to accept or reject the prescribed course of conduct. The industrial commission of Ohio concludes that "hernia (or so-called rupture) is a disease which ordinarily develops gradually, being, very rarely, the result of an accident." Rules were therefore adopted to the effect that where there is real traumatic hernia, resulting from the application of force directly to the abdominal wall, either puncturing or tearing the wall, full disability will be allowed; but in all other cases it will be considered as either congenital or of slow development and not compensable, being a disease rather than an accidental injury, unless conclusive proof is offered that the immediate cause which calls attention to the hernia was such as a sudden effort, severe strain, or bruise; that the descent of the hernia immediately followed the cause; that there was severe pain immediately following; and that the foregoing facts were noticed and communicated immediately to one or more persons. Where these conditions are fulfilled, compensation will be allowed as for the aggravation of previous conditions, for a time loss only and to a limited extent.

The Washington commission presented in its first annual report a tentative decision to award compensation only when it is proved that the hernia appeared suddenly, that it was accompanied by pain, that it immediately followed an accident, and that it did not exist prior thereto. A year later it called attention to the Ohio rules, saying, however, that the Ohio commission's findings are not subject to review in court, so that it can settle hernia cases on their merits from a medical standpoint, not being confronted by the legal side of the question. A case rejected by the Washington commission came to the supreme court of the State, and a claim was there allowed, the court holding the injury complained of to be the result of a "fortuitous event" within the meaning of the law, saying that "to hold with the commission that if a machine breaks, any resulting injury is within the act, but if the man breaks, any resulting injury is not within the act, is too refined to come within the policy of the act as announced by the legislature. * It must admit that the tearing of the muscles or the rupture of fibers, or whatever it is that causes hernia, while exercising unusual effort, is likewise covered by the act." (Zappala v. Industrial Insurance Commission, 144 Pac. 54.)

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It is apparent that the matter of the "tearing of the muscles or the rupture of the fibers" was rather vaguely assumed by the court as the explanation of the condition made the ground for a claim; while a compensation commissioner of the State of Connecticut, in an extensive memorandum, quotes medical authorities in accord with the statements of the Ohio commission, one of them saying that "Local trauma, which has long been accorded by the laity an important place in the etiology of hernia, practically very rarely is the cause." The

commissioner, however, awarded compensation in a limited form to the claimant in the case in hand, requiring him to submit within four weeks to proper surgical treatment.

The industrial accident board of Michigan likewise has furnished a pretty full discussion of the question, concluding in favor of the accident theory, if it may be so designated, saying: "We do not overlook the medical evidence introduced on the hearing to the effect that hernia should be classed as an accident only in a few rare cases. We think the weight of authority in workmen's compensation cases is clearly against such theory, and that the general rule established in the adjudicated cases and the textbooks is otherwise." The award of the committee in the case under consideration was approved by the board. That this is the conclusion of the supreme court of the State appears from its decision in a case (Bell v. Hayes-Ionia Co., 158 N. W. 179) in which an award of the board was affirmed, even though there was evidence that there had been structural weakness prior to the event to which the injury was traced; the court saying that this would not " preclude a recovery if the injury itself is distinct and the result of a particular strain causing a sudden protrusion of the intestine." This case was decided largely on the authority of an earlier case (Robbins v. Original Gas Engine Co., 157 N. W. 437) in which the view that hernia is a disease was discussed. It was said by the court that it would be assumed from the evidence that the strain to which the condition of the claimant was traced was the occasion of the first protrusion of the sac through the abdominal wall, and if it was also assumed that there was a certain lack of physical integrity of the parts, still compensation might be allowed for the injury, and that not on the basis of disease, but of accidental injury.

The industrial commission of Wisconsin, in passing on a case before it, said: "This is another case where a man who suddenly discovers that he has hernia concludes that it must have resulted from some fall or strain, and immediately recalls to his mind some recent incident which not only seems to him to constitute a sufficient cause, but which he honestly brings himself to believe did cause it. At best, such an incident constitutes nothing more than a mere possible cause. Except such incident was particularly violent or was followed immediately by severe pain, it can not, with any degree of certainty, be said to be a probable cause. In this case, a hernia on each side, an insignificant accident or strain given as the cause does not argue much." The application was accordingly dismissed. Similar was the position of the Massachusetts board in a case in which the claimant testified to injury by heavy lifting, the impartial physician testifying: "The hernia could have been caused by his work. But every hernia is related to and is caused by strain, and if the

board authorizes compensation for this hernia, it must require some employer hereafter to pay for every hernia that arises in any employee. Hernia, to be caused by some specific accident, can only follow a physical effort of tremendous and unusual violence." The finding of the board was adverse to the claimant.

The Supreme Court of West Virginia, on the other hand, takes the view of that of Washington and of the Michigan board and specifically rejects the position of the Washington commission, reversing also the public service commission of its own State, allowing a claim attributed to heavy lifting, and holding hernia to be an accident within the meaning of the law of the State. (Poccardi v. Public Service Commission, 84 S. E. 242.) The Minnesota Department of Labor and Industries took a similar position, offering as a typical decision and award the case of Rakovich v. Agnew Bros., decided by a county court, in which a rupture was held compensable as an injury under the act, with an award also for medical and hospital expenses covering the costs of an operation.

