Summary
In Royal Indemnity Co. v. Beckmann, 66 Ga. App. 369 (supra), the headnote is as follows: "The evidence was insufficient to authorize a finding that the hernia alleged to have been sustained by the claimant for compensation arose suddenly, or that it arose immediately following an accident.
Summary of this case from Blackshear v. Liberty Mutual Ins. Co.Opinion
29112.
DECIDED DECEMBER 5, 1941. REHEARING DENIED DECEMBER 15, 1941.
Appeal; from Chatham superior court — Judge Rourke. April 9, 1941.
Connerat Hunter, for plaintiffs in error.
John M. Brennan, contra.
The evidence was insufficient to authorize a finding that the hernia alleged to have been sustained by the claimant for compensation arose suddenly, or that it arose immediately following an accident.
DECIDED DECEMBER 5, 1941. REHEARING DENIED DECEMBER 15, 1941.
George C. Beckmann, on April 24, 1940, filed with the Industrial Board a claim for compensation against his employer, Quality Motors Incorporated, in which he stated that he "was injured on January 17, 1940, while moving an oil drum, having felt something slip in his groin which developed to be a hernia," and that "he has been examined and treated by Dr. R. E. Oliver . . who advises an immediate operation and wearing of a truss." This claim was heard before Honorable Harry E. Monroe, a member of the Industrial Board, on July 10, 1940. The employer admitted that on January 17, 1940, the claimant was employed by it as service manager at $37.50 a week. The employer and insurance carrier denied that the claimant had sustained an accidental injury causing a hernia while engaged in the performance of the duties of his employment.
Dr. Robert E. Oliver, a practicing physician, testified for the claimant in part as follows: "I examined Mr. Beckmann about January 17 this year. After that I examined him about the 31st. He now has a hernia. There is an apparent protrusion at this time. I have prescribed an operation for him. At the time I first examined him there was no bulging, there was tenderness over the external inguinal ring. His condition was such at that time that after an examination I thought there was no hernia present; that there was only a strain of the ligaments and muscles in the inguinal region." Q. "If there were a slight tear in the abdominal wall which would only admit a small protrusion, would that only be discernable by an incision at that point, or could that be told by feeling?" A. "Of course there is a limit to the size of the protrusion that you could probably feel with the finger. There might have been such an injury that rent any tissues that you couldn't feel. The only way you could find out would be by incision. I have known Mr. Beckmann sometime, and have never known him to have a hernia before this. From my experience as a physician I know it is a definite fact that hernias start from some initiative cause, and that they progress in size as time goes on with additional work, the bulging becomes more and more pronounced. The examination that I made was at Mr. Beckmann's request."
The claimant testified in part as follows: "On or about January 17 of this year I had an injury at the place of business. I was heading up a barrel of oil, and just as I started to lift it up I felt a pain in my side, down in the region of my groin. I had to let it back down. I couldn't keep on working. My job is not a laborer's job. I was able to continue work. My position is supervisor, not laborious work. As soon as I felt that pain I didn't move for a second or two. . . I did not slip or fall or have an accident of any kind. It was just an ordinary strain."
B. L. Duke testified in behalf of the claimant in part as follows: "I am employed by Quality Motors and I was in Mr. Beckmann's department about January 1. I remember what happened that day when Mr. Beckmann was lifting a drum of oil. We buy oil in bulk; barrels contain 55 gallons. It weighs about 300 pounds. It requires two men to lift the barrels and Mr. Beckmann and I were heading up one when he seemed to be in pain, and later on during the day he remarked to me that he thought he had ruptured himself lifting the barrel. The only thing I noticed happened at the time we were lifting it he seemed to be in pain and was holding his side. He let go of the barrel."
