Welke v. City of Ainsworth

Carter, J.,

dissenting.

I do not agree with that part of the majority opinion which holds that the evidence was sufficient to sustain a recovery of benefits under the Workmen’s Compensation Act. It has been the rule in this jurisdiction that the Workmen’s Compensation Act will be liberally construed to accomplish its beneficent purposes but the evidence must show by a preponderance that the accident caused the injury.

The evidence supports a finding that claimant sustained an accident arising out of and in the course of his employment on October 10, 1962. It will likewise sustain a finding that claimant first discovered that he had a herniated disk in June 1963, some 8 months after the accident. While the conclusion is very questionable, I shall assume that his claimed compensable injury was latent from October 10, 1962, to June 12, 1963, the date of discovery.

This court has held many times that the evidence must show that the accident caused the claimed injury. Hula v. Soennichsen, 178 Neb. 484, 134 N. W. 2d 47; Spangler v. Terry Carpenter, Inc., 177 Neb. 740, 131 N. W. 2d 159; Graber v. Scheer, 173 Neb. 552, 114 N. W. 2d 13.

The evidence in this case is as follows: On October 10, 1962, claimant was the chief of police of the city of Ainsworth. During the night on that date while making an *506arrest of an intoxicated person the latter grasped the claimant around the neck from which claimant had difficulty in extricating himself. The next morning he had some pain and stiffness in the neck which continued for 7 or 8 days. From October 22, 1962, to October 30, 1962, claimant was confined to a hospital with an attack of pneumonia. Two days before his release he felt some pain in the left shoulder at the arm socket. This pain continued intermittently with increasing intensity. The attending physician referred claimant to Dr. Dwight W. Burney, an orthopedic surgeon, who examined him on June 12, 1963. Dr. Burney diagnosed claimant’s ailment as a seventh cervical nerve root compression on the left, probably due to a herniated sixth cervical disk. Claimant was referred to Dr. Kenneth M. Browne, a neurosurgeon, who corrected the trouble by an operation. The operation confirmed Dr. Burney’s diagnosis.

Dr. Browne testified that the scuffle on October 10, 1962, “could have caused the condition.” Dr. Burney testified “that the scuffle described could initiate the train of events that resulted in the compression of the nerve.” He further testified that one could have a herniated disk without any severe injury. On cross-examination he was asked and answered the following questions: “Q And it has been not uncommon to have patients suffer with herniated cervical disks who> have no history at all of outside trauma? A That is correct. Q It could be caused by that, of course, as you stated in your testimony. A That is correct, yes. Q And it could be caused by other reasons? A Yes.” I submit that the effect of this evidence is that the herniated disk could have been caused by the scuffle or it could have resulted from other causes. The evidence is subject to no other reasonable interpretation other than that the cause was not determinable and accounts for the evidence of the physicians that the scuffle could have initiated the train of events resulting in the herniated disk *507and their unwillingness to say that the scuffle did cause it, even as a matter of opinion.

There is no evidence in this record, opinion or otherwise, that the herniated disk resulted from the accident that occurred 8 months previously. There is simply nothing to support a medical conclusion that the scuffle caused the herniated disk and, the initiating causes of herniated disks being so multitudinous, an opinion where there had been an 8-month’s lapse of time with only intermittent symptoms of pain would be pure speculation at the most.

There is a letter in the record received over objection as to materiality signed by the attending, physician in which he states: “In my opinion his injury and resultant disability was probably due to a scuffle he had in October of 1962, and probably will have no future disability.” The attending physician did not testify in the case. The statement was not sworn to and cross-examination was not possible. The statement is purely an extrajudicial one. The use of the word “probably,” in connection with the scuffle as a cause, is clearly used as synonymous with “possibly.” His statement is a pure conclusion not based on any factual situation that supports the word “probably” as evidence of a medical opinion that the scuffle did cause the injury. The medical testimony, considered as a whole, preponderates in favor of the conclusion that there was no way to determine whether or not the accident precipitated the injury. Certainly a general use of the word “probably,” not based on medical testimony or circumstances supporting its use, will not support an award of compensation as this court has many times said.

