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TRAUMATIC NEUROSES IN COURT

1944; American College of Physicians; Volume: 21; Issue: 3 Linguagem: Inglês

10.7326/0003-4819-21-3-367

1539-3704

Hubert Smith, Harry C. Solomon,

Traumatic Brain Injury Research

Article1 September 1944TRAUMATIC NEUROSES IN COURTHUBERT WINSTON SMITH, HARRY C. SOLOMONHUBERT WINSTON SMITHSearch for more papers by this author, HARRY C. SOLOMONSearch for more papers by this authorAuthor, Article, and Disclosure Informationhttps://doi.org/10.7326/0003-4819-21-3-367 SectionsAboutPDF ToolsAdd to favoritesDownload CitationsTrack CitationsPermissions ShareFacebookTwitterLinkedInRedditEmail ExcerptI. INTRODUCTIONWe can think of no more vexed or vexatious law-medicine problem than the proper appraisal and just compensation of so-called "traumatic neurosis."1 Our intent is not to hack and hew, first with the scientific sword and then with the legal axe. We shall attempt, with some doubts, the more delicate and difficult task of weaving scientific and legal threads into a garment, albeit a Joseph's coat, which jurist, trial lawyer and expert witness may all wear with some degree of satisfaction.A person who seeks compensation for traumatic neurosis must find some foundation for liability, and his legal...1 TIBBITS FVAs the Supreme Court of Washington said, "An allowance of damages in the cases of traumatic neurasthenia touches the border of speculation at best." Mickelson v. Fischer, 81 Wash. 423, 142 Pac. 1160 (1914). Although medical literature has not neglected traumatic neurosis, very little seems to have been written regarding its legal implications. See : Neurasthenia, the result of nervous shock, as a ground for damages, Cent. Law Jr., 1904, lix, 83. Some of the medical material is outmoded and many of the cases cited involve nervous shock, a physiological response, rather than traumatic neurosis which is a psychological reaction. More recently, Stotter has put by question, without attempting to answer it, one of the salient legal problems posed by neurotic responses, namely: "In negligence cases, does mental pain and anguish include unconscious exaggeration of pain and all the host of mental ills that are often precipitated by any traumatic event cast upon one that is predisposed to mental illness? . . . Whether such mental pain and incapacity to function is the proximate result of a specific act on the part of someone else is quite hard to answer. There is always back of these cases a pre-disposition, a preëxisting cause. In the words of the psychiatrist such would be termed only a precipitating cause, real causes going back often to childhood experiences. The legal definition of proximate cause helps us but little and would no doubt be broad enough to cover what is meant in psychiatry by a precipitating cause." Having cracked the lid of this Pandora's box, the author closes it quickly, leaving it for others to open it full wide. He does not attempt to gather or to analyze the authorities. STOTTERR. O.: Extent of liability for injuries to neurotic person yet to be decided, The State Bar Jr., Calif., 1941, xvi, 44. The authors have published a version of this study for the legal profession buttressed with numerous citations of cases and certain special appendices which would only encumber a medical presentation. See Virginia Law Review, 1943, xxx, 87. Google Scholar2 P, a 23 year old graduate of McGill University in electrical engineering, decided to gain experience by working for a time as a lineman. D's employees failed to cut off the power from a line on which he was working. An electrical current leaped with a spark or a flash from a wire 4 inches away, which carried 16,000 volts, and went through his body, entering at one of his hands, and going out at one of his feet. It was not possible to show how much electricity actually leaped from the high tension line, but apparently he was not so much injured as terrified. P developed mixed symptoms of neurasthenia and hysteria, in part manifested by temporary paralysis followed by involuntary twitching and shaking of his muscles, and by a deep rooted dread and fear of electricity which presented a serious obstacle to pursuit of his chosen profession. Verdict and judgment for P for $7,500, affirmed on appeal. Summerskill v. Vermont Power and Mfg. Co., 91 Vt. 251, 99 Atl. 1017 (1917). Google Scholar3 SMITHCOBB HWS: Tort liability for psychic stimuli, in SMITH on Scientific Proof and Relations of Law and Medicine, 1944, Matthew-Bender and Co., Albany, N. Y., Vol. 1 (in press). Google Scholar4 This doctrine was expressed in Dulieu v. White & Sons (Eng.), 2 K.B. 669 (1901), 70 L.J. (1901) K.B. Div. 837, one of the historic precedents on legal liability for psychic stimuli. P alleged that on July 20, 1900, she was pregnant but was working behind the bar of her husband's public house, when D negligently drove a pair horse van into the tavern allegedly frightening her so badly that she suffered nervous shock and a consequent