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These cases were consolidated pursuant to our order of September 5, 1968 wherein we granted leave to appeal prior to decision by the Court of Appeals in the case of Emery v. Huge Company, 381 Mich. 774. They were argued together in our April 1969 term.

They turn on the same question, for the damages for which workmen’s compensation was awarded in each case were caused by the Palm Sunday 1965 tornadoes which devastated parts of Southern Michigan.

In each case the hearing referee found that the employee’s injury arose out of and in the course of his employment. The award was affirmed by the appeal board in each case and by the Court of Appeals in the Whetro case.

For this reason they maintain that the cases were erroneously decided as a matter of law and the awards should be set aside.

The appellants in each case maintain that the injury did not arise ‘out of’ the employment because that phrase as it is used in the act refers to a causal connection between the event which put in motion the forces which caused the injury and the work itself or the conditions under which it is required to be performed.

Employment as a caretaker-gardener or salesman, they argue, does not include tornadoes as incidents or conditions of the work, and the path of injury is determined by the tornado, not the employment.

The Court of Appeals was able to distinguish between a tornado and a bolt of lightning as a causative force of injury and base its decision affirming the award for Carl Whetro on the reasoning of the Massachusetts supreme court in Caswell’s Case (1940), 305 Mass. 500, 26 N.E.2d 328, wherein recovery was allowed for injuries received when a brick wall of the employer’s factory was blown down on workmen during a hurricane. This ‘contact with the premises’ met the requirement that the injury arise ‘out of’ the employment in the mind of the Court of Appeals.

We are unable to accept the distinction drawn between a tornado and bolt of lightning when viewed as the cause of an injury. As we see it, a tornado, no less than a bolt of lightning or an earthquake or flood is an ‘act of God’ and if the phrase ‘out of’ the employment in the Workmen’s Compensation Act necessarily entails the motion of proximate causality, no injury received because of an ‘act of God’ should be compensable.

Fault has nothing to do with whether or not compensation is payable. The economic impact on an injured workman and his family is the same whether the injury was caused by the employer’s fault or otherwise.

The early Michigan case of Hopkins v. Michigan Sugar Co. (1915), 184 Mich. 87, 150 N.W. 325, L.R.A. 1916A, 310, imported the ‘causality’ concept into the requirement that the injury must arise ‘out of’ the employment. The court drew this interpretation from the English case of Fitzgerald v. Clark & Son (1908) 2 KB 796, and the McNicol’s Case (1913), 215 Mass. 497, 102 N.E. 697, L.R.A. 1916A, 306. Both of these jurisdictions have since adopted the doctrine of positional risk. See Powell v. Great Western Railway Co. (1940), 1 All Eng.Rep. 87, and Baran’s Case (1957), 336 Mass. 342, 145 N.E.2d 726.

The Massachusetts court said in Baran’s Case, p. 344, 145 N.E.2d p. 727: ‘We think that they (recent cases) disclose the development of a consistent course which is a departure from the earlier view expressed, for example in (McNicol’s Case). * * * The injury ‘need not arise out of the nature of the employment. * * * The question is whether his employment brought him in contact with the risk that in fact caused his death.‘‘

The English court, in Powell, supra, held that if the work required the employee to be at the place of injury the accident arose ‘out of’ his employment.

The award in each case is affirmed.

For the reasons set forth therein, in keeping with the policy observed in Bricker v. Green (1946), 313 Mich. 218, 21 N.W.2d 105, 163 A.L.R. 697; and Parker v. Port Huron Hospital (1960), 361 Mich. 1, 105 N.W.2d 1, the rule of law announced herein will apply to the instant case and all claims for compensation arising after March 12, 1970 the date of the filing of this opinion.

T. M. KAVANAGH and ADAMS, JJ., concurred with T. G. KAVANAGH, J.

The function of the workmen’s compensation act is to place the financial burden of industrial injuries upon the industries themselves, and spread that cost ultimately among the consumers.

This humane legislation was developed because the industrialization of our civilization had left in its wake a trial of broken bodies.

Employers were absolved from general liability for negligence, in exchange for the imposition of more certain liability under the act.

But it is a mistake to say that employers were absolved from fault. Liability is the basis of legal remedy. Fault is the basis of moral responsibility.

The workmen’s compensation law is society’s expression of the moral responsibility of employers and consumers to the workmen whose health and whose lives are sacrificed to industrial and commercial progress and production.

Fault is not the same thing as proximate cause. The compensation law does not use the word Cause. Rather, it expresses the concept of employer and consumer responsibility in the phrase ‘arising out of and in the course of’ the employment.

The workmen’s compensation law is not a utopian attempt to put a price tag on all human suffering and incorporate it into the cost of living.

Lightning, flood, tornados and estranged wives will always be with us, in this vale of tears. They were the occasion of human injury when our forebears were tilling the soil with sharp sticks. They are not a byproduct of the industrial revolution, nor are they in any sense the moral responsibility of those who profit by or enjoy the fruits of, our modern industrialized society.

I would reverse without apology for the precedents.

DETHMERS and KELLY, JJ., concurred with BRENNAN, C.J.

BLACK, Justice.

For Klawinski’s Case these controlling facts were stipulated:

Mr. Klawinski was a section hand, working for the defendant railroad. The section gang of which Mr. Klawinski was a member had been working at the time on defendant’s right of way when the storm came up. Upon order of the foreman and assistant foreman, most of the gang including Mr. Klawinski took shelter in a nearby barn. While they were in the barn, the storm meanwhile raging, Mr. Klawinski was killed by a bolt of lightning.

The very fact that the workman is engaged in the course of his employment, literally doing the work assigned to him by the employer in the place or under the circumstances designated by such employer, is sufficient to establish that he was stricken ‘out of’ that employment.

There are occasions when, to attain some judgment of a case in which the Court finds itself fractured into indecisive groups, some one Justice should recede from views firmly held by him. This is such a case, as was Halfacre, supra, and other cases cited by the writer in Wayne Circuit Judges v. Wayne County (1969), 383 Mich. 33, 38, 39, 172 N.W.2d 436.

Here, in Whetro and Emery, I would vote to affirm with declaration of overrulement of Klawinski, Nelson and Kroon, effective for application to like claims for workmen’s compensation arising After this date, just as was done in Montana Horse Products Co. v. Great Northern R. Co., 91 Mont. 194, 7 P.2d 919; Sunburst Oil & Refining Co. v. Great Northern R. Co., 91 Mont. 216, 7 P.2d 927, rehearing 91 Mont. 221, 7, P.2d 927, 929; affirmed Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 363-366, 53 S.Ct. 145, 77 L.Ed. 360, 85 A.L.R. 254. However, some of the Brethren would not only so overrule but would make such overrulement effective for these cases of Whetro and Emery, as in Bricker v. Green (1946), 313 Mich. 218, 21 N.W.2d 105, 163 A.L.R. 697 and Parker v. Port Huron Hospital (1960), 361 Mich. 1, 105 N.W.2d 1. The circumstances of disagreement being what they are, I now join these Brothers and cast my vote consistent with theirs, without receding from the views first expressed by me in Williams v. City of Detroit (1961), 364 Mich. 231, 270, 290, 111 N.W.2d 1.

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HUGHES v. TRUSTEES OF ST. PATRICK’S CATHEDRAL

245 N.Y. 201, 156 N.E. 665 (1927)

Workmen’s compensation

1. Heat prostration is an accidental injury arising out of and in the course of the employment, if the nature of the employment is such that it exposes the workman to risk of such injury.

2. Actual knowledge of the accident at the time it occurred is not required to excuse failure to give written notice as required by section 18 of the Workmen’s Compensation Law (Cons. Laws, ch. 67) where it appears that verbal notice was promptly given and that the employer has not been prejudiced. In a death case prior notice of injury by the employee is not required under the section.

3. An award for disability may be made after the death of the employee on the claim of disability on file at the time of death, without requiring the widow to file a new claim.

Matter of Hughes v. Trustees of St. Patrick’s Cathedral, 218 App. Div. 796, affirmed.

APPEAL, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered December 3, 1926, unanimously affirming an award of the State Industrial Board, made under the Workmen’s Compensation Law, for the death of claimant’s husband, a section boss in a cemetery, from alleged heat prostration.

Albert Ottinger, Attorney-General (E. C. Aiken of counsel), for respondents. The question in cases of heat prostration is as to whether the employee is subjected to a greater hazard than the public. (Murray v. Cummings Constr. Co., 196 App. Div. 903; 232 N. Y. 507; Donovan v. Ravenwood Paper Co., 216 App. Div. 777; King v. Ice Service Co., 34 St. Dept. Rep. 325; 217 App. Div. 708; Powell v. Town of Seneca, 34 St. Dept. Rep. 435; 217 App. Div. 711; Dibble v. Turner Constr. Co., 33 St. Dept. Rep. 156.) The employer was not prejudiced because verbal notice was given to the general foreman and superintendent. (Lutz v. Huffman & Co., 231 N. Y. 622; Snow v. United States Railroad Administration, 209 App. Div. 308; 239 N. Y. 528.)

PER CURIAM.

