Marx v. Industrial Commission

100 N.W.2d 331, 9 Wis. 2d 164, 1960 Wisc. LEXIS 267
CourtWisconsin Supreme Court
DecidedJanuary 5, 1960
StatusPublished
Cited by1 cases

This text of 100 N.W.2d 331 (Marx v. Industrial Commission) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marx v. Industrial Commission, 100 N.W.2d 331, 9 Wis. 2d 164, 1960 Wisc. LEXIS 267 (Wis. 1960).

Opinion

Dieterich, J.

The sole question before us goes to the issue as to whether or not appellant’s present disability of degenerative osteoarthritis was aggravated or accelerated by the injury he incurred on December 1, 1954.

The appellant, Roy W. Marx, was forty-seven years of age, weighed 137 pounds, and was five feet, three inches tall, on December 1, 1954, the date of the alleged injury. Roy W. Marx became employed by the Hurd Millwork Corporation, Medford, Wisconsin, as a general laborer in September, 1954. Prior to December 1, 1954, Roy Marx had suffered no injuries or pain, or was ever confined to a hospital because of any injury or pain, or missed work because of any injury or pain.

On December 1, 1954, about 3 p. m., Roy Marx and Lawrence Marschner, another employee, were unloading a boxcar of lumber. Roy Marx fell four and one-half to five feet, striking the frozen ground with his head, neck, and shoulders. After a short rest, the employee continued to work until 5 p. m.

*166 The following day Roy Marx saw Dr. Meyer of the Med-ford Clinic. ITe consulted Dr. Meyer for several weeks thereafter. The doctor .prescribed massaging of the neck. On April 1, 1955, he again consulted Dr. Meyer regarding a soreness in his neck, which he claimed had increased and again on October 4, 1955, at which time he claimed the aches and pains became worse when he carried anything on his shoulders.

In February, 1956, Roy Marx went to the Marshfield Clinic for a heart examination, because he started to have severe pains in his arms and across his chest, which seemed to center in the middle of his chest. An electrocardiogram was taken at the Marshfield Clinic.

In June, 1957, while working for his employer, Roy Marx suffered a severe jolt in attempting to lift a skid, and felt severe pain. The pain left after a short period of time, but Roy Marx decided to go to see Dr. Freeman of Wausau. After physical examination, Dr. Freeman sent Roy Marx to St. Mary’s Hospital where a myelogram and laboratory studies were taken. Roy Marx had only missed a few days of work up until the day he was confined to St. Mary’s Hospital on June 30, 1957. He was discharged from the hospital on July 4, 1957.

In addition to being employed by Hurd Millwork Corporation, Roy Marx helped to operate his small farm. Up until the date of the hearing Roy Marx had continued to work at the Hurd Millwork Corporation and helped operate his farm.

Roy Marx was examined by Dr. J. M. Freeman on June 25, 1957, and on March 6, 1958; by Dr. Merritt L. Jones on March 6, 1958; and by Dr. W. E. Braun on March 12, 1958.

Dr. J. M. Foerster, a radiologist specialist at St. Mary’s Hospital, testified on behalf of the appellant. He stated *167 that his examination of the X rays taken October 4, 1955, showed a lateral projection of the cervical spine and narrowing between the fifth, sixth, and seventh cervical vertebral bodies, with spurring, hypertrophic bony spurring, most marked at the interspace between the fifth and the sixth, with some loss of the normal cervical curve through this region. Elis opinion was that the appellant was suffering from osteoarthritis with bony lipping.

Dr. J. M. Freeman, a general practitioner, testified on behalf of the appellant. He was asked:

"Q. . . . what is your opinion, doctor . . . assuming all the facts which Mr. Marx has given here and assuming the facts which you have read into evidence here from your report, assuming the facts are true as stated by Dr. Foerster in his report, the opinion of the X rays taken of Mr. Marx, is there a reasonable probability . . . Assuming all those facts to be true, doctor . . . after examining him thoroughly yourself and after looking at the opinion of Dr. Foerster, as to the X rays, what was your diagnosis, . . .? A. I was of the opinion that this man was suffering from a radiculitis from osteoarthritis of his cervical spine.”

Dr. Freeman further testified that Roy Marx was not in any way affected with any heart condition. The doctor also testified that there was a definite and distinct relationship with the accident as the causative factor.

Dr. William E. Braun, testified on behalf of the appellant, and was asked:

“Q. Did you examine the X rays here, taken of Roy Marx at the Medford Clinic as of December 2, 1954, and October 4, 1955? A. Yes, sir.
“Q. What did you find? A. I noticed an arthritic process, the loss of space between C-5 and 6 and between C-6 and 7.
"Q. The X rays then in 1955 show a minor process? A. Yes, sir.
crQ. The X rays of 1954 there was no process? A. Well, it was hard to say. The X rays weren’t entirely satisfactory. *168 What I could see on the oblique view, there was no evidence of any arthritis on that picture.
“Q. . . . doctor, can you say, within a reasonable probability, based upon a medical and surgical standpoint of view, have you not an opinion whether or not, doctor, this trauma that you have heard related because of Mr. Marx’s accident caused this osteoarthritis? A. I believe that the accident caused an aggravation of a pre-existing osteoarthritis.”

On cross-examination the doctor testified that he would have expected that the complaints of Marx would have appeared sooner following the accident, but the employee stated he had periodic pain, and although the pain became greater a year or two later, the degenerative process is progressive and therefore can be continued and aggravated by lifting and twisting. The X rays of 1954 showed no definite evidence of arthritis. The 1955 X rays showed moderate degeneration, and the X rays of March 12, 1958, showed a definite process. The doctor was asked:

"Q. . . . what, in this particular case, is it that leads you to say that, in Mr. Marx’s case, it was accelerated by trauma ? A. Well, I believe that the injury that he did sustain was severe and the type of injury certainly could have caused definite trauma to the neck. There is no doubt that he sustained a flexion-type injury to the neck and that would cause damage to the disc, as well as the bony portions of the vertebrae. There was no definite fracture noted but there was loss of space, which indicates damage to the articular cartilage.”

Dr. Merritt L. Jones, an orthopedic surgeon, who examined Marx on March 6, 1958, testified on behalf of the respondents, and reported his findings and opinions in a letter dated March 8, 1958, which was introduced into evidence. He had examined all the X rays taken of Marx and testified that his disability was caused by a nerve-root pain resulting from progressive degenerative arthritic changes in the cervical spine. In his opinion, this condition was not *169

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Bluebook (online)
100 N.W.2d 331, 9 Wis. 2d 164, 1960 Wisc. LEXIS 267, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marx-v-industrial-commission-wis-1960.