength. Finally, in an effort to determine what was wrong, X-ray pictures of the stomach were taken. These pictures revealed an almost complete gastric obstruction. To relieve that condition, a third operation was performed by Dr. Boals, whereupon it was discovered that Baker was suffering from cancer of the stomach. He failed to survive the operation.

The defendant asserts that the proximate cause of Baker's death was the cancer, while the plaintiff insists that it resulted from the personal injury sustained by Baker on April 17, 1926.

Concerning the injury, and the treatment administered to Baker at the hospital, Dr. Boals testified:

"He was brought to my hospital on the 17th of April, with a fracture of the left clavicle which reached the left collar bone, and with some injury around the left shoulder and the side of the chest. * * I reduced the fracture to the clavicle. It was splintered * * and it was hard to make it hold together * *. He had more or less pain over the brachial plexus or nerve and down the median nerve of the forearm. * * He had more or less disturbance during all this period of time, inability to eat * *, experienced a good deal of sour stomach. * * Some time in July I examined his stomach; took X-ray pictures of the stomach * *. We found that he had quite an obstruction in the * * lower end of the stomach, * * and it prevented the food from going down through into the intestines, and * * he vomited quite a bit * *. On the 16th day of July, we did an operation to find out the exact condition in his stomach and primarily to relieve the obstruction to the passage of food which the X-ray showed. We found out after we had opened up his stomach that he had a cancer of the stomach, pyloric end of the stomach, and it was pretty near impossible to determine as to where the food went to in the intestine. * * The man's general condition on the table was very bad, so we did the most probable thing that would give him relief. We united the most dependent portion of the stomach * * to the small intestine. * * We had to give him all kinds of stimulants on the table. We had to use artificial respiration, and he died twenty minutes after we put him to bed.

"Q. What was the cause of death? A. Surgical shock following an operation for cancer of the stomach.

"* *

"Q. There were no bad effects from the anaesthetic in these first two cases? A. No, sir, there wasn't."

The doctor testified that without the operation the cancer would have caused death within three or four weeks, but that if the patient had survived the operation he probably would have lived a year.

Mary M. Baker, plaintiff, testified that prior to the accident her husband was healthy and strong; that he "never was under a doctor's care in his life to my knowledge, only when he was hurt." But, on cross-examination, she admitted that Baker had had a hernia for a number of years prior to that time, and that about a year and a half before he died he had been compelled to submit to an operation for relief. After further questioning concerning the hernias, she said, "I think he had two; one on each side."

Dr. E.J. Shuster, produced by the plaintiff as an expert witness, testified that "an ordinary fractured clavicle doesn't amount to much." As to the effect of an anesthetic, he stated that the administering of an anesthetic results in a depression of the central nervous system, with loss of sensation; that it produces temporary paralysis; and that two general anesthetics in a period of two months and four days, together with continual suffering and pain on the part of the patient during that period, would tend to lower his general resistance.

Dr. R.L. Benson, Professor of Pathology in the University of Oregon Medical School, who performed a post-mortem upon the body of Baker the day following his death, testified:

"I found cancer of the pyloric end of the stomach. * * There was the evidence of a very recent operation * *. There was some little hardening * * of the small arteries that supply the heart * *. There was a prominent and roughening of the left clavicle bone."

Concerning the dangers of an operation of the character of that performed upon the body of Baker by Dr. Boals, this witness testified:

"If he (the patient) was well and strong, with no physical disabilities, and were subjected to an operation like that, and taking a simple case, the risk would be extremely small in the hands of a skillful operator — the risk to life would be so small I should say it wouldn't, with that type of strong individual, wouldn't reach one per cent. Of course when we have any disabilities there, when we have some of the conditions that we found here, the risk would be greater, and it would be a little difficult to say.

"Q. To what conditions do you refer there, Doctor? A. Cancer of the stomach would, of course, reduce his vitality to a considerable extent. The disease of the coronary arteries of the heart would probably reduce his resistance to a degree."

