Proceedings to review an award of the Industrial Commission.
On January 12, 1925, John L. Wilson was employed by the plaintiff here, Standard Coal Company. He received an injury on that day in the course of his employment. He was taken immediately to a hospital in Salt Lake City and was discharged from the hospital on February 2, 1925. Mr. Wilson will be referred to in this opinion as the applicant.
The applicant was paid compensation by the coal company at the rate of $16 per week until October 1, 1925, amounting in all to $592. Hospital expenses in the sum of $160 were also paid. On the 22nd day of October, 1925, the applicant filed with the Industrial Commission a claim for adjustment of compensation. In this application he set forth that he was injured on January 12, 1925; that he sustained a fracture of the skull and injuries to his chest; and that he was totally and permanently disabled. He also stated in his petition that he had received compensation up to and including October 1, 1925. Prior to the hearing on that petition, to wit, on October 28, applicant filed an additional petition with the commission, in which applicant alleged that he desired to receive compensation from the special fund established by the Workmen's Compensation Act (Comp. Laws 1917, §§ 3061-3165, as amended). In this second petition applicant recited at some length the former injuries that he had received. A hearing was had by the commission and it, among other things, made the following findings and conclusions:
"That on the 12th day of January, 1925, John L. Wilson was injured by reason of an accident arising out of or in the course of his *Page 86 employment while regularly employed by the Standard Coal Company at Standardville, Utah. That at the time of the injury the applicant was earning $48 per week, working six days per week. That as a result of said injury the Standard Coal Company assumed liability and paid compensation from within three days of the date of the accident, at the rate of $16 per week, up to October 1, 1925. * * * That the applicant had sustained previous serious injuries as follows, to wit: May 1, 1900, at Scofield, Utah, while employed by the Utah Fuel Company; in 1900 he was accidentally shot through the hip, which resulted in one leg being shorter than the other; in January, 1911, at Winter Quarters mine, while employed by the Utah Fuel Company; in 1916 at Hiawatha, Utah, while employed by the United States Fuel Company, and in 1920 at Salt Lake City, Utah, while employed by the Utah Oil Refining Company. That during all the years subsequent to applicant's injury of May 1, 1900, he was engaged almost continuously in rather hard manual labor. That he was one of the first men out of the hospital after the Scofield disaster, and that he went into the mine to search for and help bring out the body of his father-in-law, which had not been recovered prior to his discharge from the hospital. That he never suffered with dizzy spells prior to his injury of January 12, 1925, and that previous to this accident he had at all times been able to perform his labor in a workmanlike manner — satisfactory to himself and his various employers. * * *
"The known factors which would tend to lessen his physical powers are, first, his age, and, second, a battle of 25 years against disease. Certainly if he has suffered permanent partial disability from advancing years or the ravages of disease or through exposure to inclement weather or through intemperate habits, such permanent partial disability cannot reasonably be charged up to industry and paid for out of the combined injury benefit fund.
"Dr. E.F. Root testified that the only difference practically in Wilson's present condition and his physical condition prior to January 12, 1925, was that his complaint of dizziness was greater. Wilson testified positively that he had never been dizzy prior to the accident of January 12, 1925, while employed by the Standard Coal Company; that he had never been unable to perform his usual duties in a satisfactory manner and this testimony is supported by an almost unbroken record of hard manual labor extending over a period of 25 years.
"In view of the foregoing, the commission concludes that John L. Wilson did, on January 12, 1925, sustain an injury by reason of an accident arising out of or in the course of his employment while regularly employed by the Standard Coal Company at Standardville, *Page 87 Utah; that as a result of said injury he has suffered a period of total disability from the date of the injury up to the present time and is still suffering total disability; that, therefore, the Standard Coal Company should pay to John L. Wilson compensation as provided by law so long as said total disability continues.
"The commission further concludes that John L. Wilson did not previously incur a permanent partial disability, as a result of his various injuries, prior to January 12, 1925, of such nature that his disability from his injury of January 12, 1925, was greater than it would have been except for the disabilities resulting from his previous injuries; that at all times up to January 12, 1925, he was able to perform his usual duties without discomfort to himself and with satisfaction to both himself and his employers; and that, therefore, his application for compensation from the combined injury benefit fund should be denied."
The commission made an award in conformity with its findings and conclusions. The coal company contends that the findings of the commission that the applicant sustained "total permanent disability solely by reason of the last injury" is contrary to the evidence and that, on the contrary, the evidence shows without substantial dispute that the greater part of the injuries following the accident of January 12, 1925, was attributable to prior injuries. It is its contention that the serious character of the prior injuries sustained by the applicant leads to no other conclusion than that the injuries resulting from the last accident are in a large measure attributable to former accidents.
