
    DENVER & R. G. W. R. SYSTEM v INDUSTRIAL COMMISSION OF UTAH et al.
    No. 4315.
    Decided Feb. 5, 1926.
    (243 P. 800.)
    1. MASTER AND SERVANT — REVIEW IN WORKMEN’S COMPENSATION Case Limited to Question Whether Substantial Evidence Supports Award (Comp. Laws 1917, §§ 3061-3165). Review of proceedings by Industrial Commission under Workmen’s Compensation Act is limited to question whether record presents sufficient substantial evidence to support award.
    2. Master and Servant-, — Award of Compensation for Infection or Left Hip Following Injury to Right Knee Held not' Unauthorized (Comp. Laws 1917, §§ 3061-3165'). Award of compensation for infection of left hip closely following injury to right knee held not erroneous as arbitrarily adopting inference resulting in liability in preference to others equally.probable, 
    
    3. Master and Servant — Finding Disease of Left Hip was Result of Injury to Right Knee Held not Erroneous as Basing one Presumption on Another (Comp. Laws 1917, §§ 3061-3165). In proceeding under Workmen’s Compensation Act, finding that disease of left hip was caused by injury to right knee, in view of evidence showing connection with each other, was not erroneous as basing one inference or presumption with another. 
    
    4. Master and servant — Failure of industrial Commission to MAKE SPECIFIC FINDING WHETHER 'HIP INFECTION WAS PRIOR OR SUBSEQUENT TO ABCESS ON KNEE HELD NOT ERROR (COMP. LAWS 1917, §§ 3061-3165). In proceeding under Workmen’s Compensation Act, failure of Industrial Commission to make specific finding as to whether infection of left hip was prior or subsequent to abcess oí right knee, caused by injury, was not error; commission not being required to make specific findings, 
    
    Corpus Juris-Cyc. References.
    
       Workmen’s Compensation Acts C. J. p. 123 n. 43.
    
       Workmen’s Compensation Acts C. J. p. 115 n. 36, 37.
    
       Workmen’s Compensation Acts C. J. p. 115 n. 37.
    
       Workmen’s Compensation Acts C. J. p. 117 n. 49.
    Proceeding under tbe Workmen’s Compensation Act by C. J. Houston, claimant, opposed by tbe Denver & Rio Grande Western Railroad System, employer. Industrial Commission made an award, and tbe employer brings an original proceeding for review.
    AWARD AFFIRMED.
    
      Van Gott, Biter <& Farnsworth, of Salt Lake City, for plaintiff. '
    
      Harvey H. Cluff, Atty. Gen., and J. Robert Robinson, Asst. Atty. Gen., for defendants.
    
      
      
        Spring
        
         Canyon Coal Co. v. Ind. Com., 201 P. 173, -58 Utah, 608; Tremelling v. S. P. R. R. Co., 170 P. 80, 51 Utah, 189; James v. Robertson, 117 P. 1068, 39 Utah, 414; Murray City v. Ind. Com., 183 P. 331, 55' Utah, 44; Bingham Mines v. Allsop, 203 P. 644, 59 Utah, 306; Milford Copper Co. v. Ind. Com., 210 P. 993, 61 Utah, 37.
    
    
      
      
        Johnson v. Silver King C. M. Co., 179 P. 61, 54 Utah, 34.
    
    
      
      
        Moray v. Ini. Com., 199 P. 1023, 58 Utah, 404; Bingham Mines Co. r. Allsop, 203 P. 644, 59 Utah, 306.
    
   CHERRY, J.

This is a review of proceedings by the Industrial Commission under tbe Workmen’s Compensation Act (Comp. Laws 1917. §§ 3061-3165), in which an award of compensation was made to Clifford James Houston for disability resulting from an accidental injury sustained by him while employed by tbe Denver & Rio Grande Western Railroad Company. The fact of disability and that the employé sustained an injury in the course of his employment are not drawn in question. The subject of controversy is whether the disability resulted from the injury, and the legal question presented is whether the finding of the commission that the injury caused the disability is supported by substantial evidence.

