which were gonorrhea germs, and was not proximately due to the accidental injury."1

"The personal injury must be the result of the employment and flow from it as the inducing proximate cause. The rational mind must be able to trace the resultant personal injury to a proximate cause set in motion by the employment and not by some other agency, or there can be no recovery. The direct connection between the personal injury as a result and the employment as its proximate cause must be proved by facts before the right to compensation springs into being. A high degree of discrimination must be exercised to determine whether the real cause of an injury is disease or the hazard of the employment. disease which under any rational work is likely to progress so as finally to disable the employee does not become a 'Personal injury' under the Act merely because it reaches the point of disablement while work for a subscriber is being pursued. It is only when there is a direct casual connection between the exertion of the employment and the injury that an award of compensation can be made. The substantial question is whether the diseased condition was the cause or whether the employment was a proximate contributing cause. In the former case award can be made; in the latter, it ought to be made."72

110

"It is a principle of very general application that the industry should be chargeable only with those consequences arising out of accidents which are proximate and direct, and can not be held chargeable under the law as it now stands for disabilities which are only remotely consequent upon the injuries. '73

A conflict of authority exists on the question of allowing compensation beyond the normal period of disability for the particular injury, where the continuing disability is proximately due to some subsequent separate or supervening cause. "This com

71. McCoy v. Michigan Screw Co., 180 Mich. 454, 147 N. W. 572, 5 N. C. C. A. 455.

72. In re Madden, 222 Mass. 487, 111 N. E. 379; Pacific Coast Casualty Co. v. Pillsbury, 171 Cal. 319, 153 Pac. 24.

73. Masich v. Northwestern Pac. R. Co., 2 Cal. Ind. Acc. Com. 539; In re Grafton Harcus, 3rd A. R. U. S. C. C. 130; Jackson v. Indus. Comm., (1921) 195 Pac, 719.

- Cal.

mission has already held that, where recovery from injury is delayed by the effect of tuberculosis, syphilis or chronic varicose ulcers, compensation should be allowed only for the period for which the injury complained of would disable a person of average conditions not suffering from any of these diseases. These exceptions control the present case, and it is therefore decided that applicant is not entitled to a continuance of the temporary total disability payments from and after the 2d day of August, 1914, this date being the expiration of the longest period clearly indi cated by the medical testimony in this case as the period during which applicant's disability would probably have continued if he had been free from tuberculosis. ''74

The above rule which is followed by the California, Massachusetts, and Connecticut commissions is contrary to that of the Supreme Courts of Michigan, New York, Indiana, and the English cases.75 (See Connecticut Act § 5341 Am. 1921.)

Paralysis from apoplectic stroke, three hours after a severe fail, was held to have been proximately caused by the fall.7

Where death resulted from tubercular pneumonia following an anaesthetic for hernia operation, the death was held to have been proximately caused by the injury. The commission held that the employer took the deceased subject to his tubercular condition at the time of entering the employment, though the evidence showed that the deceased had at some time in his life before sustaining the hernia suffered from tuberculosis, it had become quiescent and caused him no disability until the hernia operation lighted up the old condition and caused the death."

74. Van Dalsem v. Di Frore & Pac. Coast Casualty Co., 1 Cal. Ind. Acc. Com. (part 2) 229; Johnson v. Lowe, 2 Cal. Ind. Acc. Com. 543; Ash v. Barker, 2 Cal. Ind. Acc. Com. 40; Telford v. Healy-Tibbetts Const. Co., 3 Cal. Ind. Acc. Com. 41; Hatch v. I. Newman & Sons, 1 Conn. Comp. Dec. 65; Jones v. Fidelity & Deposit Co., 2 Mass. Ind. Acc. Bd. 301.

75. See aggravation of pre-existing condition. Hills v. Oval Wood Dish Co., 191 Mich. 411, 158 N. W. 214, and Borgsted v. Shults Bread Co., 180 App. Div. 229, 167 N. Y. S. 647, 1 W. C. L. J. 666.

76. Selaya v. Ruthven and Cerrana, 5 Cal. Ind. Acc. Com. 238.

77. Cox et al. v. California Southern R. R. Co. et al., 5 Cal. Ind. Acc. Com. 10.

In another case where the tuberculosis was not discovered until the employee suffered an accidental injury, though the medical testimony was to the effect that the disease was sufficiently advanced to have caused the death in a few days had no injury been sustained, the commission held that the death was not proximately caused by the injury.78

"While it may be true that over-exertion in climbing the ladder and closing the valve was the moving cause of decedent's death, yet his death would never have occurred if it had not been for his impaired heart. Under section one of the Act, the burden of proof is upon the plaintiff to show not only that the accident arose out of and in the course of the employment, but in addition that the death of the plaintiff was not the result of pre-existing dis

