Summary
In Walter v. Hagianis, 97 N.H. 314, 87 A.2d 154, it was said that an accident may consist of an unexpected effect as well as an unexpected cause.
Summary of this case from Jackson v. Emile J. Legere, Inc.Opinion
No. 4096.
Decided March 4, 1952.
A finding by the Trial Court in workmen's compensation cases will not be set aside unless it is so clearly erroneous that it could not reasonably be made. While certain medical testimony in a workmen's compensation case did not establish a causal relationship between the claimant's work and her consequent injury with absolute certainty it was nevertheless sufficient to justify a finding that her employment probably aggravated a pre-existing defect and that an operation was necessary to correct it. Where the carrying of heavy trays by the claimant in the course of her employment as a waitress so aggravated a pre-existing condition as to result in pain so intolerable and disabling that she was prevented from doing further work such injury was accidental and compensable under Laws 1947, c. 266, s. 2 III, notwithstanding the fact that some pain had been experienced by her as a result of such condition on prior occasions in the course of her work.
PETITION, for workmen's compensation under Laws 1947, chapter 266. The Trial Court awarded the plaintiff compensation for total disability for a period of ten weeks from August 28, 1948, in the sum of $250 together with medical and hospital expenses in the sum of $311.95, on the basis of the following findings of fact:
"On August 28, 1948, the plaintiff, while employed as a waitress by the defendants . . . was carrying a heavy tray of dishes up four steps leading from defendants' dining room to the kitchen when she felt sharp pains through her stomach which prevented her from continuing with her work. This tray of dishes weighed about thirty or thirty-five pounds.
"The plaintiff had been working for the said defendants about a year and during the month of August, 1948, the trays became very heavy for her to carry and she was unable to lift them on her shoulder and had to carry them with her hands. While carrying these trays during that month she continually had pains in her stomach up to and including August 28, 1948, at which time she found it necessary to discontinue her work because of the pains.
"The lifting and carrying of heavy trays by the plaintiff was a required part of plaintiff's work and it caused a strain to plaintiff's physical system, culminating in the break down of August 28th and aggravated a pre-existing physical defect, which aggravation of said pre-existing physical defect arose out of and in the course of plaintiff's employment by said defendants.
"The plaintiff, prior to her employment by the said defendants, was suffering from primary dysmenorrhea, cause undetermined, and retroverted uterus, cause undetermined.
"Both of these conditions were progressive in character, gradually getting worse and having their origin many years before employment by the said defendants.
"Each of these conditions constituted a disease which existed at commencement of the employment.
"The medical records in the case nowhere indicate any reference to the plaintiff's employment in connection with the condition for which she was operated on.
"The surgeon who operated on the plaintiff knew that she had been working as a waitress prior to the operation."
In making the award the Trial Court ruled that the "aggravation of plaintiff's pre-existing physical defect caused by strain constitutes accidental injury." In connection with the award the Trial Court made the further ruling: "Aggravation of a pre-existing physical defect by accident arising out of and in the course of employment is compensable injury though the existing condition is a `disease which existed at commencement of employment' and would not of itself be compensable."
Defendants' exceptions to the findings, rulings and decree were reserved and transferred by Sullivan, J. Other facts appear in the opinion.
Jacob M. Shulins and Richard C. Duncan (Mr. Duncan orally), for the plaintiff.
Devine Millimet (Mr. Millimet orally), for the defendants.
The evidence in this case is confined to three witnesses, the plaintiff, the named defendant and the surgeon who examined and operated upon the plaintiff who testified by deposition. Most of the facts are not in dispute. No witness contradicted the testimony given by any other witness in this proceeding. The tray that the plaintiff was carrying on August twenty-eighth was loaded with dishes not merely from one table but from "all the tables in the dining room." The employer, knowing that trays were heavy for the waitresses, used to carry them to the kitchen but testified that "most of the time we were rushed and everybody had a job to do and the waitresses would pick up the tray when it was loaded, and take it in the kitchen." On the twenty-eighth of August the plaintiff experienced sharp pains through her stomach as she carried the loaded tray of dishes up the four steps leading from the dining room to the kitchen. She then let the tray "down a little," managed to deliver the tray to the kitchen and immediately stopped working.