The injury sustained by the employe was an accidental blow on his right knee by a hammer. The disability was on account of an osteomyelitis of the left hip joint, which, in simpler words, means that parts of the bones constituting the hip joint have been eaten away by virulent bacteria. The causal connection between the injury and the disability is the subject of opposing contentions. The evidence in relation to one important fact was in direct conflict, and the opinions of the numerous medical experts showed wide variation: The evidence on behalf of the employé was to the effect that the ailment in his left hip appeared after the development of an abscess in his knee. The employer offered evidence to the contrary. This conflict explains much of the disagreement in the opinions of the medical experts. In this review we are not concerned with the credence or weight of evidence, but are limited to the inquiry of whether the record presents substantial competent evidence which supports the award. Although disputed in some respects, as above stated, the record contains evidence that the employé, while at work on or about May 15, 1924, accidentally struck himself on the right knee with a large hammer. The blow made a bruise, but did not cause any visible abrasion of the skin. He suffered pain, and his knee became discolored, swollen, and tender. He continued his work, but in a few days was compelled to quit on account of increased suffering from his injury. A few days later a doctor was called, who diagnosed the trouble as rheumatism, and prescribed treatment accordingly. About two weeks later, there being no improvement, another doctor was called, and the two doctors, after consultation, ordered the patient to the hospital. At the hospital an abscess at the knee with the presence of bacteria was discovered. Shortly thereafter the trouble in his left hip first made its appearance. An examination disclosed the presence in his hip of the same kind of bacteria previously found in the abscess at the knee. The infection of the hip developed into a very serious ailment which resulted in total disability of the employé. An additional fact in the case, to which some of the expert witnesses attached importance, was that some two or three months before the accident tbe employe bad suffered from two boils on. bis body, but which bad entirely healed up and disappeared several weeks before tbe accident in question.

Upon the hypothesis of the foregoing facts, several medical experts expressed opinions couched in technical terms, but to the general effect that the infection in the hip was caused by the injury to the knee. Explanations and support for these opinions, based upon medical science and knowledge, were advanced by the experts.

Contrary opinions were expressed by numerous other medical experts who attributed the hip infection to the boils from which the employé had previously suffered. Several of these witnesses, however, more or less predicated their opinions upon the assumption that the hip infection of the employe preceded in point of the time the abscess in the knee.

The principal contention made here in opposition to the award is that the conclusion that the disability resulted from the injury is not supported by substantial evidence, but rests upon mere conjecture; and that the facts in the case present a situation “where two inferences are possible, one involving liability, and one involving nonliability,” in which case according to Spring Canyon Coal Co. v. Ind. Com., 201 P. 173, 58 Utah, 608, the trier of the facts is not permitted to choose the inference involving liability. Other eases cited and relied upon in this connection are Patton v. T. & P. Ry. Co., 21 S. Ct. 275, 179 U. S. 658, 45 L. Ed. 361; Tremelling v. S. P. R. R. Co., 170 P. 80, 51 Utah, 189; Chaudier v. S. & C. L. Co., 173 N. W. 198, 206 Mich. 433, 5 A. L. R. 1673.

It is readily conceded that the finding of a material fact cannot rest upon mere conjecture, and that in certain cases, where two or more inferences are equally probable or consistent with the evidence, the trier of fact may not arbitrarily adopt one which results in liability in preference to others which do not. But the application of the rule to the case under consideration would be extending the doctrine far beyond its proper limits, and further than any of the eases cited go. In neither of the cases cited was there any evidence directly relating or pointing to the particular fact to be proved — no satisfactory foundation in tbe testimony for tbe particular conclusion contended for. In Spring Canyon Coal Co. v. Ind. Com., supra, it was beld tbat tbe fact that an employé was killed by an insane fellow employe without more appearing, did not justify tbe inference tbat tbe fellow employe’s act was directed against deceased “because of bis employment. ’ ’

In Patton v. T. & P. Ry. Co., supra, a negligence case depending upon how an engine step became loose, it was beld tbat from tbe fact tbat tbe step was loose it could not be inferred, without other proof pointing to tbat conclusion, tbat the condition of tbe step resulted from negligence, when tbe testimony left tbe matter uncertain and showed “tbat any one of half a dozen things may have brought about tbe injury, for some of which tbe employer is responsible, and for some of which be is not. * * *”

In Tremelling v. S. P. R. R. Co., supra, a negligence case depending upon whether a brabeman found lying dead by a railroad track bad been killed while riding on a freight train, which moved past a freight car standing on a side track, by coming in contact with tbe car on tbe side track, where tbe evidence was wholly undisputed, and it was just as probable tbat be did not come in contact with tbe freight cars as tbat be did, tbe court beld:

“If the probabilities are equally balanced that the accident was produced by a cause for which the defendant is responsible or by one for which he is not, the plaintiff must fail.”