Occupational diseases.-As already noted, the Federal act of 1908 provided for compensation for employees injured in the course of employment without the restricting words "by accident." However, the Attorney General of the United States said of this act that "there is nothing either in the language of the act or its legislative history which justifies the view that the statute was intended to cover disease contracted in the course of employment, although directly attributable to the conditions thereof. On the contrary, it appears that the statute was intended to apply to injuries of an accidental nature resulting from employment in hazardous occupations, not to the effects of disease. * * * The word 'injury,' as used in the statute, is in no sense suggestive of disease, nor has it ordinarily any such signification." The language and intent of this statute had been previously construed by the Solicitor of the Department of Commerce and Labor in the same way, a case of lead poisoning incurred from employment being held not covered by it.

It may be noted here that the later rulings by the Solicitor of the Department of Labor, construing the same Federal statute, approved claims for disability due to lead poisoning, distinguishing such cases from the one in which the Attorney General used the language above quoted, the disease in that instance being pneumonia contracted in the course of employment. In construing the law to include cases of lead poisoning and the like, the Solicitor said:

"It is, in fact, difficult to find any good, substantial reason why Congress should have desired to make a discrimination as to the manner in which the incapacity arose. The intention was clearly to provide compensation for loss of time caused by incapacity arising from the employment in a similar manner to which the States and

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United States are requiring private employers to respond, so that all injuries shall be compensated for out of the business or industry in which sustained instead of requiring the employee to bear this burden.""

The Supreme Court of Errors of Connecticut construed the law of that State as not covering occupational diseases, reversing an award by one of the compensation commissioners in a case of lead poisoning. (Miller v. American Steel & Wire Co., 97 Atl. 345.) There was a dissenting opinion, in which was pointed out the fact that the majority, by "judicial construction, ascertains that the term 'personal injury' includes only injuries arising through accident, while I [the dissenting judge], by judicial construction, find the same term to include all injuries, whether arising from accident or disease." The commissioner for the fifth district of that State allowed compensation for incapacity from an injury to a plumber caused by working in a kneeling position for a considerable time, the result being what is commonly known as "housemaid's knee." The account of the ruling at hand does not designate the disability as one due to occupational disease, though it comes within that definition according to British law, the award being made on the basis that "there was a direct causal connection between the employment and the resulting injury." A committee of arbitration considered another case in the same State in which claim was made for occupational neurosis attributed to the jarring of the arm of a workman using a pneumatic chipping machine, and while the statement was not made directly, it is inferable that if the facts had been found to support the claim, there would have been an award. As it was, apoplectic strokes were held to be the cause of the weakness, and as these were not due to the employment, no compensation was allowed.

Under the Massachusetts law the meaning of the term "personal injury" without the qualifying words "by accident" was held by the supreme judicial court of that State to so broaden the law as to warrant the inclusion of occupational diseases, awards being made in the case of a claim by an employee suffering from lead poisoning (Johnson v. London Guarantee & Accident Co., 104 N. E. 725); and one based on blindness induced by the inhaling of poisonous gases at a kiln or furnace (In re Hurle, 104 N. E. 336). The court held that personal injuries as contemplated by the act are not restricted to those caused by external violence or physical force, but that the phrase covers bodily harm caused by the conditions of employment. Under the same law a committee of arbitration awarded benefits in the case of a claim based on illness said to be due to the severe shaking of the floor on which the workman sat while at work, the referee physician reporting the case as one of "occupation neurosis due to continual vibration "; another claim that was allowed by the indus

trial accident board was one for temporary total incapacity followed by partial incapacity, due to an occupational disease gradually contracted as the result of work at cigar making; and the Supreme Court of New York allowed a claim where a workman was disabled by reason of the poisonous fumes and gases which were allowed to accumulate in his working place, the injury being classed as accidental. (Naud v. King Sewing Machine Co., 159 N. Y. Supp. 910.)

The law of Michigan in its body uses the same phraseology as that of Massachusetts, and the industrial accident board of the State held that the language was broad enough to include cases of occupational disease, the particular instance being one of lead poisoning. The supreme court of the State took the opposite view, construing the compensation act as a substitute for the old liability laws only, providing relief in cases of accidental injuries, and not embracing new fields. It was further held that the title of the act, which indicated its purpose to provide "compensation for accidental injury or death," was sufficiently restrictive to exclude occupational diseases not due to accident. (Adams v. Acme White Lead & Color Works, 148 N. W. 485.)

The Ohio statute, while not containing the word “accident,” has been construed by the industrial commission of the State to be restricted in its application to injuries other than those which can be classed as diseases. It was admitted that the word "injury " might be so construed as to include every kind of disability, whether due to accident or not, "but if the word is to be taken in its ordinary and popular sense, then the applicant is not entitled to compensation, for by the term 'injury' is generally understood some sudden and unexpected event inflicting bodily harm and resulting in a period of disability." The fact that the constitution of the State had just been amended so as to specifically authorize compensation for occupational diseases was also referred to as supporting the construction. A case thus decided adversely to the claimant by the industrial accident commission was reversed by the trial court, and compensation awarded. This case reached the supreme court of the State, however, and the award of the commission denying compensation was approved, practically for the reasons assigned by the commission. (Industrial Commission v. Brown, 110 N. E. 744.) So in Texas, though the word accident does not appear, the court held that the law relates to accidental injuries. However, the distinction was between accidental and intentional injury, and not between accident and disease. (Middleton v. Texas Power & Light Co., 185 S. W. 556.) No decisions or rulings have come to hand relative to the construction of the law of West Virginia as to this point. In Colorado a dishwasher complained of a rash caused by sal soda used in the dishwater, claiming compensation therefor. The State industrial