Bethlehem Steel Co. v. Ziegenfuss

• Decision Date: 21 November 1946
• Docket Number: 20.
• Parties: BETHLEHEM STEEL CO. v. ZIEGENFUSS.
• Court: Maryland Court of Appeals

49 A.2d 793

187 Md. 283

BETHLEHEM STEEL CO. v. ZIEGENFUSS.

No. 20.

Court of Appeals of Maryland

November 21, 1946

Appeal from Circuit Court, Baltimore County; Frederick Lee Cobourn Judge.

Proceeding under the Workmen's Compensation Act by Helena A Ziegenfuss, employee, opposed by Bethlehem Steel Company employer and self-insurer. From an adverse judgment, the employer and self-insurer appeals.

Reversed and remanded with directions.

William Taft Feldman, of Baltimore (I. Duke Avnet, of Baltimore, on the brief), for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, and HENDERSON, JJ.

MARBURY Chief Judge.

Appellee filed her claim against appellant, her employer and a self-insurer, with the State Industrial Accident Commission asking compensation for the result of an accidental injury occurring September 19, 1944. Her work was the operation of a crane. On the day of the accident she had descended from the crane and, returning, climbed a ladder, on the rungs of which there was grease. She slipped, but did not fall. She continued to work that day, but the next morning her right side commenced to pain her and started to swell. She was off three days. When she went back she reported to her foreman and the Mill Dispensary. A couple of weeks later she went to the Mill Dispensary and was directed to Dr. Shaffer. Dr. Shaffer told her she had a hernia. She asked him for an operation. He denied responsibility on behalf of the Company. She then arranged for the operation herself and it was performed on November 20th. She was not working from November 12, 1944, to March 5, 1945. The State Industrial Accident Commission denied compensation on the ground that she did not prove she had no pre-existing hernia. On appeal to the Circuit Court for Baltimore County the jury decided the issues presented in her favor and a judgment was entered reversing the order of the Commission. The employer and self-insurer then took this appeal.

Three questions are raised on the record. These are:

1. Whether the claimant produced legally sufficient evidence to show that the hernia complained of did not exist prior to the accident.

2. Was the employer-insurer entitled to his fifth issue refused by the Court which was 'Had the claimant a hernia existing prior to the time of the alleged accident?'

3. Did the claimant's first issue submit to the jury a question of law? This issue was 'Did the claimant sustain a compensable hernia arising out of and in the course of her employment,' etc.

Cases involving hernia constitute an exception to the usual type of cases under the Workmen's Compensation Act. Code 1939, art. 101, § 1 et seq., as amended. This was not always so. When compensation acts were first passed a hernia was treated in the same manner as any other injury. If it appeared from the testimony that there was any special strain or slip or fall, or any other occurrence out of the ordinary which produced a hernia, then it was compensable as were other injuries. One of the earlier cases decided in 1920 illustrates this, although there was no dispute that the hernia in the case came about as a result of lifting in a course of the claimant's employment. He filed a claim for compensation and his employer was ordered to pay him for eight weeks. He had refused to submit to an operation, and the Court held, following what was stated to be the overwhelming weight of authority, that a claimant cannot continue to receive compensation and at the same time refuse to submit to proper surgical treatment such as any reasonable man would submit to in like circumstances. That was the case of Schiller v. B. & O. Railroad Co., 137 Md. 235, 112 A. 272. The injury in that case occurred on the 21st of December, 1917 and was held compensable under the Acts of 1916, Chapters 368 and 597, then in force. These were amendments to the original enforcible compensation act, Chapter 800 of the Acts of 1914. In none of these acts was there any special provision for hernia.

