I concur. I think an award ought to have been granted. In denying compensation I think too much stress is placed on what the commission called "the portal of entry" of the disease germs or streptococci, a genus of micro-organisms the species of which possess no flagella and are nonmotile.
As indisputably shown, the applicant, prior to the injury, was able-bodied and in perfect health. In the course of his employment he received a rather severe injury in the groin. There shortly after the injury was found a condition of inflammation, discoloration, swelling, soreness, and pain, and the development of an infection accompanied by encephalitis and septicaemia requiring surgical operation and draining. The surgeon who first examined the applicant about twelve hours after the injury made no diagnosis of the case. He did not then know of the injury sustained by the applicant, but discovered the condition of inflammation, discoloration, swelling, and soreness in the lower groin, but no well-defined abrasion which he testified could have been covered over by the swollen and discolored conditions. He testified he did *Page 325 not notice or discover any break in the skin at that region, but that there might have been a slight break sufficient to have been "the portal of entry" which would not be noticed by the naked eye, but which could be determined microscopically, but no such examination was made. The other attending physician who saw the applicant about five days after the injury was asked and he answered: "Q. When you saw him presumably Christmas day, five days after the accident, did you find such an abrasion on his skin as would permit the entrance of a germ or infective agent? A. Yes, it could. Q. It was not healed over then? A. No." He further testified he found no evidence of any trauma to the skin except on the glans penis, but that there was no evidence that such was the portal of entry; that there was no infection around it, no lymphangitis about there; and that it was his opinion "that the encephalitis was due to an injury in the groin," but did not know what occasioned the infection.
The commission found that neither of the attending physicians found "any break in the skin or any portal of entry at the place of the wound complained of through which disease germs could pass into the body, however they did find a small denuded area on the glans of the underside of the penis characterized by them as `a small ulcer' which might possibly have furnished the portal of entry for the said germs," but that the ulcer was not attributable to the accident, and as "the infection which followed the accident was the result of disease germs entering the body through some portal of entry in the skin accessible to them," the applicant, by a preponderance of the evidence, had not sustained the burden of proof that the disability complained of was "in any wise connected with the accident." Following such contention to its logical conclusion, had a break or an abrasion of the skin been shown at the region of the groin where the applicant admittedly sustained an injury, but it also being shown that the applicant had what was termed "a small ulcer" on the glans penis (which we all *Page 326 agree, as shown by the evidence and as testified to by the physician who called it an "ulcer," looked like a mere cut by a hair or a sharp instrument), which also could have been "the portal of entry" of the disease germs, the applicant could not recover without showing by a preponderance of the evidence that the germs entered at the break in the skin at the region of the groin and not through the cut on the glans penis. Though it be said that in such case it would be more probable that the entry was through the broken skin at the region of the injury, yet, if the commission found that the entry could have been at either place, and that it was not to its satisfaction shown that it was through the broken skin at the region of the injury, there would be as much reason for affirming an order disallowing an award as here to affirm the order of disallowance.
The question is not one of mere speculation or conjecture that the disability of the applicant is attributable to the injury. The speculation or conjecture consists in speculating or conjecturing that the cut on the glans penis was the portal of entry, when the attending physicians testified, and there is no dispute in their testimony in such particular, that there was no evidence and nothing to indicate that the portal of entry was through the cut in the penis; that there was no infection around it, no lymphangitis about it, and no inflammation or soreness of such parts, just a slight cut as though made by a hair.
The commission did not find that it was as probable or more probable that the cut on the penis was the portal of entry as was some injured part of the groin. It but found that the cut "might possibly" have been the portal of entry without anything to indicate that it was the entrance of the germs. It thus is mere speculation that the disease germs found entrance through the cut and without affecting or in any way disturbing the lacteal glands or tissues of the penis or of other parts, moved down — they knew just where they were going — to the particular place where the groin was injured or was to be injured and there wholly uninfluenced *Page 327 by any result of the injury and independently thereof created the infection and caused the disability complained of or there started their destruction as a mere coincidence with the injury and without any relation thereto.
In determining the reasonable and probable cause to which the disability of the applicant is attributable, far more important than wandering around to find a "portal of entry" are the undisputed facts that the applicant, prior to the injury, was in good physical condition and "in perfect health"; that he was in the course of his employment rather severely injured in the region of the groin; that the injured parts were swollen, inflamed, discolored, and sore, and caused great pain requiring the applicant to take his bed, send for a physician, and to be taken to the hospital where he remained for several months. Had it not been for the cut on the penis, which I think did not have anything to do with the disability, there would not be much difficulty in attributing the disability to the injury. About all I see in the case is that the applicant was denied compensation because he had a hair-like cut on the glans penis.
I am not unmindful of the contention that the presence of the disease germs in the body can be accountable for only through some break, however slight, in the skin or other aperture, and that no break in the skin at the region of the injured groin was disclosed. One of the attending physicians testified that he had not there discovered any break in the skin, but there could have been such a break and not be noticed or discovered by the naked eye because of the swollen and discolored condition of the groin, but could have been discovered miscroscopically and that no such an examination was made. And then we have the testimony that, if the entrance of the germs was through the cut on the penis, inflammation and an infection of the lacteal glands about there would have resulted and no infection or inflammation of the penis was present.
Still, how stands the case though it be assumed that the cut on the penis was the portal of entry of the germs? They *Page 328 not having affected the lacteals or tissues of the penis or other parts of the body until they reached the region of the groin injured by the accident, and, if because of a weakened condition of such parts the lodging of the germs resulted in an infection, the injury may still be regarded a contributing cause of the infection, but for which there might not have been an infection. And that could be true though the germs may have been present in or about such region when the injury occurred.
I thus think that on the record an allowance of compensation ought to have been made.