miscarriage. Justice Kennedy in ruling on a demurrer held the injury actionable. He rejected defendant's contention that the plaintiff's unknown vulnerability would defeat liability, saying: "It may be admitted that the plaintiff, as regards the personal injuries, would not have suffered exactly as she did, and probably not to the same extent as she did, if she had not been pregnant at the time; and no doubt the driver of the defendant's horses could not anticipate that she was in this condition. But what does that fact matter? If a man is negligently run over or otherwise negligently injured, it is no answer to the sufferer's claim for damages that he would have suffered less injury, or no injury at all, if he had not had an unusually thin skull or an unusually weak heart." In the Dulieu case, the conduct was negligent when tested by risk of injury to an average person, and accordingly the question was not one of primary liability, but whether P's unknown vulnerability would limit the damages recoverable. In Owens v. Liverpool Corp. (Eng.), 1 K.B. 394 (1937), MacKinnon, L. J. failed to perceive this crucial distinction. He seemed willing to apply the doctrine to raise a primary liability for a purely idiosyncratic response. This was an extension not warranted by British precedents or by prevailing concepts of tort law as to what constitutes culpable conduct sufficient to make a defendant liable. Google Scholar5 In American law two cases may be regarded as "stem" authorities. In each case it was clear from the facts and the court's doctrinal approach that defendant's conduct was such as to create a primary liability to a plaintiff possessed of average health. The vital holding was that the defendant could not have his damages reduced by proving that plaintiff's unknown idiosyncrasy caused his injury to exceed that which a person possessed of average health would have sustained. Purcell v. St. Paul City R. Co., 48 Minn. 134, 50 N.W. 1034 (1892), 16 L.R.A. 203; Spade v. Lynn & Boston Railroad, 172 Mass. 488, 52 N.E. 747 (1899), 43 L.R.A. 832, 70 Am. St. Rep. 298, 5 Am. Neg. Rep. 367, 11 A.L.R. 1124. Such is the rule generally followed by American jurisdictions. The main difference in judicial approach lies in the varying vigilance which courts show in excluding preëxisting impairments from compensation. Authorities are collected in the Digest System under Damages, Keys 33, 95, 132(3), 168, and 208(2). What part of plaintiff's injury represents compensable aggravation, and what part non-compensable poor health antedating the accident requires most careful discrimination by jury and judge if awards are to be kept at just levels. Flood v. Smith, 126 Conn. 644, 13 A.(2d) 677 (1940), illustrates this problem of separating non-compensable from compensable factors. As the result of an automobile collision caused by negligence of D, P1 and P2 sustained injuries more excessive than an average person would have suffered from a like stimulus. Proof showed that two years before, P1, a 28 year old man, was hurt in an automobile accident, suffering a fracture of the skull and injury of his nervous system, from which he made a substantial interim recovery. P2, his companion, was a 70 year old library cataloguer. Her medical history revealed that prior to the accident, she had undergone two nervous breakdowns and the surgical removal of a cancerous breast. In the instant accident P1 and P2 sustained bruises and suffered extreme nervous shock, in P2's case aggravated by her morbid fears that a blow received at the site of her amputated breast would reactivate her cancer. The jury awarded P1 $3,500 and P2 $4,000. The trial court thought these damages were excessive. It therefore granted D's motion for a new trial unless P1, by remittitur, should relinquish $1,275 of the verdict, and P2 $2,027. P1 and P2 appealed. Held: The damages awarded by the jury were not excessive. Case remanded with orders for trial court to enter judgment for the full verdicts. The Connecticut Supreme Court said, "The plaintiffs are entitled to recover full compensation for all damage proximately resulting from the defendant's negligence, even though their injuries are more serious than they would otherwise have been because of preëxisting physical or nervous conditions." This statement of legal doctrine expresses the majority view, but it glosses over the clinical certainty in such cases that part of the post-accident symptoms are due to pre-accident causes and do not represent aggravation by the accident. Google Scholar6 Assume that D's conduct results in a superficial physical injury to P. D cannot be held liable in damages for independently caused sequelae, as, for instance: (1) If subsequent to the accident, P begins worrying about what might have happened to him and in that event to his family, thereby developing an anxiety neurosis. In Phelps Dodge Corporation v. Industrial Commission, 46 Ariz. 162, 49 P.