2. The employee did not give written notice of the injury within the time prescribed by section 18 of the Workmen’s Compensation Law (Cons. Laws, ch. 67). The State Industrial Board excused the failure on the ground that the employer was not prejudiced thereby, because verbal notice was given to the employer and the employer had actual knowledge of the accident within thirty days thereafter. The employer’s foreman testified that he understood the next day that the workman was taken home sick. A fellow employee testified that he notified the foreman the next day that the sickness was due to heat prostration. Verbal notice was, therefore, established. Actual knowledge of the accident at the time it occurred is not required where it appears that verbal notice is promptly given and the employer has not been prejudiced by the failure to give written notice. (Matter of Finch, 244 N. Y. 557.)

3. Section 18 of the Workmen’s Compensation Law does not require prior notice of injury by the employee in a death case. (Matter of O’Esau, 186 App. Div. 556; affd., 227 N. Y. 597.)

4. An award for disability may be made after the death of the employee. So far as Matter of Terry (232 N. Y. 120) holds to the contrary, section 33 of the law has been amended. (L. 1922, ch. 615.) The award was properly made on the claim of disability on file at the time of death without requiring the widow to file a new claim.

The order should be affirmed, with costs.

CARDOZO, Ch. J., POUND, CRANE, ANDREWS, LEHMAN and O’BRIEN, JJ., concur; KELLOGG, J., not sitting.

Order affirmed, etc.

Copr. (C) 2018, Secretary of State, State of New York

HANSON v. REICHELT

452 N.W.2d 164 (Iowa 1990)

LAVORATO, Justice.

This appeal arises out of the death of a farm employee who suffered a heatstroke while working. The Iowa industrial commissioner denied benefits, finding that the employee’s injury did not arise out of his employment. In making this finding, the commissioner applied the general public-increased risk rule, a rule this court first approved in a workers’ compensation case involving heatstroke more than fifty years ago.

The district court affirmed the commissioner’s decision. The administrators of the deceased employee’s estate appealed; we transferred the case to the court of appeals. The court of appeals reversed and remanded the case to the agency on an issue the agency had not addressed. The employer and carrier filed an application for further review, which we granted.

We now adopt the actual risk rule in workers’ compensation cases involving injuries from exposure to the elements. We think here, however, that the agency should be allowed to decide the liability issue in light of the rule we adopt today. So we affirm in part and vacate in part the decision of the court of appeals. We reverse the judgment of the district court and remand for further proceedings consistent with this opinion.

On June 24, 1983, D. Van Maanen agreed to buy some hay from Sherman Reichelt. Reichelt had already baled some of the hay. The remainder of the hay sold to Van Maanen had to be baled, and all of the hay had to be stacked on a hayrack and transported from Riechelt’s field.

Reichelt hired Dennis L. Hanson to help with the baling. When the baling operation began, the weather was very hot; the recorded temperature that day reached a high of 95 degrees.

At some point Hanson quit and sat down in the field. About thirty minutes later, Reichelt drove up in his pickup and found Hanson passed out.

Reichelt called for medical assistance; an ambulance arrived about 5:00 p.m. and took Hanson to a hospital in Newton. The doctors there determined that Hanson had suffered a heatstroke. Later Hanson was transferred to Iowa Methodist Medical Center in Des Moines where he underwent extensive treatment and finally died on July 18, 1983.

Hanson’s father and mother were appointed administrators of their son’s estate. As such the parents filed a petition with the Iowa Industrial Commission in June 1984. See Iowa Code § 85.26(4) (1983). They sought medical and death benefits from Reichelt and Reichelt’s insurance carrier.

A deputy industrial commissioner in an arbitration decision found that Hanson’s death did not arise out of his employment and denied benefits. The administrators appealed to the commissioner who affirmed. See Iowa Code § 86.24.

The administrators then filed in the district court a petition for judicial review of the commissioner’s decision. The district court affirmed.

The administrators appealed from the district court’s decision, and we transferred the case to the court of appeals. The court of appeals found that Hanson’s death did arise out of his employment. So it reversed the judgment of the district court.

The court of appeals remanded the case to the agency for findings on an issue the agency had not addressed. That issue was whether medical services rendered following Hanson’s cardiac arrest were reasonably necessary. The employer and carrier contended before the agency that Hanson was “brain dead” following the cardiac arrest. So, they argued, continued treatment after that was not necessary and therefore not compensable under Iowa Code section 85.27.

Reichelt and his carrier sought further review of the court of appeals decision, which we granted. The narrow issue we must decide is whether the agency properly applied the law when it found that Hanson’s death did not arise out of his employment.

I. When we review a district court decision on the validity of agency action, we ask only whether the district court has correctly applied the law. Norland v. Iowa Dep’t of Job Serv., 412 N.W.2d 904, 908 (Iowa 1987). The district court is itself acting in an appellate capacity to correct errors of law made by the agency. Id. In our review of the district court’s action in such capacity, we merely apply the standards of Iowa Code section 17A.19(8) to the agency action to determine whether our conclusions are the same as those of the district court. Id. If our conclusions are the same, we must affirm. Id. Likewise, if our conclusions differ, we must reverse.

II. In these proceedings the administrators had the burden to prove by a preponderance of the evidence that Hanson had suffered an injury that arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904, 907-08 (Iowa 1976). In the context of workers’ compensation law, the concept of proximate cause is found in the words “out of.” Crowe v. De Soto Consol. School Dist., 246 Iowa 402, 406, 68 N.W.2d 63, 65 (1955).

Both sides agree that Hanson’s injury-the heatstroke-arose during the course of his employment. So, as we said, our sole issue is whether Hanson’s injury arose out of his employment.

III. In the past this court addressed the issue whether a heatstroke is compensable in workers’ compensation cases. See, e.g., Wax v. Des Moines Asphalt Paving Corp., 220 Iowa 864, 263 N.W. 333 (1935); West v. Phillips, 227 Iowa 612, 288 N.W. 625 (1939). In Wax an employee suffered a heatstroke while digging a trench in 100+ degree temperatures. The industrial commissioner allowed benefits, and the district court affirmed. Viewing the same facts, we held as a matter of law that the heatstroke did not arise out of the employment. In other words, there was no causal connection between the employment and the injury. Wax, 220 Iowa at 865-67, 263 N.W. at 334-35.

In reaching this conclusion, we adopted and applied the general public-increased risk rule which provides that

[i]f the employment brings with it no greater exposure to injurious results from natural causes, and neither contributes to produce these nor to aggravate their effect, as from lightning, severe heat or cold, than those to which persons generally in that locality, whether so employed or not, are equally exposed there is no causal connection between the employment and the injury. But where the employment brings a greater exposure and injury results, the injury does arise out of the employment.

Id. at 865-66, 288 N.W. at 334. Simply put, the rule permits recovery “only in cases where the [employee] is exposed to conditions of temperature unusual or more intense than those experienced by [employees] of the community in general.” Id. at 866, 288 N.W. at 334.

Relying on the same rule, we reached an opposite result in West v. Phillips. There a bakery employee became ill while working the night shift. The employee died the next day. His doctor testified that the employee showed substantially all the symptoms of heat exhaustion. The doctor performed an autopsy. He found that the employee had severe heart trouble and that the heat exhaustion had hastened the employee’s death. West, 227 Iowa at 614, 620, 288 N.W. at 629.

In West experts testified that heat infiltration from the tar roof, an inefficient fan inside, and artificial heat from the oven combined to make it 10 to 12 degrees hotter inside. During the day, the temperatures outside had reached 108. Id. at 617-18, 288 N.W. at 627-28.

We thought that the testimony of the experts was sufficient to sustain a finding “that there was excessive heat in the bakeshop caused by artificial heat.” Id. at 618, 288 N.W. at 628. Such a finding, of course, met the recovery requirement of the general public-increased risk rule: the employee must be exposed to conditions of temperature unusual or more intense than those experienced by employees of the community in general. In addition, we thought the doctor’s testimony was sufficient to establish the necessary causal connection between the employee’s death and the heat exhaustion. Id.

The facts here are on all fours with the facts in Wax. So it is not surprising that the deputy reached the same conclusion as we did in Wax: no causal connection between the death and the injury.

One noted authority criticizes the general public-increased risk rule because of the way courts define the general public:

The heart of the difficulty is almost entirely in defining the general public with which the comparison is made. It is here that many of the negative cases have gone wide of the mark. Clearly, since the object of the comparison between the exposure of this employee and the exposure of the public is to isolate and identify the distinctive characteristics of this employment, the comparison should be made with a broad cross section of the public having no characteristics specially selected because they resemble those of the employment. Because most of these cases arise during extreme hot, cold, rainy, or stormy weather, the most direct way to approach a working rule is to ask: What does the average man, free of the obligation of any particular employment, do when it is twenty below, or a hundred in the shade, or raining, sleeting or snowing violently? There may be various answers as to what he does, but there is one clear answer as to what he does not do. He does not stay outdoors all day.

1 Larson, Workmen’s Compensation Law, § 8.42 (1984).

Larson gives an example of the proper application of the general public-increased risk rule from a Texas sunstroke case in which the court succinctly and clearly summed up the rule:

In the case before us the very work which the decedent was doing for his employer exposed him to a greater hazard from heatstroke than the general public was exposed to for the simple reason that the general public were not pushing wheelbarrow loads of sand in the hot sun on that day.

