H. Aleen BAKER, Plaintiff, v. The INDUSTRIAL COMMISSION of Utah, W. L. Young Brokerage Company, and the State Insurance Fund, Defendants.
No. 10288.
Supreme Court of Utah.
Sept. 14, 1965.
405 P.2d 613
HENRIOD, C. J., and McDONOUGH and CALLISTER, JJ., concur.
CROCKETT, J., concurs in the result.
Phil L. Hansen, Atty. Gen., Ronald N. Boyce, Ronald Spratling, Asst. Attys. Gen., for defendants.
HENRIOD, Chief Justice:
Review of a denial of compensation to claimant who sustained a ruptured intervertebral disc, on the ground that the injury did not occur in the course of or arise out of her employment.
Claimant, H. Aleen Baker, was employed by Young Brokerage as a clerk-typist. On Friday, May 8, 1964, about 4 p. m., while filing papers in the bottom drawer of a filing cabinet, she felt a sudden sharp pain in her left hip and leg as she “stooped over or raised up.” Thinking it was a temporary pain, she continued working without reporting it. She experienced pain during the weekend, but returned to work the following Monday (and visited a doctor later in the week during an extended noon hour). She went home at 3 p. m. one day because the pain prevented her from working. On Tuesday she had reported the injury to her supervisor and explained that she must have hurt herself while filing papers the previous Friday. Subsequently, she put herself under the care of doctors who agreed that her pain resulted from a herniated disc. The ruptured disc was corrected and the pain alleviated by surgery.
At the Commission‘s hearing a waitress, —complеtely disinterested, and four friends testified that Aleen had told them, within one week of the alleged injury that she was in considerable pain that must have been caused by filing papers at the brokerage company. Her sister testified that Aleen was in pain the night of May 8th and that she attributed the pain to the filing incident, and that she had never prеviously had any
The Commission denied compensation on the ground that the injury did not occur in the course of employment or arise out of the employment. The main basis for this determination was the statement in Aleen‘s testimony:
Q. Now I take it that you do not know exactly whаt caused this problem with your back?
A. No, I don‘t. Except that it occurred while I was filing in the office. And I hadn‘t done anything out of the ordinary either at home or at work, or after work, to have caused it. Very definitely.
The claimant‘s indefinite statements concerning the cause of the injury should not be held to defeat her recovery.1 As a mаtter of fact her candid statement substantiates her claim. Also, the Commission‘s finding may have been partly based on the fact that claimant did not immediately report the injury. This Court has held that the mere fact that claimant did not report the accident immediately was not sufficiently inconsistent with the facts to be ground for denying compеnsation where the injury was of the kind that would ordinarily cause the claimant to think that it would soon heal and that it would be alright to continue working.2
It is undisputed that claimant suffered a disability resulting from a back injury. The sole question is whether the injury resulted from an accident arising out of or in the course of her employment. In accordance with thе purpose of the
The dissent says that the critical question here is whether the injury occurred in the course of applicant‘s employment. We think the critical question here is whether the Commission arbitrarily can discount all competent, uncontradicted evidence. We think it can‘t, but did so here, calling for a reversal. This is the law of the case here, nothing else. (See footnotes 6 through 10).
The dissent cites Smith v. Industrial Comm., and Mr. Justice Wade‘s statement therein about self-serving statements. All Justice Wade said was that if the applicant is the only witness, the Commission need not believe him, and it is a distortion to urge that he said the same rule applied to a case such as here where the applicant was supported and corroborated by five witnesses, none of whom was shown to be interested or biased, without any countervailing evidence. The Smith case simply is no authority under the facts of the instant case.
There is no lack of evidence or anything in the record to reflect incredibility on the part of the applicant or her witnesses, unless, on uncontroverted testimony we arbitrarily say six persons, under penalty of perjury, all wеre prevaricators. We prefer to direct the reader to the very case relied upon by the dissent, Smith v. Industrial Comm., together with Norris v. Industrial Comm., 90 Utah 256, 61 P.2d 413 (1936),7 Wherritt v. Industrial Comm., 100 Utah 68, 110 P.2d 374 (1941),8 Dole v. Industrial Comm., 115 Utah 311, 204 P.2d 462 (1942),9 and Ewell v. Industrial Comm., 120 Utah 671, 238 P.2d 414 (1951),10 as authority
The order of the Industrial Commission denying compensation is reversed.
WADE and CALLISTER, JJ., concur.
CROCKETT, Justice (dissenting):
Insofar as the result reached by the court‘s decision is concerned, it gives me no displeasure that my colleagues are able to conclude that the plaintiff should have an award оf compensation. But because I am unable to reconcile that conclusion with foundational principles of law I am compelled to dissent.
