§ 335. Hernia.-A carpenter, engaged in fitting doors for cupboards, suffered a hernia. The court, in holding that the evidence was insufficient to justify a finding that the injury arose out of the employment, said: "A workman in order to be entitled to compensation for hernia must clearly prove: (1) That the hernia is of recent origin, (2) that its appearance was accompained by pain, (3) that it was immediately preceded by some accidental strain suffered in the course of the employment, and (4) that it did not exist prior to the date of the alleged injury. Claimant testifies that in 1909 he had a double hernia; that he could not tell how it occured; that he suffered no pain; that it came upon him while he was engaged in the lightest kind of work; that be lost no work as a result of it; that he was operated on and thereafter wore a truss. With this very unsatisfactory evidence before the commission, it is impossible to say that the 'recent origin' of the hernia was clearly proven. It must be noticed that there is no direct history of any accident, such as lifting or straining. It is probable that in this case the abdominal wall was weakened by more or less previous coughing. (Claimant was afflicted with tuberculosis.) It is possible that with the above weakness, the hernia came on as a result of planing. The Legislature has seen fit, in our Workmen's Compensation Act, to make hernia the subject of the special provisions and exceptions herein before set out. This court must give some effect to those exceptions. To sustain the findings and award of the commission and the district court in the instant case would be to nullify them entirely and leave. claims for injury due to hernia on an identical footing with all others, if not to prefer them. In fact, if the contentions of the defendant in error be upheld, it is only necessary, in case of such a claim, to produce evidence from which a reasonable inference may be drawn that the hernia appeared 'in the course of the employment.' It is impossible for this court to so nullify these exceptions, or read them out of the statute. "12 12. McPhee & McGinnity Co. v. Indus. Comm. of Colo. (1919), Colo. 185 Pac. 268, 5 W. C. L. J. 160; Matoris v. Estey Piano Co., (1919), 178 N. Y. S. 408, 5 W. C. L. J. 102, 189 App. Div. 297. Where an employee felt a pain in his right side, and the following day a physician discovered a right inguinal hernia, the court held that there was no evidence to justify a finding that the hernia resulted from an accident arising out of the employment, and said: "It does not follow that, because a man had a pain in his side while doing his ordinary work, without slipping, falling, or other mishap, and a physician finds an inguinal hernia the next day, that the hernia resulted from accidental injuries, even though the physician adds to his declaration, in parenthesis the word 'traumatic.' This word, however much abused in matters relating to insurance, contemplates some external violence, some wounding or bruising of the body, and no one pretends that anything of the kind occurred in this case. The claimant himself merely says that he was doing his usual work, making no suggestion of anything happening, except that he felt a 'severe pain in the right side,' such as all persons experience, no doubt, at some time in their lives, and the next day a 'right inguinal hernia' is discovered, and this simple pain in the side is translated into an accident, within the meaning of a statute designed to protect against the extraordinary risks of certain designated employments. Alpert v. Powers, 181 App. Div. 802, 167 N. Y. Supp. 385. There is not even a suggestion that this hernia had not existed to the knowledge of the claimant prior to this alleged injury. It is not an uncommon thing for men with hernia to work at heavy labor and to suffer at times from exertion, and there is not a par ticle of testimony from which it may be legitmately inferred that this was not the case with the claimant. No connection whatever is shown between the performance of the labors of the claimant and the hernia for which this award has been made no identity of time or of place, and nothing which brings the case within any of the provisions of the statute; and the capital of a legitimate business ought not to be taken to compensate for an al leged injury which is not shown to have been produced in connection with the services rendered by the claimant. 9713 13. Cavalier v. Chevrolet Motor Co. of N. Y., (1919), 178 N. Y. Supp. 489, 5 W. C. L. J. 93, 189 App. Div. 412. Where an employee claimed to have sustained an injury in the course of his employment resulting in a hernia, and the evidence was conflicting, the medical testimony tending to establish that the hernia was of long standing and that there were no indications of a recent injury, compensation was denied. In affirming the decision, the court said: "It is conceded plaintiff was afflicted with scrotal hernia, requiring an operation for its cure. He claimed that it was caused by an accident which he suffered while in the defendant's employ. The burden of proof rested upon him to establish the fact. If there was conflicting evidence upon that affirmance and denial, direct or circumstantial, fairly raising an issue of fact, it was for the board to decide and its decision upon that point disposes of the case.' 9914 Where an employee claimed that while lifting a heavy timber he sustained an injury causing a hernia, but it appeared that he neither slipped nor fell while lifting the timber, nor did it strike him in any way, the court, in dismissing the case, said: "It is settled by our decisions that before an employee is entitled to recover compensation he must establish the fact that he received an accidental injury which arose out of and in the course of his employment. ''15 Where an employee died as the result of a hernia, and the industrial commission found that the hernia was due to an accident arising out of the employment, and an accident seemed to be the only reasonable explanation, under the circumstances, for the existence of the hernia, the court held that the finding was conclusive. 