Id. (quoting from American Gen. Ins. Co. v. Webster, ---Tex.Civ.App. ----, ----, 118 S.W.2d 1082, 1085-86 (1938)).

Several jurisdictions have discarded the general public-increased risk rule in cases involving effects of exposure to the elements. In its place, these courts have adopted the actual risk rule. See, e.g., Hughes v. St. Patrick’s Cathedral, 245 N.Y. 201, 156 N.E. 665 (1927); Eagle River Bldg. & Supply Co. v. Peck, 199 Wis. 192, 225 N.W. 690 (1929); 1 Larson at 8.43.

In Hughes, the employee suffered heat prostration while working outdoors. In holding for the employee, the court summed up the actual risk rule in two sentences:

Heat prostration is an accidental injury arising out of and during the course of the employment, if the nature of the employment exposes the workman to risk of such injury. Although the risk may be common to all who are exposed to the suns rays on a hot day, the question is whether the employment exposes the employee to the risk.

245 N.Y. at 202-03, 156 N.E. at 665.

Reaching the same result on similar reasoning in an accidental freezing case, the Wisconsin Supreme Court said:

The injury in the instant case clearly grew out of and was incidental to the employment. It makes no difference that the exposure was common to all out of door employments in that locality in that kind of weather. The injury grew out of that employment and was incidental to it. It was a hazard of the industry.

Eagle River Bldg. & Supply Co., 199 Wis. at 196, 225 N.W. at 691.

We think the actual risk rule is the better rule and more in line with how we construe our Workers’ Compensation Act. We construe the Act liberally in favor of the employee; we resolve all doubts in favor of the employee. Teel v. McCord, 394 N.W.2d 405, 406-07 (Iowa 1986).

Moreover, the actual risk rule makes no comparison between risks found by the employee and those found by the general public. So the rule is not subject to the same criticisms that have been voiced against the general public-increased risk rule.

We adopt the actual risk rule in cases involving injuries from exposure to the elements. If the nature of the employment exposes the employee to the risk of such an injury, the employee suffers an accidental injury arising out of and during the course of the employment. And it makes no difference that the risk was common to the general public on the day of the injury.

DECISION OF COURT OF APPEALS AFFIRMED IN PART AND VACATED IN PART; DISTRICT COURT JUDGMENT REVERSED.

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KATZ v. KADANS & COMPANY

232 N.Y. 420, 134 N.E. 330 (1922)

1. If the work itself involves exposure to perils of the street, strange, unanticipated and infrequent though they may be, the employee passes along the streets when on his master’s occasions under the protection of the Workmen’s Compensation Law.

2. The danger must result from the place to make it a street risk, but that is enough if the workman is in the place by reason of his employment, and in the discharge of his duty to his employer.

3. The danger of being struck by street brawlers, highwaymen, escaping criminals or violent madmen is a street risk because it is incident to passing through or being on the street when dangerous characters are abroad.

4. A chauffeur who, while driving his employer’s car on his employer’s business, was stabbed by an insane man who was being chased through the streets, is properly awarded compensation under the Workmen’s Compensation Law on the theory that his injuries arose out of his employment. The risk of being stabbed by an insane man running amuck was in a peculiar sense a risk incidental to the streets to which claimant was exposed by his employment. (Matter of Heidemann v. Am. Dist. Tel. Co., 230 N. Y. 305, distinguished.)

Matter of Katz v. Kadans & Co., 198 App. Div. 962, affirmed.

E. C. Sherwood, William B. Davis and Benjamin C. Loder for appellants. The claimant’s injury did not arise out of his employment. (Heidemann v. American District Telegraph Co., 230 N. Y. 305; 193 App. Div. 402; Matter of Kowalek v. N. Y. Cons. Ry. Co., 229 N. Y. 489; Dennis v. White & Co., 1917 App. Cas. 479; Griffin v. Roberson & Son, 176 App. Div. 6; Matter of McNicol, 215 Mass. 497; Brezzenski v. Crenshaw Eng. Co., 188 App. Div. 511.)

Charles D. Newton, Attorney-General (E. C. Aiken of counsel), for respondent. The accident by which the claimant received injuries arose out of and in the course of his employment. (Leonbruno v. Champlain Silk Mills, 229 N. Y. 420; Verschleiser v. Stearn & Sons, 229 N. Y. 192; Carbone v. Loft, 219 N. Y. 579; Matter of Knocks v. Metal Packing Corp., 231 N. Y. 78; Matter of Sassano v. Paino, 226 N. Y. 699; Matter of Heidemann, 230 N. Y. 305; Matter of Stillwagon, 224 N. Y. 714.)

POUND, J.

This is a workmen’s compensation case. Louis Katz, the claimant, was a dairyman’s chauffeur. On May 7, 1920, when he was driving his employer’s car west on Canal street after delivering some cheese an insane man stabbed him. A lot of people were running after the insane man and he stabbed any one near him. The question is whether claimaint’s injuries arose out of his employment.

Cases may arise where one is hurt in the street but where the risk is of a general nature, not peculiar to the street. Lightning strikes fortuitously in the street; bombs dropped by enemy aircraft do not expose to special danger persons in a street as distinguished from those in houses. (Allcock v. Rogers, House of Lords, 1918, 11 B. W. C. C. 149.) The danger must result from the place to make it a street risk, but that is enough if the workman is in the place by reason of his employment, and in the discharge of his duty to his employer. The street becomes a dangerous place when street brawlers, highwaymen, escaping criminals or violent madmen are afoot therein as they sometimes are. The danger of being struck by them by accident is a street risk because it is incident to passing through or being on the street when dangerous characters are abroad.

Particularly on the crowded streets of a great city, not only do vehicles collide, pavements become out of repair and crowds jostle, but mad or biting dogs may run wild, gunmen may discharge their weapons, police officers may shoot at fugitives fleeing from justice, or other things may happen from which accidental injuries result to people on the streets which are peculiar to the use of the streets and do not commonly happen indoors.

The order should be affirmed, with costs.

HOGAN, CARDOZO and CRANE, JJ., concur; HISCOCK, Ch. J., MCLAUGHLIN and ANDREWS, JJ., dissent.

Order affirmed.

Copr. (C) 2018, Secretary of State, State of New York

COOMES v. ROBERTSON LUMBER COMPANY

427 S.W.2d 809 (Ky. 1968)

Opinion

MILLIKEN, Judge.

The Workmen’s Compensation Board denied compensation to the appellant, William Gerald Coomes, a forty-eight year old employee of the appellee, Robertson Lumber Company, and the circuit court affirmed the Board’s decision on appeal. The appeal to us presents the question of whether the Board had to grant compensation to Coomes as a matter of law.

This is a case where no one saw the accident, and little circumstantial evidence was available to suggest exactly how it happened, yet happen it did, and during the course of Coomes’ employment with the Lumber Company. Coomes drove a truck for the Company and worked in its lumber yard. On the day of his injury, September 10, 1964, he went home for lunch at noon and returned to his work about an hour later, unloading tow-by-fours from a truck. A salesman for the Company saw him after his return to work and testified that Coomes appeared normal at that time, but within an hour later, when the salesman went into the lumber yard for a purpose he could not recall, he saw Coomes stagger to his feet with a bloody forehead, found him dazed, led him to a stack of lumber where he set him down, then telephoned Coomes’ wife to come for him. The salesman said he recalled seeing nothing on the ground which would suggest what caused Commes to fall or what he may have struck when he fell, but there was a truck with lumber on it ‘and some—a couple of pieces may be pulled out three or four feet.’

Mrs. Coomes, who worked at night and slept in the daytime, took her husband home, cleaned his cut head, put him to bed and returned to bed herself. She said that she had ‘kind of dozed off to sleep myself. In a few minuts I felt the bed just quiver and he already had just stiffened out.’ She said his body was so stiff she could not manage him so she called an ambulance to take him to the hospital where examination revealed a severe fracture of his skull. She testified that her husband appeared to be all right when he was home for lunch that noon.

The Workmen’s Compensation Board denied compensation because of its ‘conclusion that the evidence of this record fails to establish a causal connection that demonstrates abnormalities or compensable injuries resulting from the accident which occurred on September 10, 1964. * * * On the basis of the medical and factual proof included, we are not able to find that the plaintiff sustained a compensable injury in the course and out of his employment with this defendant on or about September 10, 1964.’ (Emphasis ours.)

Pulsing through all legal concepts such as ‘due process of law’, ‘the equal protection of the law’ and others is our sense of fair play or justice, and the same spirit animates the legal concepts vital to the administration of the Workmen’s Compensation law in its limited and specialized field. And in Kentucky, after thirty-five years of experience with the Workmen’s Compensation law, the legislature found it necessary in 1950 again to direct specifically that the Workmen’s Compensation law ‘* * * shall be liberally construed on questions of law, as distinguishable from evidence * * *.’ KRS 342.004. (This was in the original Workmen’s Compensation law as K.S. 4987 and was omitted in the 1942 Revision because KRS 446.080 says all statutes should be liberally construed.) This statutory re-enactment means, if it means anything, that governing legal concepts peculiar to Workmen’s Compensation definitely should be construed liberally by this court.