When asked whether there was any way of telling how long the cancerous condition had existed, he answered:

"No, there is no way of telling how long, except that it is not a thing that grows very rapidly. That is, it was probably a matter of several months."

The claimant in the cause at issue seems to rely upon the case of Robertson v. State Industrial Accident Commission, 114 Or. 394 (235 P. 684), where it was held that, under the Workmen's Compensation Act, recovery for occupational or general diseases is allowable only where such disease is traceable to accidental personal injuries arising out of and in the course of the workman's employment. In that case Robertson, the workman and claimant, suffered an accidental personal injury to his body, which, on account of the lowered resisting power of the patient, resulted in pneumonia; and this court, in discussing the law under consideration, said:

"Before the State Industrial Accident Commission is empowered to compensate a claimant by reason of pneumonia, such disease must be traceable to an accidental personal injury arising from and in the course of his employment. It may be said in general that disease arising in the course of employment is not within the embrace of the compensatory provisions of the act. However, if the disease arises from an accidental personal injury received in the course of his employment in a hazardous occupation, as defined by the law, such disease does come within the embrace of the Compensation Act.

"In the case of Iwanicki v. State Industrial AccidentCommission, 104 Or. 650 (205 P. 990, [29 A.L.R. 682]), this court, speaking through Mr. Chief Justice BURNETT, said, at page 664:

"``No one disputes that if an accident happens within the true meaning of the term, which brings on a subsequent disease, the ailment must be counted as part of the injury, but the initiative must be found in the suddenness and unexpectedness of what is termed "accident."'"

From a careful analysis of the record in the instant case, we have been unable to find any evidence that tends to trace the cancer to the injury. In fact, a thorough study of the testimony of the plaintiff's own witnesses strongly indicates that there existed no relation whatsoever between the two. Moreover, this conclusion is strengthened by the testimony of Dr. Boals, the attending physician and surgeon, who, on cross-examination by counsel for plaintiff, testified:

"Q. Isn't it a fact, Doctor, that a cancer is frequently retarded and the growth is so slow that one goes along for considerable time before death? A. We are talking about cancer of the stomach now.

"Q. Yes, cancer of the stomach? A. Cancer of the stomach is sometimes — yes, it goes along quite a while, and after you get cancer developed to the point where you have practically a complete occlusion of the pylorus, then it has already so well developed that metastasis (distribution of cancerous cells to other cells of the body) is just a short way off; and the rule of averages is that they live about a year or a year and a half, if they have a successful gastroenterostomy without a resection of the diseased area."

Now, taking up the case as it relates to the aggravation of previously impaired condition, we note the following from "A Corpus Juris Treatise, Workmen's Compensation Acts, Kiser:"

"Acceleration of a diseased bodily condition may constitute a personal injury, and an injury may be by accident, although it would not have been sustained by a perfectly healthy individual. So death may be regarded as having been caused by an injury, although there was a diseased condition prior to the injury without which death would not have ensued."

The editor then goes on to say that acceleration of such diseased condition "to the point where it constitutes a personal injury by reason of the strain or exertion of the employment constitutes an injury arising out of the employment."

An interesting case on this subject is that of In re Madden,222 Mass. 487 (111 N.E. 379, L.R.A. 1916D, 1000), where the Supreme Court of Massachusetts, in a studied opinion, said:

"The essential connecting link of direct causal connection between the personal injury and the employment must be established before the act becomes operative. The personal injury must be the result of the employment and flow from it as the inducing proximate cause. * * It is only when there is a direct causal connection between the exertion of the employment and the injury that an award of compensation can be made. The substantial question is whether the diseased condition was the cause, or whether the employment was a proximate contributing cause. In the former case no award can be made; in the latter, it ought to be made."

