Barclay v. Pontiac Motor Div., Gen. Motors Corp.

• Decision Date: 11 October 1944
• Docket Number: No. 24.,24.
• Citation: 16 N.W.2d 64,309 Mich. 534
• Parties: BARCLAY v. PONTIAC MOTOR DIVISION, GENERAL MOTORS CORPORATION.
• Court: Michigan Supreme Court

309 Mich. 534

16 N.W.2d 64

BARCLAY

v.PONTIAC MOTOR DIVISION, GENERAL MOTORS CORPORATION.

No. 24.

Supreme Court of Michigan.

Oct. 11, 1944.

Appeal in the Nature of Certiorari from the Department of Labor and Industry.

Proceeding under the Workmen's Compensation Act by James Barclay, claimant, opposed by the Pontiac Motor Division, General Motors Corporation, employer. From an order of the Department of Labor denying compensation, claimant appeals in the nature of certiorari.

Affirmed.

Before the Entire Bench.

BUSHNELL and STARR, JJ., dissenting.

Maurice Sugar and Benjamin Marcus, both of Detroit, for plaintiff and appellant.

Henry M. Hogan, of Detroit (E. H. Reynolds, of Detroit, of counsel), for defendant and appellee.

WIEST, Justice.

I am of the opinion the holding of the department should be affirmed.

Plaintiff's right to an award, if any, is under the provisions of the statute as it stood in 1937, Act No. 61, Pub.Acts 1937 (Stat.Ann. 1942 Cum.Supp. § 17.220, et seq.), and the act of 1943, No. 245, cited by my brother, has no bearing upon the issue in this case. Was the hernia of recent origin? A recurrent hernia is not a hernia of recent origin.

The department found that the disabling hernia suffered by plaintiff was a recurrence of a former hernia in 1936, and the evidence at the hearing, inclusive of plaintiff's own testimony, establishes beyond cavil such to be the fact. Plaintiff admits that he had a hernia in the same groin in 1936 and then had an operation at a hospital and by direction of his doctor wore a support for about nine months and at times, later, it pained and swelled to the size of a small egg. After the hernia in 1942, plaintiff went to the company doctor who examined his condition and took his history but did not perform an operation. The doctor testified:

‘I have never seen a hernia as large as Mr. Barclay has, that hadn't been present for a matter of, I would say, a matter of years. I don't think it is a matter of days or a matter of weeks; a hernia that large could not happen in a matter of two or three weeks and still have the man continue to be on his feet, and it would take a tremendous-it would be a tremendous amount of disability. In fact, it would be practically a fatal thing to have a hernia develop in a few weeks to the size of Mr. Barclay's was when I examined him. In fact, most of the time hernias, or acute hernias, are very small, and we sometimes have to make several examinations to determine whether there is a hernia present or not.'

Dr. Howard B. Barker testified that he examined and operated on plaintiff; that October 20, 1942, plaintiff ‘had a left inguinal hernia, recurrent;’ that plaintiff ‘had a large left inguinal hernia on the left side, with numerous adhesions between the various layers of the abdominal wall.’ At the time of the operation he found plaintiff ‘had a large sac with a large neck or opening, sac showed considerable peritoneal fat around it. There were adhesions between the muscle, the adjacent muscle and the neck of the sac, and adhesions between the various layers of muscle, or external oblique fascia and the internal oblique muscles,’ which indicated ‘that there had been a previous disturbance of the muscles and, of course, in this case, we assumed that the previous disturbance was the previous operation,’ and the adhesions and a portion of the neck of the sac being thick would indicate that the hernia had existed for some time.

Plaintiff testified that following the operation in 1936, the hernia had been getting worse and started to bother him just a few months after he went back to work and has bothered him ‘on and off, all along;’ that he first noticed the swelling more than a year ‘after I had taken the last injection, which would be somewhere around 1937 or 1938.'

The denial of an award is affirmed, with costs to defendant.

NORTH, Chief Justice (concurring).

As to plaintiff's hernia the department found: ‘That condition could not have been recent in origin notwithstanding the fact the condition was not previously disabling.’ There was testimony to sustain this finding. It follows that plaintiff is not entitled to compensation because his hernia was not ‘clearly recent in origin’ as required by the statute. Act No. 61, Pub. Acts 1937, Part VII, § 2, subd. 28. For this reason I concur with Mr. Justice WIEST in affirmance, with costs to defendant.

BUTZEL, SHARPE, BOYLES, and REID, JJ., concurred with NORTH, C. J.

