15 A.2d 44 | Pa. Super. Ct. | 1940
Argued April 8, 1940. In this workmen's compensation case the referee awarded compensation for total disability as the result of a hernia for a period of 14 5/7 weeks. The award was sustained by the Workmen's Compensation Board and by the court below, and judgment was entered for claimant. The employer's insurance carrier has appealed.
At the time appellee sustained his injury on January 18, 1938, there were no statutory requirements relating specifically to the essential proofs in hernia cases. The provisions of paragraph (g) of section 306 of the Workmen's Compensation Act of 1915, added by the amendment of April 13, 1927, P.L. 186, § 1, were omitted from the amendment of June 4, 1937, P.L. 1552, § 1, which became effective January 1, 1938. The Pennsylvania Workmen's Compensation Act of June 21, 1939, P.L. 520, § 1, added paragraph (h) to section 306 of the Workmen's Compensation Act of 1915,
The amendment of 1927, supra, was obviously designed to facilitate decision of these cases, which involved *213 almost invariably the question as to whether the hernia was the result of physical weakness, or came from "violence to the physical structure of the body." The provisions of the hernia amendment of 1927, supra, and even more so those of the 1939 amendment followed the theory presented and reported in Bukeavichv. Glen Alden Coal Co., 10 W.C.B. 91, 11 Dept. Rep. 354. The evidence there indicated that a true traumatic hernia must be accompanied by the following conditions: (1) The descent of the hernia must immediately follow the cause; (2) there should be a severe pain in the hernial region; (3) there should be of such prostration that the employee is compelled to cease work immediately; (4) these symptoms must be such severity as to be noticed within twenty-four hours of the accident; and (5) there would be such physical disturbance as to require attention of a physican within twenty-four hours.
Previous to the 1927 amendment the Workmen's Compensation Board had held in many cases that hernias for which compensation was sought had not been shown to be the result of traumatism, strain or effort, when there was no evidence of severe pain at the time, and complaints to fellow workmen or employers; when the employee continued to work; when there was no evidence of shock or nausea; when medical treatment was not sought after or attained until several days thereafter; and when the claimant failed to prove the symptoms and conditions which naturally would follow a traumatic hernia.1
The evidence in the case at bar complied substantially with all of these rules, and justified the referee's finding that appellee's hernia resulted from violence to the physical structure of his body. It showed that on the day in question at 3 p.m. appellee was engaged in *214 lifting a case of tomato juice, weighing 45 to 50 pounds, when he felt a sharp pain in his right side. He tried to continue working but could not do so because of the pain. He stayed at the plant until quitting time, just "putting [his] time in." At the time of the occurrence appellee complained of a pain in his right side to a fellow employee. His foreman testified that appellee came to him "around 3:30 and said he just felt he couldn't do any more, that he complained of a pain in his right side. I immediately, instead of having him sit around and wait for us to take him home, I gave him a job of just guiding the cases down a conveyor into the car, which didn't take any exertion but it was something that had to be done." After arriving home that evening, appellee noticed a lump in his side. Between 7 and 7:30 p.m. he visited his physician who could not take care of him at that time because of an emergency call, and he returned at 9 a.m. the next day. The doctor told him he had a hernia. The same day appellee went to the office of the insurance carrier as instructed by his physician. He was operated on February 9, 1938, for repair to an incomplete indirect right inguinal hernia.
Appellant argues that there is no evidence of an accident. Appellee testified that in lifting the case he assumed "sort of a twisted position." His foreman corroborated this when he said that "this table that the canned goods were put on is probably 3 or 4 feet away from where he [appellee] was working. Q. In other words, he would have to lift up one foot and over three feet? A. Yes."
In Camilli v. Pennsylvania Railroad Co.,
In Vitanza v. Iron City Produce Co. et al.,
The evidence in the present case justifies the finding that the injury was the result of an accident. Our conclusion in this respect does not contravene the rule expressed in Adamchick v.Wyoming Valley Collieries Co.,
In their argument and citation of authorities, counsel for appellant have failed to observe the distinction drawn *217
by Judge CUNNINGHAM, speaking for this court, in Fye v. Baltimore Ohio Railroad Co.,
"In our opinion, this is the line of demarcation as to compensability in cases in which no external mishap is shown. Each case must be decided upon its own facts. Where disability or death has been merely hastened by the effect of even hard labor, performed in the usual way, upon an organ or organs impaired by a disease — other than an occupational one — the employer is not required to pay compensation. . . . . .
"On the other hand, if the disabling or fatal injury is to an organ in a normal and healthy condition, or if the organ, although not sound, has been affected by the injury in a way not attributable to the natural progress of a disease (Keck v. JohnMullen Const. Co. et al.,
Appellant has also raised in this appeal two questions which do not seem to have been brought to the attention of the court below or the Workmen's Compensation Board, and which for that reason are not entitled to consideration by this court. See McDermott v.Sun Indemnity Company of New York,
One of these is that it was error to enter judgment for appellee in the absence of competent medical evidence establishing the relationship between the accident and the hernia. A similar contention was rejected in Testa v. NationalRadiator Corp. et al.,
It is to be noted that in the case at bar the statutory requirement of "conclusive proof" did not apply; further that appellee had never suffered previously from a hernia in the right side, and the symptoms thereof became manifest immediately after lifting the case of tomato juice, as previously described.
The other question now raised for the first time is that there was no competent evidence to establish that appellee gave notice to his employer as required by sections 311, 312, 313 of the Workmen's Compensation Act of June 2, 1915, P.L. 736, as amended or reenacted by the Act of June 4, 1937, P.L. 1552, § 1. The testimony of appellee's foreman has been quoted previously, and shows that the injury was reported to him shortly after it had occurred, and he testified further that during this conversation he told appellee that "he ought to see a doctor." The following day the insurance company was notified by appellee's physician, and appellee himself called at its office. That the matter was the subject *219
of discussion between the insurance company and appellee thereafter is clear from the following question and answer: "Q. Why is it, if this accident happened on the 18th you were not operated on until February 7th? A. For the simple reason you fellows wouldn't agree with me and I had to make arrangements to go to the hospital." An analogous situation existed in Uditsky v.Krakovitz,
All the assignments of error are overruled.
Judgment is affirmed.