It has been the rule in this jurisdiction since the enactment of our Workmen’s Compensation Act that causal connection between the acident and the injury must be established by evidence, and that compensation awards cannot be based on possibilities, probabilities, or speculative evidence. Omaha & C. B. St. Ry. Co. v. Johnson, *508109 Neb. 526, 191 N. W. 691; Bartlett v. Eaton, 123 Neb. 599, 243 N. W. 772; Huffman v. Great Western Sugar Co., 125 Neb. 302, 250 N. W. 70; Saxton v. Sinclair Refining Co., 125 Neb. 468, 250 N. W. 655; Milton v. City of Gordon, 129 Neb. 888, 263 N. W. 208; Price v. Burlington Refrigerator Express Co., 131 Neb. 657, 269 N. W. 425; Dennehy v. Lincoln Steel Works, 136 Neb. 269, 285 N. W. 590; Towner v. Western Contracting Corp., 164 Neb. 235, 82 N. W. 2d 253; Snowardt v. City of Kimball, 174 Neb. 294, 117 N. W. 2d 543; Hula v. Soennichsen, supra.

In Omaha & C. B. St. Ry. Co. v. Johnson, supra, we said: “The plaintiff must not merely ask the court to guess that the original injury was the cause of death, nor merely that it is probable it was, but she must either prove it by evidence or by legitimate inference to be drawn from the facts which are actually made to appear.”

In Bartlett v. Eaton, supra, the court quoted the following with approval from Standard Oil Co. v. Industrial Commission, 339 Ill. 252, 171 N. E. 165: “Liability under the compensation act cannot rest upon the imagination, speculation or conjecture or upon a choice between two views equally compatible with the evidence, but must be based upon facts established by a preponderance of the evidence. * * * Awards for compensation cannot be based upon possibilities or probabilities but must be based upon sufficient evidence showing that the claimant has incurred a disability arising out of and in the course of his employment.” This court has consistently adhered to this holding.

In Saxton v. Sinclair Refining Co., supra, this court said: “Deplorable as it is that a boy of so much early promise has become the victim of schizophrenia, the rule must go further. The burden of proof is upon him, and in order to compel compensation from his employer he must prove by a preponderance of the evidence that there was a direct causal connection between his disorder *509and his automobile injury. Nor can such proof be made upon possibilities, or even probabilities.”

In Milton v. City of Gordon, supra, this court stated: “The evidence of the medical experts of both parties concedes that there are many other ways that the preexisting condition could have been lighted up besides the one contended for by appellant. After a consideration of the whole evidence, we come to the conclusion that a decree for appellant, if one could be granted, would have to be based on speculation and probability. The evidence shows that appellant’s contention that the deceased was injured by striking the steering wheel of his car is based upon the possibility that it could have happened at that time and place or the probability that it did occur as alleged. This court has held many times that awards of compensation cannot be based on possibility, probability, speculation or conjecture.”

This court in denying a claim for compensation in Price v. Burlington Refrigerator Express Co., supra, said this: “While expert testimony was produced to the effect that trauma could produce the condition with which Price was afflicted, there is no evidence that such was the fact.”

The majority relies on refinements of definition of the word “probable.” It is a word of common meaning and has been applied over the years in accordance with common usage. Its meaning in our previous cases has been made clear by its application to the Workmen’s Compensation Act. It is most often used as a synonym for possibility and is subject to no other meaning except when supported by evidence from which a conclusion can be drawn that it was intended as medical evidence of cause and effect. There is neither medical evidence nor circumstances that warrants any such usage here. I submit that the majority opinion extends its meaning far beyond any previous holding of this court and has the effect of vesting this court with authority to supply causal connection between an accident and an injury *510when the evidence fails to establish it. In this case the evidence shows that the accident could have caused the injury and that it could have been initiated by many other causes of equal degree of probability. Under such a situation the initiating cause is conjectural and speculative, and is insufficient to sustain an award of compensation. The effect of the opinion is to place the burden upon the employer to eliminate all possibilities, probabilities, and speculation in order to establish a defense, when the statute requires a claimant to establish by a preponderance of the evidence every essential fact necessary to sustain an award.

Cases from a foreign jurisdiction are relied upon to support the affirmance. Workmen’s compensation statutes and their interpretations vary in all the states and are for that reason of little authoritative force. The issues in this case have been decided many times by this court, making it unnecessary to cite cases other than our own. As the cases, cited show, our interpretation on the use of possibility, probability, and speculation as evidence is of long standing and has met with apparent legislative approval. This court has recently held that a change of meaning under such circumstances is for the Legislature and not the courts. Bowers v. Maire, ante p. 239, 137 N. W. 2d 796. It appears to me that there should be some consistency in determining what is legislative and what is judicial, and that unpredictability in this field should be removed.

White, C. J., and Brower, J., concur in this dissent.