TRAVELERS INS CO v. INDUSTRIAL ACCIDENT COMMISSION (1948)

Certiorari to review an award of the Industrial Accident Commission for the death of John Anthony Odello. It is undisputed that the primary cause of death was fibrinopurulent meningitis. This is a disease caused by a variety of organisms, some more virulent than others. It was impossible to determine the organism involved in this case because the decedent's body had been embalmed before the autopsy was performed.

The decedent was a lead burner and the autopsy disclosed an abnormal amount of lead stored in his bones, brain and kidneys. The commission found that the decedent sustained injury arising out of and in the course of his employment, consisting of lead poisoning which proximately resulted in his death. The sole question presented is whether there is any substantial evidence to support the finding that lead poisoning was a contributing factor to decedent's death from meningitis.

The testimony of three medical men was introduced. They were in agreement that for the lead in decedent's system to constitute a contributing factor to the death the lead must be circulating in the blood stream and must have produced an anemia thus reducing the decedent's resistance to the infectious organism which was responsible for the meningitis. Periodic blood tests which had been taken of decedent's blood prior to the onset of the meningitis and a blood test taken after the onset of the disease and not long before his death showed no anemia. It was the conclusion of Dr. Leon, who had attended decedent in his last illness, and of Dr. Carr, a pathologist, that in view of this history lead poisoning played no part in the death from meningitis although they conceded a possibility that it could have done so. Dr. Duggan, reviewing the record, in a written report submitted to the commission concluded with this sentence: ‘I do not see how one can positively rule out lead poisoning as a factor in this man's death.’

Dr. Duggan was afterwards called for oral examination and testified extensively. from his testimony are here quoted:

‘Q. Doctor, you are not able to state that the man probably had lead in the blood, he might or might not have? A. I would say that it was possible.

‘Q. But not it was more probably (sic) that he did than that he did not? A. I can't answer that question.

‘Q. Then the second step I have in mind is this: In the absence of lead circulating in the blood the mere storage of lead in the bones would not be such to adversely affect his general health? A. It might have apparently in this case from the blood counts found before his death, he apparently wasn't suffering any——

‘Q. (Interrupting) Anemia? A.—any anemia and possibly suffering very little effect from the lead which undoubtedly had started in the bones.

‘Q. And where you have the findings of no anemia and no stippling, these two findings would indicate insofar as they themselves are concerned, that the patient did not have lead poisoning, they would definitely lead you to believe the patient did not have lead poisoning? A. They would definitely lead you to believe the patient did not have lead poisoning.

‘Q. Now, Doctor, so far as the other symptoms he had you mentioned are concerned, I assume you are referring to his headaches and nausea and vomiting and other symptoms? A. I am referring to his headaches, his delirium, his convulsions and typical types of cerebral symptoms that he had.

‘Q. Might these be equally well attributed to the meningitis as to the lead poisoning? A. That is true.

‘Q. So that on a differential diagnosis these other symptoms do not establish lead poisoning, in view of the fact that the man had meningitis, that is correct? A. That is correct.

‘Q. And accordingly the possibilities of his having had lead poisoning remain only a possibility from the facts here, that is correct? A. That is correct.

‘Q. And you could not say that the lead might or might not have affected the course of his illness? A. That is correct.

‘Q. You would not be willing to say that it was one of the probable factors? A. No. I would say that it was one of the possible factors.

‘A. The reason I say that—we know he had some lead poisoning—unquestionably he had an abnormal amount of lead stored in his bones, and in the presence of certain things, particularly in infections disease and other things that cause alkalinity of the blood, this lead in the bones is very often liberated into the circulation, and you may get symptoms from the free circulating lead in the bloodstream, and we gather that the man had meningitis, and we know that the man had an abnormal amount of lead stored in his bones, so I still do not see how it can be positively ruled out that the lead had no part whatsoever in this man's death. The meningitis may have liberated some of this infection, some of this stored lead in the bones, and it may have been liberated into the circulation. We have no way of proving or disproving that, so that it might have been a combination—that is the way I honestly feel.

‘Q. Yes. I understand. First the man might have had lead poisoning incident to the meningitis, as you put it, and it cannot be said whether he did or did not? A. That is right.

‘Q. And second, if he had such lead poisoning, whether he died solely by reason of meningitis or would have any way? A. May be.

‘Q. No one can say—is that correct? A. Correct.

‘Q. Is it your opinion that the meningitis may have activated the lead stored in the bones and this might be a factor in his death? A. That is very possible.

‘There is no positive evidence—I must qualify the answer—there is no positive evidence that the lead caused his death, but I feel it definitely could have had a part in his death.

‘Well, Dr. Carr found definite evidence of meningitis and some evidence of encephalitis, and lead does definitely cause encephalitis sometimes, and since there were two different things found here by Dr. Carr, it is possible that the lead could have been an extension of the meningitis that caused the encephalitis.’

