Opinion
No. 41396.
February 22, 1960.
1. Workmen's compensation — hernia — previous descent or protrusion — evidence — death claim denied.
Where evidence established without dispute that there had been a previous descent or protrusion of the hernia of claimant before the accident, claim for death of employee following an operation for reduction of strangulated hernia must be denied. Sec. 6998-12, Code 1942.
2. Workmen's compensation — hernia — death claims involving — statutes construed.
Where statute after stating five requisites for compensation for hernia including fact of no prior descent of hernia provided that "in every case of hernia * * * as above defined," employer must provide stated benefits, final sentence of statute providing that in case death results from hernia or operation thereof, compensation should be paid dependents as provided in other death cases under "this act" was not construable as meaning that it was the only one dealing with death claims resulting from hernia or operations therefor and that it was not restricted by the five precedent requirements in the statute. Sec. 6998-12, Code 1942.
3. Workmen's compensation — hernia — Supreme Court cannot alter legislative requirements for benefits conferred in hernia cases.
The compensation law constitutes a statutory privilege and the Supreme Court cannot alter the legislative requirements for the benefits conferred, even though restrictions in hernia cases are exceptionally stringent. Sec. 6998-12, Code 1942.
Headnotes as approved by Ethridge, J.
APPEAL from the Circuit Court of Lowndes County; JOHN D. GREEN, JR., Judge.
Carter Van Every, Columbus, for appellants.
I. The testimony in this particular case reveals without contradiction the decedent had a pre-existing condition and physical infirmity which was aggravated by his employment. Since the defendant put on no witnesses, the testimony of the claimant's witnesses is, therefore, uncontradicted and there is no issue of fact to be decided but only questions of law. Ryan Supply Co. v. Brett, 222 Miss. 30, 75 So.2d 75; Stanley v. McClendon, 220 Miss. 192, 70 So.2d 323; Sec. 6998-01, Code 1942.
II. Death cases arising either from hernia or rupture or from the radical operation thereof within a period of one year are compensable, and it is not necessary for the decedent to prove the five requirements for a compensable hernia when the claimant dies from a radical operation for any kind of hernia. Gully, Tax Coll. v. Sowell, 151 So. 376, 153 So. 523; Industrial Comm. v. Plains Utility Co. (Colo.), 259 P. 282; Puchner v. Employers Liability Assurance Corp. 198 La. 921, 5 So.2d 288; State ex rel. v. State Highway Comm., 195 Miss. 657, 13 So.2d 614; Wiygul Motor Co. v. Pate, 237 Miss. 325, 115 So.2d 51; Sec. 5004, Code 1942; 39 Words Phrases, "shall," pp, 122-165.
Vardaman S. Dunn, Jackson, for appellee.
I. The claim for death benefits, as a result of the aggravation or precipitation of a pre-existing hernia, is not compensable under the Mississippi Workmen's Compensation Act. Bethlehem Steel Co. v. Ziegenfuss, 187 Md. 283, 49 A.2d 793; Cuneo Press Co. v. Industrial Comm., 341 Ill. 569, 173 N.E. 470; Fagan v. Wells-Lamont, Inc., 228 Miss. 660, 89 So.2d 632; Jordan v. State Comp. Comm., 120 W. Va. 142, 197 S.E. 20; Joyce Bros. Storage Van Co. v. Industrial Comm., 399 Ill. 456, 78 N.E. 262; Matthews v. Hardaway Contracting Co., 179 Tenn. 98, 163 S.W.2d 59; Mirific Products Co. v. Industrial Comm., 356 Ill. 654, 191 N.E. 203; Ryan Supply Co. v. Brett, 222 Miss. 30, 75 So.2d 75; Sligh v. Pacific Mills, 207 S.C. 316, 35 S.E.2d 713; Wagner Malleable Iron Co. v. Industrial Comm., 358 Ill. 93, 192 N.E. 660; Sec. 6998-12, Code 1942.
This is a workmen's compensation claim for death benefits, arising from the death of an employee following an operation for the reduction of an inguinal hernia. The attorney referee, Workmens Compensation Commission, and Circuit Court of Lowndes County, successively denied the claim.
James Flood worked as a janitor at the NCO Open Mess, Columbus Air Force Base. He had suffered for some time with a hernia which had descended on several occasions. On July 29, 1957 he lifted a heavy sack of potatoes in the course of his duties, and the strain of doing this caused the descent of the hernia, which became strangulated. This necessitated an operation on July 30. For several days thereafter he had an uneventful postoperative convalescence, but on the eighth day he suffered a pulmonary embolism which resulted in his death. The surgeon who performed the operation testified that the work of the employee probably aggravated and brought on the strangulated condition of the existing or old hernia.
(Hn 1) Miss. Code 1942, Sec. 6998-12 contains special provisions for hernia claims. The third of the five requirements which claimant must prove by a preponderance of the evidence is, "That there has been no descent or protrusion of the hernia or rupture prior to the accident for which compensation is claimed." The record shows without dispute that there had been a previous descent or protrusion of the hernia before the accident in question. Hence appellants were unable to establish the fact of no prior descent or protrusion of the hernia before the accident. This negative is a statutory prerequisite to recovery for hernia claims. As was stated in Fagan v. Wells Lamont, Inc., 228 Miss. 660, 89 So.2d 632 (1956), the "statute is clear and not subject to any other interpretation. Should we adopt appellant's contention, we would assume the right to amend the Act." Ryan Supply Co. v. Brett, 222 Miss. 30, 75 So.2d 75 (1954). Appellants failed to bring their claim within the requirements of the statute.
(Hn 2) Appellants argue that a death claim involving a hernia is not restricted by the five requirements of Code Sec. 6998-12. That statute, after stating the five requisites which must be shown, including the fact of no prior descent of the hernia, provides that "in every case of hernia or rupture as above defined," the employer must provide the stated benefits. The final sentence of that section states: "In case death results within a period of one year, either from the hernia or rupture, or from the radical operation thereof, compensation shall be paid the dependents as provided in other death cases under this act."
It is suggested that, since the last quoted sentence is the only one dealing with death claims resulting from hernia or operations therefor, they are not restricted by the five precedent requirements in Sec. 6998-12. And it is urged that the general rule pertaining to work-aggravation of a pre-existing condition should apply in death claims. However, the section in question does not indicate such legislative intent. No distinction is made between disability and death claims in hernia cases. Nor is there any apparent reason why the legislature should have made such a distinction. Other jurisdictions having somewhat similar statutes apply the same criteria to compensation for both disability and death. Cuneo Press Co. v. Industrial Commission, 341 Ill. 569, 173 N.E. 470 (1930); Jordan v. State Compensation Commission, 120 W. Va. 142, 197 S.E. 20 (1938). (Hn 3) The legislature by Sec. 6998-12 has placed hernia claims under the compensation act in a different category and with different criteria from those of other work-connected injuries. The workmen's compensation law constitutes a statutory privilege, and we are not authorized to alter the legislative requirements for the benefits conferred, even though the restrictions in hernia cases are exceptionally stringent.
Affirmed.
McGehee, C.J., and Kyle, Arrington, and Gillespie, JJ., concur.