American Rolling Mill Co. v. Leslie

• Decision Date: 10 May 1946
• Citation: 302 Ky. 601,194 S.W.2d 643
• Parties: AMERICAN ROLLING MILL CO. v. LESLIE et al.
• Court: Kentucky Court of Appeals

194 S.W.2d 643

302 Ky. 601

AMERICAN ROLLING MILL CO. v. LESLIE et al.

Court of Appeals of Kentucky

May 10, 1946

Rehearing Denied June 18, 1946.

Appeal from Circuit Court, Boyd County; Watt M. Prichard, Judge.

Proceeding under the Workmen's Compensation Act by W. L. Leslie claimant, opposed by the American Rolling Mill Company employer. From a judgment of the circuit court confirming an award of the board in favor of claimant, the employer appeals.

Affirmed.

Caldwell & Gray, of Ashland, for appellant.

David Browning, of Ashland, for appellee.

STANLEY Commissioner.

It is declared in our Workmen's Compensation statute, KRS 342.025, that three elements must be definitely proved to sustain a claim for compensation for a hernia, namely:

'(a) There was an injury resulting in hernia;

'(b) The hernia appeared suddenly and immediately following the injury; and

'(c) The hernia did not exist in any degree prior to the injury for which compensation is claimed.'

In the present case it was proved that W. L. Leslie, while at work for the American Rolling Mill Company on July 23, 1944, fell and struck the lower part of his abdomen on the edge of a step. He suffered great pain at that point for perhaps two hours but continued his day's work. The pain recurred intermittently for a few days and his doctor found that he had a hernia. He was sent to Dr. Rice, chief surgeon for the company, who made the same diagnosis and advised an operation. Leslie was operated on by Dr. Marting, another company surgeon. The Board made an appropriate award for lost time and expenses. The circuit court confirmed it. These facts are not disputed nor is the amount considered erroneous; but it is claimed by the appellant that the injury is not compensable because the employee did not establish freedom from a pre-existing degree of hernia in accordance with the requirement of clause (c) quoted above.

Dr. Rice testified that his profession recognizes a 'primary inguinal hernia,' or what he calls 'open rings,' as a weakness in the lower abdominal wall. Tha condition may progress to complete hernia, in which there is a break-through and protrusion, such as this employee suffered following the accident. A 'primary hernia' is a degree of hernia that rarely becomes complete through violence and a majority of these cases progress naturally and become complete without trauma or injury. The existence of the incipient condition is usually not known to the individual, for there is no exterior evidence of it, and so long as that condition remains undeveloped it gives no pain.

Leslie had been employed by this company for seventeen years, except one year in the earlier part of the period when he worked elsewhere. He had never experienced any pain indicative of physical disorder. Indeed, he had always been a healthy man and had lost no time on account of ill health or infirmity. But Dr. Rice testified that Leslie had been sent to him for an examination by the superintendent on August 2, 1940, and that he had made a record that Leslie had a primary inguinal hernia at that time. In response to a question as to whether he then told Leslie of his condition, Dr. Rice related that he had made a routine exterior examination; and further, 'I expect I put my finger up in the channel, possibly two inches,' which would be how he determined the classification. He was confident that he had told Leslie of his condition, 'because when the boys have that condition present I always tell them; from three to six thousand times a year do I make that examination.' However, Leslie was emphatic that the doctor had not made any such character of examination and had not advised him of any such condition. Dr. Marting, who performed the operation, testified that he found no indication of a previous rupture and that an incomplete hernia can apparently heal. He expressed the opinion that without any history or exterior signs, except a bulge, it is impossible to tell whether or not there is or has been a primary hernia which had healed and recurred.

In the absence of further professional definitions or descriptions of hernia, the Referee, for his opinion, resorted to both a general and a medical dictionary which defined a hernia, in brief, to be a protrusion. The appellant complains of this and quotes from two recent medical authorities describing the advancement in knowledge of such condition, and the conclusion, 'that practically all hernias are of congenital origin, due to this open pouch or peritoneum, which has existed since birth.'

We are quite sure that it was never intended that clause (c) of KRS 342.025 above quoted, concerning a pre-existing degree of hernia, should be given such a narrow and extreme meaning as to embrace a congenital weakness, otherwise a mere pre-disposition would bar compensation and this would practically deny it altogether. We think the provision means that there must have been some definite provable pre-existing degree of hernia, which was merely brought into the open by the accident. This would be proof that the man was already...