(dissenting):
The foundational rules upon which this Court should review the Commission’s ruling are: that it is the Commission’s prerogative to judge the evidence, and if there is any reasonable basis therein to justify the Commission’s finding, this Court should not disturb it.1 Conversely stated and specifically applicable here: when the Commission has refused to find a work-connected accident, this Court should not reverse and direct such a finding unless the evidence is so clear and persuasive that all reasonable minds acting fairly thereon must necessarily so find.2
Bearing in mind those rules, the salient and what should be the controlling proposition here is that the Commission was not persuaded that the plaintiff had met his burden of proving that he suffered an accident arising out of or in the course of his employment.
The position taken in this dissent does not disagree with the proposition that even though an employee has a preexisting abnormal condition, if it is aggravated into a compensable injury or disability by an accident which arises out of or occurs in the course of his employment, as required by the statute, it is compensable. Nor do I question that if there is some extraordinary exertion or stress which produces an occurrence which the Commission finds to come within the definition of accident, it can be found compensable.3
The point of disagreement with the main opinion is its statement that “. . . it is settled beyond question that an internal failure brought about by exertion in the course of employment may be an accident within the meaning of Sec. 35 — 1—45, without the requirement that the injury result from some incident which happened suddenly and is identifiable at a definite time and place.”
It is submitted that that statement is not justified by the cases cited in support thereof; and I doubt that any such case can be found. On the contrary, the statement is squarely inconsistent with the applicable statute, and with all of the case law on the subject with which I am acquainted.
The first place to test the soundness of the proposition just stated is the applicable statute. In my judgment, Sec. 35-1^45, U.C.A.1953, leaves no room for doubt or misunderstanding. It states plainly and simply that compensation is to be paid when the employee “is injured by accident arising out of or in the course of his employment.” There similarly should be no misunderstanding or confusion on the proposition that the term “accident” im*698ports that there must be some unanticipated event or occurrence, different from what would normally be expected to occur in the usual course of events.4 It is submitted that a study of the numerous cases decided by this Court on the subject, and other authorities as well, will reveal that without exception, they have been concerned with whether there was in fact some incident or occurrence which would come within the definition of accident, as is expressly required by the statute.5
Controversies of this character are so common that such cases are found in practically every volume of the Utah Reporter; and it would serve no useful purpose to burden this page with excessive citations. In the interest of brevity, it is sufficient to say that on the point of controversy herein, the cases are all of generally similar import. It seems fair to assume that the plaintiff (and the main opinion) would select those cases which would best give support for its thesis quoted above, and upon which its reversal of the Commission’s order necessarily must rest.
The case of Robertson v. Ind. Comm.,6 on which the main opinion places reliance is as good an example as any. In that case, the burden of the main opinion was to demonstrate that there was an extraordinary exertion in manipulating and skinning an extra large horse, so that the heart seizure would come within the definition of such an unexpected occurrence and thus could be found to be an accident. I join in the main opinion’s approval of Justice Wolfe’s reasoning and statement of the law in his dissent in that case. He stated the standard rule of review, which if applied to this case would affirm the Commission, that: “Unless the evidence is such as to compel the conclusion that the Commission was arbitrary in failing to find that the internal failure was service-connected, we should not set aside its decision.”7 And upon the basis of his previously made explanation that it was the prerogative of the Commission to find the facts, he dissented from the reversal of the Commission’s decision.
Another good example of the principle involved is our recent pase of IGA Food Fair v. Martin.8 There, the applicant was undergoing unusual exertion in unloading a shipment of heavy boxes of meat and, because of the extraordinary stress, suffered a heart attack. The same comment is to be made about Jones v. Ind. Comm.,9 in which the extraordinary stress was from being required to repeatedly crank a balky motor over a long 16-hour double shift.