It is shown by the testimony that the injuries sustained by the applicant prior to January 12th were of a serious nature. It would naturally follow that such injuries would, to a certain extent, render the applicant less able to withstand the result of subsequent injuries that might be received. The evidence, however, supports the findings of the commission that, notwithstanding the former serious injuries, the applicant was able at all times to and did perform manual labor and did his work in a satisfactory manner.
Only two witnesses testified before the commission, the applicant and Dr. Root, the physician who attended him *Page 88 after the accident of January 12th. The doctor testified that in his judgment about the only difference in the condition of the applicant after the last injury is that the applicant was a little more dizzy than he was before; that prior to the last injury the applicant had sustained injuries to his skull, "cracking, breaking the bones of his skull very much." The doctor further testified that the last injury in all probability opened up the wounds again, but as to that he did not know. The most serious condition of the applicant is his dizziness; that is, his inability to balance himself, hence his inability to do and perform any continuous service. There is not any dispute as to his present condition in so far as his ability to do work is concerned. The applicant himself testified, in answer to questions, as follows:
"Q. Now on January 12, 1925, before you were hurt this last time, were you still suffering from these previous injuries? A. No, sir.
"Q. Had you fully recovered? A. I think so, and I wasn't what you would say fully recovered, but I was always all right. I was able to go ahead and do my work.
"Q. What were you doing at that time? A. I was running a motor.
"Q. Were you dizzy prior to this last injury? A. No, sir.
"Q. Had no dizzy spells? A. No, sir."
Further on the applicant testified:
"Q. Now immediately prior to your injury of January 12, 1925, what was the condition of your hearing? A. Good; nothing the matter with it whatever."
The applicant had been employed by the Standard Coal Company more than one month at the time of his accidental injury. It is not in evidence that he was unable to perform the duties assigned to him in a manner satisfactory to his employer. His testimony is positive that he was not suffering from his prior injuries on January 12, 1925. Further that while he "wasn't what you would say fully recovered" he was able to go forward with his work. Dr. Root testified: *Page 89
"How much more dizziness he has now as compared before the last injury I don't know because he had a lot of ear involvement. He was totally deaf in that ear and maybe this injury brought a little more on; I don't know."
The doctor also testified that, if the applicant had not had the former injuries, he would not expect him to be in the condition that he is now, and said:
"It is by reason of the combined injuries that he is in the condition he is today."
When requested to describe the last injury the doctor said:
"To go back behind everything, we simply had an X-ray picture made to insure the possibility of any new fracture, not that there was any evidence of a new fracture nor any injuries apparent about that, but the X-ray picture showed a lot of breaks of the bones. It showed a break right down through from top to bottom of the parietal bone on the left side. * * * I am not so dead sure whether that was the last injury or whether it was there before. At any rate he had numerous cracks in the skull and no symptoms."
The doctor also said in answer to questions by applicant's counsel:
"Q. You don't know whether he suffered this dizziness prior to the injury of January 12th? A. No; he certainly did not have enough to prevent his work.
"Q. In his present physical condition with this dizziness, as I understand you to say, it is your opinion he would be unable to go out and work as a laborer at the present time? A. Oh, yes; he couldn't earn full wages as a laborer, I am quite sure."
It is by reason of this testimony of Dr. Root, together with the admitted fact that the applicant had sustained several serious accidental injuries prior to the injury of January 12th, that the coal company contends that it should not be alone answerable for the present condition of the injured employee. It is also the contention of the coal company that, if Mr. Wilson is entitled to further compensation, such compensation should be paid from the special fund *Page 90 provided by the Workmen's Compensation Act. The particular section of the statute relied upon by the company is subdivision 6, § 3140, Comp. Laws Utah 1917, as amended by chapter 67, Laws Utah 1921. Said subdivision reads as follows:
"If any employee who has previously incurred permanent partial disability incurs a subsequent permanent partial disability such that the compensation payable for the disability resulting from the combined injuries is greater than the compensation injuries is greater than the compensation which except for the pre-existing disability would have been payable for the latter injury, the employee shall receive compensation on the basis of the combined injuries, but the liability of his employer shall be for the latter injury only and the remainder shall be paid out of the special fund provided for in subdivision 1 of this section."
