A proceeding of the Industrial Commission denying an award of compensation to the applicant, Diehl Henderson,
is prosecuted before this court to review the action of the commission in so denying compensation. The application of said plaintiff was filed with the Industrial Commission under date of June 9, 1931, and two hearings were held by the commission on this application, on July 9, 1931 and on July 27, 1931, respectively. At these hearings the following material facts were developed by the evidence, without any contradiction:
That the applicant, on December 20, 1930, the date of the alleged accidental injury, was an employee of the National Coal Company, an employer subject to the Workmen's Compensation Act of this state (Comp. Laws 1917, § 3061 et seq., as amended). At that time the applicant was employed as haulage boss in the company's mine at National, Utah, and had worked for the company steady, every day the mine worked, for fifteen or sixteen months, and had been in good health until the day of the accident, and had not had any trouble with his left leg before. At approximately 11 o'clock a.m. on the above-mentioned date the applicant was endeavoring, in connection with some fellow employees, to place on the track a derailed mine car; a timber about eight feet long and ten inches in diameter, which was being used for this purpose, slipped and struck the applicant about eight inches below the hip on the inside of the left thigh, and at that moment the applicant said, "Oh!" and walked away. About twenty minutes later he examined his leg and there appeared to be a red bruise upon it; after cleaning up the wreck he complained to the fire boss, A.E. Robinson, of a burning sensation in the groin from the effect of the slip of the prop; he also said to D.F. Newberry, a motorman, who assisted in placing the derailed mine car on the track and who saw the timber slip and strike the plaintiff, that the timber had struck him in the groin. He, however, continued to work his shift and then took the place of said Newberry on the motor during the latter part of said Newberry's shift. Newberry coaxed him to take his place as he (Newberry) was anxious to get off. Plaintiff went home
at about 8 o'clock and was at that time limping. From the time of his return home the applicant became rapidly worse, and within a couple of hours was out of his head. Doctor W.C. Walker was called in, at which time the applicant was unable to give him a rational statement of what had happened. The doctor found redness and swelling in his left groin and his fever was between 103 and 104; and also found a small ulcer on the end of his penis. Dr. Walker did not find a break on the skin at the region of the injury. The applicant rapidly grew worse and was removed to the Price City Hospital, where he was examined and thereafter treated for a period of two weeks by Dr. C.L. Kline. Dr. Kline made his first examination on the 6th day after the injury and found a swollen and badly infected region in the left groin, and supuration of the tissue, septicaemia, and encephalitis caused from this injury. The applicant was still irrational and so remained in all about six weeks. Dr. Kline did not, at the time of his examination, find any break in the skin at the place of the injury, but did observe a very small denuded area on the glans of the penis. The applicant had not yet recovered from the infection in his left groin at the time of the said hearings before the Industrial Commission.
The controversy in this case arises over the findings by the Industrial Commission that applicant has failed to sustain, by a preponderance of the evidence — and the burden of proof is upon him — that the disability of which he herein complains was in any wise connected with the accident sustained 1 by him. Said findings being based upon the evidence of the doctors that the condition which developed in the patient after the injury was due to streptococcic inflammation producing septicaemia and encephalitis; yet no portal of entry for the disease germs which caused said infection was found by either of said doctors at the alleged place on the body where the timber struck applicant; and the further evidence by the attending physicians that the said disease germs could have found a portal
of entry at what Dr. Walker called an ulcer, but which was denominated by Dr. Kline as a very small denuded area on the glans of the penis. It was contended by the claim adjuster of the state insurance fund, Mr. M.E. Iverson, who attended the said hearings and assisted in conducting the examination, that the plaintiff suffered from streptococcic infection, perhaps of a wide variety, but not connected with anything of a venereal nature, and which was not in any way connected with the accidental injury to the plaintiff. It is contended by the applicant that the finding of the commission is not only not supported by the evidence in the case, but is directly contrary to said evidence. We are, therefore, required to examine the evidence which is brought here for review respecting the particular point in issue.
The plaintiff, in answer to questions propounded by Commissioner Knerr, testified:
"Q. Either chafed or laceration or anything? A. Just a small scratched spot on the leg, kind of a bruise on the leg. I would not say it was cut.
"Q. But you have a distinct recollection that about twenty minutes after it looked as if it was chafed there? A. Yes.
"Q. Sort of a scratching of the skin slightly is that right? A. Yes."
Dr. Walker, in answer to questions propounded by Mr. Iverson, testified as follows:
"You were called to his home? A. Yes.
"Q. What history was given you relative to an accident at that time? A. My record shows that Mr. Henderson was haulage boss, and pulling on rope, felt sharp pain in left groin. Sharp pain lasted only for few minutes. Worked rest of day but leg pained him at intervals. Pain and tenderness in left femoral triangle.
