Baur v. Mesta MacHine Co.

Dissenting Opinion by

Me. Chief Justice Bell :

The majority opinion is in my judgment wrong for two reasons: The Workmen’s Compensation law gives compensation to an employee for an industrial accident which occurred in the course of his employment. The referee and the Workmen’s Compensation Board, who under the law are the fact-finders, and the Supreme Court found that Baur died from a coronary occlusion, a very frequent natural cause of death, and that this coronary was not the result of an industrial accident. I believe it is clear from the evidence and the facts found by the fact-finders and the pertinent principles of law that this coronary .occlusion .was not *634and could not be found to be an industrial accident unless the language, as well as tbe meaning and purpose of the Workmen’s Compensation law, are ignored or greatly distorted. As the Superior Court aptly said, “, . . this [claimant’s contention] gives a meaning to ‘accident’ not before attributed to it either in workmen’s compensation eases or accident insurance cases, and presents us with the problem of applying a concept of ‘accident’ never before expressed either in this or any other jurisdiction. , . . The Workmen’s Compensation Act was passed to compensate employes for disability caused by accidents* but as has been frequently said, it is not insurance against disability because of illness or death resulting from natural causes. Gansman v. Pearson, 284 Pa. 348, 131 A. 247 (1925). . . , Death occurring in the normal course of the decedent’s work does not raise even an inference of an accident. Landis v. General Motors Corp., supra, 180 Pa. Superior Ct. 332, 334, 119 A. 2d 645 (1956); Adamchick v. Wyoming Valley Collieries Co,, 332 Pa, 401, 3 A. 2d 377 (1939). It is common knowledge that many people die from coronary occlusions who have the best of medical care, and that many survive an attack with no medical care,”

However, even under the majority’s definition of an industrial “accident” — with which I disagree — -this claimant under the evidence and the findings of the fact-finders, is not entitled to workmen’s compensation. The majority opinion reaches its conclusion (a) by disregarding the burden of proof which is on the employee to establish that his death resulted from an industrial accident, and (b) by reaching its conclusion on the basis of only part of the testimony and finding therefrom a capricious disregard by the fact-finders of this evidence when the fact-finders had a legal right to believe the much stronger evidence which justified *635their finding that the coronary occlusion was not the result of an industrial accident.

The Evidence

When Baur arrived at the dispensary it was 4:15 p.m., and a male registered nurse was on duty. According to the evidence presented by the claimant, Baur walked into the first aid room “complaining of diarrhea and vomiting and pains in his stomach and chest pains when on deep breathing and also chills.” He told the nurse he had been under a doctor’s care for a virus condition, and the nurse suggested that maybe he still had a virus and that he should see his family doctor who had been treating him. The nurse had him lie on a cot, and about an hour and a half later gave him a teaspoonful of citrus carbonate. While Baur was at the dispensary, he had two bowel movements and he vomited. The nurse checked his pulse several times. Although, according to the nurse, “he got over his initial shock,” he, nevertheless, remained ill and the nurse ordered a taxi to take him home. The nurse called Baur’s wife and told her he was sending her husband home in a taxi, and that she should get a doctor and have him waiting at the house.

The referee, the Workmen’s Compensation Board unanimously, and the Superior Court unanimously believed this testimony! They further found that Baur’s death was not caused by or resulted from his work or from any negligence on the part of the defendant’s male nurse. These findings and this conclusion are overruled and reversed by the majority opinion, which disregards the important pertinent evidence relied upon by the fact-finding Board and relies upon (1) only part of the testimony, (2) including mainly the testimony of Dr. Gordon, which as we shall see was based upon an erroneous assumption of facts.

