McCarthy v. Industrial Commission , 194 Wis. 198 ( 1927 )

Ówen, J.

The Industrial Commission has filed a brief in this case, in which its position is stated as follows:

“It is common knowledge that, except in such specific cases, hernias are a matter of gradüal development to which many things have contributed before eventually coming to the point of disablement. The most common causes are constipation, coughs, and advanced age, or those diseases which produce loss of muscle tone. Falls, abdominal blows, and heavy lifting may have material effect upon the production of the end result. It is one of these latter incidents that is most often given as the producing cause in claims for indemnity under compensation. If a fall or an abdominal blow or a heavy lift in the course of employment is responsible for so sudden and considerable a degree of advancement in the hernial condition as to bring it to the point where it becomes disabling, then there is liability under compensation. If any one of these things is a mere incident and had little, if any, appreciable effect upon the hernial condition, then liability does not attach. The issue is upon the real effect produced by the fall or blow or overlift or strain, as the case may be.

“Any such development of the condition as will render the case compensable must necessarily cause immediate discomfort, at least temporary suspension ,from work, and outward evidences of pain observable to.fellow employees. It will be an occurrence of such consequence as to prompt an employee to speak to his fellow workers and to superiors and otherwise give visible evidence of the fact that something unusual did occur. Where no’ such lapse from work was present, no such discomfort experienced, no attitude on the part of the employee indicating his thought that anything unusual did occur, his conduct is not such as to corroborate his claim. Any change of condition which does not provoke such symptoms and such actions is insignificant. The fact that he finds a hernial condition later on does not warrant him in concluding that any prior experience was the responsible cause of the condition, and for like reason does not warrant the Commission in finding such to be the fact.

“The rules adhered to by the Commission in judging the cause of hernial conditions are the same as those that are recognized in other compensation jurisdictions. They are not rules in the strict sense. They are a simple application of the requirement that a compensable condition must be established by evidence and not be predicated on purest-conjecture. ‘Proximate cause’ and ‘proximate result’ are just as essential factors to liability under compensation as at common law. The probability of any direct relationship between an alleged fall or blow or strain sustained in 'employ^ ment and a hernial condition observed later on is not substantiated by absence of those symptoms and actions that characterize the conduct of an employee in every other injury of like seriousness. Having in mind the many and varied causes for the development of hernias, the employee whose conduct does not follow the usual' corroborative course has nothing upon which to convince himself that something unusual occurred in the course of his employment, sufficient to produce material effect upon his hernial condition. Much less sufficient is his experience to satisfy others that the hernial protrusion which he later finds had any connection withJii labor. ’ ’

In Meade v. Wis. M. M. Co. 168 Wis. 250, 169 N. W. 619, a stronger case was presented in favor of the applicant than is presented by the record in this case. In that case the employee slipped while working with a bar. “He had a feeling in his groin as though somebody ran a knife into his side. He sat down for about five minutes. It pained him something awful during that time.” When he sat down he was very pale and a cold sweat ran over him. He was able to work for about two weeks, at which time he was obliged to cease his labors. He was operated upon, and the doctor who operated testified that. the hernia was of traumatic origin, and based his opinion, in part at least, upon his observations made at the time of the operation. Another physician testified in that case that in his opinion thé hernia was not of traumatic origin. He based his opinion upon an examination made of the applicant about three weeks after the accident, and testified that if the hernia had been acute the applicant could not have continued to work as he did, and further, that traumatic hernia is a very rare thing. In that case the court referred to the fact that the Industrial Commission had found it necessary in hernia cases “to require definite proof that the hernia was produced by accident; . -. . that the accident was such as could produce a hernia; that the hernia appeared immediately after the accident; that it was followed by pain immediately disabling the applicant.” These requirements were held to be reasonable. It was further held that the evidence in that case justified the conclusion that the hernia did not result from the accident. The only substantial difference that we can discover in a comparison of the records in this and the Meade Case is that in the Meade Case there was the testimony of the physician that in his opinion the hernia was not of traumatic origin. Unless the absence of this character of testimony in this case compelled the Industrial Commission to find in favor of the applicant, then the Meade Case is controlling here.

It appears not only from the statement filed by the Industrial Commission in this case, but from an examination of the Workmen’s Compensation Reports, that the Industrial Commission is frequently called upon to deal with hernia cases, and that they are perhaps the most troublesome cases with which the Commission comes in contact. This is due to the fact that inguinal hernia is rarely of traumatic origin, but that it has a gradual development, and its final culmination is frequently, if not generally, due to some strain which can be said to be incidental in its nature. The frequency of these cases has enabled the members of the Industrial Commission to become thoroughly familiar with the nature, development,' and progress of the ailment, and they bring to the consideration of such cases a knowledge and experience which enables them to pass most discriminatingly upon the evidence produced. It is scarcely too much to say that they are experts upon the subject. At any rate, none can deny that they are far better qualified to draw proper inferences from the physical facts than those who do not possess the peculiar knowledge of the subject which they have acquired by reason of their experience and contact with hundreds of such cases. As already stated, the evidence of the physical facts in this case does not point as convincingly to traumatic hernia as did the facts in the Meade Case. Because there is no medical testimony here supporting a cotl-clusion that the hernia was not of traumatic origin, is the Commission barred from applying to the evidence their own expert knowledge upon the subject? “Nonsense clothed in words of ‘learned length’ ” falling from the lips of an expert witness does not afford a sufficient basis upon which to support a judgment. Bucher v. Wis. Cent. R. Co. 139 Wis. 597, 120 N. W. 518.

The convincing power of expert testimony depends somewhat upon the knowledge and experience of the one who is called upon to weigh, such testimony. The untutored are likely to accept-the opinion of an expert at its-face value, while those possessing knowledge upon the subject concerning which he testifies may discount it- or entirely disregard it as unsound. In this case the trial judge apparently accorded the testimony of these physicians full faith'and value. But it does hot follow that the Industrial Commission attached any such weight to their testimony, nor do we think they were feound to do so. If the testimony of these witnesses was contrary to their own expert knowledge upon the subject they were at liberty to disregard it. A farmer sitting on a jury would not be bound by opinion evidence relating to farming which he knew or believed to be untrue. Neither would a pharmacist or mechanic or physician. Why, then, should the members of the Industrial Commission be bound to accept opinions of experts which are contrary to their own knowledge and experience? Why constitute experienced and expert men as fact-finders if their findings of fact upon .expert matters are to be overturned by courts the personnel of which have neither the knowledge nor experi1 ence of such matters enjoyed by the members of the Industrial Commission? Of course, where mere physical facts are involved, judges are as well qualified to weigh the evidence as are the members of the Industrial Commission. But where the conclusion relates to a subject of special or expert knowledge, courts should reverse the findings of the Industrial Commission with far greater reluctance and hesitation.

The conclusion of the Industrial Commission is supported at least by the following considerations: (1) Inguinal hernia is rarely of traumatic origin; (2) it is generally of traumatic culmination; (3) wh,en of traumatic origin the pain is so severe as to disable the subject from work; (4) the applicant continued his work with but a few minutes respite, contrary to the general history of traumatic hernia; (5) he did not notify his employer for two weeks after the accident. In view of these considerations, we think a court possessing a knowledge of and experiénce with the subject inferior to that of the Industrial Commission is not justified in saying that the Commission acted without or in excess of its powers in denying compensation to the plaintiff. From this it results that the judgment of the circuit court must be reversed, and cause remanded with instructions to affirm the order of the Industrial Commission.

By the Court. — So ordered.