The examiner’s memorandum, quoted above, down to the asterisk is a fair statement of the medical evidence. Then follow the examiner’s conclusions:
“The. examiner. is of the opinion that the incident of March 10, 1949, did not constitute an injury caused by accident. It appears to have been too insignificant and the applicant’s condition at that time to have been too vulnerable to constitute an industrial accident.”
This, formalized as a finding of fact, resulted in the commission’s order dismissing Rankin’s compensation claim against the M. and M. Realty Company. We find testimony to support the finding. Dr. DeWorth, one of the attending physicians in the last disability, testified that considering the
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history of the disabilities of 1941 and 1947, any exertion could precipitate a seizure such as Rankin had on March 10, 1949. Dr. Regan testified that given a predisposition of the back, simple bending could result in the protrusion of a disc. He also testified that in this case because of the 1941 injury, there was a predisposition to a protrusion of a disc. The conclusion that though the 1949 injury occurred on the job it was not caused by the job has evidence in its support and must be sustained on the authority of
Employers Mut. L. Ins. Co. v. Industrial Comm.
(1933),
The examiner’s memorandum then continues:
“The examiner is further of the opinion that the incident of February 3, 1947, involving as it did not merely lifting the ■ planks but also the twisting of the body in throwing them to the side, did constitute an accident causing injury at that time and materially contributed to his condition.”
All the medical evidence supports this statement, and the examiner goes on:
“It was, in fact, that accident which brought the -applicant’s condition to the point where protrusion might occur at any time merely upon the ordinary incidents of life and every day work without further incident sufficient to constitute an industrial accident.”
We do not consider that the evidence supports this statement nor that it is consistent with statements which follow it in the memorandum. Dr. Regan testified that after the (1941) original injury the structures which restrain the disc from protruding do not rehabilitate themselves and there is further loosening of the ligaments with the passage of time without any further application of trauma, until the disc can no longer be contained. He also testified that the accident of 1947 caused further damage to the structures. *115 Neither he nor anyone testified as to when the back reached the stage when the disc was ready to slip nor when it would have been ready if the 1947 accident had not occurred. It is a verity that Rankin worked for two years after the 1947 accident without disability, subjecting his back not only to the minor vicissitudes of life but to the strains of the hard labor of a farmer and a carpenter. The testimony is that each accident contributed to a result which was reached after the passage of considerable time. It is speculating as to the effect of each accident to say that it was the 1947 accident which brought the condition to the point where protrusion could occur at any time without further industrial accident.
The memorandum continues:
“The applicant’s condition is the result of an accident or accidents. . . . There is no medical testimony as to the exact relative contribution of each of the accidents to the ultimate result.”
This is most clearly in accord with all the medical testimony.
The memorandum ends:
“The accident which produces the ultimate material contribution to the final result and' to the later disability is apparently responsible.”
The final statement is carried over into the commission’s finding of fact that the disability which began March 10, 1949, was the result of the accident of February 3, 1947. It rests upon the proposition of law that where several industrial accidents unite to produce a disability which becomes manifest after the employee has left the employment, and there is no testimony as to the exact contribution of each, or any accident, all liability for compensation shall be charged to the employer at the date of the last accident. It seems to us that this is as arbitrary and unwarranted a procedure
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as that which was disapproved in
South Side R. & M. Co. v. Industrial Comm.
(1948),
“To justify assessing either employer here sought to be charged with one third of the compensation which Arm-bruster’s alleged disability is considered to merit, the commission ought to have found upon competent evidence that the only causes of his present disability were those three injuries and that each was equal in causal effect to each of the others. No such finding was made, nor could it be supported by the evidence.”
In the instant case the commission did find the accident of 1947 caused the disability. It made no reference to any other, and we consider such finding is contrary to all the evidence and in making it the commission acted without and in excess of its powers.
Borgnis v. Falk Co.
(1911),
From the medical testimony it is reasonable to infer that the 1941 injury so weakened the structures which restrain the disc from protruding as to initiate a progressive condition that eventually would cause such structure to give away and the disc to protrude without any further accidental injury. There is no medical testimony that the accident of 1947 accelerated this condition and caused the disc to protrude earlier than it would have done without the 1947 accident. Therefore, it would be indulging in speculation and conjecture for the commission to hold, in the absence of such medical testimony, that the 1947 accident *118 did accelerate the ultimate protrusion of the disc which would eventually have occurred as a result of the 1941 accident.
Counsel for the commission suggests that the knowledge and experience of the commission must be given consideration. We gladly concede it and hope to give it in all proper cases. But while such knowledge and experience is of great value in the appraisal of evidence it is by no rpeans a substitute for evidence. The constitutionality of the Workmen’s Compensation Act depends upon the right of judicial review to' determine whether the findings are supported by evidence. Borgnis v. Falk Co., supra. There can be no review of material not in the record and the commission’s knowledge and experience is not there. To subject the rights of either employee or employer to decisions based upon facts or expert opinions which do not appear of record would be a denial of due process of law. The findings of fact in the present case cannot be sustained on that principle.
By the Court. — Judgment of the circuit court reversed and record remanded for further proceedings.