What we have before us in the case at bar is a severely injured workman, injured in the course of his employment on his employer’s premises, and the Board denying compensation because it could not decide specifically how the injury happened. Coomes was unable to tell what happened, but he had been unloading the lumber truck, and the witness who found him said there was a truck with lumber on it ‘and some—a couple of pieces may be pulled out three or four feet’. Should not our legal concept, ‘arising out of the employment’, be adaptable enough and broad enough for us to conclude that a rebuttable presumption of compensability arises when an employee is found unexplainably injured on his employer’s premises in the course of his employment? We think it should be if the admonition of our statute (KRS 342.004) is to be observed.

Dr. William E. Pearson, the neurosurgeon who examined and treated Coomes during his hospitalization after the accident testified a year later that he found Coomes had a ‘* * * large skull fracture running vertically in the anterior parietal region down to the left temporal region * * * the patient was somewhat drowsy, dazed and confused.’ This physician said that someone told him Coomes had seizures or ‘spells’ of some sort for several years before the accident, but he did not know who told him. In any event, Coomes definitely suffered seizures or ‘spells’ after the accident which, Dr. Pearson thought, were traumatic in origin and were caused by the accident. He said that Coomes was suffering from a cerebellar disease which affects the coordination of the body as a whole and that the medicine Coomes necessarily was taking night be the cause of it. It was this physician’s opinion that Coomes was still totally disabled at the time of his testimony—a year after the accident, but it was difficult to say whether it was permanent.

About two months after Dr. Pearson and Dr. Callis had testified, Dr. Everett G. Grantham, a neurosurgeon of Louisville who had helped train Dr. Pearson, examined Coomes and reported his findings. He found no reason why Coomes should not be normal so far sa his head injury was concerned. Dr. Grantham found nothing pathological after checking Coomes’ blood pressure, gait, cranial nerves, reflexes and carebellar functioning. Dr. Grantham ruled out a head injury Coomes had suffered in an automobile accident in 1950 as a cause of his trouble, saying that two years was about the limit for subsequent trouble to appear from such an injury.

With the intimation of pre-accident epilepsy or ‘spells’ in the air and the possibility that a 1950 head injury might have teamed-up to cause Coomes’ unexplained fall and injury, the Board appointed Dr. Lester Reed, a neurosurgeon, to examine Coomes for the Board and to report his findings. Dr. Reed examined him in December 1965, several months after Dr. Pearson and Dr. Callis had testified, and gave his deposition in late April of 1966. Dr. Reed could find no cerebellar disorder, but said, ‘I was not able to explain his peculiar gait. I just could not say whether it might be the particular result of a brain injury or not.’ Dr. Reed thought Coomes was disabled but he did not feel competent to say how much on one examination. He did not believe Coomes’ faltering gait was the result of a cerebellar disease, because he said the movement of the upper extremities (the arms) usually showed similar symptoms when the movement of the legs was affected by a cerebellar disease, and he did not notice any such symptoms in Coomes’ use of his arms. Three months after Dr. Reed had testified, the Board handed down its opinion denying compensation because the puzzle as to just what had caused Coomes’ injury in the course of his employment had not been solved.

As heretofore stated, the ‘in the course of’ and ‘arising out of the employment’ factors are not precise concepts. Larson, in his Workmen’s Compensation Law, Section 29.10, says these two factors should not be applied entirely independently; that ‘they are both parts of a single test of work-connection, and therefore deficiencies in the strength of one factor are sometimes allowed to be made up by strength in the other. * * * One is almost tempted to formulate a sort of quantum theory of work-connection: that a certain minimum quantum of work-connection must be shown, and if the ‘course’ quantity is very small, but the ‘arising’ quantity is large, the quantum will add up to the necessary minimum, as it will also when the ‘arising’ quantity is very small but the ‘course’ quantity is very large. But if both ‘course’ quantity and ‘arising’ quantities are small, the minimum quantity will not be met.’

We are not unmindful of our decision in Stasel v. American Radiator & Standard Sanitary Corp., Ky., 278 S.W.2d 721 (1955) where compensation was awarded for an idiopathic fall in the course of the employment, an epileptic fall onto a hot stove, because the employment placed the employee in increased danger of the effects of such a fall for, in the case at bar, we do not find any competent evidence that an idiopathic fall is involved. (See Larson, Section 12.11 for a discussion and analysis of idiopathic fall cases; and also Blair Fork Coal Co. v. Blankenship, Ky., 416 S.W.2d 716 (1967).

We conclude that Coomes’ injury arose out of his employment whether he was struck by sliding lumber while unloading the truck or whether he suffered an unexplained fall, and that he clearly is entitled to compensation for an extended period of temporary, total disability, and that he may be entitled to an award for permanent disability if the Board so finds. The judgment is reversed and the case referred back to the Board for an award of compensation consistent with this opinion.

WILLIAMS, C.J., and HILL, STEINFELD and PALMORE, JJ., concur.

OSBORNE, J., not sitting.

MONTGOMERY, J., dissents.

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GEORGE v. GREAT EASTERN FOOD PRODUCTS, INC.

And

GEOTAKES v. GREAT EASTERN FOOD PRODUCTS, INC.

44 N.J. 44, 207 A.2d 161 (1965)

Opinion

The opinion of the court was delivered by

HALL, J.

In this workmen’s compensation case, the employee died from a fractured skull sustained as the result of an idiopathic fall (used in the sense of a fall caused by a purely personal condition having no work connection whatever) ‘in the course of’ his employment. An attack of dizziness, apparently induced by some cardiovascular condition, precipitated the occurrence. He did not strike anything until his head hit the level concrete floor upon which he was standing, bringing about the injury. The Division of Workmen’s Compensation dismissed the petitions seeking compensation for the period between the injury and death some few weeks later and for dependency benefits. The Essex County Court reached the same result on appeal and the Appellate Division affirmed in an unreported opinion, holding the case was controlled by this court’s 4-3 decision in Henderson v. Celanese Corp., 16 N.J. 208, 108 A.2d 267 (1954), where the pivotal facts were essentially the same. We granted certification. 43 N.J. 261, 203 A.2d 715 (1964). Petitioners urge reconsideration of the rule of Henderson.

‘If it (the fall) was occasioned by or was the result of a disease or physical seizure and was not contributed to by ‘what the workman had to do,’ it is not compensable. On the other hand, if the fall ‘would not have occurred but for the services rendered’ in the employment, it is covered by the statute.’

(The burden of proof to establish the idiopathic cause was placed on the employer. 11 N.J., at p. 38, 93 A.2d 171.) The seeming exclusionary breadth of this thesis was, however, qualified by saying that, even if the inception of the fall was occasioned by a personal condition and non-work connected, the resulting injury was compensable if that injury was caused or contributed to by some added hazard or special condition of the employment. Concrete floors were found not to fall in that category because they are ‘usual and common in industrial plants’ and ‘(t)he same consequences would probably have been forthcoming had the appellant suffered his seizure in the street or in his home.’ 16 N.J., at p. 214, 108 A.2d, at p. 270.

Of course, we do not mean to intimate that an employee is entitled to compensation for some idiopathic incident in and of itself, as, for example, where one suffers a non-work connected heart attack or convulsion at work and simply dies at his desk or machine or falls to the floor and suffers no injury from the impact. No such claim is made here.

The judgment of the Appellate Division is reversed and the matter remanded to the County Court for further proceedings consistent with this opinion.

For reversal and remandment: Chief Justice WEINTRAUB and Justices JACOBS, PROCTOR, HALL, SCHETTINO and HANEMAN-6.

For affirmance: None.

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LEON COUNTY SCHOOL BOARD v. GRIMES

548 So. 2d 205 (Fla. 1989)

Opinion

OVERTON, Justice.

We have for review Grimes v. Leon County School Board, 518 So.2d 327 (Fla. 1st DCA 1987), in which the First District Court of Appeal certified the following question to be one of great public importance:

In applying the pertinent provisions of chapter 440 [Florida Statutes (1985) ], are accidents suffered by employees in falls which are attributable to idiopathic causes personal to the employee and result in injuries from collision with the floor, equipment or other conditions of the workplace, permissibly treated as arising out of the employment irrespective of any showing of increased risk or hazard attributable to the work place?

The record reflects that Thelma Grimes was employed by the Leon County School Board as a media technician. The school board knew that she had been afflicted with polio as a youth and thus was required to wear a full-length brace on her right leg. The brace contained a lock which she had to fasten manually each time she stood up. On one occasion while at work, Grimes rose from her desk to reach a file and locked her brace in the usual fashion; however, the brace gave way, causing her to fall and fracture her left ankle. Her left leg was trapped beneath her as she fell on the carpeted floor. It is for the ankle injury that Grimes seeks workers’ compensation benefits. It should be noted that evidence was presented that her leg brace had previously given way while she was at home.

The deputy commissioner denied recovery, ruling that “the claimant brought to the job some personal element of risk unrelated to her employment. There was no exertion greater than that normally performed by the claimant during her nonemployment life. The claimant did not sustain an injury from an accident arising out of and in the course of her employment.”

