Kansas City Structural Steel Co. v. Yarber

The majority opinion finds there is no competent evidence to support the award as to respondent, T.C. Yarber, for the loss of both eyes, but finds there was competent evidence to support the award for loss of one eye. The admitted facts in this case are contrary to the findings of the majority opinion. The following stipulation was entered into by the parties before the Industrial Commission:

"It is hereby stipulated and agreed by and between the parties hereto that the liability for this accident is admitted and that the only question before the Commission is the extent of the disability."

By this stipulation it was admitted before any testimony was taken in this case that the only question before the Commission was the extent of disability. Only four witnesses testified before the Commission.

The respondent, Yarber, and three doctors all testified that respondent had lost both eyes and was practically blind; however, if the stipulation is not binding on this court or the Industrial Commission and cannot be considered as a part of the record, then the preponderance of the testimony is in favor of the award; the undisputed and the unquestioned testimony will support the award.

The respondent, Yarber, was called as a witness and testified that he was working for petitioners on August 26, 1930; that he sustained an accidental injury on that date; that he was given medical attention by petitioners and was later sent to Drs. White White at Tulsa, Okla., for treatment. He testified as follows:

"Q. Did he send you to any other doctor for treatment after that? A. Yes, sir. Q. Who? A. I was told I had to go into Tulsa or some town where I could get a doctor and he treated me — White White. Q. Who treated you, White White? A. Yes, sir. Q. You submitted to treatment by Doctors White White? A. Yes, sir; I went to Dr. White White and Dr. White taken a piece of steel out of my eye — it was the second day. Q. How long did they treat you? A. Four months. Q. Did they treat you until December 29, 1930? A. They treated me until the 27th, the best I remember, that was on Saturday. Q. Did they then release you? A. Yes, he said: 'I have done all I can do.' Q. Were your eyes all right before you were injured? A. Absolutely. Q. Ever have any trouble with your eyes before? A. No, sir. Q. Ever have an injury to them? A. No, sir. Q. Have you been able to work since you were injured? A. No, sir. Q. Are you able to work at this time? A. No, sir. Q. Why? A. I couldn't see how to work. Q. Take off your glasses so the Commiss'oner can look at your eyes. By the Court: Q. Both eyes involved? A. Yes."

Here the testimony shows an able-bodied man able to perform manual labor who had not had any trouble with his eyes prior to the accidental injury which resulted in total blindness of respondent herein. On cross-examination the respondent testified as follows:

"Q. This injury was a piece of steel to your right eye, was it not? A. Yes, sir. Q. This had got imbedded in the right eye? A. Yes, sir, the steel went in my eye right by the eyesight."

Dr. James Braswell, called as a witness, testified for respondent that he examined respondent on November 24, 1930. His testimony in part is as follows:

"Q. Are you acquainted with T.C. Yarber, claimant in this case? A. I examined a patient by that name. Q. When did you examine him first? A. On November 24, 1930. Q. At that time what was his condition? A. The right eye: Vision, light reception. The pupil was dilated and did not react to light or accommodation. There was a small scar on the cornea. One point marked by seven — of nerve head — had the appearance of an optic neuritis. The left eye: Counts fingers at five feet. Pupil partially dilated. Does not react to light or accommodation. Some ( __________ ) of the nerve head at that time I suggested it might be due to the presence of a foreign body but a report from the radiologist stated no evidence of a metallic foreign body capable of causing ( __________ ) in either eye. * * * Q. What is percentage of loss of vision? A. Total in the right eye — he can count fingers at five feet with the left eye. Q. What would you call that? A. Greater than 22/100. Q. Reduced to per cent., what would it be, Snelling? A. Total loss of vision. Q. The same as industrial eye? A. Yes. * * * Q. Was there any evidence of systemic trouble — any evidence of syphilis? A. I think not — there was no luetic (meaning evidence of syphilis) evidence. Q. At the time you examined him there was no evidence of syphilis causing it? A. I would not say it is attributable to syphilis. Q. Doctor, considering the fact that his left eye was good prior to the time this injury was sustained, and taking into consideration the condition it was in when you first examined him and the condition it has been in ever since, is there reason to suppose that a sympathetic condition could have caused it? A. Could have caused it. Q. Sympathetic condition from the right eye? A. It could have caused it. Q. In the absence of any other cause for this condition, and you found no other cause, the conclusion would be that the injury was the cause of his trouble? A. The only one debatable point would be his blood Wasserman. Q. You found no evidence of that? A. There was none I found."

