Blackshear v. Liberty Mut. Ins. Co

• Decision Date: 29 April 1943
• Docket Number: No. 29949.,29949.
• Citation: 26 S.E.2d 793
• Parties: BLACKSHEAR. v. LIBERTY MUT. INS. CO. et al.
• Court: Georgia Court of Appeals

26 S.E.2d 793

BLACKSHEAR.

v.LIBERTY MUT. INS. CO. et al.

No. 29949.

Court of Appeals of Georgia, Division No. 1.

April 29, 1943.

Rehearing Denied July 27, 1943.

Second Rehearing Denied July 31, 1943.

[COPYRIGHT MATERIAL OMITTED]

Syllabus by the Court.

1. Under the Workmen's Compensation Act the general contractor and carrier are liable for a compensable injury, even though such injury is occasioned by an employee or agency of a subcontractor and his carrier.

2. Under the provisions of the Workmen's Compensation Act contained in the Code, § 114-412 (relating to compensable hernia), subdivision 2 ".* * * appeared suddenly * * *" and subdivision 4 " * * * immediately followed * * *, " are not to be construed as synonymous with the term "instantaneous." But the terms should be given that construction and application which will effectuate the general intent and purpose of the statute.

3. A compensable hernia, under the Code, § 114-412, is one where there is relative and reasonably close coincidence be tween the accidental injury and hernia, and it is clear that no other agency intervened as to time, place, or action, to cause the hernia, save the accidental injury growing out of and in the course of the employment.

BROYLES, C.J., dissenting.

Error from Superior Court, Clayton County; James C. Davis, Judge.

Proceeding under the Workmen's Compensation Act by David Blackshear, opposed by the Liberty Mutual Insurance Company, insurer, and A. Farnell Blair, employer. The decision of the Deputy Director of the Industrial Board, denying compensation, was affirmed by the full board, and the employee appealed to the superior court. To review a judgment affirming the judgment of the Industrial Board, the employee brings error.

Reversed and remanded.

On October 17, 1941 David Blackshear, a brick mason employed by A. Farnell Blair (hereinafter called contractor), earning more than $40 per week, received injuries when an employee of L. P. Friedstedt Company (hereinafter called subcontractor) caused a bucket of bolts to fall from about twelve feet above the place where the claimant was working. The bucket was of five-gallon capacity, constructed of metal. There was at least a gallon of such bolts, of the dimension of ⁵/₈ or ³/₄ x 2 inches. When the bucket struck the plaintiff he was stooping over, laying brick in the course of his employment. The accident occurred about 2 p. m. on Friday. The claimant testified:

"Q. Did anything happen to you? A. Yes sir, I was working in October laying brick, stooping down, and I heard somebody holloa above me, and I looked out and before I could look the bucket hit me and knocked me unconscious. When I knowed anything somebody had me carrying me down a little old ladder and sat me on a box and I commenced getting real sick. They carried me on to the office and the nurse gave me a glass of some white medicine and I drank that, and that sorter kept me from heaving and they said the ambulance would be there in about eighteen minutes. * * *

"Q. At the time this bucket of rivets hit you, did it knock you unconscious? A. Yes, sir; knocked me kind of blind like and made me sick. * * * They put me on a box there.

"Q. When you came to, what pain did you have? A. After I came to, it run from here straight across.

"Q. What part of your body? A. My back to my stomach and looked like this right leg was paralyzed. I couldn't walk. * * *

"Q. Did you notice any bulging or anything similar to that at the time you were hit? A. No, sir; I just had pains, I didn't notice. * * *

"Q. When the bucket hit you in the right side of the small of your back and against your elbow, it knocked you forward? A. Yes, sir.

"Q. You felt pain at that time in your back, down your right side of the leg? A. Yes, sir; and through my stomach. I couldn't cough or anything without it hurting.

"Q. When did that trouble start? A. After I got hit."

Buford, scaffold foreman, under whom claimant worked, testified:

"Q. Were you on this job at the time he [claimant] was hit by something? A. Yes.

"Q. Tell me what you saw? A. I was standing about fifteen feet from the scaffold that he was working on and I wasn't looking at him but I heard this man holloa, the steel man, and I looked around about the time and the bucket of bolts hit this man in the back. I didn't see it hit him, but I saw him when he went down. I looked around just at that time the bucket fell, and when it hit him I didn't see it but I did see him go down.

"Q. Did it knock him with his face down? A. Yes, sir; flat down.