We have quoted from Dr. Duggan's testimony at such length because it squarely presents the question (Dr. Duggan's testimony being the strongest given in favor of the award) whether medical testimony that a disease possibly, as distinguished from probably, caused or contributed to death is sufficient to support a finding that it did. We feel that Dr. Duggan's evidence as a whole squarely presents this question despite the fact that in two isolated instances he did use the word probable or its derivatives in his testimony, as follows:

‘Q. In the absence of stippling there is no evidence to assume on the contrary that he was suffering from lead poisoning, is there, Doctor? A. Well, I don't know. In a few of these cases I would say there is a possibility he might have been suffering from lead poisoning, due to the amount of lead found in the body on autopsy.

‘Q. But that is only a possibility? A. Yes, a possibility.

‘Q. And by no means a probability? A. Yes, a probability. There is no possible way I know you could prove that.

‘Q. Well as between the possibility of his having suffered lead poisoning or not having suffered it, are the probabilities or possibilities equal, one or the other? A. Well, I could hardly answer that, but there is a probability that he was suffering from lead poisoning.

‘Q. Is it equally probable that he was not? A. Well, with that amount of lead found, I would have to be inclined to believe he had some evidence of lead in his bones more than normally.

‘Q. But as to whether it was circulating in the bloodstream you cannot say one way or the other? A. No, I can't.’

We pause to comment on this evidence that, taking the recognized meaning of probable: ‘Having more evidence for than against; supported by evidence strong enough to establish presumption, but not proof, of its truth’ (Webster's New International Dictionary, 2d Ed.), Dr. Duggan's statement that he could hardly answer whether the greater possibility lay on one side or the other is destructive of his use of the word probable and its derivatives in the balance of the quoted testimony. That the witness recognized this himself seems clear from the fact that two pages later in the transcript appear the questions and answers previously quoted:

‘Q. Doctor, you are not able to state that the man probably had lead in the blood, he might or might not have? A. I would say that it was possible.

‘Q. But not it was more probably that he did than that he did not? A. I can't answer that question.’

Later, in answer to a single leading question Dr. Duggan testified:

‘Q. Now, Doctor, it is your feeling that the probabilities are in favor of the lead being a factor in Mr. Odello's death, isn't that correct? A. That is correct.’

The foundation laid for this answer by the other testimony of Dr. Duggan herein quoted is not sufficient to support a conclusion of probability but only one of possibility in view of the rule that the value of the opinion of an expert must be tested by the facts upon which it is based. Estate of Powers, 81 Cal.App.2d 480, 184 P.2d 319, and cases cited on p. 561. Taking Dr. Duggan's testimony as a whole it is clear that he was testifying only to medical possibilities and not to medical probabilities.

So far as we have been able to discover the question in this precise form has never been considered by any California appellate court. The rule appears to be consistently followed in other jurisdictions of this country where the question has arisen ‘that medical testimony as to the possibility of a causal relation between a given accident or injury and the subsequent death or impaired physical or mental condition of the person injured is not sufficient, standing alone, to establish such relation.’ Note in 135 A.L.R. 517 and cases collected on pp. 517–518; and see the following later cases: McIntire v. Industrial Commission, Ohio App., 63 N.E.2d 167; Mack v. Branch No. 12, etc., 207 S.C. 258, 35 S.E.2d 838, 843; Seattle-Tacoma Shipbuilding Co. v. Department of L. & I., Wash., 173 P.2d 786, 791; White v. Maverick Production Co., Wyo., 182 P.2d 818, 823.

Consistent with this rule are Hartford Accident & Indemnity Co. v. Indus. Acc. Com., 140 Cal.App. 482, 486, 35 P.2d 366; William Simpson C. Co. v. Ind. Acc. Com., 74 Cal.App. 239, 240 P. 58; and Roebling's Sons Co. v. Industrial A. Com., 36 Cal.App. 10, 171 P. 987, opinion of Supreme Court denying hearing 36 Cal.App. pages 15, 16, 171 P. 989; and in Bethlehem Steel Co. v. I. A. C., 21 Cal.2d 742, 744, 135 P.2d 153, 154, the court said: ‘It is also true that to justify an award there must be an affirmative showing of a case within the statute and it must affirmatively appear that there exists a reasonable probability that the employee contracted the disease because of his employment.’ (Italics ours.)

It is true that medical testimony of possibility plus other evidence may be sufficient to support a conclusion of probability. Note in 135 A.L.R. 532 et seq. In this class apparently falls Maryland Cas. Co. v. Indus. Acc. Com., 91 Cal.App. 574, 267 P. 321, cited by respondent.

The only evidence here relied upon other than the medical testimony is that of the physical symptoms of the decedent before and during his last illness. The symptoms during the last illness were at least equally as characteristic of meningitis as of lead encephalitis. They therefore furnish no independent evidence upon which the commission could rely since decedent admittedly died of meningitis. The symptoms testified to by the wife which preceded the last illness were characterized by Dr. Carr as symptoms of lead poisoning, but he specifically testified that in the absence of anemia this would not lower the decedent's resistance to the meningitis organism which caused his death, and it was his conclusion that opposed to the findings of the blood counts the symptoms were not sufficient to establish a probability of anemia.

Award annulled.

DOOLING, Justice.

NOURSE, P. J., and GOODELL, J., concur.