Industrial Indemnity Co. v. Industrial Accident Commission

PEEK, J. This is a petition for a writ of review of an award of death benefits to the widow of Ira Paul Gabbert, who died on November 27, 1947, survived by his said widow and three minor dependent children.

The respondent commission found that on or about October 27, 1947, decedent, while employed by the Carl Howe Lumber Company as a rigger, sustained injuries occurring in the course of and arising out of his employment which proximately caused and materially contributed to his death. The finding and resulting award is attacked by petitioner on the ground that there is a total lack of evidentiary proof to support it. From our examination of the record before us it appears that the petition is well founded and hence the award must be annulled.

At the hearing of the widow’s application for death benefits it was established that on October 27, 1947, the employee suffered a blow over his left eye when he fell into the mill pond operated by the employer. After a short rest he drove to his home, took a warm bath, changed his clothing and went back to work. He continued working at his job as a rigger until November 11, 1947, when, because of his physical condition he remained in bed and continued to be so confined until his death on November 27, 1947.

The wife testified that after the accident the area over her husband’s eye was swollen to a size slightly larger than a dollar, which swelling disappeared after a few days. On the evening of his accident or the following evening he complained of an “odd feeling” in his head, he was unable to sleep and had headaches which became increasingly severe but believing his condition to be the result of neuralgia he took nothing for relief except aspirin tablets. He first consulted Dr. Vernon W. Padgett of Grass Valley on November 5, 1947, and continued in that doctor’s care until November 26 when he was taken to a Sacramento hospital and placed under the care of Dr. Howard A. Black of that city. Mrs. Gabbert further testified that her husband always had been a robust man, actively caring for' their garden and participating in strenuous outdoor recreation. To her knowledge the first time he had ever consulted a physician was when he consulted Dr. Padgett. Similar testimony concerning the employee’s physical condition was given by a mutual friend.

Two fellow workmen who were eyewitnesses to the accident testified that although they had noticed no visible evidence of an injury over the eye they had given no particular attention [264]