"Proximate cause as applied to negligence law has, by definition, included within it the element of reasonable anticipation. Such element is a characteristic of negligence, not of physical causation. As long as it was necessary to a recovery to have a negligent act stand as the cause of an injury, it did no harm to characterize causation in part, at least, in terms of negligence. But when, as under the compensation act, no act of negligence is required in order to recover, the element of negligence, namely, reasonable anticipation contained in the term 'proximate cause,' must be eliminated therefrom, and the phrase where the injury is proximately caused by accident,' used in the statute, must be held to mean caused in a physical sense, by a chain of causation, which, both as to time, place and effect, is so closely related to the accident that the injury can be said to be proximately caused thereby. To incorporate into the phrase 'proximately caused by accident' all the conceptions of proximate cause in the law of negligence would be to lug in at one door what the legislature industriously. put out at another. Proximate cause, under the law of negligence, always has to be traced back to the conduct of a responsible, human agency; under the compensation act the words 'Proximately caused by accident' in terms relate to a physical fact only; namely, an accident. Hence if the injury or death can be traced by

78. Scott v. Birch Oil Co. et al., 5 Cal. Ind. Acc. Com. 197.

79.

Rusch v. Louisville Water Co., 2 Ky. L. Dec. 152, (Jan. 1919).

physical causation not too remote in time or place to the accident, then such injury or death was proximately caused by the accident, irrespective of any element of reasonable anticipation." so

It has been held that the accidental injury need not be the sole cause of his death, in order to entitle his dependents to compensation but it is sufficient if it be a concurring cause.

§ 235. Quarantine.-Time lost because of quarantine for a disease of a fellow employee is not compensable under the Federal Act.81

§ 236. Rash.-In a New Jersey case, where an employee had worked in a bleachery for ten days when he was affected with a rash, pronounced to be a condition of ezcema which might have resulted from the acids used in the bleachery, the court said: "The English courts seem at last to have settled that where no specific time or occasion can be fixed upon as the time when the alleged accident happened, there is no 'injury by accident' within the meaning of the act. This seems a sensible working rule, especially in view of the provisions of the statute requiring notice in certain cases within fourteen days of the occurrence of the injury, a provision which must point to a specific time." 82

§ 237. Recurrence of Condition Due to Former Injury.— Where a physician furnished by the employer discharged an employee as cured, but the disability had not fully terminated and the employee had to seek further treatment from his own physician, compensation for the additional surgical services was allowed.83

80. Milwaukee v. Industrial Commission, 160 Wis. 238, 151 N. W. 247; Frint Motor Car Co. v. Industrial Comm., 1618 Wis. 436, 170 N. W. 285, 3 W. C. L. J. 399. See Blood Poison.

80a. Miami Coal Co. v. Luce Ind. App., 131 N. E. 824, (1921). 81. In Re J. P. B. Frederickson & Others, 2nd A. R. U. S. C. C. 222. 82. Liondale Bleach, Dye & Paint Works v. Riker, 85 N. J. L. 426, 89 Atl. 929, 4 N. C. C. A. 713.

83. Douglas v. J. & J. Drug Co., 2 Cal. Ind. Acc. Com. 164 (1915), 11 N. C. C. A. 761.

W. C.-29

Where an employee, who suffered from a dislocation of the shoulder, was discharged in two weeks by the physician as cured, and at once sustained another dislocation of the same shoulder while bathing, compensation was allowed for the disability arising from the second injury, for the reason that the second physicial lapse was directly caused by and was an incident of the previous injury.84

Where an employee seeks a recovery for a recurrence of his disability, he must show that his condition has changed from that which it was when the award was made for the first injury, otherwise the original award, in the absence of a distinct recurrence of disability, other than the one for which the first award was made, is final, and the petition must be dismissed.85

Where an employee seeks compensation for a recurrence of an injury, the changes occurring in his condition since the former hearing, on which was based the award of the arbitrators, is all that may be shown, and it is error to show any condition exist ing previous to the first award.86

Where splints were removed too quickly from a fractured collar bone and the bone came apart again, but there was no accident, it was held that this extension of the disability was merely a continuation of that due to the earlier accident, and compensation was allowed.87

Where an employee, who broke his leg, suffered a refracture while putting on his trousers, and later suffered a further fracture through a fall on the sidewalk, it was held that the evidence was sufficient to sustain a finding that the fall and further injury were due to the original injury, and compensation was allowed.88

84. Kordellos v. N. W. Pac. R. Co., 1 Cal. Ind. A. C. 586 (1914), 11 N. C. C. A. 762; In Re Ennis B. Helton, 3rd A. R. U. S. C. C. 111.

85. Bloomington D. & C. R. Co. v. Indus. Bd. of Ill., 275 Ill. 120, 114 N. E. 511, 15 N. C. C. A. 391; Simpson Construction Co. v. Indus. Bd., 275 Ill. 366, 114 N. E. 138, 15 N. C. C. A. 391.

86. Casparis Stone Co. v. Indus. Bd. of Ill., 278 Ill. 77, 115 N. E. 822, 15 N. C. C. A. 390; Cook v. Chas. Hoertz Sons, Mich. 164 N. W. 64, A. 1 W. C. L. J. 888.

87. Stormont v. Bakersfield Laundry Co., 1 Cal. I. A. C. (part 2) 533.

82. Bailey v. Indus. Comm., 286 Ill. 623, 122 N. E. 107.