(2d) 391 (1935), the facts were that X, a miner, ran 500 feet to reach fresh air after blast of a "missed hole" caused shafts and drifts of the sulphide ore mine to become filled up with smoke, sulphur gas and dust. He suffered no injury but thereafter developed a neurosis from brooding over what might have happened to him, and in that event what would have been the lot of his family. Held, since the neurosis was not caused by nervous shock produced by the episode, but by subsequent brooding, the neurosis was not result of an injury sustained by accidental means, and was not compensable under terms of the Arizona Compensation Act. (2) If as the result of such brooding P is led to commit suicide: In certain interesting cases claim has been made under Workmen's Compensation Acts for suicide due to insanity allegedly caused by an accidental injury received in course of employment. Courts have held it is not enough that insanity was indirectly caused by the injury if the more immediate cause was worrying and fear of losing employment (Grime v. Fletcher (Eng. 1915), 1 King's Bench 734; 8 B.W.C.C. 11, C.A.) or depression and brooding over inability to work (Withers v. London, Brighton and South Coast Rail Co. (Eng. 1916), 2 King's Bench 772, 9 B.W.C.C. 616, C.A.). So, also, there is a defect in causal connection where decedent's preparation showed a "moderately intelligent mental power which knew the purpose and physical effect of the suicidal act." Kazazian v. Segan, 14 N.J. Misc. 78, 182 Atl. 351 (1938). In the type case mentioned under (1) and (2) supra, there may be actual causation, but it must be admitted that lapse of time, the entry of independent causes, and difficulties of proof, justify the law in drawing a boundary line of liability, though somewhat arbitrarily, to mark off and exclude the morass of speculation. (3) Where the disability has arisen from anxiety, worry or brooding over the proceedings for compensation, or has arisen from a cause unrelated to the accident itself, there is no right of compensation. A mental state or nervous disturbance caused merely by pendency of compensation proceedings is even less necessarily referable to the injury. Coffey v. Coffey Laundries, Inc., 108 Conn. 493, 143 Atl. 880 (1928). Where the accidental injury involves a substantial stimulus which directly causes the neurosis, without delay, the case is different: here there is no defect in causation and no question about liability. Thus, where claimant developed an anxiety neurosis due to fear and anxiety about a hole in his skull produced by injury and operation, this neurosis was properly held to be compensable. National Lumber & Creosoting Co. v. Kelly, — Colo. —, 75 P.(2d) 144 (1938). Deliberate and unnecessary exposure of oneself to injury, even if remotely occasioned by D's conduct, may constitute the immediate cause of harm suffered and bar recovery of damages. D, excavating adjoining land, impaired the lateral support of P's hotel. P was warned that guests should be cleared from the imperiled wing. P did this, and after waiting for two hours, labored strenuously, and unnecessarily, in helping to move her furniture out. She alleged that fright drove her to this overexertion and that the latter caused a nervous breakdown. Verdict and judgment for P for $2,000. On appeal, reversed: there was a break in proximate causation, for P did not act spontaneously in response to fright or to escape an immediate emergency. Her injury was caused by her independent, deliberate acts. Cherry v. General Petroleum Corporation, 172 Wash. 688, 21 P(2d) 520 (1933). Google Scholar7 Here the injury is outside the risk of defendant's conduct. Assume that D, hurrying to a foot-ball game through a large crowd, carelessly brushes P aside, the impact being enough to inflict a superficial wound. P is a hemophiliac and bleeds to death from a scratch thus received. Or suppose P has the unusual disease fragilitas ossium, a rare congenital weakness of bones characterized by multiple fractures which occur spontaneously or upon moderate jolting. As a result of D's impact, P's bones break in several places. In these cases D may be held responsible for nominal damages if he is negligent, but he can hardly be taxed with liability for the full injury. This is true because the result is not a mere exaggeration of a foreseeable harm, but belongs to a category of consequences entirely beyond any foreseeable risk of injury involved in D's conduct. Again, suppose that D negligently collides with P's car, so wounding P that the latter must go into hospital for treatment. Without any notice of their incompetency, P accepts treatment from the hospital physicians, and suffers further injury as a result of their negligent ministrations. P can hold D liable in damages for both his original injury and for the effects of the malpractice. The authorities are collected in 8 A.L.R. 506, 39 A.L.R. 1268, and 126 A.L.R. 912. Assume instead, that P's further injury is not due to medical malpractice but to lightning striking the ward in which he is confined. P cannot hold