The majority opinion in one breath says that a registered nurse should not diagnose an illness or call *636a cab and notify the sick man’s wife to have a doctor ready for him when he gets home; and in the next breath the majority opinion takes the position that (a) the nurse should have diagnosed the illness as a coronary occlusion and (b) immediately called a doctor and an ambulance, and (c) assumes that a good doctor could have been immediately obtained, and (d) this would have saved Baur’s life. This position is not only unreasonable and illogical, and unrealistic and untenable, because even a heart specialist would admit, and nearly every layman knows (1) that the symptoms of which Baur complained to the nurse, even without his prior history of having been to the sick room 123 times in 9 years, would indicate a virus or a badly upset stomach, or possibly a heart attack; and (2) only time and future developments could determine which; and (3) no one can know — no doctor can know even with the benefit of hindsight — whether Baur would have lived if a heart specialist could have been immediately obtained. Moreover, the referee and the Board, namely the fact-finders, believed the nurse and the testimony which refuted Baur’s claim, and if there is any capricious disbelief of the evidence it is (of course unintentionally) that of the majority opinion. For example, the majority opinion (1) fails to discuss or consider that Baur had been to the nurse’s room 123 times before the present visit, and (2) on numerous prior occasions had complained of the same symptoms and pains which he had on the day of his death, and (3) he was suffering from a virus. Dr. Gordon did not testify as the majority erroneously stated, that “the 20% who do not survive [a first coronary occlusion] are the ones who are not treated, given the wrong treatment, or given treatment too late.” What Dr. Gordon did testify was that many of this 20% died for these reasons. Furthermore, Dr. Gordon’s testimony is tremendously weakened, and even if com*637pletely believed furnishes no basis for the position taken by the majority, since the doctor’s diagnosis (1) was based, to a substantial degree, on important-nonexistent facts, namely that Baur had complained of pain in his arms, and (2) the failure to take into consideration Baur’s virus and his 123 visits to the nurse’s room and his prior history, and (3) if a doctor and an ambulance had been immediately secured Baur’s life would have been saved — neither a nurse nor a heart specialist, only God or future events could determine this.

I would affirm on the following excerpts from the able convincing opinion of Judge Woodside :

