Parker v. Industrial Commission

On August 22, 1930, Martha Parker filed an application with the Industrial Commission of Utah whereby she requested that compensation be granted to her and her minor children because of the death of her husband, Wm. J. Parker. She alleged that her husband's death, which occurred on November 13, 1929, was caused by an accident and injury which he received on October 17, 1929, in the course of his employment by Fred Johnson at his mine in Bingham Canyon, Utah. Hearings were had before the Industrial Commission upon the application, and compensation was denied. Mrs. Parker prosecutes this proceeding to review the action of the commission in denying compensation.

It is admitted by all parties to this proceeding that the applicant and her minor children were dependents of Wm. J. Parker at the time of his alleged injury and death; that Mr. Parker was employed by Fred Johnson at the time in question; that Fred Johnson was an employer of labor subject to the Workmen's Compensation Act (Comp. Laws 1917, § 3061 et seq., as amended); and that he carried insurance with the state insurance fund at the time of the alleged accident.

This controversy arose over the commission's findings "that the death of William J. Parker was not the result of an injury sustained on October 17, 1929, while employed by J. Fred Johnson" and "on November 13th, 1929, the said William J. Parker died, the cause of death, as stated in the Death Certificate signed by W.R. Tyndale, M.D., being Staphylococcic Septicemia; Contributory: Broncho Pneumonia." It is urged on behalf of plaintiff that these findings are contrary to the evidence, and that the evidence produced before the commission was such that the commission was bound to find that Mr. Parker died as a result of an injury which he received in the course of his employment.

We are thus required to examine the evidence which is brought here for review in so far as such evidence sheds light upon whether the deceased was or was not accidentally injured in the course of his employment, and, if so, whether such injury did or did not cause or contribute to his death.

Andrew C. Micholson testified that he was working with Mr. Parker on the day of the alleged injury and prior thereto; that Mr. Parker appeared to be in good health; that, while engaged in hoisting some timber about a week before the accident complained of, Mr. Parker was hit somewhere on the back with a small piece of timber, but that he went on working and did not complain of any injury; that about 2:30 or 3 o'clock p.m. on October 17, 1929, while he and Mr. Parker were engaged in dumping a car which was loaded with waste from the mine, the car slipped and came back, and Mr. Parker said that he got "kinked"; that he immediately sat down and complained of pain in the left groin; that he was pale and appeared to be sick; that he did not do any more work that day and did not return to work thereafter. The evidence shows without conflict that Mr. Parker became sick on the day of the alleged accident, and that he grew progressively worse until his death on November 13, 1929. He remained at his home for a few days, and was then removed to the County Hospital and later to the L.D.S. Hospital. A.J. May testified that he was a partner of Fred Johnson; that he was in charge of the work at Bingham, but the insurance policy was taken in the name of Mr. Johnson; that on October 19, 1929, he was at the mine in Bingham where he saw Mr. Micholson, who informed him that Mr. Parker was not at work but that he was "laid up with rheumatism in his legs"; that Mr. Micholson did not report that Mr. Parker had met with an accident; that a day or two after that Mrs. Parker called Mr. May, who went down to see Mr. Parker who was in terrible pain and very sick; that Mr. Parker then stated that he thought he had strained himself in lifting or dumping a car while working at the mine.

Mrs. Parker testified that prior to October, 17, 1929, Mr. Parker was in good health; that on the evening of that day when he came home he was sick and complained of pain in the back and stated to her that he had strained himself in dumping a car at the mine.

Three doctors testified before the commission.

Dr. W.R. Tyndale testified that he was called on October 26, 1929, to see Mr. Parker in consultation with Dr. Hatch; that they discovered in a few days that Mr. Parker

"had a swollen, tender, left kidney area. He was yelling with pain and had to be under the influence of opiates all the time to relieve the pain. * * * After some days he developed a bronchial pneumonia and died. The autopsy showed that he had a large abscess of the left kidney and that he had bronchial pneumonia with multiple abscesses in the lungs, from which was recovered a pure culture staphylococcus, showing that the pneumonia was due to the same thing that had been in his blood stream and was in his kidney. The history we got was that some weeks before this he had had a boil on his arm. The boil was healed up at the time of this second illness, and that the second illness was due, in the minds of both the patient and his wife, to an injury * * * in the mine."

Dr. Tyndale further testified that, if Mr. Parker had been hit in the region of the kidney with a timber, such injury may have very easily contributed to produce septicemia; that the abscesses in the kidney were of longer duration than the abscesses in the lungs; that septicemia may come from boils, but it is not very frequent, and

"that an injury of this sort to a specific organ that is below par, puts that organ still further below par and renders it more liable to infection. If Mr. Parker had a septicemia, which I doubt, then the injury was a deciding influence. I think the injury was of very great moment in his case, because he was apparently quite well before the injury, and was never well after the injury, and he kept on having pain until his death. The autopsy shows a big abscess, and there is no question but that there is a relation between the injury and the death."