The purpose of the act is to shoulder on industry the expense incident to the hazards of industry; to lift from the public the burden to support those incapacitated by industry and to ultimately pass on to the consumers of the products of industry such expense. Our act affords no relief for disease or physical ailment not produced by industry.

Id. at 31, 16 So.2d at 343 (emphasis added). Further, we have explained that chapter 440 “was not designed to take the place of general health and accident insurance.” General Properties Co. v. Greening, 154 Fla. 814, 820, 18 So.2d 908, 911 (1944).

In Foxworth v. Florida Industrial Commission, 86 So.2d 147 (Fla.1955), we specifically addressed idiopathic falls and noted: “It is well settled that injuries which arise out of risks or conditions personal to the claimant do not arise out of the employment unless the employment contributes to the risk or aggravates the injury.” Id. at 151. With regard specifically to falls, we stated: “[W]here the idiopathic fall occurring on the job is merely onto a level floor, compensation for effects of the fall is extremely difficult to justify....” Id. Previously, in Protectu Awning, we permitted recovery where the claimant, as a result of a fainting spell which was attributable to a preexisting heart condition, fell and struck his head against the concrete floor, causing a skull fracture which resulted in his death. In Foxworth, we explained our holding in Protectu Awning, stating:

[W]e upheld recovery for effects of a fall caused by the heart attack of the claimant who as a result fractured his skull on the concrete floor. This decision is justified on the basis that the hardness of the floor was an increased hazard attributable to the employment, but that case represents the outer limits of the doctrine. To extend the rule further would be to eradicate completely the statutory requirement that the injury must be one arising out of the employment. The employment in some manner must contribute an increased hazard peculiar to the employment.

To adopt the actual-risk doctrine suggested by the First District Court and Grimes would allow recovery in each of the above instances and would require us to overrule each of these cases; further, we would be amending the purpose of chapter 440 to allow compensation to injured employees without regard to whether industry brought about the injury. We find that the legislature, which established this means of compensation, is the proper branch to broaden the purpose of chapter 440.

We have sympathy for Thelma Grimes, but find that the legislature, in enacting chapter 440, did not intend to compensate employees for this type of injury. For the foregoing reasons, we quash the First District Court’s decision and remand with directions to affirm the deputy commissioner’s findings.

It is so ordered.

EHRLICH, C.J., and McDONALD, SHAW and GRIMES, JJ., concur.

BARKETT, J., dissents with an opinion, in which KOGAN, J., concurs.

BARKETT, Justice, dissenting.

I dissent for the reasons so well expressed in the district court opinion. In my opinion, the actual risk approach suggested by the district court has merit.

Moreover, even under the increased hazard doctrine, I believe Mrs. Grimes’ injury is compensable. In Protectu Awning Shutter Co. v. Cline, 154 Fla. 30, 16 So.2d 342 (1944), the claimant fell as a result of a fainting spell attributable to a preexisting heart condition. The court found the injury compensable regardless of the fact that the fall was attributable to an idiopathic condition. In Protectu, the court said:

Had Cline fallen onto a piece of machinery and sustained the injury an award would hardly be questioned. The fact that he chanced to fall on the floor and unfortunately lost his life should not preclude an award.

Id. at 32, 16 So.2d at 343.

Likewise in this case, had Mrs. Grimes not worn a brace and merely fallen on the job and injured herself, there is no question that she would be compensated. In this case:

[C]laimant’s job required her to constantly get up and down from her desk, and to work in an area which was considerably more crowded than her home environment.... [I]t is less likely that claimant would have fallen at home where she could have better and more selectively controlled her positional changes.... [C]laimant’s employment exposed her to conditions which substantially contributed to the risk of her injury....

Grimes v. Leon County School Board, 518 So.2d 327, 329 (Fla. 1st DCA 1987).

KOGAN, J., concurs.

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FRAGALE v. ARMORY MAINTENANCE

24 A.D.2d 302, 265 N.Y.S.2d 793 (1966)

Opinion

GIBSON, Presiding Justice.

The accident occurred during an argument between decedent and a coemployee, the only surviving witness to the affair, who said that after a discussion in which he ridiculed decedent’s idea of removing his home to a place nearer his employment, decedent came at him; he pushed decedent, who knocked his hat off; whereupon he again pushed decedent back. The witness continued, ‘I must have pushed him into the chair, and the chair was one of those type chairs which wobbled around and the thing turned over and he fell on the arm of another chair, a low chair.’ Claimant died en route to the hospital.

There is indication in the autopsy report in the case before us that ‘a roller fell off the [swivel] chair’ and the coemployee testified that the swivel chair ‘wobbled around and * * * turned over’, creating a situation closely parallel to that in another case which we analyzed by saying, ‘If the somewhat unusual height of the stool and the desk or the movement or swiveling of the stool as claimant started to sit down, were ingredient in the occurrence of the fall it may be found accidental even though the claimant’s own physiological condition entered into causation’; and in which case we further held that ‘it was within a fair scope of the board’s power to find that the stool, of rather unusual height in the first place, moved or turned when claimant sat in it and that these factors played some contributing part to the accident. In our view that is enough.’ (Matter of Stern v. Electrol, Inc., 4 A.D.2d 110, 112–113, 164 N.Y.S.2d 682, 685, mot. for lv. to app. den. 3 N.Y.2d 707, 166 N.Y.S.2d LVII, 145 N.E.2d 190.)

Reason and logic, and sound analogous precedent as well, seem clearly to require affirmance.

The decision should be affirmed, with costs to the Workmen’s Compensation Board.

Decision affirmed, with costs to the Workmen’s Compensation Board.

TAYLOR, AULISI and HAMM, JJ., concur.

REYNOLDS, J., dissented and votes to reverse, in an opinion.

The background of this case is bizarre. At the hearings the claimant’s attorney attempted to prove that there was here involved a work-connected argument which led to a melee resulting in decedent’s injuries and death. In his closing statement before the referee he said:

‘Therefore, it becomes one of a question, did what took place in that shack have any connection with the business. If it was purely a personal thing, arising not out of the course of the employment, death without question would be related to the accident, but accident would not be related to the employment. That I have to concede.’

The referee understandingly enough could not find any work-connected argument and made the following statement as his basis for making the award:

‘I’m going to state this for the record. I believe the irrespective of whether the argument was personal in nature or impersonal in nature is not the true issue here. * * *. I do feel, however, that when men are thrown together in close proximity one cannot expect them to carry on their work without having some type of friction and this is a concomitant of the employment and therefore the accident as such it was, arose out of and in the course of the employment.’

In the board’s decision we have some general conclusory statements but no findings either as to whether this was a personal or work-connected argument. Additionally, there was no reference to the referee’s basis for awarding compensation, ‘the friction or strain rule.’ Further there was no indication that the board was attempting to extend an exception (the rule of the idiopathic fall cases) to privately motivated assaults. This is understandable because there are no reported cases in the United States which do this, and this court has twice recently affirmed a denial by the board of such an extension (Matter of McKeon v. City of New York, 16 A.D.2d 1004, mot. for lv. to app. den. 12 N.Y.2d 644, 236 N.Y.S.2d 1025, 187 N.E.2d 134; Matter of Lozupone v. Liberty Fabrics, 20 A.D.2d 624, 245 N.Y.S.2d 966). For these reasons it is difficult to decide the case because there is not the slightest hint as to why the board affirmed and the case should have been remitted for further and clarified findings.

It appears from this blurry, grotesque background that the first thing we must do, since the case is not being remitted for clarified findings, is to bring the issues raised by the argument before this Court and in the board’s brief into clear focus. These simply stated are:

(1) Can the decedent engage in a concededly personal discussion with and an attack upon a co-employee, albeit on the employer’s premises, and then when he is pushed over a chair in the melee (and suffers injuries superimposed on an underlying heart condition which causes death) be judged to have had an accident which arose out of and in the course of his employment?

(2) Should the exception applied thus far only to idiopathic falls (a non-occupational heart attack, fainting spell or epileptic fit where the effects of the fall are compensable if the employment places the employee in a position increasing the effects of such a fall, such as from a scaffold, etc.) be extended to a voluntary, privately motivated, non-work connected, personal assault case?

Larson gives the rule applicable in cases of this nature:

‘Assaults arise out of the employment either if the risk of assault is increased because of the nature or setting of the work, or if the reason for the assault was a quarrel having its origin in the work.’ (1 Larson, § 11.00.) $The Court of Appeals in Matter of Brown v. New York State Training School 285 N.Y. 37, 32 N.E.2d 783, stated about awards in general:

These basic propositions were the touchstones of this Court’s decisions in Matter of McKeon (supra) and Matter of Lozupone (supra).

Factually, Matter of Lozupone v. Liberty Fabrics (supra) is even more compelling. There this Court again affirmed the board’s denial of an award because the fight which led to the assault and fall was personal despite the fact that the fall was against an employer’s machine. Again, as in McKeon, the added risk theory based on the idiopathic fall cases was clearly urged by the claimant on the appeal and rejected by this Court.

