Dole v. Industrial Commission ( 1949 )

Having read the transcript of the testimony in this case several times and parts of it with even greater care, I am astounded that the majority of the court can say that no reasonable mind could come to the conclusion as did the commission, and hence, that it was arbitrary. Section 42-1-79, U.C.A. 1943, provides in part as follows:

"The findings and conclusions of the commission on questions of fact shall be conclusive and final and shall not be subject to review; such questions of fact shall include ultimate facts and the findings and conclusions of the commission. * * *"

Over a long period of years, with occasional lapses, this court repeatedly held that under this statute, every ligitimate inference must be drawn and every reasonable doubt resolved in favor of the findings reached by the commission. If there was any substantial evidence in the record to support the findings of the commission, such findings were upheld. That is the rule contemplated by the clear and unequivocal language of the statute.

To cite and discuss all of the cases adhering to this rule would be a work of supererogation. They may be found collected in the annotation to Section 42-1-79, U.C.A. 1943, and the pocket part supplemental thereto. The rule has been so often repeated as to have become axiomatic.

In spite of the fact that it will somewhat lengthen this opinion, I shall attempt to do what the statute enjoins us to do i.e., look at the testimony to determine whether there is any substantial competent evidence to support the commission's denial of the award, or whether the commissioners as reasonable men could conclude that the evidence, because of conflicts, was not such as to convince them that Dole had suffered an accident and if he had whether the accident caused, accelerated or precipitated the injury to his eye. This is not an agreeable task because it is bad enough to lose an eye even when compensated and because were I the commission, I would have interpreted the evidence as has the prevailing opinion.

In my consideration of the evidence, I shall follow the order adopted by the prevailing opinion.

First: As to the claimed accident. There is nothing in Dole's testimony which makes it inherently incredible. Rather, it appeared to me that he was telling the truth when he testified as follows:

* * * * * "A. As I rode down the street, I came to a road that was rough. It was rather a rough place, and I bounced across it. I was going rather fast and my car went sort of out of control, and I slowed down again and I looked up and I could not seeanything. This eye was blind. There was no sight there." (italics added)

However, I am not the fact finder. The commission is made such by law. It had the opportunity to study his demeanor. Dr. Saunders who treated him the next day and for weeks thereafter, had no recollection that he had mentioned being jolted over the highway and upon slowing down discovered a blurring of the vision of his right eye. Ever since the Smith case, 104 Utah 318,140 P.2d 314, was decided, we have been whittling it away by attempting to find differences between it and particular subsequent cases when we thought that the commission was unreasonable in not believing the applicant when he was the only one testifying to the purported accident. However, the Smith case followed the case of Norris v. Industrial Commission, 90 Utah 256,61 P.2d 413, 415, in which we held that before this court could say that the commission had found contrary to an inevitable conclusion from the evidence, at least six factors must exist. Among these factors are "(a) the evidence is uncontradicted" and "(c) that the uncontradicted evidence is not wholly that of interested witnesses".

Here the evidence that plaintiff was shaken up when his car passed over rough road was uncontradicted, but it was also wholly the testimony of the applicant, clearly an interested witness, and hence, under the rule of the Norris case not required to be believed by the commission.

However, I am of the opinion that the commission came to its conclusion that Dole was not entitled to compensation, not on the ground that he did not suffer a blurring of the right eye on March 26, 1946, but either that it did not happen while he was driving or, if it did, that it was simply a manifestation of a degenerative process that had been going on before that date and which continued thereafter and that the jolting was not a material contributing cause, or, at least, that the proof in the light of the testimony of the doctors was not convincing. That was the province of the commission and not for us even though we may think the commission's judgment erroneous. This leads me to the next division of my review of the evidence.

Second: As to the jolting being the cause of the detached retina found by Dr. Jensen of Seattle on February 26, 1947.

