191 N.E. 203 | Ill. | 1934
John L. Douglas filed a claim under the Workmen's Compensation act for an alleged accidental injury suffered by him while employed by the Mirific Products Company, a corporation. The Ætna Casualty and Surety Company, which had issued a policy insuring the liability of the Mirific Products Company, was made a party to the application for compensation under section 28 of the act. The arbitrator awarded Douglas compensation for 14-4/7 weeks, aggregating $218.56, for the period of temporary total incapacity, and $1607.85 for necessary first aid, medical, surgical and hospital services. The Industrial Commission, on review, sustained the award. The circuit court of Madison county confirmed the decision of the commission. Upon the petition of the employer and the insurance company this court granted a writ of error for a further review. *647
The Mirific Products Company is engaged in Granite City in the business of manufacturing a lubricant or hard grease with an asphaltum base. Douglas, sixty-eight years of age, had helped organize the corporation and had been its general manager since 1921. He was also vice-president, secretary and acting treasurer of the company. He performed many duties in connection with the business, including physical work such as shoveling, loading cars and trucks, cutting cars on the floor and rolling barrels. For these varied services Douglas was paid $400 per month until shortly before he became incapacitated.
Douglas testified that shortly before noon on Saturday, August 3, 1929, while moving a barrel filled with grease, he felt a "little kink" in his back; that he informed no one of the sensation which he experienced and continued in the performance of his duties; that although he seldom worked on Saturday afternoon he remained at the plant that particular afternoon, and that he and his son-in-law, a fellow-employee, might have loaded a few barrels in order to be ready to proceed with other work on the following Monday; that about 11:00 o'clock, after he had retired for the night, he suffered severe pain in the lower abdomen, and that this pain gradually increased in intensity; that his son-in-law, who lived with him, applied hot towels to alleviate the suffering. Two physicians were promptly summoned, and one of them, Dr. R.W. Binney, arrived at 5:00 o'clock the next morning. He made a diagnosis of strangulated inguinal hernia, caused Douglas to be removed to a hospital and performed the necessary operation. Upon cross-examination Douglas admitted that he had worn an abdominal support for at least seven years, but stated that he wore the appliance owing to his surplus weight.
Dr. Binney, the only other witness, testified that the hernial sac was moderately adherent and grown to the tissues and slightly adherent at the internal ring, indicating *648 that it had been growing there for some time. Recovery was slow, owing to the development of a toxic condition and other complications. The physician ordered a day and a night nurse, who attended Douglas for eight weeks, the entire time he remained in the hospital. The necessity for the medical and hospital services and the reasonableness of the charges therefor are not questioned by plaintiffs in error.
To reverse the judgment it is contended that Douglas failed to prove the statutory prerequisites for the recovery of compensation for a hernia injury. Sub-section (d-1) of section 8 of the Workmen's Compensation act, (Smith's Stat. 1933, p. 1422,) an amendment enacted in 1925, provides: "An injured employee, to be entitled to compensation for hernia, must prove: (1) The hernia was of recent origin; (2) its appearance was accompanied by pain; (3) that it was immediately preceded by trauma arising out of and in the course of the employment; (4) that the hernia did not exist prior to the injury." To recover compensation for a hernia injury under the statute the applicant must prove, by a preponderance of the evidence, each of the four enumerated conditions precedent. (Cuneo Press Co.
v. Industrial Com.
In support of the judgment Douglas cites and relies upon the case of Shea v. Industrial Com.
The legislature has made hernia the subject of special provisions and exceptions under the Workmen's Compensation act. This court must give effect to those requirements. Proof must be made of the concomitant circumstances and conditions prescribed by the statute. To affirm the judgment in this case would tend to nullify the statutory provision and place claims for hernia in an identical position with, if not in a preferred position over, other compensable claims.
A claimant under the Workmen's Compensation act must prove by direct and positive evidence, or by evidence *650
from which the inference may be fairly and reasonably drawn, that the accidental injury of which complaint is made arose out of and in the course of the injured person's employment by the person sought to be charged. (Nelson v. Industrial Com.
The judgment of the circuit court is reversed and the award of the Industrial Commission is set aside.
Judgment reversed and award set aside. *651