Opinion
March 5, 1954 —
April 6, 1954.
APPEAL from a judgment of the circuit court for Dane county: ALVIN C. REIS, Circuit Judge. Affirmed.
For the appellant there was a brief by Bassuener, Humke, Poole Axel of Sheboygan, and oral argument by H. S. Humke.
For the respondent Industrial Commission there was a brief by the Attorney General and Mortimer Levitan, assistant attorney general, and oral argument by Mr. Levitan.
For the respondents Wisconsin Motor Service, Inc., and others there was oral argument by Ben E. Salinsky of Sheboygan.
Action by Beatrice Rick, widow of Marlin Rick, against the latter's former employer, and the Industrial Commission, for a review of the findings and order of the commission denying plaintiff's claim for benefits under the Workmen's Compensation Act. Judgment affirming the order was entered on November 3, 1953. Plaintiff appeals.
Deceased was involved in an automobile accident on January 25, 1952, as a result of which he sustained injuries to his head and chest. At that time he was not performing services for his employer. He consulted a physician, Dr. Brickbauer, on the next day. He complained to the doctor of a pain in his chest and mentioned the fact that he had a headache. His chest was taped. The doctor found no skull fracture. He gave the patient some headache pills and advised him not to return to work until the chest pain left. He remained away from work one week during which time he frequently complained of pain in his chest and of headaches.
On the morning of February 11th, before leaving his home for work, he told his wife that he had a headache. On the day of his death, February 11th, he told one of his superiors that he had not finished with his doctor and had to see him again; that he was having severe headaches and pain in his chest. About three hours before his fall in the employer's plant he told his superior that he had pain in the back of his head, that it felt as though someone had hit him with a hammer.
On February 11th, at about 3:30 p. m. deceased was working in a spray booth, doing some welding on an automobile. He was standing in a position to the rear of the hood of the automobile and was wearing welding goggles. A coemployee was working about 15 feet away. The coemployee needed the torch which the deceased had been using and walked over to where deceased was working and asked him how long he would still be using the torch. Deceased told him that he would be through in about a minute. The coemployee walked back to an automobile upon which he was working — a distance of about 20 feet — and as he was about to take a position under a car upon which he was working he heard deceased shut off the torch. The coemployee returned to the position of the deceased and when he arrived he found deceased lying on his stomach with his head on his left arm, his right arm forward, and his right leg slightly bent as if in a crawl. Deceased's head and shoulders were under the car upon which he had been working. Dr. Brickbauer was called and found the deceased unconscious with fair pulse. He had fresh abrasions over the bridge of his nose and in the area above the right eye. Deceased was taken to a hospital by ambulance. Before arriving at the hospital he had spasms in his right arm, apparently caused by a brain hemorrhage. Two hours after arrival at the hospital his breathing became irregular and a spinal tap was performed. The injury was diagnosed as a fractured skull. He died about two hours after the spinal tap without having regained consciousness.
A post-mortem examination on the next day disclosed a laceration on the external part of the left eyebrow, with a swelling which extended to the left lower area of the forehead and an abrasion on the upper third of the nose over the nasal bone and slightly to the left of the midline. No evidence of external injury except those mentioned appeared on any part of the body.
On examination of the head the dura appeared under considerable pressure over the left hemisphere. Opening the dura revealed an extensive fresh hematoma, mostly subdural, which spread toward the base of the left hemisphere. The hematoma consisted of partly liquid and partly clotted blood which was soft, not adherent, and of dark red color. The left temporal bone showed a hairline fracture. The subdural hemorrhage originated in the area of the fracture. The brain showed marked compression over the left hemisphere. The brain substance did not reveal any traumatic or other pathological change except the mechanical compression due to the fracture. There were no structural changes in any part of the brain. There was no evidence of an older hemorrhage. Death was attributed to traumatic subdural and subarachnoid hemorrhage from skull fracture.
The autopsy was performed by Dr. Eigenberger who testified that it was his opinion that the hemorrhage which he found was the result of an injury received the day prior to the postmortem and not two weeks prior thereto; when asked whether he could state to a reasonable medical certainty that the deceased may have had a dizzy spell which caused him to fall and result in a second fracture on February 11th, he answered, "I can only say it is possible, but I cannot say with certain reasonable degree of certainty because he didn't have it right then, why should he have it at that time? It is possible. I wouldn't say it isn't possible."
Neither Dr. Brickbauer nor Dr. Eigenberger was able to state what caused the fall on February 11th.
The commission found that the "deceased most probably fell and died on February 11, 1952, because of the effects of his injury on January 25, 1952; that it would be speculative and conjectural to associate his death with his employment with respondent; that the deceased did not sustain injury arising out of his employment with respondent", and dismissed the application of the widow.
The plaintiff had the burden of proving the existence of all facts essential to compensation and if, in the mind of the commission, she failed to do so, it was the commission's duty to deny the application. Hemans v. Industrial Comm. (1954), ante, p. 100, 62 N.W.2d 406. If the evidence before the commission was such as to raise in the minds of its members a legitimate doubt as to the right of the plaintiff to compensation it was its duty to deny compensation. Beem v. Industrial Comm. (1943), 244 Wis. 334, 12 N.W.2d 42. This court has never held, nor does the statute provide, that when an employee is found dead under circumstances indicating that death took place within the time and space limits of the employment, in the absence of any evidence of what caused the death, a presumption that the death arose out of the employment is created. In Hansen v. Industrial Comm. (1951), 258 Wis. 623, 46 N.W.2d 754, such presumption was indulged in, but that was in accord with the express provisions of sec. 102.03(1) (f), Stats. 1947, a statute applicable only to the case of persons whose work requires them to travel. The fact that the presumption was created expressly for travelers would seem to negate the recognition of a general presumption that unwitnessed death arises out of employment.
The learned trial court said in its memorandum opinion that the commission's finding, which we have quoted, was made gratuitously in that it was not necessary for the commission to find that death was caused because of the injury sustained on January 25th; it was not necessary for the commission to find the cause of death; it was the plaintiff's burden to establish that it occurred within the scope of the deceased's employment.
We find nothing in the evidence which would support a finding that the injury sustained on February 11th caused the death of the employee. An effort was made to establish that the testimony of the physician would support such finding. The difficulty with that contention is that such conclusion is based upon no more than a suspicion that he in fact fell. The suggestion that as he fell he might have raised his head and struck some part of the automobile assumes, first, that he fell, and speculates that he raised his head. The record is entirely barren of any testimony that whatever injury he had on February 11th was sufficient to cause his death.
The failure of the plaintiff to have offered testimony that the fall which occurred on February 11th was the result of Mr. Rick's work or his work environment or that the results of the fall were substantially aggravated by some condition of the employment required the commission to refuse to speculate and it was obliged to deny compensation.
By the Court. — Judgment affirmed.