I have no difficulty with the concept that an internal failing brought on by exertion in the course of the employment is an industrial accident within the meaning of Sec. 42-1-43, U.C.A. 1943. We have so held many times. In *Page 37 Cherdron Construction Company v. Simpkins, 61 Utah 493,214 P. 593, 596, the applicant, while pushing a wheelbarrow full of cement up a 13% grade, slipped and in attempting to hold the load strained himself and suffered a mitral heart lesion. In sustaining the commission's award we said:
"In view of the authorities above referred to, and others which we have examined, we are of opinion that the decided weight of authority, under statutes similar to ours, is to the effect that strained effort or over-exertion may cause an accidental injury for which compensation will be allowed."
We went on to hold that:
"* * * the underlying principle seems to be that the injury must happen suddenly, undesigned and unexpected, and at a definite time and place."
Fastening upon this principle — that the injury must happen suddenly at a definite time and place — we set aside an award by the commission in Bamberger Coal Co. v. IndustrialCommission, 66 Utah 203, 240 P. 1103. There the employee had been unloading coal from a railroad car. There was evidence that he exerted himself heavily and that thereafter he suffered pains in his chest. He died within twenty-four hours. The commission made an award. We reversed holding that there was no evidence that anything out of the ordinary had happened. That no time or place was shown which could be seized upon as showing anything unexpected or unusual happening in the course of the employment.
In Hammond v. Industrial Commission, 84 Utah 67,34 P.2d 687 (also involving a heart attack from overexertion), the opening wedge was driven clearing the way for a definite holding in Thomas D. Dee Memorial Hospital v. Industrial Commission,104 Utah 61, 138 P.2d 233 that it was not necessary that there be one definite time or place which could be singled out as the time and place of the accident.
Reaffirming the Hammond case, we held in Columbia *Page 38 Steel Company v. Industrial Commission, 92 Utah 72,66 P.2d 124, that the commission had correctly made an award to an employee who suffered a heart attack as a result of severe jolting and jarring while riding on a tractor in the course of his employment. In this latter case there was no definite time or place which could be pointed to as the time and place of the accident. It was a steady jolting and jarring from which the employee sustained a rupture or dissecting aneurysm of the aorta which rapidly dissected and caused his death.
In Gerber v. Industrial Commission, 91 Utah 474,64 P.2d 1281 and Offret v. Industrial Commission, 91 Utah 486,64 P.2d 1284, decided on the same day, though affirming the commission in its order denying compensation, we reaffirmed the concept that exertion can cause an internal failing which will be properly considered to be an accident within the meaning of Section 42-1-43.
The same principle was involved in Southern Pacific Co. v.Industrial Comm., 96 Utah 510, 87 P.2d 811, where the deceased employee was found to have died from a heart attack after having been pinned to a wall by a heavy sheet of metal which overbalanced and came onto him suddenly. See also ContinentalBaking Co. v. Industrial Comm., 92 Utah 438, 69 P.2d 268, where we upheld an award to an employee where a strain in lifting resulted in a hernia. Peterson v. Industrial Comm., 83 Utah 94,27 P.2d 31; Graybar Electric Inc. v. Industrial Comm.,73 Utah 568, 276 P. 161; McEwan v. Industrial Comm., 61 Utah 585,217 P. 690.
In Thomas D. Dee Memorial Hospital v. Industrial Comm.,104 Utah 61, 138 P.2d 233, we were not troubled so much by the question as to whether an internal failing could be treated as an accident within the meaning of the act. The primary problem was whether or not the internal failing must be sudden so that one time, place and cause of the failing can be definitely identified. We concluded that if the internal failing could be definitely traced to the overexertion, that is, an exertion beyond that which his usual *Page 39 employment called for, it was not necessary for the applicant to point to a specific time, place and event, but we made it clear that in so extending the principle that the untoward event need not be sharply attributable to a definite physical act, the proof should be clear and convincing that it was attributable to the overexertion. The holding in this regard finds support in theHammond case, supra, and in Columbia Steel Co. v. IndustrialComm., supra. If the Bamberger Coal Co. v. Industrial Comm.case, supra, had not already been overruled by the Hammondcase, it was overruled by the Dee Memorial Hospital case.
