McKinnie v. Dept. of Labor Industries , 179 Wash. 245 ( 1934 )

In my opinion, claimant's evidence did not establish the fact that the death of the decedent was the result of the alleged strain, but at most presented only a conjecture, or possible inference, that death may have been due to such strain.

The claim in this case was fully investigated by the department of labor and industries, and after such investigation had been completed, the department found and decided that death was not the result of an injury as contemplated by the workmen's compensation act. With reference to such situations, Rem. Rev. Stat., § 7697 [P.C. § 3488], provides:

"In all court proceedings under or pursuant to this act the decision of the department shall be prima facie correct and the burden of proof shall be upon the party attacking the same."

Upon appeal to the superior court, the claimant assumes and must meet the burden of proving that the person alleged to have been injured sustained an injury compensable under the statute.Marney v. Industrial Insurance Department, 98 Wn. 483,167 P. 1085; Kavaja v. Department of Labor and Industries,126 Wn. 284, 218 P. 196; Boyer v. Department of Labor andIndustries, 160 Wn. 557, 295 P. 737; Frich v. Department ofLabor and Industries, 169 Wn. 282, 13 P.2d 67; Zoff v.Department of Labor and Industries, 174 Wn. 585,25 P.2d 972; Mecartea v. Department of Labor and Industries, 176 Wn. 27,28 P.2d 257.

The recent cases of Cheney v. Department of Labor andIndustries, 175 Wn. 60, 26 P.2d 393, and Spier v.Department of Labor and Industries, 176 Wn. 374,29 P.2d 679, recognize that this statute has its presumptive effect, although the presumption is stronger in cases where the joint board has heard the witnesses testify personally than it is where the board has before it only a transcript of their testimony. The presumption, however, must still be overcome by a clear preponderance of the evidence.

To determine whether the claimant here has met the burden imposed upon her, it becomes necessary to review the evidence. There is no dispute as to the following facts:

The deceased, W.B. McKinnie, was employed by the port of Longview as a watchman. He worked from four p.m. until midnight. His duties required him to assist in mooring the various ships that docked at the port. His particular assignment in this respect was to assist in receiving the heaving lines thrown from the ships, and with these to pull in the larger lines by means of which the ships were made fast to the dock. Some of the ships, because of their size, required extra-heavy hawsers both at their head and at their stern in order to hold the vessels fast. The work of pulling in these heavy lines for a distance of approximately one hundred or one hundred and fifty feet required considerable effort and strain, so much so that the men working at them were at times exhausted, and when the docking was completed, were sometimes compelled to lie down prone for several minutes to recuperate their strength.

On Wednesday, October 21, 1931, the German motorship LOS ANGELES came into port at about five p.m. Four men were required to moor the ship, two to take the head lines and two to take the stern lines. Ships of that size used heavy manila ropes about four inches in diameter, and also steel hawsers about one inch in diameter. German ships usually required five or six of these lines at each end, for mooring purposes. Mr. McKinnie and one Harvey Hart worked the stern lines, expending the usual amount of effort required upon such occasions.

After the docking had been completed, Mr. McKinnie resumed his usual duties as watchman. During the year prior to October 21, 1931, Mr. McKinnie had assisted in mooring about one hundred ships of the size and tonnage of the LOS ANGELES, and also many other ships of lesser size. On the day following October 21st, Mr. McKinnie reported for work as usual, and thereafter worked every day until Tuesday, October 27th, including an intervening Sunday. During this period he assisted in mooring a number of ships, all of which, however, were of smaller size than the LOS ANGELES.