The claimant further testified as follows: "The next day Dr. Oliver came. He is a customer. While he was there I told him I had a pain in my side and went in the washroom, and he told me to take my clothes down and he examined me. I still have pain there. It goes and comes. It kept on hurting a little worse and worse, and the next time the doctor came in the latter part of the month I asked him to examine it again. It was around January 31. There was a swelling at that time. He punched up there, and I hollered. I had never had a rupture before. I have not lost my salary. My claim is entirely for surgical fee for an operation which I am willing to undergo." Q. "You did not feel any pain at that time?" A. "It must have hurt or I wouldn't have asked the doctor to look at it. I had pain enough to let the barrel down, and I called Mr. Duke." Q. "It was a couple of days later before you felt pain?" A. "No, it was the next day when the doctor came in." Q. "Was it the next day when you felt pain?" A. "No, that is when the doctor examined it." Q. "Did you feel any pain at that time? You said you didn't, didn't you?" A. "I don't know. . . It must have pained me or I couldn't [wouldn't] have called the doctor. My guts didn't fall right down on the floor." Q. "You signed a statement, `I didn't feel any pain and did not do anything about it until a couple of days later when for the first time I began to feel pain'?" A. "It was the next day when it gave me a lot of trouble. At the time this happened I must have felt pain. I dropped the barrel. As to which is correct, I must have had a pain or I wouldn't have dropped the drum. I did not report it at that time to any one connected with the Quality Motors. The first report I made was on January 31 when I handed the report to Mr. Ferguson. I didn't send for Dr. Oliver; he just happened in. I know he comes in about every two weeks to have his car fixed." The claimant testified on redirect examination in part as follows: "I am foreman of the service department and all notices like that are submitted to me. On the date of the accident I had enough discomfort to drop the barrel. I still work for the Quality Motors and have lost no time."
The employer and insurance carrier introduced in evidence the signed statement of the claimant as follows: "I am employed as service manager of the Quality Motors at a salary of $37.50 a week. On the 17th day of January, 1940, at about 5 o'clock in the afternoon, I was moving an oil drum and felt something slip in my groin. I did not feel any pain and did not do anything about it until a couple of days later when, for the first time, I began to feel a pain. Dr. Robert L. Oliver happened to come in the place and I asked him to examine me. He examined me at that time and said that there appeared to be a slight strain. He did not prescribe any treatment except to stay off my feet as much as I could. It kept hurting me, and about two weeks later he examined me again and told me that I was ruptured. At the time that I moved the drum I did not slip or fall. It was just the strain. I did not think anything of it at the time as it seemed to be just a slight strain, and did not make any report of it until the 31st day of January when I made up the report. This was the day of, or the day after, the second examination by Dr. Oliver. The same day that I made up the report I gave it to Mr. Ferguson. When Dr. Oliver first examined me he felt the injured place and had me cough. He said that I only appeared to have a slight strain, but said nothing about my being ruptured. Some of the men who have been injured at the plant have been sent to Dr. Oliver. I have never been ruptured nor examined for a rupture nor worn a truss before this time. I have had no general physical examination that I can remember by any doctor for probably fifteen years. The reason that I made no report of this occurrence until after the second examination was because I did not think that I had been hurt, and thought nothing of it until Dr. Oliver told me that I had a rupture."
The claimant, recalled, testified: "I did not write this statement. They wrote it out and I signed it. I first made a statement of the entire matter before witnesses, then this was dictated in my presence. After it was finished I was asked if it was correct, then a copy of it was sent to me at my place of business. I read it over carefully and made a correction of it then and eventually signed it, and sent it back. I have never had any pain before. I am such a man that I did not have any experience with hernias. I didn't know there had to be pain immediately following the accident. Being such a man I could take it, although I suffered discomfort I didn't call it pain at that time. I feel the same way now as I felt then. I have a numbness like your foot goes to sleep. That is the way I felt the time I lifted it as far as I can remember. As far as I can remember I felt pain."
Dr. Oliver, recalled, testified: "At the time I examined Mr. Beckmann on January 18 I probed around the region of the groin. It was very tender. He told me at that time that he had pain in his side and that is the reason I examined him to determine what the pain was coming from. That was the day after the accident."
The employer and insurance carrier read into the record the following statement of the general manager of the employer, Dale Critz: "A few days after January 31, 1940, a report was given me of an injury sustained by George Beckmann, who is employed by the Quality Motors Incorporated as service manager. I had no notice whatsoever of any injury to him prior to that time, nor as far as I have been able to find by complete investigation did he report the matter to any one prior to that date when he handed Mr. Ferguson the first report of injury. I did not provide medical treatment for him nor advise him to see Dr. Oliver. I did not authorize any one else to do so."
