Residential & Commercial Construction Co. v. Industrial Commission

ELLETT, Justice

(dissenting).

I dissent. Mr. Eskelson had a congenital back problem instead of an accident. The medical panel which examined him found that even if an accident had occurred, the complaint he made was not related thereto. He testified before the Industrial Commission as follows:

I believe the day was November the 5th, when I reported the accident. That’s what it shows on the record, I think. I was in my everyday routine, and about midmorning, I noticed that my back was quite sore. And I didn’t want to say anything, so I worked through the day. And I quit about a half hour early that day, and I went and talked to my boss. He asked me what was the matter, and I told him I had hurt my back. And at that time I couldn’t hardly straighten up, and I had a hard time breathing.

He further testified:

Q. And it was just when you were doing your normal duties ?

A. Yes, it is.

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Q. Well, do you remember any specific incident that prompted pain to your back ?

A. Just being a carpenter.

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A. It is just like having a sore leg. One day you feel good and the next you don’t.

The date of the claimed injury is clouded by his reports. The application for the adjudication of his claim alleged that he sustained an injury by accident in the month of October, 1970, and was signed by Mr. Eskelson and his attorney. The other documents which he filed show that he was injured November 5, 1970.

Of course, if an accident happens and an employee is injured as a result thereof, he is nonetheless entitled to benefits even though he may have had a predisposition to the injury which resulted.¹ However, there must be an accident, to wit: The occurrence of an unintended, unforeseen, and unusual event rather than something which continues, progresses, or develops.

In Pintar v. Industrial Commission² it is stated:

. . . It is, therefore, a prerequisite to compensation that his disability be shown to result, not as a gradual development because of the nature or conditions of his work, but from an identifiable accident or accidents in the course of the employment. . . .

In my opinion there was no evidence before the Commission to justify a finding that Mr. Eskelson suffered any injury from anything unusual or from any other cause than the ordinary work which he was required to perform. The Industrial Commission is the finder of the facts, but any finding made must be based upon competent evidence.

I think there is no evidence to justify a finding that an accident happened in October or on November 5, 1970, and I would reverse the ruling made by the Industrial Commission. No costs should be awarded.

CALLISTER, C. J., concurs in the views expressed in the dissenting opinion of ELLETT, J.

1 . Standard Coal Co. v. Industrial Commission of Utah et al., 69 Utah S3, 252 P. 292 (1926) ; Tintic Milling Co. v. Industrial Commission of Utah et al., 60 Utah 14, 206 P. 278 (1922).

2 . 14 Utah 2d 276, 277, 382 P.2d 414, 415 (1963).