"Q. Where did the bucket hit him? A. Hit him in the back. I don't know just how it hit him, because I didn't see it. * * *

"Q. Do you know what happened to him then? A. Yes, a fellow standing on the scaffold by him and I ran up the ladder and we picked him up and brought him down the ladder off the scaffold.

"Q. Was he unconscious? A. I would say he was unconscious for two or three minutes.

"Q. What did you do with him? A. Set him down there a minute or two, and he couldn't walk and I went out and got in my car and drove up there and put him in the car and drove him to the first-aid office, and the nurse said we couldn't do nothing, to call an ambulance. I didn't take him out of the car right then. They said the ambulance would be right out in about twelve minutes. We helped him out of the car, carried him in the office, laid him down on this table and she gave him some medicine to ease him.

"Q. Did you know any part about him which was injured? A. No, I didn't.

"Q. Was any examination made of his body at that time? A. I don't think so, without the nurse did feel around on him.

"Q. Did you hear Blackshear complain of any pain? A. He was complaining with his back and side hurting him.

"Q. Which side? A. Right side."

The above is all the testimony relating to the injury and complaint of plaintiff as to his injury before he was carried to the hospital. Sometime in the early afternoon after claimant had been carried to the hospital, the evidence reveals the following: Claimant testified: "It [the ambulance] came and carried me to Harrison's Hospital, and Dr. Randolph Smith took me and examined me well and said it wasn't no bones broken. He had me x-rayed. He said to lay quiet and he would be back. I laid there until Saturday evening about 3 o'clock and he said, 'Dave, if you feel well enough, you can go home and lay quiet, and if you can stand the pain you might go to work if you can.' * * * I had myself bandaged up with these little Red Cross plasters on my back * * *."

Dr. Randolph Smith testified that he saw claimant in the early part of the afternoon of October 17, 1941, at the hospital to which claimant was carried after the accident.

"Q. Did you make a general examination of him? A. I did.

"Q. What did you find? A. Contusions on the right side of his back and some contusions on his right elbow, nothing else of any particular moment.

"Q. Did you notice any hernia? A. No, sir. * * * I told the man I thought inasmuch as he was already undressed and in the hospital, he ought to stay there for at least twenty-four hours to see if anything developed. I explained that I would come back the next day and take a look at him, which I did. The next afternoon I went back and he was apparently in pretty good shape and wanted to go home. I considered his injuries rather minor and I advised him that I thought he certainly could go back to work most any time he wanted to. * * *

"Q. Was he complaining of pain in the right side when you first saw him? A. Not at all.

"Q. All in his back and elbow? A. Yes, sir."

The above testimony is all the testimony concerning the accident and injury from the time the injury was received until the claimant left the hospital.

Claimant testified: That he began work Monday following the injury on Friday and worked a few days. About a week from the date of the injury, in the evening, claimant removed the bandages. He stated: "I went on and kept working and that evening after I got the bandages off I felt pain in front of myself, felt like something wanted to put out of me, and I looked down there after I undressed and there was a bulge coming out there, little place in my stomach there and I went back to the doctor and he examined me again and said he thought it was a hernia." The doctor suggested that the claimant might be benefited by an operation. The doctor obtained his age and suggested that claimant procure and wear a truss. The doctor also suggested that the "company" would furnish him a truss if he would sign a release. Claimant declined to sign a release "because it might get worse." Claimant procured a truss and continued to work for approximately five weeks. At the expiration of the five weeks the construction on which claimant was working was completed. During the five weeks claimant worked under great difficulty and suffered severe pain in the region of the hernia at times. He could not perform his task without assistance. Near the completion of the work he became practically exhausted at times. At the time of the trial he was unable to do more than 50 per cent, of his visual work. Before the injury he had no hernia. When wearing the truss he did not feel the pain very much. When the truss was removed from him, there was an external protrusion.

Dr. Brannon observed the hernia after Dr. Smith observed it. Neither of them gave the claimant any treatment. On this point Dr. Smith testified that after the hernia was called to his attention he did not prescribe anything for claimant. The doctor tried to explain to claimant that the usual procedure in a hernia case was an operation. The idea of the operation frightened claimant. The doctor then told claimant that many folks who had hernia never had operations.

"Q. Did the fact that the man did go back to work on Monday the 20th of October and work up until about the 31st of January--did that confirm your opinion that his original injury, as far as the bruises and contusions were concerned,...