It must be admitted that at the time the applicant entered the employ of the Standard Coal Company he was suffering bodily infirmities, such infirmities as would render him more liable to suffer injuries from an accident than if the prior injuries had not occurred. There is, however, no 1 evidence that these infirmities ever incapacitated him for work or that there had been any decrease in wages by reason of his physical condition. The finding of the commission that the applicant was able to work satisfactorily at all times prior to January 12th has support in the evidence. He was employed by the Standard Coal Company and it must be presumed that he was capable of earning the wages that he was paid. His right to compensation and the amount thereof are governed under 2 the Workmen's Compensation Law by the fact of employment, by the wages received, and the further fact of an accidental injury in the course of or arising out of the employment. The employer is charged with the duty of paying compensation to the injured employee based upon these considerations. That the employee had infirmities or diseases that might and did render him more susceptible to injury resulting from an accident does not relieve the employer from the duty to pay such compensation. Pinyon *Page 91 Queen M. Co. v. Ind. Comm., 59 Utah, 402, 204 P. 323; TinticMilling Co. v. Ind. Comm., 60 Utah, 14, 206 P. 279, 23 A.L.R. 325.
Disability, as that term is used in the workmen's compensation laws, is defined in 2 Schneider, Workmen's Compensation Law, p. 1006, § 400, as follows:
"Disability or incapacity for work in the sense in which it is used in the compensation acts means inability to earn wages or full wages, as the case may be, at the work in which the injured workman was employed at the time of the accident, or inability to perform such work as may be obtainable, or inability to reach his place of work on account of his injuries, or inability to secure work to do."
Cases are cited by the author in support of the text quoted from the states of Massachusetts, Iowa, and Kansas and from England.
It is no defense to a claim for compensation that the injury lighted up, reopened, or revived an existing infirmity of the injured employee. Such is the holding of this court in the cases cited above. The principle or rule of law 3 there announced is supported by the great weight of authority, if not by the unanimous opinions of the courts. Our statutes prescribe no standard of health or of physical condition to entitle one to the benefits of the Compensation Act.
In the course of the opinion in Crowley v. City of Lowell,223 Mass. 289, 111 N.E. at page 787, the court said:
"The statute prescribes no standard of fitness to which the employee must conform, and compensation is not based on any implied warranty of perfect health, or immunity from latent and unknown tendencies to disease, which may develop into positive ailments, if incited to activity through any cause originating in the performance of the work for which he is hired. What the Legislature might have said is one thing, what it has said is quite another thing, and in the application of the statute the cause or partial or total incapacity may spring from, and be attributable to the injury just as much where undeveloped and dangerous physical conditions are set in motion producing *Page 92 such result, as where it follows directly from dislocations; or dismemberments; or from internal organic changes capable of being exactly located."
In Pace v. North Dakota Comp. Bureau, 51 N.D. 823, 201 N.W. at page 351, the court says:
"It is quite immaterial that the decedent may have brought with him a disability. The evidence supports a finding that the disability brought with him was aggravated by the conditions under which he was compelled to labor, and that ultimately there came a time when his weakened heart and arteries could no longer stand the strain, when he suffered a collapse and died from apoplexy a few days later."
Further on in the same opinion it is said:
"Notwithstanding the fact that existing disease or infirmity, from whatever cause, may have predisposed him to an injury of the character that caused his death — the bursting of a blood vessel — his widow may be entitled to compensation if the rupture of the blood vessel, with resulting apoplexy, took place earlier because of the excessive heat."
The fifth headnote in Dickson Const. R. Co. v. Beasley,146 Md. 568, 126 A. 907, is as follows:
"Extended disability beyond duration of any natural result of comparatively slight injury, prolonged by disease or infection with which claimant was infected, cannot be said to result from the infection rather than the injury, where previous to injury, disease, or infection was inactive and was made disabling only by intervention of injury."
In the course of the opinion, page 910 (146 Md. 576) of the same volume, this language is found:
"Up to this point we understand the parties to be in agreement on the law. But the appellants argue, further, that, even with so much granted, the undisputed evidence in this case is that the extended disability of this man was beyond the duration of any natural results of the injury itself, and was prolonged only by the infection, and therefore it was the natural result of the infection, rather than of the injury. This, it seems to us, could never be a valid argument in a case in which there is evidence sufficient for a finding of fact that *Page 93 the disease or infection was previously inactive, and was made disabling only by the intervention of the injury. For, once it has been determined that this was the fact, then any prolongation of the disability by the infection so started up is still regarded as a prolongation of the effects of the injury."
See, also, Hull's Case, 125 Me. 135, 131 A. 391, and Patrick v. J.B. Ham Co., 119 Me. 510, 111 A. 912, 13 A.L.R. 427.
We are of the opinion, and so hold, that the findings of the commission that the total permanent disability resulted from the injury of January 12, 1925, is supported by 4 the evidence.
The award of the commission is affirmed.
THURMAN, FRICK, and CHERRY, JJ., concur.