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Show THE DAILY FOUR PAGE SUPREME COURT DECISIONS (Continued from Page 3) As to $: Excessiveness of the verdict: The evidence is without dispute lh.it the l e w.is an injury, causing 10 permanent disability to a husiness man, who, because of such injury will suffer lifetime loss of business that must be farmed out or go elsewhere because of the pain, niury deprivation of indulgence in favorite pastimes such as golf (which would kill some golf nuts) and fishing 'which would torture the average I.aak Walton), with the spectre that increased pun might require surgical hisiun of the spine. This does not seem to be so uncompc-llinas to justify washing out of the $10,000 verdict. The only exasperating circumstance on review is the roly-pol- y round figure of $10,000, that just happens to he the maximum insurance policy coverage taken out by most motorists. - but a wee bit of intellectual dishonesty, if in truth becomes the luxury of a jury, - cannot be inferred. The only inference that might be made is that the high frequency of $10,000 verdicts has some sort of relationship to the personal insurance experience Plaintiffs filed objections to the panel report, and a hearing was held; Dr. Holbrook, chairman of the panel, offered testimony to sustain the report. Dr. Holbrook testified in substance as follows: Disc herniation, which is a process of deterioration, may progress to the point of extrusion of disc material, with or without a specific traumatic incident precipitating the symptoms; there are a significant number of cases of disc herniation, where there is no history of injury, strain, trauma, or blow to which the patient may point as the event that precipitated the symptoms. There is some evidence that the process that results in herniation has been going on for some time, where the patient has a history of low back twinges which are sufficiently troublesome that the patient has worn a corset. In a review of applicant Scruggs' medical records, the panel found no evidence of a pathological condition in the patient's low back prior to the incident of July 7, 1967; they found no significant evidence in the past history of back trouble. The panel reviewed the case history taken by attending physician, Dr. Clark, wherein he had recorded the patient's experience of twinges of pain in the past two years, and the supportive corset he had worn. The panel concluded that in light of the evidence and testimony in the case (Scruggs' denial that he had told Dr. Clark the information found in the case history) Dr. Clark's report was erroneous and mistaken; and, therefore, there was no evidence of any significant pathology. g of WEDNESDAY, MAY 20, 1970 RECORD jurymen or women. WE CONCUR: J. Allan Crockett, Chief Justice pre-existi- E. II. Callister, Jr., Justice j R. L. Tuckett. Justice Elicit, J. . coi.ri-r- s in reul!. the i il Hindmarsh v. Skaggs, 2 j hid ?rC4T6l7d 4 f 0(79 68 )7 E v"i7 v .SuTaTt , Utah 2d 308, 410 P. 2d 999 (1906): Johnson v. Maynard 9 ritah 2d 288. 342 P.2d 884 (1959)- Clay v. Duniord. 121 Utah 177. i) p. id i07n 'i952 See also Prosser, Ions 186: Failure to exercise ordinary caie to discover the danger is not properly a matter of assumption of risk but of the detense ot contributory negligence. " 2. Hamilton v. S. L. City. 120 Utah 647, 237 P. 2H 841 (195i). .'struck by foul ball at ball game); Tannch-.iv. Terry. 11 Utah 2cl 368 369 P.2d 9 1 i 96 1 ) , hit a v. Utah Beckman. 387 IS by golf club). Harrop id 78. P. 2d 551 ( 1963). (injury 1. 17 - l ' 1 while water skiing). In The Supreme Court Of The State Of Utah Packers, lr.c. , ard Urder-w- r iters Insurance Company, Utah Plaintiffs , No. v. 1 1 S May Defendants. li, i70 CAI.LISTER, Justice: lr.c. , and The hearing examirer made a specific finding that he disbelieved ail of the applicant's testimony. Nevertheless, the examiner found that there were two witnesses to the event of lifting boxes of cans; the trip to the hospital was corroborated; there was evidence of applicant's brief hospitalization. In April of 1968, the applicant was hospitalized for surgery. Applicant was awarded benefits for his accident arising out of or in the course of his employment of July 7, 1967. The Industrial Commission sustained the hearing examiner. received from California. Plaintiffs asserted that the medical panel, on the basis ol applicant's case history from California, could reasonably revise its prior conclusion and find as a reasonable medical probability that applicant's pathology resulted from an injury in the course of his employment in California in 1965, that he had a recurrence of symptoms related to that pathology on July 7, 1967, during the hours of his employment by Utah Packers, Inc. , but not attributable to his activity in that employment, and that such medical and hospital treatment required by applicant since July 7, 1967, was reierrable to his industrial injury in California. The findings and conclusions of the Industrial Commission are binding upon this court, if there be credible, competent evidence to support them. 1. Frenchik v. Industrial Comm. , 22 Utah 2d 123, 124, 449 P. 2d 649 (1969). Did Dr. Holbrook's testimony sustain the findlrg of the panel, which the Commission adopted, that there was a reasonable medical probability that the cpiscde at work on July 7, 1967, created applicant's subsequent disability? A review of the testimony of Dr. Holbrook clearly e6t rdlshes that the medical par-ein formulating its expert medical cpirior. absoiufely reanv evidence whicn indicated that applicant had a history of significant jected low-ba- L. M. Cummings, Clerk The plaintiffs, Utah Packers, A subsequent investigation of the applicant revealed flagrant misstate- ments in his testimony. The Industrial Commission in California transmitted their records to Utah, which were duly entered into the instant case. The irforma-- j tion from California indicated that Scruggs, while employed by Redmont Construction Company in California, had fallen in October of 1965. His symptoms were described as pain in the low back with paresthesias in lower extremities and his strair. right upper extremity; the diagnosis was cervical and lumbo-sacra.