"Q. How did you get that history if you recall? A. From Mr. Henderson.
"Q. Was he rational so far as you were able to determine? A. No, he was not rational.
"Q. What did you find with respect to the left groin? A. He had redness in his left groin, and his fever was between 103 and 104.
"Q. You found no particular point indicating trauma? A. Not except the redness and swelling. There was nothing in the left groin, no break in the skin.
"Q. About how many square inches seemed to be red and inflamed? A. It was quite a large area, about five or six inches across.
"Q. The area that you point to, the ligament is several inches above the crotch? A. It is in the crotch.
"Q. If the history was to the effect that he had hold of a timber and the timber slipped from the cable and bumped him in that region 12 hours before you saw him, would that alter your opinion Doctor? A. Yes, it would, because it could have been — The sharp end on the end of a timber could break it. It might be a slight break like a pin break and close up.
"Q. Could the condition that developed have developed within the period of twelve hours, as you found it? A. Yes, it could have.
"Q. In other words in your opinion a stereptococcus agent in there twelve hours before you saw him at that point might have produced all the symptons found by you? A. Yes.
"Q. Would the break you found on the end of the penis have furnished a portal of entry? A. Yes. There was no inflammation around that ulcer.
"Q. Would it necessarily have to be? A. No.
"Q. So it is entirely possible it may have entered from that source? A. Yes.
"Q.
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A proceeding of the Industrial Commission denying an award of compensation to the applicant, Diehl Henderson,
is prosecuted before this court to review the action of the commission in so denying compensation. The application of said plaintiff was filed with the Industrial Commission under date of June 9, 1931, and two hearings were held by the commission on this application, on July 9, 1931 and on July 27, 1931, respectively. At these hearings the following material facts were developed by the evidence, without any contradiction:
That the applicant, on December 20, 1930, the date of the alleged accidental injury, was an employee of the National Coal Company, an employer subject to the Workmen's Compensation Act of this state (Comp. Laws 1917, § 3061 et seq., as amended). At that time the applicant was employed as haulage boss in the company's mine at National, Utah, and had worked for the company steady, every day the mine worked, for fifteen or sixteen months, and had been in good health until the day of the accident, and had not had any trouble with his left leg before. At approximately 11 o'clock a.m. on the above-mentioned date the applicant was endeavoring, in connection with some fellow employees, to place on the track a derailed mine car; a timber about eight feet long and ten inches in diameter, which was being used for this purpose, slipped and struck the applicant about eight inches below the hip on the inside of the left thigh, and at that moment the applicant said, "Oh!" and walked away. About twenty minutes later he examined his leg and there appeared to be a red bruise upon it; after cleaning up the wreck he complained to the fire boss, A.E. Robinson, of a burning sensation in the groin from the effect of the slip of the prop; he also said to D.F. Newberry, a motorman, who assisted in placing the derailed mine car on the track and who saw the timber slip and strike the plaintiff, that the timber had struck him in the groin. He, however, continued to work his shift and then took the place of said Newberry on the motor during the latter part of said Newberry's shift. Newberry coaxed him to take his place as he (Newberry) was anxious to get off. Plaintiff went home
at about 8 o'clock and was at that time limping. From the time of his return home the applicant became rapidly worse, and within a couple of hours was out of his head. Doctor W.C. Walker was called in, at which time the applicant was unable to give him a rational statement of what had happened. The doctor found redness and swelling in his left groin and his fever was between 103 and 104; and also found a small ulcer on the end of his penis. Dr. Walker did not find a break on the skin at the region of the injury. The applicant rapidly grew worse and was removed to the Price City Hospital, where he was examined and thereafter treated for a period of two weeks by Dr. C.L. Kline. Dr. Kline made his first examination on the 6th day after the injury and found a swollen and badly infected region in the left groin, and supuration of the tissue, septicaemia, and encephalitis caused from this injury. The applicant was still irrational and so remained in all about six weeks. Dr. Kline did not, at the time of his examination, find any break in the skin at the place of the injury, but did observe a very small denuded area on the glans of the penis. The applicant had not yet recovered from the infection in his left groin at the time of the said hearings before the Industrial Commission.