On cross-examination, Dr. Tyndale stated that ordinarily a strain does not injure a kidney, but a strain may be such as to tear some part of the kidney; that, if Mr. Parker slipped and twisted while lifting on a car, it might produce a strain on a kidney, and that there is no doubt but men do hurt the internal organs by lifting. The doctor stated that germs may flow in the blood stream and not be doing any damage, but a patient with septicemia is not able to work. He said:

"It is fair to say this, that if nobody had told me anything about the accident I should have thought that this man could have gone on and died without any accident, but when there is a history of an accident, and a man is unable to work from the time of the accident, then it is quite fair to say that the accident is the predisposing cause in the subsequent chain of effects."

Dr. Tyndale reported to the state board of health that the cause of Mr. Parker's death was "Staphylococcic Septicemia; Contributory: Broncho-Pneumonia."

Dr. L.N. Ossman testified that he made a careful examination of Mr. Parker a few days after he became sick; that there were no external evidences that he had been injured; that he had a fever and complained of

"rather severe urinary disturbances, that is frequency of passing his water, and irritating him with pain and a burning sensation on passing water. * * * I observed a healed boil * * * on the forearm. * * * He was very tender all through the groin and up towards the region of the left kidney. * * * I determined to my own satisfaction that there was no evidence of any rupture at that time. * * * Following the examination I requested that he give me a sample of the urine. I suspected from his history and his statements that his trouble was genito urinary disease or something. I took a sample down to the office that evening and examined it and found a considerable quantity of pus cells in the urine. Otherwise the urine was normal. * * * I considered he had an infection in the kidney and bladder, and didn't consider it had any bearing on an injury at that time. * * * I am not especially qualified to pass on diseases of the genito-urinary tract, and for that reason I don't care to pass an opinion whether an injury had anything to do with it. I will say, however, that such a condition that he presented could be present, and is very often present without any history of an injury associated with it at all. * * * The finding of this boil made me conclude that was the natural origin of his infection of the genito-urinary tract, as it is quite common to have the blood stream infected, and the infection carried from boils; and the absence of other evidence to show the origin of infection it would be my natural conclusion that the boil was the origin of his blood stream infection, which in turn had involved the genito-urinary tract. My information then was as much as I have now, and as a result of that information I did not consider it an injury case."

When Dr. Ossman was asked on cross-examination if a sudden jerk could not cause a centralization of the germs in the blood stream, he answered by saying:

"I don't want to express an opinion. It may have been incidental or it may have been an aggravating condition. I am not qualified to pass such an opinion, because I think that is an opinion that should be left largely to specialists on the genito-urinary tract. It is possible that had nothing to do with it."

Dr. Floyd F. Hatch testified that he attended Mr. Parker prior to his death; that, when he was first called in, Mr. Parker was having very severe pains in his left groin and lower abdomen; that he thought Mr. Parker was having kidney colic; that a very careful examination failed to show any indication of anything wrong with Mr. Parker's kidneys; that there was no blood, pus, or albumen in his urine; that the boil on his forearm was completely healed. In the opinion of Dr. Hatch, it was reasonable to connect the death of Mr. Parker with the injury which he claimed to have received at the mine, but he did not feel the condition "so obvious that it was my duty to make a fuss and call anybody's attention to it. I understood there would likely be a hearing on the case, and it seemed just that there should be." On cross-examination Dr. Hatch testified that one may injure a kidney by slipping while dumping an ore car, but "it would be rather far fetched."

The foregoing is a brief summary of the evidence which the plaintiff contends requires a finding that Mr. Parker was accidentally injured in the course of his employment and that such injury caused or contributed to his death. We cannot agree with that contention. Upon this 1-3 record we are not prepared to say that reasonable minds may not differ as to what was the cause of Mr. Parker's death. It will be observed that the doctors who testified were not in entire accord as to the probability of any connection between Mr. Parker's sickness and any injury that he might have sustained. When pressed, none of the doctors who testified were certain that the septicemia and pneumonia with which Mr. Parker was afflicted and which were the immediate cause of his death were connected with any injury. According to them he may have become afflicted with these ailments without any injury. This court is not authorized to weigh conflicting evidence, nor is it authorized to direct which one of two or more reasonable inferences must be drawn from evidence which is not in conflict. That is the peculiar province of the Industrial Commission. Laws of Utah 1919, c. 63, § 3148-a; Hauser v. Industrial Comm. (Utah)296 P. 780, and cases there cited.

The evidence in this case is not such as to demand, as a matter of law, a finding that the death of Mr. Parker was caused or contributed to by an injury which he received in the course of his employment. It follows that the order denying plaintiff compensation should be, and it accordingly is, affirmed.

CHERRY, C.J., and FOLLAND, and EPHRAIM HANSON, JJ., concur.