The defendants contend that the evidence does not justify a finding of any accidental injury arising out of and in the course of the employment as required by Laws 1947, c. 266, s. 2 III. This contention first involves a minute examination of the surgeon's testimony. On direct examination he testified, "I feel it is probable that strenuous lifting and prolonged activity and especially lifting would aggravate the condition she had." He further stated: "My opinion is that lifting, particularly coupled with walking or climbing steps would be the particular type of activity which would produce pain and that the pain which resulted from that .activity would be quite likely as a result of the condition which was present." He concluded that this activity was a "probable aggravation." On redirect examination the witness stated that it was "quite possible" that the plaintiff would never have had to have the operation except for the aggravation. When asked for his opinion, based on his entire knowledge of the case, as to the "probability" that she would never have had to have the operation if there had been no aggravation, he answered, "I wouldn't be able to say."
The Trial Court had the power to decide whether this negative answer was a repudiation of his testimony on direct examination. If so regarded there would be no medical testimony in the case. On the other hand, the Court was free to consider the testimony as a whole as establishing a causal relationship between the plaintiff's activity and the harm that happened to her on August twenty-eighth. It is evident that the Trial Court took the latter course. While the finding of the Trial Court in workmen's compensation cases will be set aside if supported by no evidence (McQueeney v. Company, 95 N.H. 313), the finding "should stand unless so clearly erroneous that it could not reasonably be made." Romano v. Company, 95 N.H. 404, 405. While the medical testimony did not disclose a causal relationship between the plaintiff's activity and her consequent injury with absolute certainty, this was not fatal. "For it was within the power of the [fact finder] to decide whether in point of fact the testimony of the claimant's physician — notwithstanding some shortage of agreement within itself nevertheless established a causal relationship between the claimant's routine occupation and the harm that happened to her." Carpenter v. Sibley c. Co., 302 N.Y. 304; 4 NACCA Law Journal 78; 8 NACCA Law Journal 71, 72. The medical evidence was sufficient to establish that the employment probably aggravated the plaintiff's pre-existing defect and that an operation was necessary to correct it. Murphy's Case, 103 N.E.2d 267 (Mass. 1952). This evidence removed the case from the realm of speculation. Eaton v. Proctor, 85 N.H. 398, 399. It was enough that the accident produced the incapacity when and as it did, even though the same result might possibly have occurred at some later time had the employment never been undertaken. Gallienne v. Company, 88 N.H. 375, 381; Guay v. Company, 83 N.H. 392. If technically the pre-existing defect was not itself materially changed by the injury its disabling consequences were. The findings of the Trial Court that the lifting and carrying of heavy trays was a required part of the plaintiff's work which caused an accidental aggravation of a pre-existing disability on August twenty-eighth were supported by the medical evidence.
An accidental injury within the meaning of the workmen's compensation law does not have to be traumatic or dramatic. The aggravation of a pre-existing physical condition is compensable if occasioned by accidental injury. Rivard v. McElwain Co., 95 N.H. 100; O'Brien v. Manchester Yarn Mills, 95 N.H. 118. It is not necessary that the accidental injury initiate a disabling condition and such an injury which aggravates or renders disabling a preexisting condition is also compensable. Bolduc v. Company, 96 N.H. 235; Moore v. Company, 88 N.H. 134. This principle applies whether the pre-existing physical defect is one peculiar to male or female. Zeady v. Company, 96 N.H. 328. An accident may consist of an unexpected effect as well as an unexpected cause. Moore v. Company, 88 N.H. 134, 138. Sudden or acute manifestation of disease may be an accident, even though its causation is gradual. Eaton v. Proctor, 85 N.H. 398, 399; Lybolt v. Company, 85 N.H. 262; Zwiercan v. Company, 87 N.H. 196. Masse v. Robinson Co., 301 N.Y. 34.
The defendants urge that the pain suffered by the plaintiff was not unexpected, but had been suffered in less intense form, for a period of at least a month; and that the pain which she suffered on August twenty-eighth was not a sudden unexpected manifestation, but the expectable recurrence of prior manifestations of increasing severity. What this argument fails to take into account is that the pain on the day in question became so intolerable as to be disabling and to result in incapacity to work. This effect could properly be found to be such an unexpected and untoward result as to constitute an accidental injury.
Exceptions overruled.
All concurred.