‘In support of the award, the Attorney General presents the additional argument that the platform four inches high ‘constituted an extra hazard or risk of the employment which made it difficult or impossible for [claimant] to break the fall’. This was not, however, the basis of the board’s decision, which rested upon the finding of a purely accidental fall, which the added risk doctrine, of course, presupposes an idiopathic fall. See [Matter of] Andrews v. L. & S. Amusement Corp., 253 N.Y. 97, 170 N.E. 506; [Matter of] Connelly v. Samaritan Hospital, 259 N.Y. 137, 181 N.E. 76; [Matter of] Dasaro v. Ford Motor Co., 280 App.Div. 266, 113 N.Y.S.2d 413, motion for leave to appeal denied 304 N.Y. 986, 108 N.E.2d 409.’ (Emphasis added.) (at 564, 200 N.Y.S.2d at 187.)

In Matter of Hayman v. Kenberry Bake Shop, Inc., 12 A.D.2d 532, 206 N.Y.S.2d 628, where on affirming an award this court stated:

‘The findings that claimant fell from a cause other than the subarachnoid hemorrhage and that the latter was induced by his head striking the barrel bring the case within the added risk doctrine applied in idiopathic fall cases of this nature. See, e. g., [Matter of] Connelly v. Samaritan Hosp., 259 N.Y. 137, 181 N.E. 76.’ (Emphasis added.) (at 532, 206 N.Y.S.2d at 629.)

‘Mausert, who was a teamster, fell from the seat of his truck to the pavement, the wheels passing over his body, causing death. He was in the course of his employment, and we held that his death arose out of his employment. The risk of falling from the seat of a truck and being injured was incident to and a risk of his employment. Every day that he was driving this truck there was the risk or danger that he might fall off, while careless or asleep, and be injured either by the horses, other vehicles or his own. This risk, we said in the opinion, would not surround him while sitting in a chair in his home, or upon the ground, or even while walking the streets. It was as a teamster that he incurred the risks. [Matter of] Barath v. Arnold Paint Co., 238 N.Y. 625, 144 N.E. 918, cited in the Mausert opinion, was another injury resulting from apoplectic stroke, the fall in that case being from a scaffold, causing a fractured skull. The conclusion there was that the risk or danger was one arising out of the employment because the loss of control through apoplexy while on a scaffold would result in a serious fall. The place of work increased the risk and danger from such an affliction.

‘None of these added risks or dangers are found in the facts of this case. Andrews was on the sidewalk; he had not commenced his painting; he was walking with his co-employee to get a pail of water. The epileptic seizure caused him to fall to the sidewalk, striking his head and fracturing his skull. Where was there any added risk due to the employment? The same result might have followed if he had been coming to or going from his employment, or even in his own house, if he had fallen and struck his head on a chair, table, or other hard substance.’ (at 99, 170 N.E. 506, 507.)

So to use the words in the majority opinion, on ‘reason, logic and sound analogous precedent’, and I should add on balance, it is my view that the exception to the general rule applicable to idiopathic falls should not be extended to privately-motivated, personal assault cases. The decision should be reversed and the claim dismissed.

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SUBSEQUENT INJURY CASE REVIEWS:

STATE COMPENSATION INSURANCE FUND v. INDUSTRIAL ACCIDENT COMMISSION

176 Cal. App. 2d 10; 1959 Cal. App.

Opinion

TOBRINER, Justice.

We are concerned here with two injuries, their incidence and interrelationship. The first occurred on February 15, 1957, when the respondent Wallin, a carpenter by occupation, born in 1904, suffered an industrial injury to his left eye. A rusty nail which he was driving into the floor flew up and penetrated his eyeball. The next day an iridectomy (‘[t]he cutting out of a part of the iris’—New Gould Medical Dictionary, p. 519) was undertaken. On May 5, 1957, the doctor released Wallin to return to work. Pursuant to the initial prognostication, however, further surgery became necessary, and a discission of the secondary membrane of the injured eye was performed. Later the attending doctor told Wallin he could return to work on April 7, 1958. At the hearing of November 12, 1958, Wallin testified that the physician did not tell him absolutely he could thus commence work but that ‘you could not go to work until you get yourself adjusted. He said you wouldn’t be able to get yourself adjusted for a couple of months.’ Transcript, Hearing 11–12–58, p. 21, lines 21–24.

On this date, Wallin was making rough cuts of ‘junk’ lumber at his home for use in his fireplace. Because the wood was too large, he used an electric power hand saw to cut it to proper size. He placed the pieces of lumber on a saw horse and held the longer end of the plank with his knee. After cutting off a piece he would move the board over to sever the next piece. While Wallin was thus sawing the lumber, the saw ‘jumped and kicked,’ amputating one of his fingers.

When asked at the hearing, ‘[Y]ou don’t really recall what happened?’ Wallin answered: ‘Why no. I had the saw horse. You put the lumber on saw horse. You do these things automatically * * * the same way—’ Idem, p. 24, lines 1–5. To the question, ‘As far as how your hand slipped or what—you really don’t know?’ he answered, ‘I do not know.’ P. 24, lines 12–14. The employee, likewise, confronted by the question, ‘Do you think that your eye affected you in any manner or the condition of your injured eye affected you in any manner in the use of the saw on April 11, 1958?’ answered, ‘I believe so.’ And again when asked, ‘Were you suffering from double vision at that time?‘ he said, ‘Well, certainly.’ P. 15, lines 12–26.

The referee found that the injury to the eye on February 15, 1957, proximately caused further disability in the loss of the finger. In the petition for reconsideration petitioner for the first time raised the defense of Wallin’s negligence. Upon denial of the petition, petitioner filed his petition for a writ of review.

Applying these canons of interpretation we must determine if the record supports the Commission’s conclusion that ‘[s]aid injury proximately resulted in further disability consisting of amputation of the index finger of applicant’s right hand on April 11, 1958’ (Findings and Award, 12–18–58, p. 2, paragraph 5) and whether or not Wallin was negligent. Finally, assuming such negligence, we must determine if it broke the chain of causation.

We turn to the problem of the alleged intervening negligence of the employee. Here the Commission states upon the petition for reconsideration that ‘[i]t was not even charged that applicant was guilty of negligence or misconduct, much less proved.’ Report of Referee on Petition for Reconsideration, 1–5–59, p. 2, lines 7–8. The substance of the Commission’s complaint is that petitioner’s failure to raise the issue prevented the primary investigative body from making any finding on this vital question. Nevertheless we shall examine the record to determine if this court, pursuant to the decisions, should rule that the finger injury did not proximately result from the eye injury but from the claimant’s intervening fault.

The court comments on the Pillsbury case to the effect that ‘[i]t was fully recognized in that case, we think, that the subsequent injury may be the proximate result of the injury received in the course of the employment, and compensable under the act, and the finding to that effect in this matter has sufficient support in the evidence.’ 177 Cal. at page 198, 170 P. at page 158. (Emphasis added.)

Turning to this independent and alternate ground for upholding the award, we believe the definition of causation as applied to the second injury must not be a narrow one of tort law but a broader condept of compensation law. Thus the first injury need not be the exclusive cause of the second but only a contributing factor to it; in this view the presence of contributory negligence in itself would not break the causative connection unless the intervening negligence were the sole and exclusive cause of the injury. So long as the original injury operates even in part as a contributing factor it establishes liability.

Petitioner agrees that ‘the primary, industrial injury’ need not ‘be the sole proximate cause’; ‘[i]t is sufficient if it is a contributing’ cause. But petitioner maintains that, even so, the alleged negligence, as an ‘intervening’ or ‘superseding’ cause ‘cuts off the chain of causation.’ Petitioner’s Reply Brief, p. 4. Once, however, the premise of contributing cause is accepted, we submit that causation could be broken only by an intervening act which itself is the sole and exclusive cause of the ultimate injury. Only by such total severance does the original cause become ineffective and cease to ‘contribute.’

Indeed the California courts have constantly warned against atavistic attempts to retain common-law concepts of tort and negligence in the compensation field. Western Pac. R. Co. v. Industrial Acc. Comm., 1924, 193 Cal. 413, 421, 224 P. 754, 757, reminds that ‘[t]he fact that an employee is guilty of ordinary negligence in any given case cannot be said * * * to impose a risk and responsibility upon an employer not incidental to the employment. * * * Such a defense would be tantamount to a defense of contributory negligence expressly abolished in workmen’s compensation cases.’ See also California Casualty Indemnity Exchange v. Industrial Acc. Comm., 1936, 5 Cal.2d 185, 187, 53 P.2d 758; Truck Ins. Exchange v. Industrial Acc. Comm., 1946, 27 Cal.2d 813, 816, 167 P.2d 705.

The court applies this concept to an occupational disease in Colonial Ins. Co. v. Industrial Acc. Comm., 1946, 29 Cal.2d 79, 83, 172 P.2d 884, 887. That case involved the assessment of liability to one of a multitude of employments in which an employee suffering from silicosis had been exposed to silica dust. The court said: ‘[A] particular employment is not required to be the sole proximate cause of the disease. As long as it substantially and proximately contributed to it, the employer may be held liable for the full disability.’

In the recent case of Madin v. Industrial Acc. Comm., 1956, 46 Cal.2d 90, 92, 292 P.2d 892, 894, in defining and enforcing the employer’s liability for an injury caused by actions of third parties, Justice Carter stated, “If we look for a causal connection between the employment and the injury, such connection need not be the sole cause; it is sufficient if it is a contributory cause.” See also: Wiseman v. Industrial Acc. Comm., 1956, 46 Cal.2d 570, 297 P.2d 649.