In view of our many decisions, as noted above, we need not now re-examine the chain of reasoning through which we have come to treat internal failures as accidents within the meaning of the Act. The language of the Act, Sec. 42-1-43, U.C.A. 1943, would justify a holding that the elements, looking backward, were (1) disability or death, (2) injury, (3) accident, (4) in the course of or arising out of the employment. Our holdings have, by treating the internal failing as the accident, lumped numbers two and three together. The injury and the cause that produced it are, in an internal failing, ofttimes so closely related as to appear to be a unit occurrence. A strain and an injury — cause and effect — that appear as one. The strain itself which causes the trauma and the trauma are in the predecessor — cause and successor — effect relationship so that the strain appears to be the injury. Where there is intended exertion or overexertion which appears to have caused the failing there may be no unexpected event which caused injury, but as noted in Handley v. Mutual Life Ins. Co. of N.Y., 106 Utah 184, 147 P.2d 319, 152 A.L.R. 1278, an unexpected and untoward result is ofttimes itself denominated the accident.
Thus where exertion or overexertion in the course of the employment causes disability or death, I agree that compensation should be allowed. Here, however the Commission found that the evidence did not establish that the heart attack and resulting death were caused by the exertion. *Page 40
We have time and again held that to warrant the reversal of the commission's order denying compensation the record must disclose such material, substantial, competent and uncontradicted evidence as to justify the conclusion as a matter of law that the commission acted arbitrarily in finding as it did. The cases to this effect are very numerous. See for example Kent v.Industrial Comm., 89 Utah 381, 57 P.2d 724; Norris v.Industrial Comm., 90 Utah 256, 61 P.2d 413; Barney v.Industrial Comm., 90 Utah 539, 63 P.2d 249; Wherritt v.Industrial Comm., 100 Utah 68, 110 P.2d 374; Crane v.Industrial Comm., 97 Utah 244, 92 P.2d 722; Salt Lake County v. Industrial Comm., 101 Utah 167, 120 P.2d 321; Utah FuelCo. v. Industrial Comm., 102 Utah 26, 126 P.2d 1070; Godfrey v. Industrial Comm., 105 Utah 324, 142 P.2d 174.
I am unable to agree that as a matter of law the commission was arbitrary in refusing to find that the exertion caused the heart attack and the resulting death. I agree with Mr. Justice WADE that it is not greatly material whether the exertion was ordinary for the job or unusually heavy if it be definitely established that the exertion did in fact cause the internal failing. Nevertheless, as in the Dee Hospital case where the exertion was beyond that reasonably called for by the work, and a heart attack occurred, especially in a man advanced in years, the probability that the exertion caused the failure is greatly increased. The exertion is more easily identified as the cause of the internal failing if that exertion has been unusually heavy for the job and the man, and, as stated in the Dee Hospitalcase, I think it is necessary that the connection between the exertion and failing be so connected in time as to preclude a likelihood of its being not service-connected. Otherwise the doors will be left wide open for many heart attacks not clearly the result of exertion to claim compensation. As will be subsequently noted in detail, it is much more difficult to ascertain whether or not the internal failing resulted from strain or exertion in the course of the employment than it is to trace the cause of external injuries. Recognizing this, we held in Thomas D. *Page 41 Dee Memorial Hospital v. Industrial Comm., supra, that the Commission would be warranted in requiring clear and convincing proof that the claimed injury resulted because of the exertion; that merely showing a possibility or even some likelihood of such a cause and effect will not suffice. With these concepts in mind we turn to the evidence adduced.
The work being done by the decedent leading up to the time a fellow employee noticed symptoms of a heart attack was manual work — but insofar as the record discloses it was the normal work required by the job. The decedent had been working on this job doing similar work for about 8 or 9 months. When he came on the job that morning he and another employee, Francom, brought six or eight wheelbarrows full of coal into the furnace room. They then, by use of a mechanical winch, pulled the carcass of a rather large horse onto a skinning block. Francom testified that
"I was skinning on the left side and he [deceased] was skinning on the right side. He was a big horse, * * * and [deceased] got hold of his hind leg to pull him over onto his back when he said `has Andy got one of those cookers open?' I said I guess not. He was flushed in the face and purple around the mouth * * *."
There is nothing more positive from which it can be ascertained that immediately prior to the appearance of the symptoms of a heart attack the deceased expended an extraordinary amount of energy. As to the exertion used when he took hold of the leg, Francom testified:
"He took hold of the hind leg to straighten it up so he could skin down the hind leg." Q. "Would you say whether he exerted himself heavily?" A. "He could have done." Q. "It is your opinion he did?" A. "Yes."