BUSHNELL, Justice (dissenting).

The sole question presented in this appeal, in the nature of certiorari from the Department of Labor and Industry, is stated by plaintiff and appellant James Barclay as follows:

‘Is the recent aggravation of a preexisting non-disabling hernia, which aggravation causes total disability, compensable under the workmen's compensation law?'

Appellee and defendant Pontiac Motor Division, General Motors Corporation, prefers to state the question in this manner:

‘Was plaintiff's hernia clearly recent in origin so as to be covered under paragraph 28 of section 2, part VII of the Workmen's Compensation Law?'

Barclay has been employed by defendant since 1935. In October of 1942, aided by a fellow employee, he picked up a breech case weighing approximately 100 lbs., and placed it in a fixture for checking. As he did so, he felt something break in his left groin. He reported the incident to his foreman, who sent him to the first aid station. The following day he returned to work, wearing a support, and was placed on a lighter job. About 15 days later the pain became so severe that Barclay was unable to continue his work. A physician who examined him the next day advised a herniotomy. This operation was performed in November and Barclay returned to work in January. He sought compensation for that period and for his medical and hospital expenses under the provisions of part VII of the Workmen's Compensation Act, generally known as the ‘occupational disease amendment.’ Comp.Laws Supp., 1940, § 8485-1 et seq.

There is some indication that Barclay had a hernia in 1931, and there is no question about the fact that in 1936 he sustained a left inguinal hernia, which was repaired. Dr. Ethan B. Cudney, the industrial surgeon of defendant company, who examined Barclay on October 15, 1942, said that his examination revealed a hernia ‘so large that it practically obliterated the scrotum,’ and he stated that, in his opinion, the hernia ‘had been there for several years, four or five years, maybe longer.’ He testified in part as follows:

‘I have never seen a hernia as large as Mr. Barclay has, that hadn't been present for a matter of, I would say, a matter of years. I don't think it is a matter of days or a matter of weeks; a hernia that large could not happen in a matter of two or three weeks and still have the man continue to be on his feet, and it would take a tremendous-it would be a tremendous amount of disability. In fact, it would be practically a fatal thing to have a hernia develop in a few weeks to the size of Mr. Barclay's was when I examined him. In fact, most of the time hernias, or acute hernias, are very small, and we sometimes have to make several examinations to determinewhether there is a hernia present or not.'

Dr. Howard B. Barker, who testified in behalf of plaintiff, examined Barclay on October 20, 1942, and performed the herniotomy in November. He found ‘a large left inguinal hernia on the left side, with numerous adhesions between the various layers of the abdominal wall.’ He stated that a strain might have increased Barclay's disability, and that ‘usually a sudden pain on straining, in the inguinal region, means the separation of muscle or the tearing of adhesions, if they are present.’ On cross-examination he testified that ‘the presence of adhesions and the thickness of the neck of the sac would indicate that a hernia had been present for some time.’ He stated that from the history he obtained from Barclay he ‘judged that he had had something there, that his abdominal wall had not been intact since the disturbance four months after his second operation,’ and that ‘he had a hernia for some time, in other words, for several years.’ On redirect examination he said: ‘Accepting the history as given, I would say that he must have had some-some change in the condition of the inguinal canal as a result of the strain.’ On recross he answered that what he found would indicate that the swelling or lump had been present for some time; and, on redirect, replied to the inquiry as to whether or not the recurrence was old, that: ‘You can only make a relative statement. You can't tell how old nor you can't tell exactly how young.'

The deputy commissioner then asked Dr. Barker about the adhesions, to which he replied:

‘In the hernia, you have three layers, primarily; you have the peritoneum, which is the sac itself; you have the internal oblique muscle and you have the external oblique fascia, which the media portion of the external oblique muscle. In doing an operation for hernia, you open the external oblique fascia, you divide or separate the fibers of the internal oblique muscle from the portion of Poupart's ligament, and you dissect out the peritoneal sac. You remove the peritoneal sac, close the neck, suture the internal oblique muscle to the shelving portion of the Poupart's ligament, by means of some type of suture material, either absorbable or nonabsorbable, and you close the opening in the external oblique fascia. You can't do that in any hernia without leaving adhesions. That is, there are adhesions between the various layers after you do that operation, between the peritoneal layer and the internal oblique, between the internal oblique and the external oblique fascia, and of course each time that an operation is done, if you have two operations, you have more adhesions than you do with one operation, so that there are adhesions between the peritoneum and the internal oblique, and between...