D in damages for this additional injury. D's conduct in injuring P created a new risk that the latter would come under medical care and have his wounds aggravated by negligent treatment. That D's conduct was calculated to send P into the hospital did not, however, involve a foreseeable risk that P would be struck by lightning, nor did it increase the probability of such an injury. In Denison, B. & N.O.R. Co. v. Barry, 98 Tex. 248, 82 S.W. 5 (1904) reversing (Tex. Civ. App.) 80 S.W. 634 (1904), defendant railroad negligently constructed a dump in such way as to throw water back on P's home. P's wife was pregnant. As the water rose up to the floor of the house she became frightened at the prospect of drowning and fled with her husband to a safe place. This episode caused P's wife to suffer a threatened miscarriage involving pain and sickness of several weeks' duration. D was unaware that P's wife was pregnant. The Texas Supreme Court in reforming a judgment obtained by P in the trial court, upheld the sum awarded for property damage, but denied any right for compensation for the wife's physical illness on the ground that this injury was too remote a consequence to be anticipated by the actor. Google Scholar8 One who causes a violent collision can foresee that a scene of horror will be created which may cause involved persons such as the plaintiff, who behold the spectacle, to suffer nervous shock. Liability exists for nervous shock or injury due to such immediate psychic stimuli. The defendant also can foresee that persons going away from the scene of a railroad wreck may suffer secondary shock from beholding the wounds of fellow passengers, but damages are not allowed for this more distant consequence. Nor will the courts allow damages for nervous shock and consequent injury caused in a parent, not present within the circle of risk, but induced by secondary reports that her child has been injured or killed through defendant's negligence. So, too, it is a most natural and foreseeable consequence of injuring a minor, that his parents will suffer mental anguish and nervous shock from discovering his injury or maimed condition, or through sympathy for his deformity, but the law refuses to hold the defendant answerable in damages for such results. A pregnant woman who is injured through defendant's negligence may recover damages for mental anguish due to her reasonable fears that the child will be born deformed, but if she suffers a traumatic miscarriage she can recover no damages for death of the child, or for mental anguish caused thereby; nor can she recover damages for mental anguish caused from beholding traumatic deformities in a living child after it is born. Google Scholar9 In particular cases, these considerations may warrant a refusal to recognize any actual causation, especially if the stimulus is trivial and the symptom-free time interval long. Stanford v. Longe & Wolfe (La. App.), 199 So. 608 (1941); The Rigel (Eng.-Admiralty) (1912) P. 99. And see Cookson v. Barber Co., 120 Me. 527, 115 Atl. 285 (1921). An able neuropsychiatrist of our acquaintance went so far as to say it would be a signal service if courts could be induced to deny compensation in all cases of traumatic neurosis, as this would do more than any medical means to banish the disorder. We would not go so far as to espouse universal denial of compensation, but certainly this point of view has much in its favor in regard to neuroses which appear following trivial stimuli. Google Scholar10 This rule is axiomatic. Defendant is entitled to have the jury instructed, in proper cases, that it is for them to consider plaintiff's previous physical condition in determining whether P's nervous symptoms were or were not consequences of general ill health. Google Scholar11 This principle is so fundamental that it is above the vagaries of conflicting evidence, or defects in technical proof: we regard it as a scientific axiom entitled to recognition under the doctrine of judicial notice. Some courts already have progressed part way to this goal, in reducing verdicts as excessive where the jury has allowed full damages despite evidence of plaintiff's preexisting neurotic state or symptoms. Google Scholar12 Of 129 cases in 13 only could we say that the stimulus was such that it might have sufficed to cause neurosis in an average person. Of these 13 cases, in three the neurosis was not due to the initial stimulus but to fears of permanent injury aroused by the manner in which the attending physician treated the case. Google Scholar13 In the cases studied juries awarded males verdicts averaging $7,198.23; in comparison, they awarded females verdicts averaging $8,801.09. Google Scholar14 Ulman JA: A judge takes the stand, 1933, Alfred A. Knopf, New York. Google Scholar15 Kress v. Sharp, 156 Miss. 693, 126 So. 650 (1930), 68 A.L.R. 167. (P, a clerk in D's department store, was carrying four dozen bath towels in her arms in course of replenishing a counter. The steps she was descending were