It is important to realize that the removal of the requirement that there be some event which can be regarded as an accident arising out of or occurring in the course of employment, so that it need only appear that some injury or disability developed which could be related to the employee’s work, would be a dramatic change in our law. The practical effect would be to make the employer a general insurer of that aspect of the health and well-being of his employees. This might be of temporary benefit to a few individuals in the labor force who may have some infirmity. But I think if we take a second look, such a rule would do them more harm than good in the long run.
The forcing of employers to become, in practical effect, such general insurers of employees would add to the already plentiful burdens of going into or carrying on enterprises, which furnish jobs for others, and would thus reduce opportunities for employment. More especially, with respect *699to persons who already have some infirmity, there would be even more adverse effect because economic necessity would force employers to give more searching examinations, and refuse to hire anyone with any history or indication of physical disability or handicap. I acknowledge that the proposition just stated should be considered by this Court only if it thinks it has the prerogative of making a dramatic change in policy and the law. It is my view that the Court has no such prerogative; and that the proper procedure for the long term benefit of employers, employees and the public generally is to follow the statute as it is written, and the adjudications thereon; and if there is to be any such dramatic change in the law, it should be done by the legislature. Then, everyone will know of that change in the law, when it takes effect, and how to govern themselves in accord therewith.
There is no question here, but that the plaintiff suffered from a pre-existing difficulty with his back, for which he had previously received medical treatment and which had existed at least since he was in junior high school, eight or nine years prior to this claim. As the main opinion itself fairly and properly points out, the plaintiff himself stated unequivocally that he could not identify any specific time or occurrence in his work as the origin of the disability in his back.
In response to various questions concerning whether there was any incident or occurrence from which the applicant’s back problem resulted, he repeatedly stated that there was not. Typical of these answers is:
Q. Mr. Schmidt, isn’t it true that you really cannot relate the onset on your back pain to any particular event that occurred while you were working for Kenway?
A. That’s true. (R., p. 37)
On the basis of the whole evidence, the findings of the administrative law judge, adopted by the Commission, states:
that the applicant has simply not met his burden of proving that an accident occurred which caused the injury complained of. We further note that there are no witnesses, no timely reporting and no showing of a relationship between the injury and the work of the applicant.
In regard to the question of reference to a medical panel: Plaintiff cites Sec. 35-1-77, which requires the Commission to refer “the medical aspects of the case to a medical panel . . ..” As is true of all statutes, this one should be given a sensible and practical application. First, assume a hypothetical case in which the evidence was so absolutely clear that no one could disagree that the applicant had suffered no accident in the course of his employment. Would it yet be maintained that merely because he had filed an application for benefits and the employer had denied liability, the Commission was nevertheless compelled to refer the case to a medical panel. It seems idle to have to answer such a question, but the answer, of course, is no. The same reasoning applies here. Inasmuch as the findings and order of the Commission rest upon the proposition that considering the whole evidence, and particularly the plaintiff’s own testimony, there was no basis upon which to find that there was a work-caused or connected accident, there would be no useful purpose to be served by referring the nonexistent medical aspects of the case to a medical panel.
Because there is no basis upon which it can be concluded that the action of the Commission was capricious, arbitrary or unreasonable, I would affirm its decision.
. Kent v. Ind. Comm., 89 Utah 381, 57 P.2d 724.
. Id.; and see Vause v. Ind. Comm., 17 Utah 2d 217, 407 P.2d 1006.
. Graybar Electric Co. v. Ind. Comm., 73 Utah 568, 276 P. 161.
. Tintic Milling Co. v. Ind. Comm., 60 Utah 14, 206 P. 278; Carling v. Ind. Comm., 10 Utah 2d 260, 399 P.2d 202.
. Tintic Milling and Mining Co. v. Ind. Comm., 60 Utah at 22, 206 P. at 281 states:
If the injury is incurred gradually in the course of the employment, and because thereof, and there is no specific event or occurrence known as the starting point, it is held to be an occupational disease, and not an injury resulting from accident.
. 109 Utah 25, 163 P.2d 331.
. Id. at 47, 163 P.2d at 341.
. Utah, 584 P.2d 828.
. 121 Utah 612, 244 P.2d 640.