Uris v. State Compensation Department

430 P.2d 861, 427 P.2d 753, 247 Or. 420, 1967 Ore. LEXIS 497
CourtOregon Supreme Court
DecidedMay 17, 1967
StatusPublished
Cited by90 cases

This text of 430 P.2d 861 (Uris v. State Compensation Department) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Uris v. State Compensation Department, 430 P.2d 861, 427 P.2d 753, 247 Or. 420, 1967 Ore. LEXIS 497 (Or. 1967).

Opinions

LUSK, J.

This is an action under the former Workmen’s Compensation Law. After the jury returned a verdict for the plaintiff the court entered judgment n.o.v. for the defendant. Plaintiff appeals.

[422]*422The sole question is whether there was sufficient evidence of causal relation between the occurrence testified to by the plaintiff and his injury to carry the case to the jury.

The facts are as follows: On September 6, 1963, plaintiff, then a student at Portland State College, was employed at Reed College moving books from the old to the new library. His job required him to load the books on a three-tiered cart with very small wheels and, after transporting them to the new library, to put them on the shelves there. On the third day of this work the following occurred, according to the plaintiff’s testimony:

“Well, the carts, having small wheels and being balanced with a heavy load of books, tended to easily shift their weight, and they could topple over. When I had a large number of books and moved them down to a lower tier, shelf, well, at that time out of the corner of my eye I saw that the cart was starting to go, and I reached out to, you know, push it straight, to push the books straight, worrying about the books falling over; and at that time I felt a relatively sharp pain, a pretty sharp pain in my back.”

Plaintiff testified that he reported the incident to Miss Pollock, the librarian, and she sent him to the infirmary where he saw Dr. Gregg Wood, who looked at his back and said he could not determine the nature or extent of his injury and advised him not to do any more heavy work such as book moving, and to sleep on a mattress with a board under it. Plaintiff was then given a night watchman’s job at Reed College which continued until September 24, when he resumed his studies at Portland State College. Ever since the accident plaintiff has experienced back pain from time to [423]*423time in greater or less degree, especially when he is tired. In June 1964 plaintiff and his wife moved from their apartment to a house. In using a bamboo rake to clean up the back yard he was “pretty exhausted” after an hour’s work and would be in “quite a good deal of pain.” The pain ranged from the small of his back, but particularly it went down his right leg on the inside of it. In March, 1964, he consulted Dr. Charles M. Grossman about another ailment not related in any way to his back injury and he did not at that time mention any difficulty about his back. The first time that he did so after seeing Dr. Wood was on August 13, 1964, when he told Dr. Grossman, as the latter testified, “that he had injured his back in September of 1963 while working at Eeed College.” Dr. Grossman testified that he examined the plaintiff’s back and found “some increase of his lumbar lordosis” (the normal curve of the lumbar spine). Dr. Grossman testified that the plaintiff did not give him a history of how he was injured and he did not know whether he had any subsequent data on that subject. Plaintiff went to Dr. Grossman about his back on November 12, 1964, November 17 and December 8, but the next time he saw the doctor, on December 24, although his back was bothering him, he had other difficulties which required surgery. X rays were taken at this time, but none which would disclose whether plaintiff had a back injury. Dr. Grossman’s diagnosis of the back injury was as follows:

“* * * I feel he had a chronic lumbo sacral strain, and that there was a distinct, there were evidences of root irritation and that we had to be on the lookout for a disc. There wasn’t sufficient information to make a positive diagnosis of a disc then or up to now at this point.”

[424]*424In response to a hypothetical question, which the defendant contends was insufficient, Dr. Grossman testified that “the accident” was probably responsible for plaintiff’s back difficulty.

Plaintiff testified that he suffered during childhood from a back ailment referred to as rheumatoid arthritis, but that he recovered from it completely before he reached the age of 13 or 14 years. The evidence justifies a finding that this condition was not connected with the injury of which plaintiff complains.

The defendant introduced no evidence, but rested and moved for a directed verdict at the conclusion of plaintiff’s case on the ground of insufficiency of the evidence of causation. In denying the motion the judge stated that if the jury returned a verdict for the plaintiff he would set it aside. Specifically, it is the defendant’s contention that medical testimony was essential to establish causation and that Dr. Grossman’s testimony as to the cause of plaintiff’s injury lacks probative value because it was based upon a hypothetical question which did not include a statement of the occurrence which plaintiff claims caused the injury.

It is, of course, the settled rule that

“* * * where injuries complained of are of such character as to require skilled and professional persons to determine the cause and extent thereof, the question is one of science and must necessarily be determined by testimony of skilled, professional persons. * * *”

Spivey v. Atteberry, 205 Olda 493, 494, 238 P2d 814, 27 ALR2d 1259, quoted with approval in Larson v. SIAC, 209 Or 389, 399, 307 P2d 314. As we said in Ritter v. Sivils, 206 Or 410, 413, 293 P2d 211: “If the [425]*425issue turns upon some fact beyond the ken of laymen, expert testimony must be produced * *

The rule was held applicable in the Larson case on the question whether the plaintiff had suffered an injury to his back. He claimed that such an injury was one of the results of his leg being broken below the knee. We held that medical testimony was necessary for this purpose. There was no such apparent connection between the accident in which the claimant’s leg was broken and his back injury that a layman could say that the back injury was caused by the accident. In the recent case of Howerton v. Pfaff, 246 Or 341, 425 P2d 533, the question was whether medical testimony was needed to prove that an inguinal hernia sustained by the plaintiff was caused by a collision between two automobiles, one of which was driven by the plaintiff. We held such evidence was needed because no indication of the presence of the hernia appeared until about three weeks after the accident and the only evidence of injury at the time of the accident was that he was “shook up” and his neck hurt. In other words, there was no trauma or strain in the region of the body where the hernia later appeared.

But in hernia cases a different result may be reached in “a simple situation * * * where, in point of time, the relationship between sudden strain at work, the first symptoms and the hernia was so close and immediate, and where, on the undisputed facts, a layman could clearly reasonably infer, without medical testimony, that the strain caused the hernia”: Lovely’s Case, 336 Mass 512, 515, 146 NE2d 488. See, also, Valeri v. Village of Hibbing, 169 Minn 241, 211 NW 8, 60 ALR 1296. Cf. Crowley’s Case, 287 Mass 367, 191 NE 668, and Casey’s Case, 348 Mass 572, 204 NE2d 710.

[426]

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Bluebook (online)
430 P.2d 861, 427 P.2d 753, 247 Or. 420, 1967 Ore. LEXIS 497, Counsel Stack Legal Research, https://law.counselstack.com/opinion/uris-v-state-compensation-department-or-1967.