Ewell v. Industrial Commission

238 P.2d 414, 120 Utah 671, 1951 Utah LEXIS 172

Opinions

HENRIOD, Justice.

Review of an Industrial Commission order denying plaintiff’s claim for costs incident to surgical removal of a growth (pterygium) on his left eye, following an on the job accident when a flash from a welder’s torch struck him in the eye. The order is reversed, each side to bear its costs.

The following facts were undisputed: Ewell, a power shovel operator for many years, constantly was exposed to wind and dust blowing in his eyes. By 1948 he had a growth on each eye, traumatic in origin. The growth on the right eye was more pronounced, affecting the cornea, and requiring correctional surgery. He was advised that sooner or later the left eye also would require surgery, although the pterygium might remain stationary for years. A pterygium is of a progressive nature if continued trauma occurs, and anything contacting it causes further growth. Between 1948 and 1950 his eyes did not bother him, although he continued the shovel work. In 1950 the flame from a welder’s torch accidentally struck him in the eye, burning his eyeball, causing soreness and inflammation, which persisted for 6 or 7 weeks. The pterygium on his left eye was observed to be impinging on the cornea, requiring surgery.

A specialist testified that in his opinion the flash from the torch aggravated the condition of the pterygium. There was no evidence that Ewell’s eyes were affected by wind and dust outside of his employment, and none that surgery probably would have been necessary at the time of the accident, or at any definite future time whether the flash burn had occurred or not.

These facts were uncontroverted, but the Commission found that Ewell

“presumably was subjected to some wind and dust outside of his employment”,

that

“the probabilities are that surgery would have been necessary whether or not the flash incident had taken place, and that the flash burn did not accelerate the growth of the pterygium.”

We conclude that the evidence shows without contradiction, and without intrinsic discredit thereof in the record, that there was (1) a pre-existing diseased condition of the eye which was aggravated by the flash burn, requiring surgery and resulting in a compensable disability; and (2) that the Commission’s order was arbitrary and of a nature which was not shielded by the decisions of this court rendering inviolate the Commission’s findings on conflicting evidence, both of which points are discussed in Gerber v. Industrial Commission, 1937, 91 Utah 479, 64 P. 2d 1281.

WADE and CROCKETT, JJ., concur.