Undoubtedly the evidence as set forth in the main opinion could have justified the Commission in making a finding that the plaintiff‘s injury occurred in the course of her employment; and if it had donе so the decision would have been sustained. But the question for this court on review is not, would the evidence support an award, but rather, does it compel an award?
It is fundamental that the plaintiff has the burden of proving the facts which entitle her to an award, that is, that she suffered an injury from an accident in the course of her emрloyment. It is the prerogative of the Industrial Commission to find the facts;1 and if there is any basis in the evidence upon which it fairly and reasonably could remain unconvinced of that fact, it may refuse an award. When it has made its findings they should be presumed to be correct; and it is our duty to review the evidence in the light most favorable to supporting them.
In approaching the question whether the evidence compels an award, it should be clearly understood that there are two separate issues relating to the defendant‘s disability: (1) did she have an injured back; and (2) did the injury occur in her employment. As to (1), it is not disputed that she
Q. What did you say to any of the employees or your supervisors down there, concerning this back pain?
A. I believe I told Mr. Douglas Smith. (The sales supervisor)
*
Q. All right. About when did you have a conversation with him concerning your back?
A. I believe it was Tuesday morning.
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Q. When did you first seek medical attention?
A. Not until Tuesday or Wednesday. I call Dr. Hawkins, to get him to help me, if he possibly could. He is a chiropraсtor.
That she had a pain there is no reason to doubt and with it we are all duly sympathetic. But upon the basis of the evidence in this record I would not presume to say with any degree of assurance just when and how it originated. About that fact there seems to be room for some uncertainty, as indicated by the plaintiff herself in her testimony:
Q. Now I take it that you do not know exactly what caused this problem with your back?
A. No, I don‘t. Except that it occurred while I was filing in the office. And I hadn‘t done anything out of the ordinary either at home or at work, or after work, to have caused it. Very definitely.
It is appreciated that an injury suffered in employment is compensable even if it is only the lighting up or aggravation of an old injury,2 but under the
The most significant point in this case is that the plaintiff herself is the only person who had any knowledge whatsoever about whether the claimed injury to her back occurred in connection with her work; and the only information the plaintiff‘s other witnesses had about that particular matter сame solely from what the plaintiff told them. Upon close consideration it will be seen that every word of the testimony of these witnesses could be accepted as true, that is, that the plaintiff told me that she had a pain in her back which “I must have got” while filing in the office, without such testimony having any greater probative value than as literally stated “that is what she told me.” Whatever value this evidence may have relates solely to the fact that she had an injured back. But as to the critical question: whether it originated from an accident in her work, the testimony of the other witnesses is simply using them as a conduit to proliferate plaintiff‘s own statement. The fact that she successively told several others about her injury, who in turn testified that she had so stated to them, amounts to no more than an attempt to “lift oneself by one‘s own bootstraps.” If this method could be used to cause proof to become more substantial, it would be a simple matter to obtain such proof of any claimed fact.
It thus seеms quite inescapable to me that the question whether the plaintiff suffered an accident in her work, must depend upon her own testimony which, as recited above, leaves sufficient uncertainty that the Commission was not compelled to so find. However, if by some process of reasoning incomprehensible to me her testimоny may be regarded otherwise, nevertheless under the established rules of review the Commission should be sustained.
It is to be conceded that to allow the Commission to ignore or reject competent, credible, uncontradicted testimony would give it unrestrained and arbitrary powers inimical to our conception of justice. But where there is dispute as to issues of fact it is essential that there be a method of resolving them. This is the prerogative and the duty of the Commission and it includes judging the credibility of witnesses.4 Just as in cases where the facts are found by a court or jury, the Commission should be allowed some latitude in determining
The principle that the fact-trier is not compelled to believe the testimony of a witness who testifies in his own self-interest was adequately treated in the case of Smith v. Industrial Commission.8 There the question whether the applicant had suffered a hernia in his employment depended largely upon his own testimony. Justice Wade, speaking for the court, reiterated the rule I have stated above. He рointed out that “Prior to the 19th Century, the testimony of parties and interested witnesses were considered so unreliable that they were not allowed to testify at all” citing authorities. That rule is now out-moded. But for the same reason which justified that rule in former times, that a witness whose interest is at stake is more likely to color or falsify his testimony thаn a disinterested witness, the fact-trier is not bound to accept it unless he is convinced of its veracity. If he were, this would deprive the Commission of the prerogative given it as a trier of the facts and result in a loss of the advantages it has in doing so. Furthermore, in incidents such as this case where the vital fact is known only to the claimant аnd the injury is something which could be concealed, the employer could be held liable for a spurious claim without any possibility of defense.
For the reasons hereinabove set forth I am not persuaded that from the evidence all reasonable minds must find that the
McDONOUGH, J., concurs in the dissenting opinion of CROCKETT, J.