Triebsch v. Athletic Mining & Smelting Co.

Ed. P. McFaddin, Justice,

(dissenting). The first three paragraphs of the majority opinion give a succinct statement of this case; and these paragraphs conclude with this sentence: “Hence, there is only one issue in the case at bar, and that is: did Triebsch die from the same cause that brought about his disability?” That question is correctly stated; and, from the record in the present case, I am convinced that there was substantial evidence to support the Commission’s findings, which were that Mr. Triebsch died from kidney trouble and not from the bronchial ailment for which he received compensation.

A careful study of the opinion in the first case¹ shows that Mr. Triebsch was allowed compensation solely because of his collapse from a bronchial ailment. The question now is whether he died from the bronchial ailment. Dr. Koenig was a pathologist who made an extensive postmortem examination of Mr. Triebsch; and it was Dr. Koenig’s view that Mr. Triebsch’s death was due to the kidney ailment. Dr. Chamberlain was asked this question and gave the answer as follows:

“Q. In your opinion, and based on Dr. Koenig’s findings from the evidence disclosed by the post-mortem •examination, and your own examination and treatment of Mr. Triebsch during his limetime and the other medical and laboratory evidence in the record before the commission, did Mr. Triebsch’s exposure to the dust, smoke and fumes and other environmental factors disclosed by the record at his working place at the Smelter prior to January 29, 1949, so affect any of his existing diseased conditions that his death occurred any sooner than it would have occurred had he never worked at the Smelter, but had engaged in other labor involving-equivalent exertion out of doors?

“A. In my opinion, no.”

The foregoing is the testimony of a doctor to the effect that Mr. Triebsch’s death was not hastened in any way by the bronchial trouble, and that his death came about by reason of the kidney trouble.

Dr. Hogue testified that Mr. Triebsch died because of the bronchial trouble. Dr. Koenig, the pathologist, admitted that Mr. Triebsch’s death might have been hastened 24 hours by reason of the bronchial trouble. If there were no testimony in the record except that of these two witnesses, I would have reversed the Commission, because if Mr. Triebsch’s death was hastened to any extent by reason of the bronchial trouble (the original injury for which he drew compensation), then his widow was entitled to compensation. But Dr. Chamberlain flatly stated, as quoted, that Mr. Triebsch’s death was not hastened one iota by the bronchial trouble for which he drew compensation. Dr. Chamberlain’s testimony is substantial and supports the Commission’s findings; and, under our cases, we must affirm the Commission’s findings when they are supported by substantial testimony.²

It is not a question of what our views may be as between the conflicting opinions of the medical experts. I wish that we weighed these cases on the “preponderance of the evidence rule” rather than the “substantial evidence rule.” My views in this regard are contained in my dissenting opinion in the case of J. L. Williams & Son v. Smith, 205 Ark. 604, 170 S. W. 2d 82; but until the Legislature changes the rule for weighing the evidence, or until the Court adopts the views of said dissenting opinion, then I feel honor bound to decide these cases on the “substantial evidence rule”; and under that rule, I must dissent from the majority holding in the case at bar.

1 Triebsch v. Athletic Mining & Smelting Co., 218 Ark. 379, 237 S. W. 2d 26.

2 For a collection of the cases so holding see West’s Ark. Digest “Workmen’s Compensation,” § 1939 of Cumulative Pocket Supplement.