On July 10, 1940, Director Harry E. Monroe rendered an award in which he found as a matter of fact that the claimant "on January 17, 1940, while performing a service for his employer . . which service arose out of and in the scope of his employment in that the claimant was handling a barrel of oil and as he started to lift it up he let the barrel down and couldn't keep working, `that at the time of lifting said barrel he had a sensation causing him to know that he had received some injury;'" that "claimant is now suffering from hernia and did not have hernia prior to January 17, 1940," that the "injury arose out of an accident in that in so far as claimant was concerned it was not expected or designed and must necessarily within the purview of the workmen's compensation act be classified as an accident; that the strain causing said hernia amounts to an accident within itself; that no compensation is payable since salary of the claimant has not been diminished;" and accordingly found that the employer and insurance carrier furnish the claimant a radical operation for the cure of the hernia and pay all reasonable medical and hospital expenses incident to the operation not exceeding $500.
From this award the insurance carrier and employer appealed directly to the superior court on the ground that the facts found by the director did not support the award; that there was no competent evidence in the record to warrant the award and that such award was contrary to law. The appeal was denied by the superior court on April 9, 1941, and to this judgment the employer and insurance carrier excepted. No compensation was awarded the claimant, but the board found that the employer was liable to furnish the claimant with a radical operation. The claimant insists that he sustained a compensable hernia while engaged in the performance of his duties as service manager of his employer, and that he should be treated in a surgical manner by a radical operation at the expense of his employer. The employer and insurance carrier deny any liability, and contend that the award was erroneous for the reason that it was not "definitely proved to the satisfaction" of the director that such hernia resulted "from an injury by accident arising out of and in the course" of the employment for the reason that it appeared from the evidence before the director that the hernia suffered by the claimant resulted from an injury sustained by him in the ordinary performance of his duties.
"In all claims for compensation for hernia resulting from injury by accident arising out of and in the course of the employee's employment it must be definitely proved to the satisfaction of the Department of Industrial Relations: First, that there was an injury resulting in hernia; second, that the hernia appeared suddenly; third, that it was accompanied by pain; fourth, that the hernia immediately followed an accident; fifth, that the hernia did not exist prior to the accident for which compensation is claimed. All hernia, inguinal, femoral, or otherwise, so proven to be the result of an injury by accident arising out of and in the course of the employment, shall be treated in a surgical manner by radical operation." Code, § 114-412. The only claim here is for the cost of the operation and attendant expenses. The evidence was insufficient to establish when or how the alleged hernia arose, and was therefore insufficient to show that the hernia appeared suddenly, or that it immediately followed an accident, assuming that there had been an accident. For these reasons the award of the director finding for the claimant, which was directly appealed from to the superior court, was unauthorized, and the judge erred in not sustaining the appeal of the employer and the insurance carrier.
The following represents my individual views: I am of the opinion that the evidence was sufficient to authorize the finding that whatever injury the claimant may have received, whether it were a hernia or not, was accompanied by pain in the sense of the requirement of the statute. While there are some inferences from his testimony that he did not suffer pain, it clearly appears that he was physically sensitive to some disorder in his body resulting immediately after he had lifted the barrel, which caused a discomfort. I am of the opinion that any feeling of discomfort or disorder in the region affected comes within the definition of "pain" in the sense of the statute. I am of the opinion that "pain" is used in the sense of there being some discomfort or disorder in the body of which the claimant is conscious, and which indicates to him that he has been injured.