The basis of the claim was that the jolting of the carimmediately resulted in blurring and that this indicated a detached retina. All applicant's evidence was adduced in support of that theory. The commission heard the case on that theory. The arguments before this court and the briefs expounded the review on that theory. But the opinion, admitting that the denial of the award can be sustained on that theory, concludes that the evidence is such as to compel a finding that on another theory, to wit, that while the accident did not immediately or close thereto cause the retina to become detached, the evidence compels a holding that the jolting of the car so affected the macula so as to cause it to degenerate which in turn finally resulted in the detached retina. Even on this theory which may furnish the ingenuity to explain why Dr. White and Dr. Saunders did not discover a detached retina although the former at least was alerted for it, and which the doctor in Seattle did find several months later, still the evidence cannot "compel" the commission to find for the applicant on this new theory. A finding by the commission is not compelled unless no reasonable mind or at least no rational mind trained to analyze and evaluate evidence could find otherwise. I am confident that reasonable minds could conclude differently on the question of whether the evidence established the fact that an accident in the course of Dole's employment caused immediately or mediately the detachment of the retina. I shall seek to establish this statement by a review of that part of the evidence upon which the commission could reasonably base a denial or base such a doubt as could reasonably be the basis for concluding that the applicant had not met his burden of proof. I need go no further than that. It is not necessary to show that of two or more possible conclusions from the evidence the commission did not choose the better or best one or the most reasonable or most logical or plausible one. It is for the commission to judge which conclusion, where the evidence may premit of two or more, is the better or the best. I fear that the court has unwittingly done just that — substituted its judgment as to the more reasonable of two conclusions. Since I personally believe that the conclusion from the evidence reached by the majority of the court is the more reasonable one, and the one I think I would have reached had I been the commission, I believe I can be quite objective in my analysis; and objectivity is the key note to the mental process of determining whether reasonable minds could reach different conclusions. If the test were subjective, every time there was a disagreement among the members of this court, there would be evidence that reasonable minds could differ assuming that the members of the court are actuated by reason and trained in analysis and evaluation of evidence, an assumption not difficult to make. But objectively determining whether trained reasonable minds could differ is sometimes one of the most difficult feats required by the law. It requires the investigating judge not only to divorce himself from the conclusion which he has arrived at from reading the evidence, but if it differs from the conclusion of the fact finding body, to examine the conclusion of that body in order to see if it has a basis in reason. And this means that he must use not the standard supplied by his reason, but test it from the standpoint of whether it lies within the permissible range of conclusions which any reasoning mind trained to analyze and evaluate evidence might or could arrive at after reading the same evidence. If he finds that the conclusion of the fact finding body does fall within this permissible range of conclusions he must affirm it even though he thinks his own far the more reasonable and preferable conclusion.

It is odd that where a jury reaches a conclusion of fact supported by only a little substantial competent evidence we have slight difficulty in applying the correct mental process even though we may not be in accord with the verdict. But in the case of the Industrial Commission whose findings and fact conclusions we are enjoined by the legislature not to interfere with, we encounter difficulty in a case like this where the test outlined above would reveal that its conclusion had a basis in reason and could not, therefore, be arbitrary as that term is used in the law. I am quite convinced that our failure lies in the inability in some cases to refrain from applying our judgment and evaluation of the evidence rather than to canvass the judgment of the commission as above expounded.

There is in the record substantial and competent evidence that as late as August, 1946 (more than five months after the alleged accident) the plaintiff did not have a detached retina, and any diminishing of his visual acuity was caused by internal ocular deterioration due to toxic or systemic causes.

Dr. Saunders, who examined plaintiff the day after the purported accident occurred, testified that at that time plaintiff's eye was hazy. On the next day plaintiff had 20-30 vision in the right eye, which was normal vision. The doctor did not recall being told nor did he have a record of any history of plaintiff's being shaken up by his car going over rough roads, or of any sudden loss of vision. The first that he (the doctor) learned of a detached retina was when he received a letter from the Industrial Commission (apparently after plaintiff had filed his claim for compensation).

Dr. Saunders further testified "that there was no sudden loss of vision, this was a gradual process from day to day." At times plaintiff could see the building across the street but complained of blurred outlines.

The doctor thought the plaintiff's eye was the result of a toxic condition because the arteries of the eye were small. A degenerative process seemed to be developing. There was a haziness about the fundus and that condition is generally caused by cells being deposited within the media.

On April 25, plaintiff's vision had fallen off to 20-70 and on August 27, it was down to 6-200.

Dr. Saunders did not think there was a detached retina. The indications of detached retina were not present. But there were indications, and the doctor thought, that the whole process was a degenerative process of toxic origin.

"Swelling can be a factor. Infection can be a factor * * * He always had a bad throat and * * * a bad nose." "I treated his nose and throat quite a bit."

According to the doctor this opinion was shared by others with whom he consulted. He was quite definitely of the opinion that if a detached retina occurred, it occurred after the time he ceased to treat plaintiff, i.e., after August, 1946.

It was also testified that the defect in vision caused by a detached retina is a result of mechanical rather than chemical action, and there is ordinarily no fluctuation of vision.