On Friday, October 23rd, which was two days after the alleged injury, Mr. McKinnie complained to his wife that he did not feel very well, and for several days thereafter spent a good part of his off time, while at home, lying down and resting. His complaint seems to have been regarding his bowels. During this time, however, he reported for work daily as usual. On Tuesday, October 27th, six days after the alleged injury, Mr. and Mrs. McKinnie drove to Portland, Oregon, to have their eyes examined. While there, they visited a moving-picture show and also a stock exhibit. They left early in the evening, however, because Mr. McKinnie complained of not feeling well, and drove to Vancouver, Washington, where they spent the night. The next day, Wednesday, October 28th, they returned to Kelso, where they resided. On the same day, Mr. McKinnie returned to work in the evening, and reported again, as usual, on the next day, October 29th. During all of this time, he had complained, more or less, to his wife of not feeling well.

On the morning of October 30th, nine days after the alleged injury, Mr. McKinnie, after finishing his work, went home ill. He was taken with vomiting spells, and suffered considerable pain in the abdominal region. A doctor was summoned, who administered opiates, but with little relief to the patient. That night, Mr. McKinnie died. At the time of his death, he was sixty-four years of age.

Paralleling the facts just outlined, there are certain others which have a material bearing on the case. It appears that, for some years, Mr. McKinnie had had heart trouble, and had been treated for that ailment by Doctor T. Homer Coffen, a heart specialist of Portland, Oregon, from about May 11, 1929, until January 9, 1931. His condition was diagnosed as that of generalized arteriosclerosis, moderate arterial hypertension and angina pectoris. Digitalis was prescribed, and a regimen of diet and physical activity was advised. The patient had improved very considerably by January 9, 1931, although it unquestionably appears that he then still had a marked cardiovascular disease. According to the testimony of Doctor Coffen, he was, on January 9th, "coasting along in very good shape," and would so continue, provided that degenerative changes of age did not set in, and provided further that he took care of himself. He was accordingly warned against the exercise of any considerable physical activity for the reason that any added tax on his already diseased system might cause death.

In the application for rehearing before the joint board, it was alleged, among other things, that the deceased, while engaged in mooring the steamship LOS ANGELES, was required to exert a tremendous and extraordinary effort in pulling upon the lines; that, at that time, his heart was in a diseased and abnormal condition; and that, as a direct result of the extraordinary exertion above referred to, his heart was strained, causing or producing a thrombosis of the mesenteric vessels and subsequently resulting in death.

In addition to the undisputed facts already outlined, there was evidence of certain declarations made by Mr. McKinnie to his wife and to his family physician, to the effect that, some six to nine days before, while pulling on a rope, he had felt something give way inside of him. It will be observed that both the time and place of the occurrence referred to by Mr. McKinnie are indefinite and uncertain. There was also medical testimony, in its nature opinionative, to the effect that death was due to mesenteric thrombosis, which, in turn, was caused by the strain suffered by the decedent on October 21st.

It will be noted that the only evidence connecting the injury and death with the alleged strain was supplied by Mr. McKinnie's declarations made some six to nine days after the alleged occurrence. The only witness who might have testified directly upon that issue was Harvey Hart, a fellow employee who was working with Mr. McKinnie at the time. In the majority opinion, Mr. Hart's testimony is set out, but it is very significant that the witness did not testify that anything at all occurred on that occasion except that the ship "was negotiated successfully," and that it was a hard and exhausting pull. Had there been any manifestation of injury or illness at the time, Hart, if anyone, would have noticed it, and had he noticed it, he, as a witness for claimant, would certainly have testified to that effect. On the contrary, it appears that there was no collapse or complaint whatever on the part of Mr. McKinnie at the time, but that, after finishing the work of mooring the ship, he resumed his duties as watchman, completed his regular shift, went home at his usual time, and reported for work the next day and for eight or nine days thereafter, just as he had always previously done. So we have no direct evidence to connect the strain, if any, with the death.

We come next to the medical testimony, which is supposed by the majority to complete the gap. Assuming, for the sake of argument only, that such evidence, if direct, positive and unequivocal, would be sufficient to establish a causal connection between the strain and the death, I am nevertheless satisfied that the evidence of these expert witnesses did not meet the required test.

