Again I must with reluctance dissent. This is a case which touches one's sympathies. I suspect that may have had its influence on the writer of the prevailing opinion. The decision of the Industrial Commission is not arbitrary or unreasonable. There is ample evidence to sustain the majority opinion of the commission. I shall briefly review it. Dr. *Page 39 Steele Bailey testified, "that he [Thomas] could do a certain amount of work; I don't know how heavy it would be." He testified that the right and left limb were each 50 per cent disabled. He could not carry on ordinary occupations. His employment would be greatly restricted. He "would be perfectly all right" for anything where he "could sit down and simply use his hands." He was all right from the waist up, but he cannot do any work which requires the use of his legs. Such will bring on the phlebitis. Certainly, from that testimony it cannot be concluded as a matter of law that appellant is totally permanently disabled. To do so would be to hold that a 50 per cent disability in each leg was equivalent to what the statute made in law a total permanent disability, to wit, loss of or loss of use of the whole of both legs.
Dr. Root was of the opinion that he was "totally and permanently disabled so far as the use of the right leg isconcerned." (Italics added.) He further testified:
"Q. How does that interfere with the rest of his body? A. With what?
"Q. With the rest of his body? A. He may be perfectly well in other respects with the exception of any deformity or any injured parts as it might have a little deterring effect on other parts of the body."
He would not be able to maintain a sitting position over a period of hours. But many kinds of work permit of change of position. The applicant can walk, although with difficulty. He walked into the room to the hearing. There is ample testimony that if he has to do heavy manual work, such as mining or digging pipe lines, the phlebitis returns and it takes a long time for it to heal. Witnesses testified that when he attempted that he was forced to quit. But, granted that he is entirely excluded from doing heavy manual work or remaining on his legs for any length of time, if there are other tasks not requiring that, which he could do, and which would be within the purview of his abilities, he would not be totally permanently disabled in law. *Page 40
Dr. Root would not testify to the percentage of functional efficiency of the right leg, but from his testimony we may gather that he considered it useless. As to the left leg, he thought he had "a perfectly good leg with the exception of that phlebitis, or the loss of the valves in the veins, so that when he stands up blood fills right in and causes swelling and pain." He testified as to the left leg, "I think he is better than 50 per cent because with a little bit of care he could use that leg as well as he ever did."
Dr. Lindem testified: "The right leg is functionally of very little value." "The left leg is perfectly well except an acute and sub-acute thrombo-phlebitis." "When the phlebitis is quiescent it is perfectly normal." With the phlebitis, "it is better than 50 per cent." He further testified:
"Q. He would be able to do some physical work with the limbs as they are would he not? A. Oh, yes. He was able to come to this room, and could probably do some work around the house. He is well muscled. He is walking today. But in an industrial sense we would interpret it whether a man is able to work at a gainful occupation and whether he would be employed. Many men who have no greater disability than this man are working at an occupation right now at full wage, but I don't think he would be accepted under the present condition."
He did not think he could work at anything which would "require active use of the lower limbs."
Dr. Allen testified that the right leg was about 20 per cent as compared to a normal limb. The left limb was 75 per cent normal. He did not think that an active use of the left leg would have a tendency to accelerate the phlebitis. He did not think he could do any work which would require "sustained effort" on the part of both limbs. I think this gives the gist of all the material testimony, and in fact all the testimony except that of plaintiff. He testified that he had tried to work in a mine helping a leaser, and that it caused him to stay in bed two weeks. After that he attempted to work digging a ditch when the phlebitis flared up. He tried selling and sorting apples, but the position hurt him *Page 41 so he could not endure it. He testified that as soon as he stood on his left leg ulcers broke out, and that the first time it happened it took a year and a half to get over it. The second time it took two and one-half months with a treatment every day. In the light of all this testimony, I cannot see that a case of permanent total disability has been made out as a matter of law.
The language of Caillet v. Industrial Comm., 90 Utah 8,58 P.2d 760, quoted by the prevailing opinion, was so broad as to take in cases of the loss of a hand. In such case an employee might show that he was unable without a hand to do work of the general character he had been doing, and this made out a prima facie case. And if the other side could not show that he couldsecure and perform work of a special nature, he would be as a matter of law, under that rule, permanently and totally disabled. The rule was too narrow and too wide. It was too narrow in that it made the prima facie test in law of permanent and total disability purely the question of whether he could perform work of the general character that he had been performing when injured. It did not add the phrase, "or any other work which a man of his mentality or attainments might do." It was too wide in that it brought in the economic situation as a factor in overcoming the prima facie case. It might be impossible in a depression to obtain work of a special nature or any kind of work for a fully able man, whilst in war times, when every available man is utilizable, any number of cripples could obtain jobs. This would mean that the prima facie case would be met successfully only accordingly to the varying economic situations. The statute never contemplated such a thing.
In Babick v. Industrial Comm., 91 Utah 581, 65 P.2d 1133, we attempted to restrict the rule to very few cases. And at the same time we again affirmed the well-known rule that if there was any substantial evidence to support the commission we would not, in fact we could not, disturb its finding. We have been see-sawing back and forth in regard to *Page 42 permanent total disability throughout a number of cases until it must be most difficult for a member of the bar to know what the rule really is. The test which one should be able to apply in order to determine whether he should or should not seek certiorari is: Is there any competent evidence to support the finding of the commission? Instead of that rule, the only rule the members of the bar can now apply is: Can I convince three members of the Supreme Court that the commission on the evidence should have gone the other way? This, of course, means that we substitute our conclusions on questions of fact over those of the commission in cases where there is substantial evidence to support its findings. It means that we step outside of the very province which was assigned to us by the Legislature in the review of cases from the Industrial Commission. We said in the case of Norris v. Industrial Comm., 90 Utah 256, 61 P.2d 413, that the Legislature has in effect said (page 415):
"The Commission is the final arbiter of the facts. If there is error in judgment or conclusions of or from facts, it must be the Commission's error and remain there. We give the Supreme Court the right to speak only by warrant of law in compensation cases when it speaks in reference to errors of law alleged to have been made by the Commission."
I think we should definitely state whether we will abide by what I conceive to be the true rule and decide only if the commission had evidence to support its finding or lay down a rule that in each case we will ourselves determine whether we think the commission came to the correct conclusion. In the latter case, we would go against the express language of the statute, but at least it would have the merit of uniformity. The cases involving the question of whether there is total and permanent disability differ in nowise from cases involving other types of disability. The same rule applies, i.e., whether there is evidence to support the commission's findings. In this case there is ample evidence. Had the commission decided this were a case of total permanent disability, we should by the same token uphold such finding. *Page 43 We might have been better pleased had it done so. But we are not the judges. The decision of the commission should be affirmed.