“We believe that it was not the intention of the Supreme Court [and certainly not of the legislature] to make the employer an insurer of the health [and life] of its employes while in the course of their employment. The Workmen’s Compensation Act was passed to compensate employes for disability caused by accidents, but as has been frequently said, it is not insurance against disability because of illness or death resulting from natural causes. Gausman v. Pearson, 284 Pa. 348, 131 A. 247 (1925).”
“A heart attack is an injury, but it is not'an accident, although it may be the result of an accident either by a direct or an indirect trauma or by an unusual exertion. Bonaduce v. Transcontinental Gas Pipe Line Corp., 190 Pa. Superior Ct. 319, 154 A. 2d 298 (1959) ; Samoskie v. Philadelphia & Reading Coal & Iron Co., 280 Pa. 203, 124 A. 471 (1924) ; Strode v. Donahoe’s Fifth Ave. Store, 127 Pa. Superior Ct. 231, 193 A. 86 (1937) ; Balaban v. Severe, 157 Pa. Superior Ct. 463, 43 A. 2d 543 (1945). It is- admitted by the claimant that the heart attack which the deceased suffered was not brought on by any unusual physical exertion or mishap, so there was *638no accident here of the type dealt with or discussed in the above cases.”
“Death occurring in the normal course of the decedent’s work does not raise even an inference of an accident. Landis v. General Motors Corp., supra, 180 Pa. Superior Ct. 332, 334, 119 A. 2d 645 (1956); Adamchick v. Wyoming Valley Collieries Co., 332 Pa. 401, 3 A. 2d 377 (1939). It is common knowledge that many people die from coronary occlusions who have the best of medical care, and that many survive an attack with no medical care.”
“The test here is not whether there was competent evidence to sustain a finding that there was an accident, but whether there was a capricious disregard of the evidence in the refusal to find that there was an accident. Allen v. Patterson-Emerson-Comstock, Inc., supra, 180 Pa. Superior Ct. 286, 119 A. 2d 832 (1956).”
“In order to establish an accident of the type described by the Supreme Court, the claimant here must [prove] (1) that the employer agreed to provide medical care to its employes who became ill in the course of their employment; (2) that the nurse neglected to provide proper care; and (3) that the death of the employe was due to the neglect of the employer to provide proper care.”
“Throughout his testimony it is clear that [Dr. Gordon’s] opinions and conclusions were strongly influenced, if not controlled, by that hindsight. ‘It wasn’t proper to ask a nurse ... to make a diagnosis and prescribe treatment as side as he must have been.’ ‘He should have had a doctor as sick as he must have been/ . . . ‘the nurse should have sent for a doctor as events turned out,’ ... ‘If he had received prompt *639and proper treatment, he might not have died/ ‘Of course I can’t’ . . . ‘state specifically that Mr. Baúr would have lived if he had been taken to the hospital promptly.’ ‘There was no harm done by the citrus carbonate. It was just inadequate as it turned out. The man died/
“The force of Doctor Gordon’s testimony is further weakened because it was based upon two false assumptions. Throughout his testimony he assumed that Baur had pains in his arms. In at least four questions put to the doctor, reference was made to the pain in Baur’s arms, and in at least four answers to other questions, the doctor made reference to the pain in Baur’s arms. The evidence was that Baur never said anything about pain in his arms. Furthermore, the doctor stated that Baur ‘was put to bed because he couldn’t stand up.’ Baur walked into the first aid room; when the nurse was not looking, he walked upstairs to a toilet; when he left the first aid room, he walked away unassisted. Dr. Gordon’s opinions apparently were based, at least in part upon these assumptions which are not supported by the evidence.”
“The conduct of the nurse must be judged not by hindsight, but in the light of the facts as they appeared [and the present condition and prior history of Baur] while Baur was in the first aid room. According to the evidence, this was the 123rd time Baur appeared at the first aid room during the nine years he was employed by the defendant. It was at least the 12th time he was there complaining of a stomach ailment, indigestion or pain in the abdomen. It was the third time he was there with pain in his chest. He had been there at least six times for a headache. He had not collapsed at work on the day he died. He walked into the first aid room. He told of having been ill of a virus.. He complained of diarrhea, vomiting, chills, and pains in *640his stomach and chest. He did not complain of pain in his arms. Diarrhea is not a symptom of heart trouble, but.pain in the arms is. Taken as a whole the symptoms were more indicative of a return of his previous illness than of a heart attack. His condition did not worsen. He seemed to have ‘gotten over his initial shock.’ When he left the first aid room, he changed his clothing and walked a considerable distance unassisted except for the carrying of his lunch box. At no time was he refused a doctor. Under these circum: stances was the nurse guilty of neglect to provide proper medical care when he immediately told Baur to lie down, and then later sent him home in a taxi after calling his wife and telling her to have her family physician there? The referee and the board found that the nurse was not guilty of neglect to provide proper care under these circumstances, and we cannot hold, as a matter of law, that in so holding the board capriciously disregarded the competent evidence.
“The unanimous opinion of the board was written by its chairman, John L. Dorris, M.D. After relating certain facts and referring to Baur v. Mesta Machine Co., supra, 393 Pa. 380, 143 A. 2d 12* (1958), Dr. Dorris said: ‘Decedent displayed the symptoms of an ordinary attach of virus. The evidence does not disclose that (the nurse) had any reason to thinh otherwise. Based upon his opinion, he treated decedent accord: ingly and the record does not tell us that decedent’s condition during the period of treatment deteriorated. Had he known or been expected to know the true state of decedent’s health, claimant then would have a strong-, er case. Moreover, the nurse’s treatment may have pro*641longed decedent’s life an hour or two. This is not answered, nor are we told whether or not decedent would have survived had the best possible medical attention been rendered him.’ [We repeat, no Doctor, only God could have foretold whether under such circumstances Baur would have recovered.]
“The Board found, therefore, that under the circumstances the nurse did not neglect to provide proper treatment. The board further found that the claimant had not established, with evidence it believed, that there was any causal connection between the death and any failure of the deceased to receive any particular treatment.
“The burden rested upon the claimant to convince the board that the death was the result of an accident and not from natural causes or from the normal progress of a pre-existing ailment. Mancuso v. Mancuso, 150 Pa. Superior Ct. 22, 27 A. 2d 779 (1942); Rosso v. Aetna Steel Products Corp., supra, 174 Pa. Superior Ot. 258, 101 A. 2d 392 (1953). Even if an injury is the result of one or more causes, for only one of which the defendant is liable, the burden is on the claimant to individuate that one as the actual cause of his death. Gausman v. Pearson Co., supra, 284 Pa. 348, 131 A. 247 (1925); Kenny v. Thornton-Fuller Co., 190 Pa. Superior Ct. 552, 555, 155 A. 2d 220 (1959). The board did not believe that the employe’s death was caused by his failure to receive adequate care, and expressed the thought that the care administered might even have prolonged the employe’s life. See Nolker v. Ford Collieries Co., supra, 142 Pa. Superior Ct. 18, 15 A. 2d 557 (1940).”

Italics throughout, crars.

That case arose on preliminary objections which of course admitted all facts which were weU pleaded and everything in the Court’s opinion must be considered in the light of the pleaded facts.