Doctor E.C. Hackett, the attending physician, testified that, in his opinion, some vegetation had probably broken loose from the heart, due to strain, and had shifted to the mesentery tract,or else that the strain had caused a hemorrhage of the stomach. In his opinion, the thrombosis existed in the mesentery vein rather than in the mesentery artery, since occurrences of that nature were more likely to take place in the vein. He admitted, however, that this was all theory on his part, as he had no clinical evidence, the diagnosis made by him being based partly on what the deceased had told him. He further testified on cross-examination that he had found no growth in the mesentery; that there was no way of telling how soon a hemorrhage would occur after a thrombus had formed in the vein; that a person might carry a thrombus for years without its breaking loose; and that, in fact, it might eventually break loose either because of, or else entirely without, any strain or exertion whatever. He further testified that he could not say positively that the cause of the workman's death in this instance was a thrombosis of the mesenteric artery or that death was caused by the alleged act of lifting on October 21st.

The majority assert that the doctor's frankness in declining to say positively that death was due to mesenteric thrombosis gives added weight and credence to his opinion that it was. Possibly so, but what of it? It proves nothing but his opinion upon a matter about which there not only could be, but obviously was, a decided difference of opinion, and upon which the joint board came to a wholly different conclusion. Furthermore, the doctor's evidence itself discloses that the result could reasonably be accounted for by conditions or events that had no connection whatever with the work that decedent was performing.

Next is the testimony of Doctor Coffen, the heart specialist. He testified that, in his opinion, the cause of the workman's death was a thrombosis of the mesenteric arteries, which were then in a sclerotic and diseased condition; further, that the mesenteric thrombosis was caused by physical effort probably induced by the strain exerted on October 21st. This was the witness who had formerly treated the deceased for a considerable period, who knew his condition and who had stated that the deceased had previously had a very marked cardiovascular disease. He further testified that it was entirely possible for the disease that Mr. McKinnie had to grow progressively worse and cause death without the influence of a single act or of any muscular exertion. When asked whether or not "we are speculating whether his death was due to muscular exertion or just to the progress of a disease," he replied, "Yes, I think that is true."

When a physician frankly states that his conclusion is but a speculation, I do not see how the court can possibly base a positive finding thereon. No matter how many times such statements are multiplied by the testimony of successive physicians, the issue still remains a speculation and nothing more. Speculation, no matter how extended, can never project itself into certainty.

Doctor Manlove, who had never seen the deceased prior to the death, subsequently performed an autopsy. He testified that in his opinion the cause of death was mesenteric thrombosis, although he stated that he had not found anything that he could definitely determine was a thrombus, nor any obstruction in the mesenteric arteries. He further testified that he had found a large and abnormal heart, a diseased aorta and sclerotic arteries. He could not say whether the mesenteric thrombosis had developed gradually or slowly. He stated that a thrombus might be the result of an injury or else of a disease gradually narrowing the lumen of a blood vessel. He would not say positively that the cause of death was mesenteric thrombosis. His report of the autopsy contained the following anatomical diagnosis:

"Two probabilities are apparent as to the cause of death. The first is:

"1st. Rupture of varicose veins in the esophagus with hemorrhage into the gastro intestinal tract.

"2nd. Mesenteric thrombosis with embolus to the lower lobes of the right lung, producing massive infarction of these lower lobes.

"3. Hypertrophy of the heart and generalized arteriosclerosis.

"4. Pancreatitis."

It will be observed that, while in Doctor Manlove's opinion the cause of death was thrombosis, nevertheless on a post mortem he had found nothing that he could say was a thrombus. Further, assuming that there was a thrombus, the witness admitted that it might be the result of an injury or of a disease such as he hadactually found in the decedent. Can such evidence be taken and accepted as eliminative of every cause except such as will establish liability? I am satisfied that it can not.

