Caillet v. Industrial Commission , 90 Utah 8 ( 1936 )

Plaintiff filed an application with the Industrial Commission of Utah whereby he sought an award of compensation as and for permanent total disability, and in the event such compensation should be denied he asked that he be awarded compensation as and for permanent injuries. A hearing was had on his application and further compensation was denied. Plaintiff brings his cause to this court for review. He contends that the evidence offered and received before the commission is such as to require as a matter of law a finding that he sustained permanent total disability in the course of his employment by the Liberty Fuel Company and that he should be awarded compensation accordingly. There is no substantial conflict in the evidence. On January 10, 1929, the applicant was injured in the course of his employment in the state of Utah. His employer, the Liberty Fuel Company, was, at the time plaintiff received the injury complained of, subject to the Industrial or Workmen's Compensation Act of this state (Rev. St. 1933, 42-1-1 et seq.). The employer carried insurance with the State Insurance Fund. At the time plaintiff sustained his injury he was riding a rope in the mine of his employer. His glove caught in a cable and he was dragged under a car. As a result of the accident it became necessary to amputate plaintiff's right hand and arm approximately three inches above the wrist and also to amputate the index and middle fingers of his left hand into the palm of the hand almost to the wrist. Plaintiff's right knee was also injured. Following the accident, plaintiff was paid compensation at $16 per week for six years in the total sum of $4,985.14. His medical and hospital treatment in the sum of $486.64 was also paid. Plaintiff was 19 years of age at the time he was injured. He, at that time, had a common school education and one year in high school. Prior to his injury he had worked on a farm and in a mine. Since his injury he has for a period of about two years studied draftsmanship. He has attempted to secure employment but has not been successful.

A number of witnesses were called who testified touching the functional loss sustained by plaintiff in his left hand and in his knee and also as to whether or not his injury precluded him from securing and retaining gainful employment. Dr. Mosiah Hall testified that he is and for twelve years has been supervisor of vocational training and rehabilitation for the state of Utah; that he is acquainted with plaintiff and the nature and extent of his injuries; that he has given plaintiff's case very careful consideration; that from his experience and in his opinion plaintiff is not able to perform manual or other remunerative labor; that he is not only physically incapacitated, but is so lacking in confidence in himself that he is unable to refit himself for any useful occupation.

Dr. L.N. Ossman testified that he is a practicing physician and surgeon; that he has specialized in surgery of the bones, joints, and muscles; that he has been the orthopedic surgeon for the United States Veterans' Bureau since 1922; that part of his work with the Veterans' Bureau has been the rehabilitation of physically injured persons; that he has examined the plaintiff and finds him unable to do manual labor; that he is of the average intelligence of a working man; that he is modest and retiring, not graceful, and apparently self-conscious of his infirmities; that in his opinion plaintiff is not now able to earn a living by manual labor and mentally he is not qualified to be trained for any occupation that would enable him to make a living; that in the witness' opinion plaintiff is permanently and totally disabled; that plaintiff can feed and dress himself, but he is not employable; that the disability of plaintiff's left hand is about 60 per cent.; that the disability in his right knee is 15 to 20 per cent; that while plaintiff retains 40 per cent. of his left hand, he is, so far as making a living is concerned, in the same condition as though he had lost the whole hand; that there probably are men with as bad or worse physical condition as that of the plaintiff who are able to make a living, but such men must have a better mental equipment than plaintiff has.

Dr. Martin C. Lindem testified that he is a physician and surgeon and has practiced as a general surgeon; that he attended plaintiff after his injury; that in his opinion the loss of function of his left hand is 60 per cent. and of his knee 10 to 15 per cent; that the estimate of the loss of function of the left hand is based on the anatomical and physiological findings.

Dr. A.L. Hueter testified that he is an orthopedic surgeon; that he has been engaged in that profession for a period of ten years; that he recently examined plaintiff; that in his opinion plaintiff has lost about 60 per cent of his left hand and 10 per cent of the function of his knee.

Plaintiff testified that he worked on a farm and in mines before his injury, but because of his injury he is now unable to do that kind of work; that since his injury he attended school for two years where he studied mechanical drawing; that he tried show-card writing but could not do that; that he tried radio telegraphy but was told he could not do such work; that in drafting he was very slow and required twice as much time to draw as others who had the use of their hands; that he had to hold the instruments in his mouth; that after he finished school he tried to get work and was unable to do so; that he tried to get a job as a night watchman at the mine where he was injured and was unsuccessful; that when the weather is cold he cannot use the two fingers and thumb on his left hand; that when cold it seems as though his fingers are thumbs and that at such times he cannot button his shirt; that his father is a common laborer and that he has no relatives or friends who can give him a job; that he is unable to tie his necktie; that he is able to lace his shoes with the aid of a hood on his right arm; that he can feed himself; that his knee troubles him when he walks any considerable distance; that he is somewhat sensitive about his injury; that he believed he could do the work of a watchman if he could get a job; but that if the weather is cold he cannot do anything with his hand.

George A. Schultz testified that he is the superintendent of the Liberty Fuel Company; that he had had considerable experience in employing men and in placing them in different occupations; that he is acquainted with the plaintiff and his physical condition; that he would not employ plaintiff unless it was for purely sentimental reasons; that if plaintiff were a stranger he would not employ him because of his disability; that when plaintiff applied to the witness for a job he told him that he did not have a job for a watchman; that if he had had a job he would not give it to plaintiff unless it was for sentimental reasons; that before the Workmen's Compensation Act was passed his employer took care of the men who were crippled while at work for the company; that his company could not afford to do so since the Compensation Law went into effect.