From the record in this case, it is apparent that Frank O. Baker died from surgical shock arising out of an operation performed upon his body for the removal of an obstruction to the passage of food from his stomach to the small intestine. It fails to show any connection between the broken clavicle and the cancerous condition of the workman's stomach. Furthermore, from proved facts we are firmly convinced that the continuous weakening of the patient during all the weeks after he was received at the hospital, and extending to the day of his death, resulted, not from the operation in setting the broken clavicle, but from the disease which was daily ravaging his system. During this time, the cancer was slowly but surely sapping the vitality of the patient. It likewise grew in proportions until, at the time of his death, it had almost completely obstructed the passage of food from the stomach into the intestines, thus rendering it impossible for the stomach to function. The patient also suffered from a general disturbance of the stomach, which finally caused a rejection of food. Hence the gradual wasting away of the patient, with the accompanying loss of strength. As substantially stated by one of plaintiff's witnesses, the fracture of the clavicle amounted to but little; and the record is utterly void of testimony tending to show that the fracture aggravated the malignant disease that was preying upon the body of Frank O. Baker.

In his opinion, Mr. Justice BEAN lays stress upon the fact that Dr. Boals, the attending physician, made a death certificate stating that Baker died of "cancer of the stomach; contributory, fracture of clavicle." In view of this fact, and to make clear the apparent discrepancy between the death certificate and the testimony of the attending physician, the writer deems the following fitting and pertinent: Mr. Bohnenkamp, the mortician in charge of the body of Baker, was the son-in-law of the deceased. According to the undisputed testimony, he called upon the attending physician with reference to the execution of the death certificate, and at that time a heated argument ensued, the basis thereof being clearly indicated by this excerpt from the physician's testimony:

"I made that statement under these conditions: Mr. Bohnenkamp came to my office and insisted that the fracture of the clavicle was the cause of this gentleman's death. I told him it wasn't, and he argued the question with me for two hours; and in order to get rid of him I inserted that fracture of the clavicle at his request; it wasn't my opinion at all.

"Q. That wasn't the cause of his death, then? A. The cause of his death was, as I stated, cancer of the stomach, shock due to cancer of the stomach.

"Q. He didn't have anything to do with you stating it was cancer of the stomach, did he? A. He didn't want me to put that cancer of the stomach in there.

"Q. But you didn't put it in there under his suggestion? A. No, I put that in there under my own suggestion.

"Q. Because at that time that was your opinion? A. Yes, sir, and it is my opinion now. But he wanted me to put in that fracture of the clavicle — he says, ``We have talked this matter over with Dr. Benson, and we can recover compensation if we can show any relationship between the two.' After he talked to me about two hours — I couldn't get rid of him — I put that fracture of the clavicle in there to ease his peace of mind.

"Q. Although you knew it was false? A. I didn't believe it.

"Q. You stated that when you didn't believe it to be true? A. Well, sometimes you have to do things you don't want to. It is the only way I could get him out of the office. He was very discourteous after we talked it over for two hours.

"Q. You would rather state something in the matter of record that you knew to be false or believed to be false than to be discourteous to Mr. Bohnenkamp? A. It was because he insisted on the thing being put in there; I knew I could later on prove it wasn't so if it had to be, that it was put in there. There was other witnesses to the transaction besides myself. * * I told him it didn't make any difference how much argument he used, that I would always say he died of cancer of the stomach."

The writer is impressed with the candor of this witness.

To carry out the beneficent purposes of the Workmen's Compensation Law, a liberal interpretation and construction of its several sections is required. See Or. L., § 6641. However, the Industrial Accident Commission, charged with the administration of the statute involved, after a full and complete hearing, denied the claim of plaintiff for compensation. The Commission is composed of men trained to glean the facts of cases coming to their notice, and these men, after a thorough investigation, were unable to find that Baker sustained personal injuries by accident arising out of and in the course of his employment, resulting in death.

Based upon the statute above noted, it is the opinion of the writer that the judgment rendered in the court below should be reversed.