Cresci v. Mike Krasilousky Trucking Co., 1958, 5 A.D.2d 569, 172 N.Y.S.2d 322, follows Swanson. The injured employee, who was using an artificial limb, slipped upon a sidewalk hole and died from complications in the consequent surgery. The court stated: ‘The Swanson case also established the proposition that the prior accident need be but a contributing cause of the subsequent one and that the concurrence of an additional cause (such as the employee’s intoxication in that case and the possible negligence of a third party in this) in no way relieved the employer from liability.’ 172 N.Y.S.2d 325. (Emphasis added.)

While appellant relies upon Sullivan v. B. & A. Const., Inc., 1954, 307 N.Y. 161, 120 N.E.2d 694, as establishing a different rule, this decision is actually distinguished in Dickerson v. Essex County, 1956, 2 A.D. 2d 516, 157 N.Y.S.2d 94, a case in which the employee suffered three separate injuries. Holding ‘there was an unbroken chain of causation which linked all three events,’ the court said: ‘The appellant County argues that the activity undertaken by Dickerson [his return to work a short time after the second injury] constituted an intervening cause which broke the chain of legal causation, citing Sullivan v. B. & A. Construction, Inc., [citations]. But the Sullivan case turned upon the rashness of the claimant’s conduct in undertaking to drive an automobile without auxiliary equipment, at an immoderate rate of speed, despite the fact that he knew that his knee was likely to lock and render him incapable of using the foot brake. In that situation, the court held that the ‘claimant’s own temerity’ was primarily responsible for the subsequent accident. In the present case, the decedent’s conduct was not temerarious or rash.’ 157 N.Y.S.2d 97.

These cases interpret proximate causation in compensation cases to mean that the first need only be a contributing factor to the second injury. Such a construction derives from the latitude in the definition of proximate causation. The concept of proximate causation has given courts and commentators consummate difficulty and has in truth defied precise definition. Its variegated threads can be woven into either loose or tight patterns, and we cannot believe the Legislature using the term in the context of liability without fault meant to designate a strict design. Every precept of construction in the Act argues for the liberal interpretation.

Moreover, the employee’s negligence actually is as irrelevant in the second injury as it admittedly is in the first. The fact that the workman suffers a secondary consequence of the first injury should not work a mystic change in the nature of the applicable test. While the petitioner argues that the employer is entitled to be protected against secondary injuries which are not the result of ‘foreseeability’ or are the result of the employee’s ‘negligence,’ this concept should no more be imported here than for the initial injury.

Finally, since the original injury contributed to the second, and operates as an efficient cause of it, the second is a consequence of the first injury. The employee is entitled to protection from such consequence. To deny such protection is to tie compensation into the concept of fault: here, indeed, not the first, but a later negligence. Here, moreover, the negligence is only a partial cause of the injury; hence the importation of the concept is both attenuated and inappropriate.

In any event the finding of the Commission on causation in this case should not be upset upon this record.

The award is affirmed.

BRAY, P. J., and FOLEY, J. pro tem., concur.

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KLOSTERMAN v. INDUSTRIAL COMMISSION OF ARIZONA

155 Ariz. 435, 747 P.2d 596 (1987)

Opinion

GRANT, Presiding Judge.

On August 27, 1984, the petitioner employee (claimant) injured his left knee at work. Eugene J. Chandler, M.D., a specialist in knee surgery who had treated the claimant for previous knee injuries, performed arthroscopy and a partial lateral menisectomy. The claimant made good progress until December 1984, when he noticed increased soreness. At a scheduled examination on December 17th, Dr. Chandler diagnosed a newly torn anterior cruciate ligament and recommended arthroscopy and reconstruction.

The respondent carrier (Argonaut) refused to authorize the additional surgery. Dr. Chandler again requested authorization, informing Argonaut that “the torn anterior cruciate ligament is directly related to the accident of 8/27/84 in that his knee was in a weakened condition and his new injury is directly related to that accident, even though the patient was doing something that he was not supposed to be doing.” Argonaut responded by formally denying liability for any subsequent injury. The claimant timely protested, and hearings were scheduled.

At these hearings, the claimant testified that he did not notice an immediate injury while playing frisbee on December 5, 1984, but subsequently developed symptoms. Dr. Chandler was the only medical expert to appear. He testified that the claimant probably tore the ligament while playing frisbee. He also testified, however, that the industrial injury and surgeries, as well as prior injuries, had weakened the left knee. Furthermore, in his opinion the tear on December 5th would not have occurred but for this weakness. Dr. Chandler also noted that jumping or clipping injuries are the most common causes of this type of tear. Finally, he acknowledged that, although the tear could have occurred in several ways, “the frisbee incident did cause it, and if he had done his normal rehabilitation, it probably would not have happened....”

In addition to the claimant and Dr. Chandler, the claimant’s physical therapist and a teammate appeared. All four witnesses testified about the reasonableness of the claimant’s frisbee activity. The administrative law judge, however, questioned the relevance of this inquiry. Argonaut initially asserted that reasonableness was relevant to a suspension of benefits under A.R.S. § 23–1026(E) but then abandoned this position. The claimant disputed Argonaut’s factual assertions but did not assert that reasonableness was relevant.

The administrative law judge found that the frisbee incident caused the new ligament tear. Relying on East v. Industrial Commission, 137 Ariz. 315, 670 P.2d 420 (App.1983), he concluded that the tear was noncompensable because “[i]n legal contemplation this is a new injury ..., directly caused by a subsequent, non-industrial activity.”

On administrative review, the claimant primarily argued that the administrative law judge had ignored Dr. Chandler’s uncontradicted opinion that the ligament tear would not have occurred but for the weakened condition caused at least in part by the August 1984 industrial injury. He cited only general authority concerning the priority of expert opinion. East was not distinguished. In addition, the claimant asserted that his frisbee activity was reasonable, but he did not argue that the award lacked a material finding. The administrative law judge summarily affirmed the award. The claimant then brought this special action.

Argonaut first argues that the frisbee incident was the sole cause of the new tear. We disagree. It is true Dr. Chandler testified that the frisbee playing had caused the tear. However, he also clearly testified that, but for the weakened state of the knee, caused by the industrial injury and the rehabilitation efforts, the tear would not have occurred. In addition, the claimant testified that he jumped on his right leg, not on his left. He had only a “little collision,” not the violent clipping blow which Dr. Chandler testified would be sufficient to injure a completely rehabilitated knee. We therefore reject this argument.

Argonaut argues in the alternative that this is a new injury and that the vulnerability to further injury does not satisfy the direct and natural result requirement. Argonaut cites no authority for its position. This court questioned in East whether a predisposition to injury was “a sufficient causative factor to impose industrial liability for a condition proximately caused by a non-industrial injury.” East, 137 Ariz. at 317, 670 P.2d at 422. In that case, however, there was no testimony linking the industrial injury to the petitioner’s later injury, and that language was therefore dicta.

This court squarely addressed the issue a year later in Dutton v. Industrial Commission, 140 Ariz. 448, 682 P.2d 453 (App.1984). It rejected a general rule denying the sufficiency of predispositions. See also Mercante v. Industrial Commission, 153 Ariz. 261, 735 P.2d 1384 (App.1987); O’Donnell v. Industrial Commission, 125 Ariz. 358, 609 P.2d 1058 (App.1980) (award denying reopening set aside where claimant suffered new injuries caused by weakened condition remaining from earlier compensable injury). We agree with the reasoning found in Larson: “[E]ven if the employment-weakened member does not actually cause the subsequent accident, it may render the results of that accident compensable if the weakness made the limb more susceptible to refracture. The same principle has been applied to ... knees made more vulnerable by the compensable injury....” A. Larson, supra § 13.12 at 388–90 (citations omitted). We reject Argonaut’s position.

Dr. Chandler’s uncontradicted testimony was that the ligament tear would not have occurred but for the knee’s weakened condition caused in part by the August 1984 injury. This evidence satisfied the first prong of the compensable consequences test.

However, the administrative law judge failed to make a finding on the second element of the compensable consequences test, i.e., the reasonableness or unreasonableness of the claimant’s activities which precipitated the subsequent reinjury. He found only that “the applicant could and did, reasonably or unreasonably, decide that he could play frisbee....”

The award is set aside.

CONTRERAS and FIDEL, JJ., concur.

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COUCH v. SAGINAW MALLEABLE IRON PLANT

42 Mich. App. 223, 201 N.W.2d 683 (1972)

Opinion

TARGONSKI, Judge.

Plaintiff suffered a back injury while employed by the defendant. Voluntary compensation benefits were paid thereafter. On April 8, 1968 plaintiff petitioned for a new injury date and the accompanying higher benefit schedule. The hearing referee, after hearing testimony, granted the plaintiff the higher benefit schedule. On appeal to the Workmen’s Compensation Appeal Board, the decision of the hearing referee was reversed by a 4-3 vote. From this decision, the plaintiff brings this appeal.

The plaintiff returned to work in October of 1965 and was again placed on a job which involved considerable pushing and twisting. In July, 1967 the plaintiff was put on a head grinding operation which required lifting of 25-30-lb. iron pieces. Again the plaintiff experienced pain in his back and was off work for seven months.

