41 A.2d 881 | Pa. Super. Ct. | 1945
Argued March 5, 1945.
The principal question before us is whether the claimant's hernia was the result of an accidental injury occurring September 9, 1938. At that time the amendment of June 4, 1937, P.L. 1552, to the Workmen's Compensation Act of 1915 was in effect so that no statutory requirements relating solely to hernia cases were then in force: Eckman v. U.S. Lock and Hardware Company (et al.),
This case was here before in
The claimant had been employed for 15 years as a truck driver and freight handler. His work consisted of hauling crates, boxes of canned goods, etc., from the warehouse of the Atlantic and Pacific Tea Company to its retail stores in the vicinity of Scranton. On the *51 day in question he drove to the Dunmore store of his employer, arriving there a few minutes after 12:00 noon. The store closed for lunch between 1:00 and 2:00 so he had to complete unloading some 300 boxes, each weighing from 5 to 100 pounds, before 1 o'clock. Usually to unload that amount of merchandise required 1 1/2 to 1 3/4 hours. Claimant's helper had been taken off some six months previously and since then he had to do his unloading work alone and had never before been required to unload a similar cargo in such a limited time. After he had unloaded one-half of the merchandise, he picked up from the floor of his truck two cases of canned goods having a total weight of between 140 and 160 pounds. Carrying in his hands these two boxes, pressed against his right knee, he walked about 6 feet to a point 2 feet from the end of the truck. Standing sideways, his feet pivoting, he partially turned his body and while swinging or heaving this load up on top of a box, which was 5 feet above the floor of the truck, he suddenly was seized with a sharp, cutting pain in the bottom of his stomach. He became "deathly sick to the stomach . . . . . . doubled me right up like a jack-knife." He was unable to unload any more freight and went into the store to lie down until a store attendant, who corroborated the claimant's account of his illness, finished unloading the truck.
Claimant returned the truck to the warehouse garage, then went home, undressed, and discovered a severe hernial swelling, which was very red. He went to bed and remained there until the 12th when, with assistance, he got up and went to see Dr. Flynn, who found he was suffering from a "fairly good-sized left scrotal hernia." The doctor testified at the last hearing that the strain or motion that he went through in unloading his truck caused a sudden aggravation of what was "probably a preexisting weakness." Dr. MacLean examined the claimant on April 17, 1939, and expressed *52 the opinion that he had a hernia prior to the date of the alleged accident. Neither of these doctors, however, had ever examined the claimant before September 9, 1938. Whether or not he had a hernia prior to that date was for the determination of the fact finding body.
The referee's 11th finding was as follows: "We find as a fact that the said scrotal hernia was caused by the strain exerted by the Claimant in endeavoring to unload the truck at a faster rate of speed than usual." The board affirmed the referee's findings and conclusions. The award entered was upheld by the court of common pleas. This appeal followed. We think that there was sufficient competent evidence to establish a compensable accident.
It will be observed that we have a case where the claimant, prior to the alleged accident, was a strong, normally healthy man, without any symptoms of a hernia. While working under unusual conditions, he turned his body when lifting a heavy load and suffered a strain, which resulted in a hernia. The effect thereof was not only immediately experienced by the claimant, but was known to others. From the day of his injury to the present time he has been totally incapacitated for work. Concededly, an accident cannot be inferred merely from an injury (Adamchick v.Wyoming Valley Collieries Company,
We have had a large number of these strain cases, some of which presented difficult problems to solve. We think this case falls squarely within the class of which we will give a few examples. In Camilli v. Penna. R.R. Co.,
In Gavula v. Sims Co.,
The appellant takes the further position that the claimant cannot recover as he failed to minimize his injury by undergoing an operation. Section 306 (e) as amended by the Act of 1937, P.L. 1552,
The last position advanced by the appellant is that the rate of compensation established by section 306(a) as amended by the Act of 1937, supra, under which an award was made, does not apply since it has been declared unconstitutional in Rich Hill CoalCo., et al. v. Chesnut, Secretary of Labor (No. 1414, Equity Docket, C.C.P., Dauphin). It is true that this question was not raised by the appellant in the court below, but we will follow our practice adopted in the case of Curran v. The James RegulatorCompany,
Judgment is affirmed subject to above provisions. *55