Finally, we have the testimony of Doctor St. Pierre. The majority opinion discloses that this witness, without going into any details, merely testified in a general way that his opinion coincided with that of Doctor Coffen, already mentioned above. His testimony is, therefore, subject to the same weakness as that of the witness whom he corroborated. In addition to this, however, he also testified that he had not treated many cases of mesenteric thrombosis, and that he had never seen a case of that disease alleged to have been due to muscular exertion. His testimony was frank, I will admit, but it seems to me that it contributed less than nothing to support respondent's theory of the case.

It is true that the record herein shows that there was only one medical expert who held an opinion contrary to those of the four above mentioned. In his opinion, there was no relationship between the alleged strain and the man's death. His opinion was positive in its assertion, and the department had the right to believe and accept it. The majority, however, say that this witness was not under oath at the time, and was not subject to examination or cross-examination. The statute does not require that investigations and reports made by the employees of the department, and before appeal to the joint board, shall be under oath, and, of course, they are not. Furthermore, had claimant desired to examine or cross-examine the department's physician at the hearing before the joint board, she had that right under Rem. Rev. Stat., § 7697 [P.C. § 3488].

But, aside from this countervailing evidence, I come back to the proposition that claimant's evidence through her own medical witnesses was admittedly speculative, and gave rise to nothing but conjecture. It left the matter thus: Death may have been due to a combination of a marked preexisting disease and a coincident strain; or, on the other hand, the disease may have progressed to such a point that death was the final and inevitable result, irrespective of any strain whatever. As between the two theories, we can not arbitrarily select the former as being the correct one, in the face of the findings of the department, which had substantial support in the evidence.

There is one other matter in the majority opinion to which I wish to refer. The following cases are therein cited and relied upon: Frandila v. Department of Labor and Industries, 137 Wn. 530,243 P. 5; Cole v. Department of Labor and Industries,137 Wn. 538, 243 P. 7; Metcalf v. Department of Labor andIndustries, 168 Wn. 305, 11 P.2d 821; Falmouth Docks Engineering Co., Ltd., v. Treloar, English Law Reports, Appeal Cases 1933, p. 481; and Jones Paton, Ltd., v. James, in the same volume at page 501.

None of those cases, in my opinion, is applicable to the situation presented by the evidence in this case. In theFrandila case, a workman, who was afflicted with hardening of the arteries, was chopping a large root at the bottom of a ditch when he suddenly collapsed and died. In the Cole case, a man afflicted with a diseased heart was engaged in piling heavy timbers. While exerting "practically the whole of his strength against the timber," he was compelled to desist, and sat down in a semi-fainting condition and with an intense pain about the heart. As a result, he sustained a temporary total disability. In the Metcalf case, a man, also afflicted with hardening of the arteries, was rapidly and with great exertion sawing a tree when he suddenly fell over and immediately died. In the Falmouth case, a dock laborer, who was afflicted with a form of heart disease, was engaged in unloading heavy bags of sugar; while in the act of lifting a hook to move one of the bags, he fell forward and expired. In the last case cited above, the workman was a sheet dipper in a coal, iron and steel establishment. His work was laborious, and required severe strain. At the conclusion of one of the operations in which he was engaged, he sat down complaining of pain, and within ten minutes thereafter died. As in the other cases, he, too, had a preexisting heart disease.

The distinction between those cases and the one at bar is at once apparent. In each of those cases, the injury, and in four of the cases the death, was immediately consequent upon the exercise of exertion and strain. The causal connection was instantly demonstrated. The occurrences spoke their own results. In the present case, so far as the direct evidence is concerned, there was no injury at all. The workman finished the particular operation, resumed his other duties, completed his regular shift, and thereafter returned and performed similar operations for nine days. To supply the missing element of injury, evidence of subsequent declarations by the workman was produced after his death, on which evidence opinions of medical witnesses are advanced as to the symptomatic causes of death, which, in turn, are referred to a previous event. Upon hearsay evidence, therefore, is superimposed a speculation or conjecture, and, with this only as a basis, findings and conclusions establishing liability are made.

For the reasons assigned, I am unable to concur in the result, and therefore dissent.

BEALS, C.J., and TOLMAN, J., concur with STEINERT, J.