Purity Biscuit Co. v. Industrial Commission , 115 Utah 1 ( 1949 )

The first requisite for the payment of compensation under the Workmen's Compensation Act is that the injury which caused the disability must have been employment connected. That is to say it must have been due to an accident which arises out of or in the course of the employment. If an employee is working and while working an outside agency inflicts an injury, it is employment connected because the employment has exposed the employee to the injury. But compensation cannot be paid merely because the disability or death occurred in the duration of the employment. "In the course of his employment" connotes more than in the duration of the employment. Functions performed by the employee in furtherance of the industry in which he is employed must be a material contributing factor to the death or disability. The problem of the Commission in these cases where the disability or death occurs by an internal failure contemporaneous with exertion attendant upon the work or soon thereafter, is to determine whether the exertion was a causative factor of the death or injury or merely coincidental with the employment. When the exertion is comparatively mild and of a kind which usually attends the kind of work the employee has been doing and disability or death results, then it would appear to me that the proof that it was a material contributory factor to death or disability should be clair and convincing. The more mild the exertion, the more likely that the internal failing was merely coincidental. If, on the other hand, the death or disability occurs contemporaneous with or soon after an extraordinary exertion performed in the course of the employment, there would appear to be a more definite basis for an inference that the work was a paramount contributing cause. For example, if the employee was under a truck trying to raise it with the upward pressure of his back and there occurred during such exertion or soon thereafter an internal giving-way, we could, even as laymen, conclude that the lifting was apparently the sole or a material concurring cause of the internal failure. In the case of Dee MemorialHospital Ass'n v. Ind. Comm., 104 Utah 61, 138 P.2d 233, the employee was exerting himself beyond the point called for by his usual work. The pains which ensued and which it was later found by consultation with the doctor indicated a coronary heart disorder and which required prolonged rest were tied into the work of moving fairly heavy boxes and 100 pound sacks of fire clay. Had those same pains come during exertion in his usual work, the problem of determining whether that exertion had aggravated a previously existing heart disease or the aggravation was simply the result of a normal progression of the heart disease might have been more difficult, but it would still have been for the commission to resolve.

From time to time we shall encounter difficulty in determining whether the commission acted unreasonably or arbitrarily in those doubtful cases above mentioned. It is not so much the principles laid down in the prevailing opinion as it is the nature of the proof with which I am concerned. In this type of case we are dealing with situations involving death or disability which situations may, due to a functional failure, occur by reason of the work or may be purely coincidental with it. Where the death or disability occurs under such circumstances as to present prima facie doubt as whether it was caused by exertion incidental to the work, or an event which occurred only in the duration of the work and in regard to which the work furnished no material or efficient concurring or cooperating cause, then, before a favorable award is made, it should appear by clear and convincing evidence that the exertion in pursuance of the work was at least an efficient cooperating cause of the disability or death. The commission should have clear and convincing proof that the exertion done as a part of the work, whether ordinary or extraordinary, was a factor which materially contributed to or caused the death or disability. Unless the commission requires clear and convincing proof that the disability was employment connected, that is, materially contributed to by the work performed, we may open wide the door to compensating non-employment connected death or disabilities which the act was not intended to cover. This rule I suppose is primarily one of guidance for the commission. It would seem that unless no reasonable mind could say that the evidence was clear and convincing, the commission could not be overturned for arbitrariness.

I recognized in my dissenting opinion in the case ofRobertson et al. v. Ind. Comm., 109 Utah 25, 163 P.2d 331,338, that rather early in the history of compensation in this state we had adopted the English view and merged the word "accident" and the word "injury" in Section 42-1-43, U.C.A. 1943.

I said in my opinion in that case:

"In view of our many decisions, as noted above, we need not now re-examine the chain of reasoning through which we have come to treat internal failures as accidents within the meaning of the Act. The language of the Act, Sec. 42-1-43, U.C.A. 1943, would justify a holding that the elements, looking backward, were (1) disability or death, (2) injury, (3) accident, (4) in the course of or arising out of the employment. Our holdings have, by treating the internal failing as the accident, lumped numbers two and three together. The injury and the cause that produced it are, in an internal failing, ofttimes so closely related as to appear to be a unit occurrence. A strain and an injury — cause and effect — that appear as one. The strain itself which causes the trauma and the trauma are in the predecessor — cause and successor — effect relationship so that the strain appears to be the injury. Where there is intended exertion or overexertion which appears to have caused the failing there may be no unexpected event which caused injury, but as noted in Handley v. Mutual Life Ins. Co. of New York, [106 Utah 184]147 P.2d 319, 152 A.L.R. 1278, an unexpected and untoward result is ofttimes itself denominated the accident."

In the above cited case of Handley v. Mutual Life Ins. Co.of New York [106 Utah 184, 147 P.2d 320], the policy provided that the insurance company would pay the beneficiary two thousand dollars,

"upon receipt of due proof that the Insured died as a direct result of bodily injury effected solely through external, violent, and accidental means, independently and exclusively of all other causes, and of which, * * * there is evidence by a visible contusion or wound on the exterior of the body, and that such death occurred (a) within ninety days after the date of such injury, * * *."

While law is not logic and ofttimes not logical, but designed to serve the relationships and transactions of men in the exigencies of life, it should not be unnecessarily inharmonious. In the field of accident insurance contracts we have held an unexpected result to be the accidental means in the face of quiet definite and accurate language of a contract which embodies the law which the contracting parties agree on to govern situations and liability contemplated in the relationship between insured and insurer. It may be that we feel ourselves more free to reach for a desirable social result in reference to insurance contracts than we do in the case when the interpretation of a statute is involved.

But in view of the interpretation of the English courts and the Pandora's box of difficulties which may be opened by the refinements between usual and unusual, exertion and overexertion, ordinary and extraordinary exertion measured by the individual involved or by the industrial function performed by him or both, I prefer to adhere to the difficulties involved in determining whether an internal failing is caused or materially contributed to by the industrial functions being performed by the employee at or near to the time of failure as distinguished from those which happen during the span of work but not employment connected rather than to open the door to a new set of problems, the nature and complexity of which cannot presently be fully foreseen now.

"Better to endure the ills that beset thee now, than to fly to those thou knowest not of."

It is just as much judicial legislation to read "overexertion" into the statute as it is to read "accident" out, although I acknowledge that Mr. Justice Latimer feels that he is compelled to read the latter word in because we have in some cases read "accident" out, and that he believes he is doing nothing more than saying "thus far but not further."

Certainly I am against opening the door to making the employer or his insurance carrier pay for deaths by disease or infirmity unconnected with industry but happening during employment time. I stated in my dissenting opinion in the Robertson case that such might be unconstitutional. And in the long run, the granting of compensation for death or disability in close cases involving internal failure not referable to accident or mishap but only to industrial exertion may react against the laboring classes. When the labor market is free, employers, especially self-insurers, tend to reduce the age limit beyond which they will not employ and become more strict in the physical examinations of those applying for employment. There is something pathetic in the plight of middle aged men suffering from some not too serious infirmity unable to procure work that they are quite capable of performing with little risk to their health, simply because the employer finds it unnecessary to take even that risk.

I recognize the difficulties inherent in the problem before us and that the two viewpoints are both tenable. I choose the path of drawing no distinction between usual and unusual exertion cases for compensation purposes, but of putting my faith in the ability of the commission to draw the line between employment and non-employment connected internal failures aided by the principle that in close cases the proof of industry connection should be clear and convincing.

In conclusion, I desire to say that I am writing this opinion because I am not prepared to adopt some of the reasons set forth in the prevailing opinion.