This is an action under the workmen’s compensation act wherein George Bartlett, an employee, asked to invoke the provisions of the act because of injuries received by him while in the employ of Arthur Eaton. Arthur A. Kneeland, a general contractor, had the contract to remodel a store building at Fifteenth and 0 streets, Lincoln, Nebraska. Arthur Eaton, a plasterer, was employed to do the plastering. George Bartlett was one of the men employed by Eaton as a plasterer. On November 8, 1929, Eaton and men had brought a lot of scaffolding, preparatory to getting ready to plaster. Kneeland had promised some of the old shelving to a man and requested Eaton to have some one help him move the shelving. Eaton cаlled Bartlett to assist in moving the shelving, which was placed on Eaton’s truck. In making the delivery the shelving caught on another car and Bartlett, who was riding on the rear of Eaton’s truck, was injured by shelving scraping his left leg between the ankle and knee. At Knee-land’s direction, Bartlett was taken to Dr. Harry E. Flans-burg, the physician employed by the Continental Casualty Company, Kneeland’s compensatiоn insurance carrier, and was treated by him for his injury for nine weeks, when he was discharged by the doctor. Compensation for nine weeks at $15 a week was paid Bartlett by Kneeland’s carrier. Thereafter Bartlett worked until May, 1930, for the Chase Plow Company, and thereafter, until October or November, on an irrigated farm near Morrill.
In January, 1931, Bartlett came back to Dr. Flansburg, complаining of swelling at his left knee, which Dr. Thomson treated as a bursitis or inflammation of the bursae or sacs at the knee joint. Bartlett filed his petition before the compensation commissioner, jоining as defendants Arthur Eaton, Arthur A. Kneeland and the Continental Casualty Company. The defendants filed an answer, in
The main Contention of the appellant is that the evidence is insufficient to show that the condition of the knee in 1931 was caused by the accident of November 8, 1929. The burden of proof is on the appellee to show with reasonable certainty that the alleged injury was caused by the accident. Omaha & C. B. Street R. Co. v. Johnson,
Dr. J. E. M. Thomson, who performed the operation on Bartlett’s leg on January 22, 1931, testified: “I found two large bursae, one on either side of the large muscle here of the leg and its attachment to the knee cap. To the large muscle here on either side there were two large bursae or sаcs, the origin of which I was unable to determine. They normally extend and increase under certain circumstances.
In regard to the length of time it may have existed, the doctor said: “If he were quiet and did not move around very much and was not doing heavy work it might be possible that the burs» would be there for a long time, say six months. I think it is very hard to tell when this thing occurred. I think it is very hard to connect anything of that kind. Such an injury might cause a condition of the leg I found in January, 1931. Really it is a guess on my part as to whether or not the accident of November 8, 1929, had anything to do with the condition I operated on. I assume there was an injury to the knee in November, 1929.”
Dr. Harry A. Flansburg testified that Bartlett came to him in November, 1929, with an injury to his left leg; “He had an injury to his left leg which consisted of an abrasion or really scraping of the skin along the inside of the shin bone starting in the upper third of the leg and extending down practically to the ankle. He had considerable swelling along the ankle and some discoloration.”
When he was treating Bartlett there was no evidence of аny kind of a knee injury. He took an X-ray of the ankle and not of the knee because he did not complain of any knee injury.
He further testified: “Q. What сaused the thing he did have? A. The bursitis? Q. Yes. A. It might be an infectious thing; it might come on without ever an injury; and an examination of those hyperpapillse reveals they are sometimes from infection or injury in tyрe. It does not specify a traumatic thing at all.”
This was the only expert testimony as to the cause of the bursitis and at most it establishes a mere possibility that the bursitis was caused by the accidеnt of November 8, 1929.
As stated by Dr. Thomson, who testified in support of the Bartlett claim, it was really a guess on his part as to whether or not the accident of November 8, 1929, had anything to do with the condition he operated on. The evidence established that it could have been caused by either a hemorrhage or by an infection. No witness seemed able to tell from which cause. Bartlett was treated for nine weeks in 1929 by Dr. Flansburg and discharged as cured. Dr. Flansburg says there was no injury to the knee, and that in his opinion the bursitis could not have resulted from the accident two years later.
After Bartlett was discharged he went to work at very hard and confining labor, working for three months in the Chase Plow Company at bench work, and from March to May thereafter he did general farm work; drove teams,
In Ginsberg v. Burroughs Adding Machine Co.,
In the case of Standard Oil Co. v. Industrial Commission,
The testimony in this case is just as consistent with the theory that Bartlett’s injury to his knee was causеd by an infection during his work after the accident of November 8, 1929, as it is with the theory that his knee was injured at that time and the same resulted from a hemorrhage. The plaintiff has therefore failed tо sustain the burden of proof that the injury was caused by an accident sustained in the course of his employment. Other errors are alleged, but in view of the above finding it is not necessary to consider them.
The judgment is therefore reversed and the action dismissed.
Reversed and dismissed.