The controversy in this case arises over the findings by the Industrial Commission that applicant has failed to sustain, by a preponderance of the evidence — and the burden of proof is upon him — that the disability of which he herein complains was in any wise connected with the accident sustained 1 by him. Said findings being based upon the evidence of the doctors that the condition which developed in the patient after the injury was due to streptococcic inflammation producing septicaemia and encephalitis; yet no portal of entry for the disease germs which caused said infection was found by either of said doctors at the alleged place on the body where the timber struck applicant; and the further evidence by the attending physicians that the said disease germs could have found a portal
of entry at what Dr. Walker called an ulcer, but which was denominated by Dr. Kline as a very small denuded area on the glans of the penis. It was contended by the claim adjuster of the state insurance fund, Mr. M.E. Iverson, who attended the said hearings and assisted in conducting the examination, that the plaintiff suffered from streptococcic infection, perhaps of a wide variety, but not connected with anything of a venereal nature, and which was not in any way connected with the accidental injury to the plaintiff. It is contended by the applicant that the finding of the commission is not only not supported by the evidence in the case, but is directly contrary to said evidence. We are, therefore, required to examine the evidence which is brought here for review respecting the particular point in issue.
The plaintiff, in answer to questions propounded by Commissioner Knerr, testified:
"Q. Either chafed or laceration or anything? A. Just a small scratched spot on the leg, kind of a bruise on the leg. I would not say it was cut.
"Q. But you have a distinct recollection that about twenty minutes after it looked as if it was chafed there? A. Yes.
"Q. Sort of a scratching of the skin slightly is that right? A. Yes."
Dr. Walker, in answer to questions propounded by Mr. Iverson, testified as follows:
"You were called to his home? A. Yes.
"Q. What history was given you relative to an accident at that time? A. My record shows that Mr. Henderson was haulage boss, and pulling on rope, felt sharp pain in left groin. Sharp pain lasted only for few minutes. Worked rest of day but leg pained him at intervals. Pain and tenderness in left femoral triangle.
"Q. How did you get that history if you recall? A. From Mr. Henderson.
"Q. Was he rational so far as you were able to determine? A. No, he was not rational.
"Q. What did you find with respect to the left groin? A. He had redness in his left groin, and his fever was between 103 and 104.
"Q. You found no particular point indicating trauma? A. Not except the redness and swelling. There was nothing in the left groin, no break in the skin.
"Q. About how many square inches seemed to be red and inflamed? A. It was quite a large area, about five or six inches across.
"Q. The area that you point to, the ligament is several inches above the crotch? A. It is in the crotch.
"Q. If the history was to the effect that he had hold of a timber and the timber slipped from the cable and bumped him in that region 12 hours before you saw him, would that alter your opinion Doctor? A. Yes, it would, because it could have been — The sharp end on the end of a timber could break it. It might be a slight break like a pin break and close up.
"Q. Could the condition that developed have developed within the period of twelve hours, as you found it? A. Yes, it could have.
"Q. In other words in your opinion a stereptococcus agent in there twelve hours before you saw him at that point might have produced all the symptons found by you? A. Yes.
"Q. Would the break you found on the end of the penis have furnished a portal of entry? A. Yes. There was no inflammation around that ulcer.
"Q. Would it necessarily have to be? A. No.
"Q. So it is entirely possible it may have entered from that source? A. Yes.
"Q. Or a microscopic portal of entry in the groin? A. Yes."
In answer to questions propounded by Mr. McGee, attorney for plaintiff, Dr. Walker testified:
"Q. Did you make a diagnosis when you were first called in? A. I did not.
"Q. Did you have an opinion, or a diagnosis in your own mind, but didn't express it? A. Well, it was hard to make a diagnosis from the history. You certainly would not get a picture of this kind from a foot slipping pulling on a rope. But of course I didn't get this other history at that time, as he was irrational. He wanted to be let alone. He was a little irritable, so I didn't question him much. But the diagnosis I made out was an infection in the groin.
"Q. Do I understand, Doctor, that if the ulcer on the head of the penis was the portal of entry for the streptococcic germ, the first symptom would be manifest in the lymphatics of the groin? A. No. I said it was possible for it to be.
"Q. Where would you expect them to be first manifest? A. In the lymphatics of the penis.
"Q. And the lymphatics in the penis were nil? A. They were."
The witness, in this connection, further stated:
"We have an ulcer on the penis that we can see, and we have a supposition that there might be a microscopical area on the leg. That is supposition, and the other is a fact. So we take it for granted it was from the penis, although we can't say for sure."
In answer to questions propounded by Commissioner McShane the witness testified:
"Q. Is it not possible for a man or a person who receives a rather severe trauma over a large surface, to produce a microscopical portal of entry that would not be seen by the naked eye? A. Certainly.
"Q. And the condition you found there indicated that there had been an injury in the area you referred to, and that injury was evidenced by swelling and by tenderness and redness? A. It certainly was.
"Q. Could the condition you found there be produced by an impact from a timber which was thrown against him with such degree of force as you would expect from the tightening of a rope, the rope being pulled by an engine, and in pulling it over the post or prop it threw it with such force and violence as to call his attention to it at least? A. Yes, it could have been caused by that, but it could not unless there was a break in the skin.