narrow and poorly lighted. She fell sideways, bruising her hip and back. After resting, she resumed her place at work, but did not continue, at the noon hour going home on the bus and walking part of the way. She had no physical injuries, but went to bed for six weeks, was treated by chiropractors for two years, and at the time of trial, some two years after the accident, was allegedly suffering from hysteria with intermixed compulsions and obsessions. Verdict and judgment for P for $25,000; on appeal, held excessive; judgment reversed and case remanded for new trial on limited issue of damages.) Google Scholar16 St. Louis, I.M. & S.R.R. v. Osborne, 95 Ark. 310, 129 S.W. 537 (1910). Google Scholar17 Klein v. Medical Bldg. Realty Co. (La. App.), 147 So. 122 (1933). Google Scholar18 SMITHCOBB HWS: Legal liability for psychic stimuli, to be published in Virginia Law Review (March, 1944) and in SMITH: Scientific proof and relations of law and medicine, 1944, Matthew Bender & Co., Albany, N. Y., vol. 1 (in press). Traumatic neurosis developing in soldiers at the front is best known to laymen under the inaccurate term "shell-shock." Readers will appreciate that this term hardly touches the essential cause-effect mechanisms involved. There are many misconceptions about the subject. See, for example, PAINTON, F. C.: There is no such thing as shell shock, The Readers Digest, 1943, xliii, 59. The title is catchy but unfortunately the statement it contains is erroneous. It is true that many soldiers exposed to heavy action develop nervous shock, a transient physiological state which may not progress to neurosis if they are kept near the front, treated by sedatives and rest to overcome psychological tensions and fatigue, and are gradually put back into action. The effort here is to prevent the flowering of neurosis by intercepting psychological elaborations. In the last war when such soldiers were invalided to base hospitals and treated as serious injuries with opportunity to brood and meditate, a larger percentage developed neurosis. Treatment near the front enables restoration of many soldiers to useful service who would have been disabled through neurosis under old methods of management. However, it is erroneous to assume that the shift in methodology represents an over-night discovery, for many of the lessons were learned from experience in the preceding World War (1914-1919), and this change in therapy has received attention in psychiatric literature for some years past. See MILLER, E.: The neuroses in war, 1940, The Macmillan Co., New York. KARDINER, A.: The traumatic neuroses of war, National Research Council, Washington, D. C., 1941. CrossrefGoogle Scholar19 SMITHCOBB HWS op. cit. supra f.n. 52. Google Scholar20 For instance in more than 25 per cent of the litigated cases of alleged injury due to fright, the described harm was miscarriage of a pregnant woman. The authors mention such conditions as angina pectoris, a heart disease in which injurious or fatal attacks may be precipitated by excessive emotional stimuli. They also list diseases for which there is clinical evidence that psychic stimuli may precipitate or aggravate an attack. Google Scholar21 Janvier v. Sweeney (Eng.), 2 K.B. (1919) 316, 9 B.R.C. 579, 88 L.J.K.B. N.S. 1231, 63 Sol. Jo. 430. Google Scholar22 The facts of Hunter v. Fleming (Mo. App.), 7 S.W.(2d) 749 (1938), illustrate this possibility. On June 29, 1925, P, a married woman, was with her husband in the family car when it stopped dead on a street car track. D's conductor could see the stalled automobile 200 feet away but he continued to approach at a speed of 12 to 15 m.p.h. P screamed and waved her arms, but a slight collision occurred. This modest impact caused P to sustain superficial head injuries and a few bruises but no objective injuries of any consequence. Thereafter P developed nervous symptoms consistent with neurasthenia but proof of cause-effect relationships revealed that on Jan. 28, 1927, P had suffered a miscarriage. The examining physician attributed to this latter cause part of the symptoms of which P complained at the time of trial. Thus defendant's counsel must make close inquiry into plaintiff's post-accident medical history to see if other illnesses or accidents have occurred which might account for some or all of P's symptoms or disability. Google Scholar23 This practice is a widespread and pernicious habit among expert witnesses; it lays a false foundation for a judicial inference that the disorder is a permanent disability. Google Scholar24 If anything, this allowance errs on the side of liberality. It is intended as an outside limit, for most cases recover more speedily. Google Scholar25 Judicial skepticism has kept some courts on the right path in this matter. In Louisville & N.R. Co. v. Creighton, 106 Ky. 42, 50 S.W. 227 (1899), P, a 38 year old woman, had received injuries in trying unsuccessfully to rescue a three year old child from the path of an oncoming train. Later she developed hysteria, and