White v. Valley Land Company

SADLER and McGHEE, Justices (dissenting) .

We do not question the declaration in the prevailing opinion that medical testimony is not indispensable to recovery in a workmen’s compensation case. We have so held on more than one occasion. Elsea v. Broome Furniture Co., 47 N.M. 356 , 143 P.2d 572 ; Teal v. Potash Co. of America, 60 N.M. 409 , 292 P.2d 99 . What we do say with emphasis is that a recovery can not be sustained in any event, with or without medical testimony, unless causal connection between the accident and the injury, or death, be shown by substantial evidence. An award may not properly be upheld if it has nothing more to support it than speculation and guesswork. Such is the nature of the testimony in the record before us leading to the judgment under review.

The chief case relied upon by counsel for plaintiff is Teal v. Potash Co. of America, supra. However, it furnishes no authority whatever for the broad jump necessary from support for a finding that overexertion produced a heart attack, as in the Teal case, a result so frequent as to make its occurrence almost commonplace, to a like finding that a strain or blow caused or aggravated a cancer or malignancy. This is to speak on a scientific subject about which the medical profession, admittedly, knows little or nothing. We need no greater support for this assertion than to quote statements from the majority opinion, itself.

“The medical testimony in effect established that he had cancer before the admitted accident. It establishes further that the spread of the cancer to the left leg and the hastening of death possibly resulted from the admitted accident. Medical testimony goes no further than establishing this as a possibility. * * * The most that can be said is that the medical testimony established that the trauma possibly aggravated the pre-existing cancer.” (Emphasis supplied.)

It may seem somewhat ironical that the writer of this dissent was author of the court’s opinion in the Teal case where we ruled against the same contentions here made by present counsel for claimant, appearing there for the defendant. Indeed, Mr. Justice McGhee, who joins in this opinion deemed the facts in the Teal case not to afford substantial evidence and filed a strong dissent. But the majority thought otherwise. He agrees with the writer, however, that the facts of the case at bar are even less calculated to take the case out of the realm of speculation, as he, no doubt, would wish to put it, than were the facts of the Teal case.

A fair sample of the type of medical testimony adduced in this case may be given. At the time, counsel on cross-examination was endeavoring to draw from Dr. Mclntire an admission that the trauma testified to had either caused, or accelerated, the cancer. It follows:

“Q. And when you say that is very possible that it occurred, or very probable that it occurred, it is just as probable that it accelerated from the injury, is it not?

“A. Not in my opinion.

“Q. But it is possible, in your opinion?

“A. Anything is possible.”

If the judgment in this case can be upheld, we assert without fear of successful contradiction, there is not an ailment in the whole category of diseases known to the medical profession that may not become the basis of a workmen’s compensation award on the theory it presents an issue before the jury or trial judge; provided only, disability, or death from it, occurs at such time in relation to the accident as not to render absurd the claim it hastened same.

This Court would be called upon to indulge in as much speculation to sustain this judgment as it was asked to exercise in the case of Campbell v. Schwers-Campbell, Inc., 59 N.M. 385 , 285 P.2d 497 . There, as here, we could only guess the essential fact indispensable to recovery, namely, that the decedent’s auto journey near midnight was on an errand connected with his business. It was possible that it did but we had no evidence upon which to base a finding such was the case. So, here, it is possible the trauma suffered by decedent bore a causal relationship to the progress of the cancer, but there is no testimony, medical or otherwise, that does not take one into the realm of speculation, to justify a finding such is the case.

We regret we are unable to concur in the prevailing opinion. In all good conscience, however, tested by sound reason and logic, we can not subscribe an opinion that opens up to a court or jury as issuable a major portion, if not all, human ailments as subject to aggravation or acceleration through the agency of an accident, so long only as the injury or death arose out of a covered employment and the accident is not so far removed therefrom as to make the mere lapse of time repudiate the claim as phony.

Our brethren being able to see in the record something of a substantial character, which they feel rises above the plane of sheer speculation, are disposed to affirm the judgment.

We are unable to embrace any such conclusion. Accordingly,

We Dissent.