16 An employee's duties were to lift, carry and throw cord wood into a furnace. He went from his home to his work on the morning of the injury in good health, and upon his return he was found to be suffering from a hernia. An operation revealed 14. Nagy v. Solvay Process Co., 201 Mich. 158, 166 N. W. 1033, 17 N. C. C. A. 252, 1 W. C. L.. J. 1049; Alpert v. J. C. & W. E. Powers, 223 N. Y. 97, 119 N. E. 229, 17 N. C. C. A. 253, 2 W. C. L. J. 106. 15. Takles v. Bryant & Detwiler Co., 200 Mich. 350, 167 N. W. 36, 1 W. C. L. J. 1031. 16. Fleming v. Robert Gair Co., 162 N. Y. S. 298, 14 N. C. C. A. 131, 176 App. Div. 23. another hernia of previous origin and both were operated upon and infection resulted in both wounds causing death. It was contended that it was not known which wound became infected, but the court said that it was a reasonable conclusion that both wounds were infected during the operation and that the fatal blood poisoning would have taken place even if the injured man had only been operated upon for the injury arising from the accident. The court stated the general rule, namely; "If an accident necessitates an operation and death ensues, even though it is not a natural and probable consequence, the death may, if the chain of causation is unbroken, be said to have in fact resulted from the injury."'17 A brewery assistant strained himself while lifting a cask, which strain resulted in a rupture in the same place where there had been a rupture some years previous. The county judge found that the injury was caused by an accident, within the meaning of the English Compensation Act, but that it did not arise out of the employment, but was brought about gradually as the result of the absence of support. On appeal, the court, in holding that the injury was due to an accident arising out of the employment, said: "Once you come to the conclusion that there was an accident, and that there was a rupture occasioned by the accident, I cannot see the importance of considering whether there was any unusual strain, or whether it was a strain which he was subjected to once a week, if you like for many years. At some particular time the disability which the man brings with him leads to an accident, and if you find that on the facts, I do not see how it can be said that the learned judge had any right to deal with this as he did, apparently thinking it necessary to prove there was some unusual strain. ''18 Where an employee suffered from chronic myocarditis prior to an operation for the relief of a hernia, which was caused by an accidental injury arising out of the employment, and he died from this disease six weeks after the operation, an award was reversed, 17. Eddles v. School Dis. of Winnipeg No. 1, 22 Manitoba 240, 21 W. L. R. 214, 2 W. W. R. 265, 2 Dom. L. R. 696, (1912), 14 N. C. C. A. 542. 18. Brown v. Kemp, 6 B. W. C. C. 725, 14 N. C. C. A. 535. the court saying: "To establish the fact that a death resulted from an injury, it is clearly not sufficient to prove that the person received the injury; that an operation was performed on account thereof, and after he had apparently recovered from the effect of the operation and the anesthesia, he died from a disease that existed before the injury."19 Deceased had done some heavy lifting early in the morning. and on the afternoon of the same day he was taken violently ill with strangulated hernia. The evidence, including medical testimony, was to the effect that the hernia was of very recent and accidental origin. It was held that such evidence was sufficient to sustain a finding that the injury was caused by ar accident arising out of the employment.20 A stoker, who was suffering from a rupture, suffered a strangulation of the hernia while engaged in his regular duties of stoking. The duties of a stoker required great abdominal strain. The court held that the subsequent death was due to the original accident arising out of the employment.21 § 336. Independent Contractor Doing Extra Work.-The owner of a dredge contracted to lease his own dredge to the company and to make repairs thereto, with the services of himsel or a substitute. The person who hired the dredge agreed to furnish the supplies. Upon a failure to furnish supplies the owner of the dredge found it necessary to go ashore for supplies. While cranking the engine in the motor boat, which was used to reach the shore, it backfired and broke his arm. The court held that while claimant was going ashore for supplies he was an employee of the person hiring the dredge, and the injury sustained arose. 19. Tucillo v. Ward Baking Co., 167 N. Y. S. 666, 15 N. C. C. A. 637, 180 App. Div. 302. 20. Andreini v. Cudahy Packing Co. & Casualty Co. of America, 1 Cal. Ind. Acc. Com. Dec. 8, 6 N. C. C. A. 390. 21. Scales v. West Norfolk Farmer's Manure and Chemical Co., (1913), W. C. & Ins. Rep. 165, 3 N. C. C. A. 276. Note: For further cases on this subject see § 200 ante, also see "Strains" § 247 ante. See Rupture § 349 post. |