In Chaudier v. S. & C. L. Co., supra, an award bad been made under tbe Workman’s Compensation Act for tbe death of one employed to remove wood ashes from tbe pit of a furnace, who was afterwards found at bis home in a comatose condition with a cupful of ashes in bis stomach, the lye from which killed him. Upon review, a divided court (five to three) held that upon tbe established facts tbe inference tbat the ashes and lye were taken into tbe stomach of tbe decedent with suicidal intent is at least as reasonable as tbat they found entrance to tbe stomach accidentally, and vacated tbe award.

Tbe reasons wby tbe rule invoked can have no application to tbe case at bar are clearly set forth in James v. Robertson, 117 P. 1068, 1072, 39 Utah, 414, at page 428, where Frick, C. J., speaking for tbe court, said:

“That doctrine applies only where the plaintiffs evidence, when considered alone, has such an effect, or when the jury finds the evidence equally balanced, and not, as appellant’s counsel seems to contend, when all of the evidence produced on both sides, some of which is in dispute, is capable of such a construction. The reason the rule is not applicable in the latter event is obvious. There is no law which binds a jury to believe any of the defendant’s evidence which conflicts with that of the plaintiff. The doctrine, therefore, ordinarily cannot apply in case of conflicting evidence.”

Again, at page 429 (117 P. 1073) :

“The law is not that a plaintiff must fail in case the injury of which he complains might have been caused — that is, that there was a possibility that it was caused — by some cause or causes for which the defendant was not responsible, but he must fail only when it is just as probable from the evidence adduced by the plaintiff, or in ease the evidence is equally balanced, that the injury, was produced by some cause for which the defendant was not responsible, as it is that it was produced by a cause for which he was.”

The evidence in bebalf of the employé in the case at bar was not open to two inferences of equal probability as to the cause of bis disability. The evidence of the fact of injury, followed by the abscess in the knee, which in turn was followed by the infection, by the same kind of bacteria, of the bip joint, together with expert opinion evidence that the latter resulted from the former, is substantial evidence and a “satisfactory foundation” for the finding that the injury was the cause of the disability. See Murray City v. Ind. Com., 183 P. 331, 55 Utah, 44; Bingham Mines Co. v.Allsop, 203 P. 644, 59 Utah, 306; Milford Copper Co. v. Ind. Com., 210 P. 993, 61 Utah, 37.

Tbe objection that tbe finding of tbe commission violates tbe rule against basing one inference or presumption upon another cannot prevail. The rule itself has its qualifications and limitations (Johnson v. Silver King C. M. Co., 179 P. 61, 54 Utah, 34; Indian Creek C. & M. Co., v. Calvert, 119 N. E. 519, 120 N. E. 709, 68 Ind. App. 474); but, whatever they may be, the case in hand is not one to which the rule can properly be applied. The blow on the employe’s knee and the abscess at the wound were so directly connected with each other, and their relationship so obvious, natural, and necessary, as to merge them all together into one established fact. But, even if the cause of the abscess rests upon inference, the objection made fails, because the later inference that the hip infection resulted from the abscess at the knee is not based alone upon the first inference, but is aided by the independent proof of the identity of bacteria in the two lesions, and the expert evidence that the hip infection would naturally result from the abscess. "When all the facts and circumstances are considered, the causal connection between the accident and disability is sufficiently proved.

The further contention that the award should be annulled for failure of the Industrial Commission to make a specific finding of fact as to whether the hip infection was - prior or subsequent in time to the abscess at the knee is without merit. The Industrial Commission is not required to make specific findings. Moray v. Ind. Com., 199 P. 1023, 58 Utah, 404; Bingham Mines Co. v. Allsop, supra.

The award is affirmed, with costs to defendants.

GIDEON, C. J., and THURMAN, FRICK and STRAUP, JJ., concur.  