The next amendment came in 1920 by Chapter 456, which also provided no special treatment for hernia cases. Between 1920 and 1931 occurred the case of Atlantic Coast Shipping Co. v. Stasiak, 158 Md. 349, 148 A. 452, in which a stevedore developed a hernia while loading tin plate on trucks. The Court said that the injury did not result from any external force and there was nothing in the record to indicate any unusual strain or any condition not incidental to the work in which he was engaged. It was held that under these circumstances the injury was not an accidental injury within the meaning of the compensation law. This same ruling was made in the case of Jackson v. Ferree, 173 Md. 400, 196 A. 107, but was differentiated in the cases of Waddell George's Creek Coal Co. v. Chisholm, 163 Md. 49, 161 A. 276, and Baking Co. v. Wickham, 178 Md. 381, 13 A.2d 771. In the last case, it was held there was sufficient evidence to enable a jury to conclude that the accident either accelerated an existing rupture or caused a strangulated hernia. This last case was decided under the Act of 1937, Chapter 329 which contained the same provisions as those in force when the case before us arose.

The first special statutory treatment of hernia is found in Chapter 363 of the Acts of 1931. It was there provided that claims for compensation for hernia should be allowed only upon definite proof of six separate conditions. First, there had to be an accidental injury caused by and arising out of and in the course of the employee's employment. Second, the hernia had to appear suddenly. Third, it must be accompanied by pain. Fourth, it must immediately follow such injury. Fifth, it must not have existed prior to the injury, and, sixth, the injury must have been reported to the employer within 48 hours next following its occurrence. It was also provided that all hernias should be treated in a surgical manner by operation whenever practicable. In case the employee refused to undergo an operation he was to be allowed compensation for seven and one-half weeks, but if, because of age and previous physical condition it was unwise for him to undergo such operation, the refusal might be excused by the Commission and the employee would then be allowed compensation for the period of actual disability, not to exceed 26 weeks. These provisions of the statute were considered by this Court in the case of Lloyd v. Webster, 165 Md. 574, 169 A. 202, and the reasons for their enactment were given in the opinion delivered for the Court by Chief Judge Bond in the following words, 'These special requirements in the Maryland statute are similar to those previously adopted in a number of other states to gain greater assurance that hernias compensated for have in fact resulted from accidental strains. The general provisions of the compensation statutes, it appears, had seemed to work unsatisfactorily because previous accidental strains were sometimes inferred merely from the development of the hernias, when no strains had been reported or known. Occurrence of a strain would, of course, be a fact peculiarly within the knowledge of the workman, and there could be no means of testing the truth of attribution of the hernias to strains if no strains had been reported at the time. Further, medical testimony had cast considerable doubt on the possibility of traumatic cause of hernias.' The Court's construction of the statute is also stated by Judge Bond, 'This court construes the Maryland statute as intended to restrict compensation for hernia to accidents noticed and reported at or about the time of their occurrence. Throughout the requirements quoted, the accidental injury from which the time for reporting is to run is distinguished from the hernia attributed to it. There must have been 'an accidental injury causing hernia,' the hernia must have followed the injury immediately, * * * which must have been reported to the employer within the time stated after its occurrence.' In the April term of 1935 this Court decided the Ross v. Smith case, 169 Md. 86, 179 A. 173. In that case the employee had an old hernia, was injured, and, as a result, had a strangulated hernia, and the Court said that the old hernia was not the hernia for which compensation was claimed. It was held that the Act of 1931, Chapter 363, was no bar to the claim under these circumstances, and that while there was no basis for the determination of the proportionate disability attributed to an old hernia and to the latter strangulated hernia, the latter caused the employee's death. The implication is that had there been merely a disability and not a death the disability could have been proportioned, under the Act of 1931.

Meanwhile the Legislature of 1935 had passed an act which went into effect after this decision and which changed the requirements of compensation for hernia. This was Chapter 487 of the Acts of 1935 and its provisions in this respect have continued since, although there was a change by Chapter 336 of the Acts of 1945 which permitted compensation for hernia resulting from strain. This last act, however, is not before us in this case.

The Act of 1935, reaffirmed by the Act of 1937, Chapter 329, Code 1939, art. 101, § 48, and the Act of 1941, Chapter 626, and the Act of 1943, Chapter 478, Code Supp.1943, art. 101, § 48 reduces the requirements for compensation for hernia to three: First, that there was an accidental injury causing hernia, arising out of and in the course of employment; second, that the hernia did not exist prior to the injury for which compensation is claimed, with a proviso if a pre-existing hernia became strangulated, requiring immediate operation, this requirement would not apply, and, third, that the injury must be reported to the...