On cross-examination Dr. Braswell further testified:

"Q. But you testified you could find no syphilis? A. I made the statement that it was positive. Q. But you yourself could find no evidence of a syphilitic condition at that time? A. I did not see any. Q. You did not see any — if you made that statement at that time and that test was positive, you would have to admit that said condition was existing at the time you examined him? A. If there was any presence of syphilis? Q. Yes. A. Certainly. Q. If this man had that condition existing that could have caused this condition from which he was suffering at the time you made this examination, his last treatment? A. His eye findings would have showed luetic symptoms. * * * Q. Doctor, how long would it take for a condition such as you found upon examination in November following the accident in August to develop? A. It might develop in a very short time or it might require a period of days or weeks. Q. You say it might occur in a very short time? A. It may occur in a very few days. Q. Would all that involvement exist in a very few days if it is to both eyes? A. It could. Q. It isn't probable that it would? A. It would depend upon the patient and the conditions. Q. What do you mean by that? A. Sympathetic ophthalmia travels very rapidly and spreads very rapidly. Q. About what period would you say it took it to involve? A. It would be impossible to state — each case is a case unto itself? * * * I wouldn't be governed by the laboratory test in this case — I think his spinal fluid should be examined to determine whether he has a neuroform of syphilis or whether it is — stage. If it is, he should have treatment along this line."

On re-cross examination Dr. Braswell further testified as follows:

"Q. Now doctor, this systemic condition which you spoke of is due to the condition existing from the nerve back down to the branch where the nerve divides, is it not — that is, where it breaks off and goes to each eye and goes back down the trunk and affects the nerves extending to the other eye — that's the systemic condition. A. The systemic condition prevails. * * * Q. Then, Doctor, if he had sustained only an injury to the right eye and it brought about an aggravation of the syphilitic condition existing and extended it to the other eye, would you say it was a syphilitic condition that extended to the other eye or would you say it was a sympathetic trouble? A. I would not say it was a syphilitic condition at the time I examined him. Q. Would you say it was not? A. I would say it was not."

Here the testimony of Dr. Braswell is positive and convincing that the condition of respondent's eyes was not due to disease, but was due to the injury to the right eye and sympathetic condition, that is, the nerve in the injured eye died back to where it forked and that killed the nerve in the other eye is positive proof that blindness was not due to disease.

Dr. Braswell further testified on redirect examination as follows:

"Q. Doctor, have you been paid your bill for treatment of this man? A. No, sir. Q. Is there any other treatment recommended? A. I think the boy should be under the observation. He is practically blind."

I am of the opinion, under the statutes, the award should have been affirmed, for the. reason the testimony above quoted is competent, unimpeached and reasonable and supports the award.

Dr. Daniel W. White, called for petitioners, testified that he had treated the respondent and it is from this testimony that the majority opinion finds that it was disease that caused the blindness of this man in one eye and that the respondent was suffering from syphilis.

Dr. White testified as follows:

"Q. We decided to have a Wasserman blood test made. The laboratory made the blood test and reported 100 per cent. positive Wasserman. * * *"

This testimony of Dr. White is incompetent and has no probative force, for the reason it is hearsay. A Wasserman blood test was made, the laboratory made the blood test and the report is what Dr. White testified about. The report was not offered; but he did not testify who made the blood test, he did not give the name of the parties or the man making the report. Dr. White did not testify of his own knowledge, but on a report he received from some person whose name he did not mention. There is no evidence that the test or the report was made by a competent person. It is hearsay and fails to establish any fact.

The doctor further testified that iritis, a disease of the nerve, caused the blindness. That 50 per cent. of iritis is due to syphilis, and cited his authorities for the statement. There is also evidence in the record and it is admitted by Doctor White that an injury to the eye will cause iritis. The doctor's theory was that 50 per cent. of iritis was caused by syphilis; then, under a liberal construction, the injury being proved positively and the condition of syphilis being very doubtful, it was the duty of the Industrial Commission to find for the respondent for the reason the preponderance of the testimony on this disputed question was in favor of the respondent.

Dr. White further testified that on the 6th day of September, 1930, the vision in respondent's left eye was normal. This testimony corroborates the testimony of Dr. Braswell, that the effects of the injury to the right eye would go back down the nerve to the fork and when it reached the fork it would destroy the nerve to the left eye.

No doubt the effect of the injury on September 6th had not reached this place on the nerve and thereby destroyed the nerve in the left eye. Had the blindness in the left eye been due to syphilis rather than the injury, the syphilis would have affected the eye before September 6th. Throughout the testimony of Dr. White and his brother, he makes light of the injury to the right eye, but admits that the respondent is practically blind.

Respondent further testified as follows:

"Q. Did you ever know you had syphilis until Dr. White told you you had last October, 1930? A. No sir."

Dr. Peter Cope White testified that he was a member of the firm of White White and his testimony is practically the same as that of his brother, except he testified as follows:

"Q. If a man has had syphilis over a period of time and received a piece of steel in his eye, could not that aggravate it? A. Yes, when you have an inflammation from the steel they always do. Q. All right; now, then, Doctor, wouldn't this steel in the eye light up a condition of a disease he had had? A. It could do that. Q. Well, is it your opinion that this man's injury, this steel getting in the eye, lighted up this diseased condition? A. I answered it could have lighted it up. Q. You don't know whether it did or didn't? A. It could have; frequently a recent trauma will light up a progressive condition."

The record contains a report of the two witnesses, Drs. White White, made to the Industrial Commission on date, September 15, 1930; said report in part is as follows:

'Give an accurate description of the nature and extent of the injury. A. Imbedded steel in the right cornea.