on the trial her physician predicted that this might progress to insanity. The jury awarded her a verdict of $17,500, but on appeal a judgment for this amount was reversed as excessive, the court pointing out that P seemed to be in possession of all her faculties and "she testifies . . . very lucidly in this case." In Friedman v. United Rys. Co. of St. Louis, 293 Mo. 235, 238 S.W. 1074 (1922), P. was motoring with her husband when their automobile was involved in a collision with D's street car. P was rendered hysterical but not unconscious by the impact, and en route to hospital in the car of witness Woody, P exclaimed to her husband, H: "Oh, daddy, you have killed me," to which H replied: "It was your fault, sweetheart, you grabbed the wheel." Thereupon, P replied: "I know it was, I don't blame you, sweetheart." This testimony was objected to on trial on the ground that P's hysteria rendered her mentally incompetent, but the trial court admitted the evidence as an admission against interest and the jury returned a verdict in D's favor. Held, on appeal: affirmed. Courts are concerned about the possibility that an injured person may be imposed upon in the making of a compromise settlement. One who claims he was fraudulently imposed upon is permitted by some courts to show his depressed state of health at the time, as one circumstance, even though it does not establish mental incompetency. Thus it has been held that a personal injury plaintiff who seeks to set aside a release on the ground of fraudulent procurement, is entitled to show that she was a profound neurasthenic at the time it was executed. Wilson v. San Francisco-Oakland Terminal Rys., 48 Cal. App. 343, 191 Pac. 975 (1920). As neurosis does not impair the intellect, such evidence should not be regarded as a ground for cancellation of the release, but merely as a circumstance directing closer scrutiny of the alleged fraud or imposition. Early stages of schizophrenia, one type of psychosis, may produce symptoms similar to neurosis, causing an error in diagnosis, but any such confusion will be resolved as the psychosis progresses, and there is no evidence that neurosis progresses into schizophrenia. Google Scholar26 Carton v. Eyres & S. Drayage Co., 117 Wash. 536, 201 Pac. 737 (1921). Google Scholar27 Crowley's Case, 223 Mass. 288, 111 N.E. 786 (1916), allowed full compensation for disability due to aggravation by accidental injury of preëxisting dormant syphilis. Braley J. spoke the majority view as well as the rule for Massachusetts when he said in his opinion: "The statute prescribes no standard of fitness to which the employee must conform, and compensation is not based on any implied warranty of perfect health or of immunity from latent and unknown tendencies to disease which may develop into positive ailments if incited to activity through any cause originating in the performance of the work for which he is hired. What the legislature might have said is one thing; what it has said is quite another thing; and in the application of the statute the cause of partial or total incapacity may spring from and be attributable to the injury just as much where undeveloped and dangerous physical conditions are set in motion producing such result, as where it follows directly from dislocations or dismemberments or from internal organic changes capable of being exactly located." Google Scholar28 It is not enough for P to prove that he was permanently disabled at the time the policy lapsed; he must also prove that he was then totally disabled. P does not establish his right to benefits if a partial disability at date of lapse did not become total until some subsequent time. (Attention is drawn to the fact that war risk policies are no longer being issued; in the present war the National Life Insurance available to service men insures against the risk of death only.) Google Scholar29 If a policy provides for payment of benefits in event insured becomes disabled, this includes functional as well as organic disease and thus traumatic neurosis or hysteria. Butler v. Prudential Ins. Co. of America, 117 Pa. Super. Ct. 367, 177 Atl. 335 (1935). But in view of the fact that traumatic neurosis is not entitled to be rated as a total and permanent disability, it is not clear how a claimant can ever establish his right to recover benefits under a clause (as in the Butler case) which requires such proof. In the Butler case there was some evidence that the neurotic symptoms were due to actual brain injury, and such a case may involve permanent injury. If the disability clause requires not only "incapacity to transact any and every kind of business" but entire and continuous confinement to bed under a physician's care, a neurasthenic who cannot attend to business but is able to travel for his health, is not entitled to benefits. Bradshaw v. American Benevolent Ass'n, 112 Mo. App. 435, 87 S.W. 46 (1905). Continuous progression of traumatic neurosis symptoms for almost two years after injury to eye, producin