- 1 Scruggs received $1, 100 in compensation for disability from October 21, 1965, to February 8, 1966. In 1966, he sustained another injury to his low back while working for contractors Williams and Burrows in San Mateo, California' an attending physician prescribed a back brace, which another physician observed the patient wore. On January 17, 1967, Scruggs executed a compromise and release with Redmont Construction for $750 for cervical and lumbo-sacr- al strain and all other injuries documented in his medical file. Plaintiffs, in a motion for review, moved that the case be referred back to a medical panel for a based upon the additional medical evidence S" FILED The Industrial Commission cl Utah and Lawrer.ce L., Scruggs, its insurance carrier, seek review of an order of the industrial Commission awarding compensation to claimant, Scruggs, fer an injury by accident during the course of his employment. Plaintiffs assert that the Commission abused its discretion by its refusal to submit to a medical panel the medical issues fer reconsideration in light of the additional medical evidence which was entered ir.tc the record subsequent to the report of the medical panel. Applicant, Scruggs, was employed in the cannery of Utah Packers, as a member of a three -- man crew operating a labeling machine. Or. July 7, 1Q67, the third day of his employment, he experienced a sadden onset of pain in his back and was taken by ambulance to the hospital. Tr a report by the attending physician, Dr. Clark, it was stated that the patient was working at the cannery and leaned over to pick up a box of canned goods ar.rl experienced sudden severe back pair, that patient had in the last two years had occasional twinges of pain but never any episode such as the present one, that he had worn a corset on his bark about six months ago because of these twinges of pain. The patient was hospitalised until the 14th of July, 1967, for bed rest ck l In August, the applicant consulted a chiropractor. On September 25, was examined an by applicant orthopedic surgeon, Dr. Kererian, who recorded in his case history that patient had addon onset of pa:-- , ir. the low back, r.ei.k, and right shoulder, with weakness in the lower extremities while on the job but without ar. identifiable traumatic episode. The diagnosis was a simple strain or sprain: that this was an event incident to a mild physical McWilliams v. Industrial Commission, Justice Tuckett, in a dissenting opinion observed that the language used by the legislature in Section U.C. A. 195 3, was indicative of an intent that the report of the pare1, of medical experts should be considered on the same basis as expert testimony received in any judicial or quasi-judici- al proceeding. He continued: In 35-1-- The opinion of an expert must be based upon facts, either proved or assumed. An expert opinion based upon a nebulous factual foundation is of little value in arriving at the truth of a proposition. The value of an opinion of an expert is dependent upon and is no stronger than the facts on which it is based. -- incapacity of long stand. ng that the patient had returned to a pre'njury level; condition. On December 1 4, 1967, pre-existi- ng applicant consulted Dr. Charles Smith, Jr., who in his case history recorded that applicant had no history of hack trouble prior to July 7, 1967, and that on that date he had a sudden severe back pain while lifting a case full of cans. Mis diagnosis was a ruptured disc incident to this lifting and clearly of an industrial origin. Or April 8, 1968, Dr. Smith perform) d a surgical proc edurc, a transverse process fusion from I 4 77, . . . 67 , and that there was r.o aggravation of a p&hclogy. pre-existi- ng and physiotherapy. 1 ng In the instant review, the expert opinion, adopted by the Commission, was based upon a distorted and incorrect factual foundation; therefore, there is an insufficient quantum of substantial, competent evidence to sustain the award by the Commission to applicant. This matter is remanded to the Industrial Commission that it might have the opportunity to submit the medical issues to a panel for consideration, now that an accurate medical history of the applicant has been revealed. The decision of the Industrial Commission is reversed and remanded for further consideration in accordance with this opinion. to the sacrum. WE In M.iy ol 1968, a hearing was held before an examiner. Scruggs testified that he suntairied his injury while retrieving a case of earned goods, which had fallrn underneath a conveyor belt. He denied that he had told Dr. Clark that he had previously worn a corset or supportive device. He testified that he had had no previous hack trouble, had been engaged m the performance of heavy work ir. the c cr.struc tion industry for the past few years, and had never previously made a claim for workmen's compensation. Ir. response to an inquiry as to the medical attention he had received between 1964 and the inc idont in July of 1967, he staled th.it he had bis eyes checked and a physical examination. The medical aspects of the claim wen then referred to a medical panel which made a report on tin: 25th of Nivember, 1968. The panel made six findings hut the one ot critical importance, which was adopted by the Commission, was the finding thu there was a reasonable medical probability that the episode at work on M.e "Mb ol July, l'i67, created the subsequent total temporary disability and the ned lor surgery. CONCUR: J. Allan Crockett, Chief Justice K. L. Tuckett, Justice F. Henri Henriod, Justice Ellett, Justice, concurs in the result. 2. 21 Utah 2d 266, 271, 444 P. 2d 513 (1968). I |