Francom's opinion cannot in law be said to be based on what he saw. It is equally probable that after noting the various symptoms he reasoned that the deceased had pulled violently on the leg. He was questioned at length concerning this, but never once did he say that he saw the deceased exert himself heavily by pulling on the leg. Even granting *Page 42 that the deceased did pull on the leg there is no evidence that the energy expended was unusual for the job or more than the deceased was accustomed to use in the performance of his work. This fact is not mentioned to detract from the holding of this court that if an ordinary industry-connected exertion actually resulted in the failure, compensation may be had, but it is mentioned because where the strain or exertion is unusual or exceptionally heavy the nature of the exertion itself may brand it as the cause of the internal failing. In both the Hammondcase and the Dee Memorial Hospital case the evidence showed unusually heavy exertion over a considerable period of time. The work was much heavier than the work to which the employee had been accustomed. If the exertion is unusually heavy it helps to strengthen the conclusion that the exertion caused the heart attack. In Cherdron Construction Company v. Industrial Comm. the strain came suddenly when the worker tried to hold a heavy load of cement from rolling down hill. Here again the nature of exertion helped to establish the cause and effect relationship. The evidence concerning the nature of the exertion in the instant case was not such that it unerringly branded the exertion as the cause of the failing so that the commission as a matter of law was compelled to so conclude.
In the opinion of Dr. Hagen the death resulted from coronary occlusion. When asked the question:
"I think you stated that an occlusion or an angina would ordinarily be produced by either strain or over-exertion or high emotion?"
the doctor answered:
"That can have a tendency to cause it, but research work shows that the largest number of coronary occlusions come while people are in bed relaxed."
Dr. Oldroyd, called by the applicant, stated that assuming that the heart attack came on suddenly while Robertson was working, he would conclude that the occlusion was caused by overexertion. But Dr. Oldroyd also stated that the same *Page 43 thing could have happened without known cause and that it might as well have happened while Robertson was asleep in bed. No autopsy was performed to ascertain whether or not the deceased had long been suffering from a diseased or weakened heart. Under our decision the burden of proof on this point would be on the applicant. Wherrit v. Industrial Comm., supra; GeneralMills v. Industrial Comm., 101 Utah 214, 120 P.2d 279. The case is one in which I think the commission could properly have found that the heart attack was caused by the exertion, but the evidence does not point so unerringly to that conclusion that we should say as a matter of law that the commission was arbitrary in not so finding.
The evidence in Offret v. Industrial Comm., supra, presented a stronger case than this, yet we affirmed the commission in its order denying an award. There the applicant was known to be suffering from a heart ailment which could easily be aggravated by heavy manual labor. He was engaged in making repairs on a steam boiler. He removed about nineteen wheelbarrow loads of ashes from the ash pit and did other work around the outside of the boiler, all of which was strenuous. He then went into the space between the flues and the top of the boiler in order to tighten a burr. It was necessary for him to lie down and reach upward to the burr. While in this cramped position and while pulling on the burr he suffered severe pain in the chest accompanied by a feeling as if something had been torn. He suffered temporary loss of action, etc. The medical testimony was to the effect that he could have suffered the heart attack without the exertion of climbing into the cramped position to tighten the burr. All the doctors were of the opinion that hard physical labor would tend to speed decompensation. We held that the commission undoubtedly could have found in favor of the applicant. But we, recognizing that the statute leaves questions of fact to the commission, affirmed the order denying the award.
I am unable to agree with the conclusion reached by Mr. Justice McDONOUGH that the facts of the Hammond case, *Page 44 supra, (which was decided prior to the Offret case, supra) make that case controlling. It is true that there, as here, the commission denied compensation, and that in the Hammond case we reversed. The basis of the Commission's order denying compensation in the Hammond case was its erroneous conclusion that all of the testimony concerning the relationship between the exertion and the heart attack was hearsay. We pointed out considerable evidence which could not be considered as hearsay. The evidence without conflict showed unusually heavy exertion. The medical testimony of one doctor who examined the employee immediately prior to his death was positive to the fact that the heart ailment was brought on by extreme overexertion. The only other doctor called as a witness testified that overexertion would aggravate the preexisting weakened condition of the heart. Further examination of this doctor was halted by the commission by a comment that the doctor had already testified that the exertion shown would aggravate the preexisting condition and that such a showing was all that was necessary to support a compensation award. Thus the unusual nature of the exertion itself branded it as the cause of the internal failing and the testimony of the doctors was definitely to the effect that the exertion caused the heart failure. The commission did not hold that the relationship between the exertion and the failing of the heart had not been demonstrated by the evidence. It merely held that such evidence was all hearsay. We held that there was uncontradicted, competent evidence to show that the exertion did aggravate the pre-existing heart ailment and therefore we set aside the award and remand for further proceedings. The nature of the exertion and the medical testimony in that case both pointed much more strongly to the cause (exertion) and effect (heart failure) than in this case.
