National Automobile & Casualty Insurance v. Industrial Accident Commission

PETERS, P. J. Walter Lonnon was the husband and is the heir at law of Mabel Lonnon, a nurse who died during the time she was acting as supervisor of nurses for Saints John Hospital in San Francisco. Neither Walter Lonnon, nor the two adult children of the parties, was in fact dependent on Mabel Lonnon. Lonnon filed an application to recover medical and burial expenses, the application alleging that in the course and scope of her employment Mabel had “accidentally sustained a laceration of the arm, followed by infection,” and died as a result thereof. After a hearing, the commission found that Mabel sustained an injury arising out of and occurring in the course of her employment in that “Said deceased was on her feet for long hours at a time while performing her said services and such activities aggravated or precipitated an acute attack of thrombophlebitis, proximately causing her death on 17 October 1947. ’ ’ Based on this finding, an award was made for disability benefits payable prior to the death of Mabel, and for burial, medical and legal expenses. Inasmuch as it appeared that the hospital was carrying a limited insurance indemnity policy, part of the award was made against the insurance carrier and part against the hospital. It appears from the record that after the referee had submitted his proposed findings to a panel of the commission, the panel instructed the referee to include findings that the hospital was wilfully uninsured, and to increase all awards against it 10 per cent as a penalty. This was done, and the awards made. Both the hospital and its carrier petition for a writ of review.

The first major contention made is that the award is void inasmuch as the application filed by the husband averred that death was caused by an arm infection, while the commission found that death was caused by thrombophlebitis aggravated by the employment. This is claimed to be a fatal variance. No findings were made at all as to the arm infection, and petitioners urge that there was thus a failure to find on a material issue. It is seriously contended that there was no [13]evidence at all of an aggravation of the thrombophlebitis caused by the employment.

There is no necessity of reviewing the record at length. The record shows that prior to her employment by Saints John Hospital, Mabel suffered from thrombophlebitis of the legs, and that her death was caused by a shower of emboli caused by the thrombophlebitis which lodged in her heart, brain and lungs. There is also no doubt that Mabel did cut her arm in the course and scope of her employment, and that the arm became infected. This condition healed shortly after her admittance to the hospital as a patient. The evidence also showed that this employee was required to be on her feet long hours while working for the hospital, and that she frequently worked long hours overtime, sometimes for the hospital but more frequently for doctors. The medical testimony was to the effect that the condition from which this employee suffered was aggravated by being on her feet for long hours. Petitioner urges that this evidence amounted to no more than a guess or conjecture on the part of the witnesses, and is not sufficient to support the challenged finding. While the evidence is not as strong as might be desired, this is partially explained by the fact that the attending physicians were both connected with the Saints John Hospital. Both doctors admitted that prior to her collapse in August of 1947, Mabel Lonnon was working too long hours and being kept on her feet too long, and that they had warned her against overwork and to get off her feet because such work was dangerous for one suffering from thrombophlebitis of the legs. In response to a direct question from the referee as to whether the long hours worked by Mabel immediately preceding her collapse had aggravated the thrombophlebitis condition, Dr. Lista replied: “Well, of course, being on one’s feet too many hours would have a definite tendency to aggravate the condition.” He also testified that the weakened condition of the body caused by overwork ‘ ‘ aggravates any existing pathology, ’ ’ and that the chain of events where thrombophlebitis exists is frequently an embolism and coronary occlusion, and that this can be accelerated by lowered resistance caused by overwork. Dr. Morton admitted that, in Mabel’s condition, it would be best for her to have kept quiet and off her feet, and that she should not have been working at all prior to her collapse. It was for the commission to weigh this evidence. (Union Oil Co. v. Industrial Acc. Com., 211 Cal. 398, 404 [295 P. 513].)