Dr. L.J. Paul testified that he is a licensed practicing physician in the state of Utah; that he had been superintendent of the Cleveland City hospital, a medical officer in the army, and regional medical officer for the United States Veterans' Bureau, and since 1931 consulting surgeon at the Veterans' Administration Hospital; that as regional manager of the Veterans' Bureau he has charge of compensation rating of injured veterans, and that after a man has finished vocational training his fitness is determined before he is declared rehabilitated; that he is one of the committee to pass upon whether or not a person has been rehabilitated so that he can go to work; that he has personally handled hundreds of such cases; that he has examined plaintiff physically and mentally and is familiar with his educational attainments; that under the government rating plaintiff has suffered a 75 per cent loss of his left arm; that the grasp in the remaining fingers of the left hand is not sufficiently strong to enable him to carry on in any occupation; that in the opinion of the witness, plaintiff is totally incapacitated from earning a living.

A medical advisory committee, consisting of Drs. John Z. Brown, Jr., James P. Kerby, and D.E. Smith, examined plaintiff and after such examination placed the disability of his left hand at 60 per cent and of his knee at about 20 per cent.

The foregoing is a summary of all the evidence offered and received at the hearing before the commission. It will be observed that there is no substantial conflict in the evidence, which was all to the effect that plaintiff is totally and permanently disabled; that is to say, because of his injuries he is unable to either secure or perform any work as an employee. That the evidence is sufficient to sustain an award as and for permanent disability had the commission so ordered is clear.Rockwell v. Lewis, 168 A.D. 674, 154 N.Y.S. 893;Congoleum Nairn, Inc., v. Brown, 158 Md. 285, 148 A. 220; Floccher's Case, 221 Mass. 54, 108 N.E. 1032; Joliet E.Traction Co. v. Industrial Comm., 299 Ill. 517, 132 N.E. 794; Thomas H. Meley's Case, 219 Mass. 136, 106 N.E. 559; Moore v.Peet Bros. Mfg. Co., 99 Kan. 443, 162 P. 295; Superior Smokeless Coal Min. Co. v. Bishop,85 Okla. 204, 205 P. 497; New York Indemnity Co. v. IndustrialComm., 86 Colo. 364, 281 P. 740; Ball v. William Hunt Sons, 4 Butterworth's Workmen's Comp. Cases, 225; Wassick v.McKeesport Tin Plate Co., 27 Pa. Dist. R. 13; Spring CanyonCoal Co. v. Industrial Comm., 74 Utah 103, 277 P. 206; UtahFuel Co. v. Industrial Comm., 76 Utah 141, 287 P. 931; 2 Schneider on Workmen's Comp. Law, 1428.

The serious question presented by this record is whether or not the evidence is such as to demand as a matter of law that plaintiff be awarded compensation as and for permanent total disability. In the case of Sakamoto v. Kemmerer CoalCo., 36 Wyo. 325, 255 P. 356, under facts comparable to 1 those of the case in hand, it was held that the injured workman was as a matter of law entitled to such compensation. That the nature of the injury sustained by plaintiff is such as to make him permanently and totally disabled from doing any manual work requiring the use of his hands cannot reasonably be doubted. Not only does his physical condition demand such a finding, but the expert testimony is all to that effect. In this connection it is urged by the defendants that the expert evidence touching the inability of the plaintiff to secure and perform labor is the ultimate fact to be determined by the commission and, therefore, that the evidence touching that phase of the case was improperly received and should not be considered. We are unable to agree with that contention. There are authorities to the contrary. Sakamoto v. Kemmerer Coal Co., supra; Schneider on Workmen's Comp. Law (2d Ed.) 1850. "When, however, the matter is one within the knowledge of a layman, the Commission is not obligated to decide according to the testimony given by experts." Schneider on Workmen's Comp. Law (2d Ed.) 1852, and cases there cited.

The evidence in this case having conclusively shown that the plaintiff is permanently and totally disabled from either securing or performing work of the general character that he was performing when injured, he by such evidence established a prima facie case, and in the absence of 2 any showing that he is able to secure and perform work of a special nature not generally available, he is as a matter of law, entitled to an award as and for permanent total disability. 71 C.J. 1071; Consona v. R.E. Coulborn Co., 104 Pa. Super. 170,158 A. 300; White v. Tennessee Consol. Coal Co.,162 Tenn. 380, 36 S.W.2d 902; Lunardello v. Republic Coal Co. (Mont.) 53 P.2d 87; Schneider on Workmen's Comp. Law (2d Ed.) vol. 2, § 403, pp. 1544, 1545; Note in 33 A.L.R. 123. No evidence was offered or received before the commission which showed, or tended to show, that plaintiff is able to secure employment of a special nature not generally available or that he is able to perform the duties of such employment. The evidence is all to the contrary.

Upon this record plaintiff as a matter of law is entitled to compensation as and for permanent total disability. Having reached this conclusion, it is not necessary to discuss the other questions presented. The order of the commission denying compensation as and for permanent total disability is annulled. Plaintiff is awarded his costs.

FOLLAND, EPHRAIM HANSON, and MOFFAT, JJ., concur.