Dr. White testified that he first saw plaintiff on August 29, 1946; that on that occasion plaintiff told him that he had hit some rough road while driving his car, and that afterward he noticed some haziness of vision, and it "felt like his eye was full of worms;" that at that time he (the doctor) examined plaintiff; that he made such an examination as would reveal a detached retina; that the history related by plaintiff made him alert for a detached retina, but he saw no evidence of detachment of the retina, although he did see what he interpreted as a degenerative process in the retina; that he had no doubt that there was detachment of the retina when plaintiff was examined later by other doctors; that the macula which is hardly bigger than a pin head and the most sensitive spot in the eye was not functioning; that the area of the macula was red suggestive of degeneration; that he had Dole inhale emylnitrate which dilates the capillaries of the eye permitting more blood to flow through them; that in the degeneration changes, it is very frequent that there is spasm in the vessels and that when the emylnitrate was injected, Dole could see much better which suggested spasm of the nerve and would indicate the absence of a detached retina; that macula degeneration such as plaintiff had at the time Dr. White examined him made the eyes prone to develop detachment of retina; that he

"thought possibly [italics added] he had at the time a minute hemorrhage of some capillaries that had caused a degeneration of the macula;"

that "he found" no such evidence, but that after two and a half months, the hemorrhage would be absorbed; that the degeneration process might have developed without hemorrhage by vascular change in the vessels.

The medical testimony above outlined is credible, and supports a finding that the deterioration of plaintiff's vision was not caused by the accident, if any, which happened to him. In fact, the matter boils down to a conflict in medical testimony.

The prevailing opinion, I think, has taken liberties with the testimony in that it states that Dr. White was of the opinion

"[applicant] had at the time of the accident, suffered a minute hemorrhage of some of the capillaries of the eye and this had resulted in a progressive degeneration of the macula."

I have quoted above the exact statement of Dr. White in that regard. He simply stated that a hemorrhage was possible but also that other systemic or vascular changes could produce the degeneration of the macula.

The prevailing opinion's summary of the evidence of Dr. Jensen and Dr. Haffley who examined Dole in Seattle in February, 1947, nearly a year after the purported mishap reflects the essence of their testimony. Dr. Jensen said,

"I could see no reason for the detachment and the most likely reason for it would be the alleged trauma if one cannot say that the injury was due to an accident." "Perhaps 50% of detachments are due to accidents plus underlying predisposition to a detachment." (italics added)

Certainly the commission was not required to find that this detachment was one of that 50%.

These doctors both testified that in view of the history of the trip over the road they were of the opinion that the detachment was of traumatic origin assuming there was some pre-disposition present, but this only brings about a conflict among the doctors as can be seen from my review of the testimony of Drs. Saunders and White. The plaintiff seemingly used Drs. Jensen and Haffley largely for the purpose of attempting to discredit Drs. Saunders and White. It would be most natural then to expect a distinct cleavage in medical opinion.

At one point in the prevailing opinion it is said that

"While neither Dr. Saunders nor Dr. White diagnosed the condition as being a detached retina, neither testified that the precipitating cause of the loss of vision could not be the jolting or the shaking." (Emphasis added.)

Of course not. Their testimony throughout was that they were uncertain as to its cause; hence, the conclusion of the commission denying compensation. And after the attorney who took the depositions at Seattle had done what he could to discredit the Salt Lake doctors and get what answers he wanted, the prevailing opinion says,

"The medical testimony of the Seattle doctors blends in with the testimony of Dr. White";

further, that

"Dr. White testified that apparently the eye had been injured by the jolting; that he thought there was a minute hemorrhage of some of the capillaries of the eye; that this resulted in a degeneration of the macula which eventually brought about a detached retina."

This illustrates, I think, that desire is father to the result of the prevailing opinion. I find no such evidence. I have quoted Dr. White's opinion concerning the hemorrhage. He found no evidence of it. He testified on cross-examination that the jolting "could" have been the precipitating cause, but that

"it is an eye that was ready for this kind of thing. Whether this particular thing [the jolting] is the one that caused it I do not know." "He apparently had something at that time and something happened — a disturbance of the sight."

But in reaching a conclusion the commission must take all the evidence together. From an entire review of the evidence, I am confident we cannot say that in law the commission was compelled to award compensation — and I use the word "compelled" to mean that no reasonable mind could have found otherwise.

My task in this dissent is not one of interpreting and weighing evidence or giving such emphasis to certain parts of it as would show that the commission could or should have found differently than it did; nor need I show that the conclusion which the prevailing opinion holds is imperative and compelled by the evidence, is more probably the correct one, nor even that the evidence with such inferences which may be drawn therefrom, preponderates in favor of a certain conclusion. All I desire to accomplish by this dissent is to quote or detail the evidence to a point where it can be demonstrated beyond a doubt that reasonable minds could come to different conclusions therefrom or that reasonable minds could conclude differently as to whether Dole, the applicant, had sustained the burden of proving that the ultimate detachment of the retina which Dr. Jensen discovered, had stemmed from an industrially connected injury. The prevailing opinion admits that the evidence is such that the commission was not compelled to find, in view of the testimony of Drs. Saunders and White, that the jolting directly caused the retina to become detached. That opinion holds that the commission was compelled to hold that the jolts received by Dole resulted in either starting or accelerating or precipitating a degenerative condition of the macula which ultimately resulted in the detached retina found by Dr. Jensen and Dr. Haffley. And the thin thread on which this compulsion is hung is that Dr. White thought that "possibly" the jolting may have caused a hemorrhage of the small capillaries which resulted in a gradual degeneration of the macula which in turn might cause a detachment of the retina.