A hernia resulting to an employee from an act done in the ordinary performance of his duties, and done in a manner not unusual or unexpected, is not an injury by accident. "Where an employee's duty is to build and construct cabinets and, with the help of another person, put them in position, and where while in thus putting one of the cabinets into position the employee does so in the ordinary manner for the performance of this duty and in a manner not unusual or unexpected in its performance, and does not exert or strain himself in a manner which is unusual or unexpected in the performance of this duty, but in the performance of his duty of sliding the cabinet into place he exerts himself only in the manner ordinarily required and expected of him, and a hernia results, the hernia does not result from an injury by accident. Had the employee, while thus engaged in sliding the cabinet into position, fallen or stumbled, or had the cabinet fallen upon him, or had he sustained any other `mishap not expected or designed' (see 19 A.L.R. 102, 103), and a hernia resulted therefrom, a different question might have been presented." Westbrook v. Highview Inc., 42 Ga. App. 834 ( 157 S.E. 362). In Atlantic Coast Shipping Co. v. Stasiak, 158 Md. 319 ( 148 A. 452), it was held as follows: "Where a stevedore as claimant in proceedings for compensation because of hernia testified that he was doing ordinary work of stevedore, that nothing slipped or fell, and that he was doing what all other stevedores were doing at time he felt pain, and there was no evidence that injury was caused by any unusual strain or by any condition not an incident to claimant's employment, injury was not an accidental injury within meaning of Compensation Law." In Tackles v. Bryant Detwiler Co., 200 Mich. 350 ( 167 N.W. 36), it was held as follows: "Where a servant sustained an inguinal hernia while lifting a block of timber weighing about 200 pounds, without slipping or falling or being struck by the timber, nothing out of the ordinary happening, it being his duty to lift such timbers and having lifted them before, the injury was not `accidental' within the meaning of the workmen's compensation act." In Kutschmar v. Briggs Mfg. Co., 197 Mich. 146 ( 163 N.W. 933), it was held as follows: "Under the Michigan workmen's compensation act (Pub. Acts 1912 [Ex. Sess.] No. 10), providing for compensation for accident and injury to or death of employes, no compensation can be recovered except for accidental injuries, and hence a workman who ruptured himself while lifting an iron bar in his usual manner is not entitled to compensation." In Industrial Commission v. King, 45 Ohio App. 425 ( 187 N.E. 253), it was held as follows: "Evidence that molder, suffering from inguinal hernia, while working in usual manner sustained strangulated hernia, held as matter of law not to show `accidental injury arising out of and caused by employment.'"
While it appears from the evidence that the claimant, together with another person, lifted a 300-pound drum or barrel of oil, and as the claimant started to lift the barrel he felt a pain in his side, and, after lifting the barrel he dropped it, it appears that the claimant only lifted the barrel and afterwards put it down on feeling pain. It does not appear that the claimant in lifting the barrel did so in a manner other than in the ordinary, usual, and expected manner in the performance of the duty of lifting the barrel, or that he exerted or strained himself in a manner unusual or unexpected in the performance of this duty. The mere straining in lifting the drum or barrel in the ordinary manner required for its lifting, if such strain causes a hernia, is not an accident in the sense of its meaning in the compensation act causing an injury resulting in hernia. If the claimant sustained the hernia as the result of the lifting of the barrel it does not appear that it resulted from an injury by accident.
In American Mutual Liability Ins. Co. v. McCarty, 45 Ga. App. 483 ( 165 S.E. 291), in which it was held that a hernia resulting from an injury received when moving an object with a crowbar, it appeared from the evidence that while using the crowbar, the claimant voluntarily twisted it, and "went with it," and that while "he was prizing on this crowbar," he "just felt something hit him in the groin." In that case the court distinguished the Westbrook case by saying: "It does not appear in this case, as it appeared in the Westbrook case, that the claimant was performing a duty in the ordinary manner and in a manner not unusual or unexpected; nor does it appear in this case, as it appeared in the Westbrook case, that the claimant did not `exert or strain himself in a manner unusual or unexpected in the performance of this duty.'"
I am of the opinion that the evidence was insufficient to authorize a finding by the director that the claimant sustained a hernia resulting from an injury caused by accident.
Judgment reversed. Sutton, J., concurs specially. Felton, J., dissents.
On an application of the provisions of the statute (Code, § 114-412) to the evidence in this case, it does not appear that the hernia appeared suddenly, or that the hernia immediately followed an accident. This must be shown before the claimant would be entitled to an award for surgical treatment by radical operation under the Code section just mentioned. I concur in the judgment of reversal for this reason, and not on the ground that the claimant's injury was not an accidental injury within the meaning of the workmen's compensation act. American Mutual Liability Insurance Co. v. McCarty, 45 Ga. App. 483, supra; Brown v. Lumbermen's Mutual Casualty Co., 49 Ga. App. 99 ( 174 S.E. 359); American Mutual Liability Insurance Co. v. Savage, 49 Ga. App. 106 ( 174 S.E. 363); Reid v. Lummus Cotton Gin Co., 58 Ga. App. 184 ( 197 S.E. 904).