Balow v. Kellogg Co-op. Creamery Ass'n

• Decision Date: 06 July 1956
• Docket Number: No. 36815,36815
• Parties: Harry L. BALOW, Respondent, v. KELLOGG COOPERATIVE CREAMERY ASSOCIATION et al., Relators.
• Court: Minnesota Supreme Court

Page 430

78 N.W.2d 430

248 Minn. 20

Harry L. BALOW, Respondent, v. KELLOGG COOPERATIVE CREAMERY ASSOCIATION et al., Relators.

No. 36815.

Supreme Court of Minnesota.

July 6, 1956.

Syllabus by the Court.

1. Function of this court is to determine if evidence reasonably sustains findings of Industrial Commission that employee's disability, which resulted from strangulation of left inguinal hernia, was result of accident occurring August 19, 1954, arising out of and in course of employment.

2. Although an employee may be predisposed to hernia or have a congenital weakness or condition favorable to its development, if strain or overexertion attendant upon his work induces development of hernia, such strain or exertion is legal cause thereof and disability arising therefrom is compensable.

3. Where evidence disclosed that prior to employment in 1944 employee was in sound physical condition and had not suffered hernia, and testimony of medical experts was to effect that employee's work in lifting heavy milk and cream cans could be producing causes of left inguinal hernia which he sustained in 1952 or 1953 in the course of such work; and where it appeared that on August 19, 1954, as result of exertion in lifting such milk and cream cans hernia became strangulated with resulting disability, Held such evidence sufficient to support Industrial Commission's finding that employee's disability was due to injury sustained in accident arising out of and in course of his employment.

4. The time for giving notice of a compensable injury under M.S.A. § 176.141 commences to run when disability first appears or when it first becomes reasonably apparent to employee that disability is likely to result from the injury. Whether an injury is of such a nature as to indicate to employee that it will result in disability and the date when it must have first become apparent to employee that injury believed to be nondisabling would actually result in disability are ordinarily questions of fact.

5. Where evidence established that left inguinal hernia sustained by employee did not result in disability or cause him pain or suffering, and did not incapacitate him from performing his regular work, Held such evidence sufficient to sustain commission's findings that hernia did not result in disability or give employee reasonable grounds to believe that it would so result until August 19, 1954, when it became strangulated with resulting disability. Employer's knowledge of such strangulation on the day following its occurrence held sufficient under the requirements of § 176.141 relating to notice or knowledge of compensable injury to render employer liable for compensation therefor.

The order of the commission is affirmed. Costs and disbursements and attorney's fees in the sum of $250 on the proceedings here are allowed respondent.

Reynolds & McLeod, Minneapolis, for relators.

Foley & Foley, Wabasha, for respondent.

DELL, Chief Justice.

Certiorari to review decision of the Industrial Commission which awarded respondent, Harry L. Balow, an employee of relator Kellogg Cooperative Creamery Association, compensation and medical expenses in the sum of $628.10. It is employee's contention, and the commission determined, that his disability, which occurred August 19, 1954, from the strangulation of a left inguinal hernia with which he then suffered was due to an injury sustained in an accident arising out of and in the course of his employment. The commission also determined that the employer had due and statutory notice and knowledge of the August 19, 1954, occurrence and hence became liable for compensation for the disability of employee which followed.

On appeal relators, the employer and its insurer, contend that the evidence does not support a finding that employee's disability was due to an injury arising out of and in the course of his employment; and that the employer did not have due and statutory notice or knowledge of his original left inguinal hernia so as to obligate it to compensate him for the disability which arose following its ultimate strangulation on August 19, 1954.

Employee commenced his employment with Kellogg Cooperative Creamery Association upon his discharge from the army in 1944. At that time he was in sound health and had never experienced any difficulty with hernia. His work for the most part consisted of lifting and emptying filled milk and cream cans weighing between 115 and 120 pounds each and he handled between 300 and 400 daily. He testified that during 1949 or 1950 a hernia appeared on his right side and that later during 1952 or 1953 his left side became similarly affected; that when he first noticed them 'a sort of bump appeared there in the groin' while he was engaged in lifting the cans during his workday; that for the hernia on the right side he wore a truss which 'took care of it pretty well'; that he tried to wear a truss for the left side but that it never kept in place and that he stopped wearing it; that the left hernia came out quite often while he was working and that on such occasions he merely pushed it back within his obdomen; and that he did not notify anyone of it and continued in his employment doing the regular work above described until August 19, 1954. He further testified that at about 1 p.m. that date, shortly after he resumed employment after lunch and while lifting the cans, the hernia on the left side 'came out'; that on this occasion contrary to his previous experience after he pushed it back in it would come 'right out again * * * it wouldn't go back'; that it did not give him any pain at that time and that he continued to work for the remainder of the day; that the right hernia did not then give him any difficulty; that that evening after he had retired, the left hernia became very painful until finally he called Dr. L. M. Ekstrand of Wabasha; that at 11 p.m. the same night he was taken to the hospital and that surgery was performed upon him to repair the left hernia early the following morning; and that subsequently on August 30, 1954, the hernia on the right side was repaired. He returned to work November 29, 1954.

Dr. Ekstrand testified that his examination of employee the night of August 19, 1954, disclosed a large irreducible hernia in the left inguinal region--quite painful to manipulate; that he was unable to get the hernia contents back within employee's abdomen and hence surgery became the only recourse; and that surgery was performed in repairing the hernia early the following morning. He testified further that employee's work in lifting the loaded milk or cream cans could produce the hernia described and that the condition which developed August 19, 1954, might be experienced by anyone suffering from an inguinal hernia which had not...