I do not say that the evidence here would not sustain a finding by the commission that Robertson had suffered heart failure because of exertion in the course or arising out of his employment. I simply take the view that the commission was not arbitrary in refusing to accept that construction *Page 45 of the evidence. It may have reasonably concluded that the applicant had not carried the burden of proof in that regard. If the commission was not arbitrary in refusing to accept that construction, then the only remaining question is whether an injury or internal failing suffered while in industry, that is, in the duration of the employment, is necessarily in the course of the employment.
Much has been written respecting the difference between "course of" and "arising out of" the employment. In fact some authorities have applied to the term "in the course of the employment" a conceptional content which other authorities have applied to the term "arising out of the employment" and vice versa. But under our Act it is ordinarily not necessary to distinguish between these concepts.
In State Road Comm. v. Industrial Comm., 56 Utah 252,190 P. 544, 545, the employee was struck and killed by lightning. The court concluded that while the accident arose "in the course of" the employment, it did not "arise out of" the employment "for the reason there does not appear to be any causal connection" between the accident and the employment. It should be here noted that "causal connection" as used in the State Road Commission case has a narrower meaning than service-connected as used in this opinion.
In Andreason v. Industrial Comm., 98 Utah 551,100 P.2d 202, 205, the disability and death resulted from a disease which the court found was contracted at work and while handling the offal from dead animals. In holding that there was coverage under the Act, the court said:
"`An accidental injury' might well be expressed as `a disability happening by chance or unexpectedly.' It, however, must be connected with the employment. In other words, we do not wish to imply that, because one becomes ill while at work, the statute applies to him, even though it may be that he became ill unexpectedly. That alone is not sufficient to make this case one of an accidental injury. There must be a causal connection between his employment, or his place of employment, and his illness — something which happened to him in the performance of his duties, or some contact he made at his place of employment while on duty there — which forms the connecting link between his employment and the contraction of the illness." *Page 46
We reaffirmed this principle in Vitagraph, Inc. v.Industrial Comm., 96 Utah 190, 85 P.2d 601, 605, wherein, after discussing many authorities we said:
"And so the rule through the authorities seems to be that where a workman is injured in the course of his employment, to be compensable the workman must at the time of the injury have been engaged in doing some work for the employer, or under the direction and control of the employer, * * * or in doing some act necessary to be done for the employment or incidental thereto and not detachable therefrom."
This princpile was again enunciated in the Thomas D. DeeMemorial Hospital v. Industrial Comm. case, supra. That case, like this one, involved a heart attack while the applicant was working on the job. But there we had definite proof that overexertion was a contributing cause to the heart attack and the commission had so found. We there said:
"* * * the expert medical testimony adduced clearly established the fact that the heart attack was directly attributable to this extra work or overexertion. We do not intend to open the door to recovery for all injuries of this type merely because they occur on the premises of the employer during the hours of the employment. In such cases the commission would be warranted in requiring clear and convincing proof that the claimed injury resulted because of the extra work or overexertion; merely showing a possibility of such a cause and effect will not suffice."
See also Tavey v. Industrial Commission, 106 Utah 489,150 P.2d 379, wherein the court expressed doubt that recovery could be allowed upon a mere showing that the applicant suffered disablity solely by reason of illness not caused or accelerated by her employment. The commission was directed to allow compensation in that case because of the fact that in her fall the plaintiff struck her head upon a bookcase situated upon the premises. The striking of the head was the accident which was held to have occurred in the course of the employment.
From these authorities I conclude that it is necessary that the claimant establish some connection between the *Page 47 injury and the employment before compensation will be allowed. The mere fact that the employee becomes ill on the premises of the employer will not suffice. Employers should not be charged with internal failures not contributed to nor caused by the employment nor occurring in the pursuit thereof nor in any way employment-connected. If such were not the rule, I seriously doubt that Sec. 42-1-43, U.C.A. 1943, would be constitutional. An employer cannot be made the insurer of the health and safety of all his employees against all causes of disability merely because they happen on the premises during working hours. The disability must have some rational relation to the employment or industry. An accident is employment-connected where the employment exposed the employee to a hazard of the employment or where it so situated him as to expose him to a hazard not of the employment but extraneous thereto which injured him.
My conclusions are: An internal failure caused by exertion or overexertion is an accident within the Act. That before disability or death flowing from such accidents is compensable it must be shown that the internal failing was employment-connected. The burden of showing this employment-connection is upon the applicant. 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. As explained heretofore the evidence in this case is not such as to compel the commission to find that the exertion performed in the pursuit of the employment caused or contributed to the internal failure.
I therefore dissent. *Page 48