When the plaintiff returned to work he was given a job as a janitor, but the continual bending again caused him to have pain in his back. Plaintiff was then allowed by his doctors to return to work subject to a 10-lb. weight restriction. However, he was assigned to handle 20-30-lb. pieces of iron. This caused the plaintiff’s pain to worsen and he stopped working. At this time he saw a doctor of his own choosing and has not worked since.

The rule is well settled in this state that if the operation is not attended with great danger and the operation offers a reasonable prospect of relief from the incapacity, the employee must submit to the operation or release his employer from the obligation to maintain him. Coombs v. Kirsch Co., 301 Mich. 1, 2 N.W.2d 897 (1942); Kolbas v. American Boston Mining Co., 275 Mich. 616, 267 N.W. 751 (1936); Dyer v. General Motors Corp., 318 Mich. 216, 27 N.W.2d 533 (1947).

However, if the danger is great and there is a considerable chance that the operation will not relieve the disability, the employee is justified in refusing to submit to surgery. In 1 Larson, Workmen’s Compensation Law, s 13.22, pp. 3-326-3-327, that author addresses this problem in the following manner:

‘But if there is a real risk involved, and particularly if there is a considerable chance that the operation will result in no improvement or even perhaps in a worsening of the condition, the claimant cannot be forced to run the risk at peril of losing his statutory compensation rights.’

In the instant case, it cannot be said that there was a reasonable chance of success. When we balance this with the possibility that the claimant’s condition could worsen to the point of paralysis, we must hold as a matter of law that the Board erred in applying this standard to the facts present in this case.

Reversed and remanded for reconsideration in light of this opinion. We do not retain jurisdiction.

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WILCUT v. INNOVATIVE WAREHOUSING

2007 Mo. App. LEXIS 915 (June 19, 2007)

OPINION

GLENN A. NORTON, Presiding Judge.

Sharon Wilcut (“Dependent”) appeals the Labor and Industrial Relation Commission’s (“Commission”) final award denying compensation on her claim for death benefits. We hold that the Commission erred in finding that Dependent’s husband, Floyd Wilcut (“Employee”), unreasonably refused a blood transfusion. We reverse the award and remand.

I. BACKGROUND

Employee was a truck driver for Innovative Warehousing (“Employer”). He was involved in an accident in which he sustained several severe injuries. Employer does not dispute that the accident occurred in the scope of Employee’s employment. Employee was taken to a hospital for treatment. He died seven days later.

Employee’s treatment was complicated by his refusal to accept a blood transfusion. Employee was a Jehovah’s Witness. Members of that faith believe it is a great sin to accept a blood transfusion. Employee was conscious and able to make decisions for himself upon admission to the hospital, and he made it clear that he would not accept the transfusion. This was affirmed by his family and others close to him both before and after losing consciousness. Employee was unable to undergo essential procedures to treat his wounds because he would not accept a blood transfusion, and he died from cardiac ischemia and severe anemia due to the blood lost following the accident.

There was no evidence that Employer objected to the refusal. Employer paid Employee’s funeral expenses and paid death benefits to Dependent for nearly two years after the accident. After Employer stopped paying, Dependent filed this action for an award of death benefits commencing from the date they were terminated.

Employer appealed to the Commission. The Commission adopted the ALJ’s findings of fact. The Commission differed with the ALJ, however, in its analysis of the reasonableness of Employee’s refusal to accept a blood transfusion. The Commission found the refusal unreasonable both because the physical risk was minimal compared to the near certainty Employee would survive his injuries if he accepted the transfusion, and because Jehovah’s Witnesses believe they can seek forgiveness for their sins.

Dependent appeals.

II. DISCUSSION

A. Standard of Review

B. The Commission’s Decision

Here, the Commission agreed with the court’s rationale in Martin and considered all facts in the record that it found relevant to its decision, including Employee’s beliefs. It found: (1) that the physical risk of transfusion was minimal compared to the benefit; (2) that Employee was 53–years–old at the time of his death; (3) that the spiritual risk from Employee’s faith’s perspective “was the commission of a capital sin, which would hinder prayer and could prevent enjoyment of everlasting life;” and (4) that “Jehovah’s Witnesses believe that Jehovah forgives, so if [E]mployee had lived, [E]mployee may have been able to atone for the sin of accepting the blood transfusion.” The Commission concluded that Employee’s refusal was unreasonable and “broke the medical causal link between work-related accident and his death.”

C. Unreasonable Refusal of Treatment or Procedure Under Section 287.140.5

No compensation shall be payable for the death or disability of an employee, if and insofar as the death or disability may be caused, continued or aggravated by any unreasonable refusal to submit to any medical or surgical treatment or operation, the risk of which is, in the opinion of the division or the commission, inconsiderable in view of the seriousness of the injury.

At the outset, we note that statutory construction is a matter of law, not fact. City of St. Joseph v. Village of Country Club, 163 S.W.3d 905, 907 (Mo. banc 2005). We therefore interpret the statute independently. Willcut, 193 S.W.3d at 412. We must ascertain the legislature’s intent from the language of the statute. Skabialka v. Tort Victim Compensation Fund, 133 S.W.3d 565, 567 (Mo.App. E.D.2004). Further, provisions of a legislative act such as the Worker’s Compensation Law are to be construed consistently and harmoniously to give effect to the entire statute. See, e.g., St. Louis County v. B.A.P., Inc., 25 S.W.3d 629, 631 (Mo.App. E.D.2000); Snow v. Hicks Brothers Chevrolet, Inc., 480 S.W.2d 97, 102 (Mo.App.1972) (finding that the Worker’s Compensation Law is in pari materia and its provisions are to be construed together).

We must determine to what extent the legislature intended an employee’s religious beliefs to be considered when analyzing whether a refusal of treatment was unreasonable. Section 287.140.5 does not simply state that any refusal of a low-risk, but beneficial, treatment will result in denial of compensation; the refusal must also be unreasonable in some sense. The section does not provide any further guidance to determine what the legislature might consider “unreasonable.” We then examine the other provisions of the Worker’s Compensation Law in harmony with section 287.140.5 to interpret what weight to give to Employee’s religious beliefs in assessing the reasonableness of his refusal.

Some guidance is found in a nearby section of the Worker’s Compensation Law. Section 287.140.9 states that “[n]othing in this chapter shall prevent an employee being provided treatment for his injuries by prayer or spiritual means if the employer does not object to the treatment.” Dependent cannot claim sanctuary in this section alone in proving the compensability of her claim, however, because Employee and those directing his care chose medical treatment in lieu of the transfusion, including medicines and supplements intended to stimulate blood production.

Nevertheless, the section does show that the legislature contemplated that religious beliefs might impact an employee’s decision-making on what treatment to undertake. Necessarily, if section 287.140.5 is to be read harmoniously and liberally construed, sincerely-held religious beliefs must be considered by the Commission. Therefore, when liberally interpreting the phrase “unreasonable refusal [of] ... treatment” in section 287.140.5 harmoniously with section 287.140.9 to give effect to the legislature’s intent, we understand the statute to liberally accommodate an employee’s religious beliefs to the extent that they influence his decision to pursue, or not to pursue, a course of treatment.

D. Analysis of the Commission’s Decision

III. CONCLUSION

We reverse the Commission’s decision and remand for further proceedings consistent with this opinion.

LAWRENCE E. MOONEY, J., concurs with J. NORTON.

KENNETH M. ROMINES, J., dissents.

KENNETH M. ROMINES, Judge.

I dissent. This case is not about the exercise of a religious belief—it is about money. The majority opinion confuses the manner of our review and imposes an amorphous standard that is not compelled by Constitution or statute and is not consistent with a court’s duty to avoid an analysis of another’s religious beliefs.

I start by assuming that our Workers’ Compensation statutes are neutral as to religious precepts. The statutory sections at issue are clear-not ambiguous; they are reconcilable—not in contradiction. Sections 287.140.5 and 287.140.9 state:

5. No compensation shall be payable for the death or disability of an employee, if and insofar as the death or disability may be caused, continued or aggravated by any unreasonable refusal to submit to any medical or surgical treatment or operation, the risk of which is, in the opinion of the division or the commission, inconsiderable in view of the seriousness of the injury. If the employee dies as a result of an operation made necessary by the injury, the death shall be deemed to be caused by the injury.; and

9. Nothing in this chapter shall prevent an employee being provided treatment for his injuries by prayer or spiritual means if the employer does not object to the treatment.

This record is likewise clear that the Wilcut family and medical staff were in contact with Jehovah’s Witness counselors who recommended medical treatment that did not include a transfusion of whole blood. This is the record on which the Commission reached the factual conclusion that the refusal was unreasonable, consistent with Section 287.140.5. The Commission reached the only principled conclusion under the facts before it.

I suspect that a Jehovah’s Witness who reads the Court’s doctrinal discussion would find it clumsy and cluttered. Courts cannot base decisions on doctrine. There can be neither a Presbyterian, Christian Science, nor Jehovah’s Witness exception to Section 287.140.5; to do so violates the First Amendment to the United States Constitution, and Mo. Const. Art. I, Sections 5 and 7.

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