I concur because I think not only is this a case of uncontradicted testimony of a single interested witness but of various reputable physicians in regard to cause and ultimate effect which was corroborative of two facts which even the lay mind would naturally expect to be related in the manner of cause and effect.
I think the test laid down in the Gagos case is too broad. As stated in the Kavalinakis case, the commission acting as a jury was not bound to find in favor of the uncontradicted evidence. If the witness is interested and the facts be in the realm where they are susceptible of being perverted or misconceived the commission has the duty to appraise the credibility of the witness. We so held in the case of West v. IndustrialCommission et al., 90 Utah 262, 61 P.2d 416.
For that reason I do not think that in every case where the commission denies an application for compensation the question can be asked, *Page 185
"Is the conclusion of the commission that the result was not caused by the accident sustained by any substantial, competent evidence?"
There may be no competent evidence that it was so caused, but also none that the result was not caused by the accident. The applicant then simply fails to sustain his burden of persuasion. Or there may be competent evidence that it was so caused and nothing to contradict such evidence and still the commission might not be arbitrary in finding contrary to the evidence.Norris v. Industrial Commission, 90 Utah 256, 61 P.2d 413. The question must be differently phrased: Was the commission arbitrary in arriving at its conclusion — that is, was it without basis of reason as judged by any reasonable mind, in arriving at its conclusion?
In the instant case, however, we have a definite event from which a chain of consequences followed and which furnish ample basis for high conjecture that the thrombophlebitis was the root source of the embolisms which finally caused death. The testimony of the doctors raises the conjecture to the level of definite conclusion based on evidence. We had a somewhat similar problem in the case of Utah Fuel Co. v. Industrial Commission,102 Utah 12, 126 P.2d 1070.
I do not think the opinion of Dr. Viko could be considered by the commission. But in this case it could not be prejudicial error because the commission in spite of that opinion found contrary to it. Hence, the opinion could not be said to have prejudiced the State Insurance Fund because it was against it and yet did not succeed in convincing the commission. On rehearing, however such report should not be introduced over defendants' objection without a right to cross examine.