"Describe treatment. A. Anesthesia, removal of steel from right cornea, after treatment.

"Are symptoms from which he is suffering due entirely to this injury? A. Yes.

"Has the injury resulted in a permanent disability? A. No.

"Has previous sickness or injury contributed to his disability? A. No.

"Is there evidence of syphilis? No.

"Alcoholism? No.

"Occupational disease? No.

"Hypochondriasis? No.

"Exaggeration? No.

"Tubercular infection? No.

"Any infectious disease? No.

"Neurasthenia? No.

"Hysteria? No.

"Is there evidence of malingering? No.

"State in patient's own words how accident occurred.

"While knocking out rivets, a piece of steel flew into my right eye."

I am of the opinion, not only was there competent evidence to support the finding of the Industrial Commission, but that there is no competent evidence to support the finding in the majority opinion that respondent had syphilis. The evidence in support of the finding of the Industrial Commission is clear, convincing, and is sufficient in my judgment, under the well-established rules of this court that where there is any competent evidence tending to support the finding of the Commission, the order and award of the Commission will be affirmed; however, admitting, which I do not, that respondent was suffering from syphilis, the evidence of all of the doctors is to the effect that the injury would have lighted up and aggravated this condition and resulted in immediate disability, while there is no proof in the record of any character that without the injury respondent would have ever suffered with his eyes.

This court, in the case of Shell Petroleum Corporation v. Moore, 147 Okla. 243, 296 P. 390, in the second paragraph of the syllabus, said:

"Where respondent, having a pre-existing arthritic condition of the back which at some uncertain and undetermined time in the future might cause him to become totally incapacitated, was injured by a heavy piece of lumber falling upon him, resulting in immediate temporary total disability, held, that he was entitled to full compensation for temporary total disability."

The following cases from other jurisdictions are cited with approval in this case, to wit:

"The Supreme Court of Pennsylvania, in Guyer v. Equitable Gas Co., 123 A. 590, in the fifth paragraph of the syllabus, said:

" 'Death from fall rupturing blood vessels, which in turn caused rupture of cyst (a diseased condition of the pancreas), is compensable, though such diseased condition might ultimately have caused death.'

"The Supreme Court of Utah, in the case of Utah Idaho Central R. Co. v. Industrial Commission of Utah, 267 P. 785, in the third paragraph of the syllabus, said:

" 'In case a latent or trouble is accelerated or lighted up by an industrial accident, and a more serious injury results by reason of the fact of the existence of such latent ailment than otherwise would have resulted, employee is entitled to additional compensation.'

"The Supreme Court of Illinois, in Sunny-side Mining Co. v. Industrial Commission, 151 N.E. 238, in the third paragraph of the syllabus, held:

" 'Evidence held to show that employee's injury aggravated condition of spine already affected by arthritis, entitling him to compensation for permanent partial disability.'

"In the case of Warlop v. Western Coal Mining Co., the Circuit Court of Appeals, Eighth Circuit, 24 F.2d 926, in the fourth syllabus, said:

"Where coal miner, having a pre-existing arthritic condition of the lower portion of his back which at some uncertain and undetermined time in the future might cause him to become totally incapacitated, was injured by a heavy rock falling upon him, resulting in immediate total and permanent disability, held, that he was entitled to full compensation for permanent and total disability as prescribed by the Kansas Workmen's, Compensation Act.'

"At page 930 of the above-cited case, the court said:

" 'It does not appear in this case that, even had the accident not occurred, the disability would, at some certain time within the 8-year limit of the statute, have resulted from any disease. Certainly the disease did not produce the disability of appellant. Did the accident, or was it a combination of the two? The arbitrator and the court found the latter. There are probably lurking germs of disease in nearly all human mortals. Some accident may accelerate the disease and produce complete disability, but, if the disease would not have developed without the accidental injury, that must be regarded as the contributory proximate cause. Workmen's Compensation Acts are not limited in their benefits to perfectly healthy employees. An interesting comment on this phase of the matter is that in Behan v. John B. Honor Co., 143 La. 348, 78 So. 589, L. R. A. 1818F, 862:

" 'The proof goes no further, in support of the defense of this suit, than to show that the plaintiff might, and perhaps would, at some time, have been disabled by the disease that was lurking in his system, even if the accident complained of had not happened. And that is not much more of a defense than to say that every man must some day come to the end of his worldly career, accident or no accident.'

"The courts very generally hold that if an existing disease is aggravated by accident or injury, compensation must be paid for the resulting incapacity.

"In Blackbubrn v. Coffevville Vitrified Brick Tile Co.,107 Kan. 722, 193 P. 351, the court held that the trial court's instructions to the jury that plaintiff could not recover for an aggravation for any disease that he had prior to receiving injury was error, and the court cites with approval a number of leading cases on the subject."

I am of the opinion that the judgment and award of the Industrial Commission should be affirmed.

Note. — See under (1) annotation in 8 A. L. R. 1324; 24 A. L. R. 1466; 67 A. L. R. 802.