49 S.E.2d 117 | Ga. Ct. App. | 1948
1. Whether the hernia existed prior to the accident for which compensation is claimed under the Workmen's Compensation Act is a question of fact; and the director's finding thereon is conclusive when based on competent evidence and in the absence of fraud. Code, §§ 114-412, 114-710.
2. The denial, because the hernia was found to be pre-existing, of medical and hospital expenses incurred by reason of a hernia under Code § 114-412, does not preclude the recovery of compensation under the Workmen's Compensation Act for the period of total incapacity for work which is the result of an aggravation of the pre-existing hernia by an accident arising out of and in the course of the employee's employment.
3. While there is sufficient competent evidence in the record of this case to authorize the director to find that the claimant was not entitled to the medical and hospital expenses which were the result of the operation to remedy pre-existing hernia condition, the evidence leads inescapably to the sole conclusion that there was an accident arising out of and in the course of Boswell's employment which aggravated the pre-existing condition and demands an award of compensation for the period of total *557 disability which was the result of such aggravating accident. The judgment of the trial court sustaining the action of the board, denying compensation, is reversed.
In substance the testimony of the claimant showed the following: that on the 14th or 15th of May, 1946, while lifting a heavy warp, or roll of yarn, into place behind a loom, he suffered pain in the right side above the groin and there was a slight swelling in that locality; that he had never had any symptoms of hernia, nor any idea that he had a hernia, prior to this time; that he reported the fact of this accident to his foreman, Mr. Joe Frick; that this accident was not disabling and that he continued to work without losing time from his job; that on October 7, 1946, while pulling on a warp which had become stuck something pulled loose in his side, and, suffering great pain, he went to the rest room and found that there was a knot about the size of a guinea egg on his right groin; that he reported to Mr. Frick that he was hurt and had to go to see the company doctor; and that the doctor immediately sent him to the hospital to be operated on for a strangulated hernia. On cross-examination the claimant was questioned in regard to an alleged prior inconsistent statement — that the first accident or hernia occurred some two years previously — made to an insurance investigator upon his return to work after the operation. The claimant denied having made this statement and the investigator's report was neither authenticated nor offered in evidence. Also on cross-examination *558 Boswell denied that he had gone to see Dr. Dawson, the company physician, in April of 1946, and denied that the physician had found a hernia at that time; but he recalled having gone to see Dr. Dawson in May of that year, complaining of feeling generally run down, and recalled that Dr. Dawson had told him that he had a hernia.
The testimony of Beecher Collins, a fellow-worker of Boswell, showed that in May, while they were lifting the heavy warp, Boswell complained that he was hurt; that thereafter Boswell refused to help with heavy lifting because of his weak side; and that later in October, after they had been working a couple of hours in the morning, he saw Boswell with his coat and hat on and Boswell, holding his side, told him that he had hurt himself and that he (Boswell) was hunting Joe Frick, the foreman. On cross-examination Collins testified that he did not know of Boswell ever having complained of his side prior to the accident in May.
Boswell's foreman, Joe Frick, testified that Boswell had complained to him of having something wrong with him for some time, but that he did not recall having been told that Boswell was hurt in May and had not submitted an accident report; and that in October, Boswell had told him that he was sick and hurting and had to go to the doctor, but that he did not understand that Boswell had suffered an accident and did not submit an accident report until after Boswell's return to work.
Dr. Harry E. Dawson, the company physician, testified that Boswell had come to him on April 20, 1946, complaining of general asthenia, and that upon examination, he had found that Boswell was suffering from a reducible femoral hernia on the right side and had recommended an operation; that when he examined Boswell in April, Boswell did not complain of the hernia nor mention the accident, but made only the minor complaint of general asthenia; that he was acquainted with Boswell previous to April, but that this was the first time that he had discovered the hernia; that when he examined Boswell in October, the hernia had become strangulated and that he assisted in the operation following this discovery; that the difference in the operation performed in October and the operation which would have been performed in April if the claimant had abided *559 by his suggestion at that time was that the October operation was far more complicated because the tissues had become altered due to the lack of blood supply to them as a result of the strangulation, although the results of the two operations would have been the same; and that any hernia is apt to become strangulated at any time.
The director found as a matter of fact that the claimant had a pre-existing hernia prior to the alleged date of injury in May, 1946; that from the testimony of Dr. Dawson, it was impossible for him (the director) to believe that the claimant suffered any injury in October which aggravated the pre-existing hernia; and "that it is obvious from the evidence that the testimony of the claimant can not be relied upon." He therefore denied the claim for compensation.
1. "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: . . fifth, that the hernia did not exist prior to the accident for which compensation is claimed." Code, § 114-412. "Upon an appeal to the superior court from any final award or other final decision of the Industrial Board, the findings of fact made by the board within its power are, in the absence of fraud, conclusive if they are supported by any competent evidence. Code, § 114-710; Maryland Casualty Co. v. England,
From the testimony of Dr. Dawson that the claimant at the time of his first examination in April did not complain of hernia or of having suffered an accident, but only of general asthenia; of Dr. Dawson that the examination was in April, with the hernia then existing, prior to the alleged date of the accident in May; and of Joe Frick that he had not been told that Boswell suffered an accident or was hurt in April or May, the director was authorized to draw an inference that if Boswell had been injured in May (or in April) he would have gone to the doctor and complained of that rather than of general asthenia, and to find as a fact therefore that the evidence did not sufficiently negative the fact of a pre-existing hernia. Under the rules of law above stated, we must affirm the director's finding of fact that there was a pre-existing hernia and his denial of the claim under Code § 114-412 for medical and hospital expenses incurred in remedying such hernia.
2. Code § 114-412 "deals exclusively with the principle of law regarding compensation for hernia or for death therefrom. Therefore it necessarily follows that, unless the evidence shows that the claimant is entitled to compensation for total or partial disability under some other principle of law under the Workmen's Compensation Act, the claimant is not entitled to prevail in this case." American Mutual Liability Ins. Co. v.Gunter,
The judgment is reversed with direction that the judge of the superior court recommit the case to the State Board of Workmen's Compensation to hear evidence as to the period of time during which the claimant was totally disabled, and upon findings therefrom to make an award of compensation to the claimant in accordance with and in conformity to the law and this opinion.
Judgment reversed, with direction. Gardner and Townsend, JJ.,concur.