"Q. It might be a break in the skin, but you didn't make a microscopical examination of the skin? No.
"Q. And there could have been a portal of entry you didn't see? A. Yes."
Upon being recalled, Dr. W.C. Walker further testified as follows (examination by Commissioner McShane):
Q. Doctor, in your report, filed December 27, 1930, I observe in there in paragraph two where you say, `Pain and tenderness in the left femoral triangle, lacerated muscle,' and then there is a question mark, and `no hernia.' What did you mean by lacerated muscle? A. Usually taken as a bruised muscle or a muscle that is broken. What I meant by `lacerated muscle' was that I didn't know what was the matter with him. That was a wild guess."
By Mr. McGee:
"Q. Your history came from an irrational man? A. Yes.
"Q. But now having regained his rational mind he gives a different history. Now he says that he was struck by a timber thrown upon his leg. If you had had that history at the time would you have made your report different? A. It would have been an infection caused from this injury.
"Q. That is the injury by the timber striking him on the leg? A. Yes.
"Q. It would naturally have been that, would it not? A. Yes."
By Mr. Iverson: "Q. So you aren't so sure as to what your opinion might be. A. From what Mr. McGee said, if the injury was caused from a timber striking him on the leg, you would take that history as correct and his injury caused from that."
Dr. Walker later being recalled further testified as follows (examination by Mr. McGee):
"Q. After hearing Mr. Newberry's testimony would that make any difference in your diagnosis? A. If I had had that history I would have made a diagnosis of it being from the injury."
The said witness, in describing the small denuded area on the glans of the penis, said "It looked as if it had been cut by a hair or sharp instrument. There was no bruise."
Dr. C.L. Kline was called as a witness and testified, among other things, with respect to the infective agent. Examination by Mr. Iverson:
"Q. Was it your thought that it may have circulated in the blood stream and the trauma excited it to activity? A. No; it was my opinion that the encephalitis was due to an injury in the groin.
"Q. You don't know what occasioned the infection in the groin? A. I do not."
In answer to question propounded by Mr. McGee the witness said:
"A break in the skin could have healed over and not been noticeable by the time I saw him and yet could allow infection."
In the brief of defendant Industrial Commission of Utah, its counsel takes as conclusive the statement of Dr. Walker that the ulcer on the penis was a fact and the microscopic break in the skin of the groin was supposition "so we take it for granted it was from the penis although we can't say for sure." Yet this witness, after learning the true history of the case and of the accidental injury, repeatedly stated that, if he had had that history, his report would have been
that it was an infection caused from this injury; and after hearing Mr. Newberry's testimony, he said: "If I had had that history I would have made a diagnosis of it being from the injury." And Dr. Kline stated in answer to Mr. Iverson's inquiry, "No, it was my opinion that the encephalitis was due to an injury in the groin."
Dr. Walker repeatedly called the very small denuded area on the glans of the penis an "ulcer," and counsel for the Industrial Commission of Utah, in its brief, also makes frequent use of the word "ulcer." It does not appear, however, that the description of the said denuded area could possibly have been an ulcer, which is defined by medical authorities as being "a solution of continuity occurring upon the surface of the skin, or of any of the mucous membranes, and causing gradual disintegration and necrosis of the tissue, a sore discharging pus."
It was the opinion of the examining doctors that the diseases from which the plaintiff suffered immediately following the accident were caused by some streptococcic germ which they say could have had its portal of entry at the denuded area on the glans of the penis, or could have entered by microscopic abrasion in the region of the injury. Both doctors say, when advised of the true history of the case and the injury suffered by plaintiff, that it is their opinion that the infection was caused from this injury.
There does not seem to be any corrobating testimony as to the said germs having entered at the denuded area on the penis. There was no inflammation, no lymphangitis, no swelling, or soreness at that point. While all the testimony in the case supports the theory of entry at the point of the injury 2, 3 — redness, blueness, swelling, soreness, pain, supuration, accompanied by encephalitis and septicaemia, all following the injury speedily in one continuous sequence without interruption. So we are lead to the conclusion that the finding of the Industrial Commission, that the applicant has failed to prove a connection of the illness with the injury, is not founded upon any competent
evidence, but is clearly, when all of it is considered together, as the Industrial Commission was required to consider it, against the evidence.
The Workmen's Compensation Law was certainly never intended to deprive a person of its benefits by reason of his being unable to definitely and specifically establish the exact point upon his body where the streptococcic germ may have its portal of entry. We think that the applicant has, by the great 4, 5 preponderance of the evidence, indicated that the portal of entry was at the point where the injury was received, and that therefore the order refusing compensation should be vacated, and the cause remanded to the Industrial Commission for further proceedings.
EPHRAIM HANSON, J., concurs.
CHERRY, C.J., did not participate herein.