I fear that the court has unconsciously usurped the function of the commission. The process by which it arrived at its conclusion that the commission was unreasonable and arbitrary consists in choosing the inferences from the evidence, weighing and comparing them and then coming to the result which it, the court, thought more reasonable. No one could be unsympathetic to such a result because it is, as before said, sad enough to lose the sight of an eye let alone be saddled with heavy doctor bills and no compensation. I realize the difficulty of examining the evidence, not for the purpose of determining which conclusion is the more or most reasonable, but for determining whether there is any substantial competent evidence to sustain a denial of an award; and I realize how natural it is to do what the mind so easily tends to do, that is, decide for itself which conclusion from all the evidence and inferences therefrom is the most reasonable. I have gone to the trouble of pointing out wherein we have encroached on the jurisdiction of the commission and substituted our judgment for its judgment in the realm wherein it has sole authority by law to act, because I think only in that way may the mind be disciplined to leave with the commission the consequences of what we may think is a wrong conclusion of fact where there is some substantial competent evidence to support that conclusion even though it may be more reasonable to conclude otherwise.

Before closing I should like to point out that I think that some of the language used by me in my dissenting opinion in the case of Robertson et al. v. Industrial Commission et al.,109 Utah 25, 163 P.2d 331, 339, was not well chosen in that it lays down a test for reversal of the commission's order denying compensation which on critical analysis is ambiguous and does not altogether coincide with the "no reasonable mind" test. The elements of this latter test I think are carefully set forth in the Norris case, supra. I refer to the language in the Robertson case reading as follows:

"We have time and again held that to warrant the reversal of the commissions order denying compensation the record must disclose such material, substantial, competent and uncontradicted evidence as to justify the conclusion as a matter of law that the commission acted arbitrarily in finding as it did."

This same language is used in the prevailing opinion in this case. The language gives rise to a question as to what is meant by the words "such" and "uncontradicted", and the phrase "to justify as a matter of law" in the above quoted passage. The word "such" might be read in the sense of meaning "so much of" or "some" or "sufficient" to justify the conclusion of the commission. What was meant, of course, was that before we could reverse the commission for arbitrariness the record must disclose that no reasonable mind could come to the conclusion to which it came. As a test of whether that were the case we would examine the record and if it disclosed that all material or substantial evidence was uncontradicted in the sense that there is no opposite or inconsistent or conflicting evidence or evidence which would materially weaken the force of evidence in favor of the applicant or no evidence intrinsically discrediting to the uncontradicted evidence, we could reverse.

I think the Norris case furnishes the factors on which unreasonability of the commission can be based. It states:

"But in order to reverse the commission in this regard it must appear at least that (a) the evidence is uncontradicted, and (b) there is nothing in the record which is intrinsically discrediting to the uncontradicted testimony and (c) that the uncontradicted evidence is not wholly that of interested witnesses or, of (if) the uncontradicted evidence is wholly or partly from others than interested witnesses, that the record shows no bias or prejudice on the part of such other witnesses, and (d) the uncontradicted evidence is such as to carry a measure of conviction of the reasonable mind and sustain the burden of proof, and (e) precludes any other explanation or hypothesis as being more or equally as reasonable, and (f) there is nothing in the record which would indicate that the presence of the witnesses gave the commission such an advantage over the court in aid to its conclusions that the conclusions should for that reason not be disturbed.

"If the commission should decide against the uncontradicted evidence under those conditions, its decision would as a matter of law be arbitrary and capricious, which is another way of saying that it would be unreasonable." Norris v. IndustrialCommission et al., 90 Utah 256, at page 261, 61 P.2d 413, at

It should be noted that all the factors (a) to (f) must be present. We cannot find the commission arbitrary as a matter of law if only some of the factors (a) to (f) both inclusive are present and certainly not if we find that the record discloses that the testimony is not uncontradicted in the sense in which uncontradicted is above used, nor can we measure the amount or quality of the testimony to determine whether there is "so much of" or "sufficient" or "some" evidence which is material; substantial, competent and uncontradicted and if we think there is enough of such evidence, reverse the commission. In my opinion the record here does not disclose that reasonable minds could not differ in their conclusions tested by the standard set forth in the Norris case and that therefore the evidence does not "compel" a decision for the plaintiff.