Cook v. Winget

• Decision Date: 28 September 1939
• Docket Number: 6726
• Citation: 60 Idaho 561,94 P.2d 676
• Parties: H. A. COOK, Respondent, v. NEWELL WINGET, Employer, and STATE INSURANCE FUND, Surety, Appellants
• Court: Idaho Supreme Court

94 P.2d 676

60 Idaho 561

H. A. COOK, Respondent, v. NEWELL WINGET, Employer, and STATE INSURANCE FUND, Surety, Appellants

No. 6726

Supreme Court of Idaho

September 28, 1939

WORKMEN'S COMPENSATION-PERSONAL INJURY-ACCIDENT ARISING OUT OF AND IN THE COURSE OF EMPLOYMENT-HERNIA-EVIDENCE.

1. Where accident for which compensation is claimed cannot be fixed as happening on a specific date, evidence establishing time with reasonable probability is sufficient.

2. A "hernia" is the protrusion of some organ or tissue from its normal situation through an accidental or natural opening in the wall of the cavity in which it is contained and the mere presence of a perforation or an aperture in the cavity wall, either accidental or natural, and through which some organ or tissue may protrude at a later time, is not a hernia within compensation act. (I. C. A., sec. 43-1116.)

3. A workman receives a "personal injury by accident" arising out of and in the course of his employment, within meaning of compensation act, when, from the operation of known and usual causes, he receives an injury, neither expected nor designed. (I. C. A., sec. 43-1116.)

4. Evidence showing that manager of ice cream manufacturing plant became suddenly ill while unloading trucks and transferring cans of ice cream from trucks to cabinets, and that he first noticed hernia that same night while undressing, was sufficiently clear to show an "injury by accident" resulting in hernia, and that hernia appeared suddenly and immediately following the accident, within compensation act. (I. C. A., sec. 43-1116.)

5. Evidence supported finding of Industrial Accident Board that claimant did not have a hernia in any degree prior to injury by accident for which compensation was claimed, although there was evidence that some seven or eight years previous claimant, while employed in lumber camp, had reported to State Insurance Fund that he had symptoms of hernia, where it appeared that report was based on statement of foreman when claimant reported he was sick, claimant was never examined by physician, and claimant thereafter suffered no sickness or tenderness. (I. C. A., sec. 43-1116.)

APPEAL from the Industrial Accident Board.

Proceedings under the Workmen's Compensation Act. From an order of the Industrial Accident Board awarding compensation the employer and state insurance fund appeal. Affirmed.

Order affirmed. Costs awarded to respondent.

Clarence L. Hillman, for Appellants.

Since the sole personal injury by accident for which respondent sought relief was a hernia, the burden of proof was upon him to prove:

(1) That he suffered a personal injury by accident, arising out of and in the course of his employment;

(2) that he suffered a personal injury by accident resulting in a hernia;

(3) that the hernia appeared suddenly and immediately following the accident;

(4) that the hernia did not exist in any degree prior to the injury by accident for which relief is sought;

(5) that the hernia was reported to the employer within 30 days after the accident. (Sess. Laws 1917, chap. 81, sec. 22, p 265; 1927, chap. 105, sec. 7, p. 142; I. C. A., secs 43-1116, 43-1001, 43-1809; Hawkins v. Bonner County, 46 Idaho 739, 271 P. 327; Walker v. Hyde, 43 Idaho 625, 253 P. 1104; Croy v. McFarland-Brown Lumber Co., 51 Idaho 32, 1 P.2d 189; Brooke v. Nolan, 59 Idaho 759, 87 P.2d 470; Neale v. Weaver, ante, p. 41, 88 P.2d 522.)

Arthur W. Hart, for Respondent.

BUDGE, J. Ailshie, C. J., and Givens, Morgan and Holden, JJ., concur.

OPINION

BUDGE, J.

--The evidence, though meager, is virtually without conflict and is to the effect that on January 28, 1939, respondent, employed as manager of an ice cream manufacturing establishment at Preston, Idaho, while unloading trucks and transferring cans of ice cream, weighing about forty-five pounds each, from trucks to cabinets became very sick and had a severe headache which continued on and off since such time. That night as soon as respondent arrived home and undressed he noticed a bulge on his left side near the pelvis, down low, nearly as large as an egg. Respondent continued to carry on his duties, waiting on customers, but did no unloading or transferring of ice cream nor lifting thereafter. Some one or two months later respondent for the first time consulted a doctor and the doctor diagnosed his condition as an indirect inguinal hernia. Respondent then filed notice of injury and claim for compensation. The Industrial Accident Board after the hearing made and entered findings of fact, rulings of law and an award in favor of respondent and against appellants to the effect that respondent had sustained a personal injury by accident, a hernia, arising out of and in the course of his employment, while unloading ice cream on January 28, 1939, and:

"That said hernia appeared suddenly and immediately following the lifting of said ice cream; that the hernia had not existed in any degree prior to said lifting."

The order of the board was to the effect that appellants tender respondent proper surgical and medical attendance and hospitalization within thirty days, and that upon appellants' refusal respondent might have such medical and surgical care and hospitalization at the expense of appellants together with compensation at the rate of $ 16 per week while respondent was totally disabled for work by reason of such attendance, and that the board retain jurisdiction over the matter for further proceedings as might be necessary. This appeal was then prosecuted from the order.

Section 43-1116, I. C. A., contains the following provisions:

"In all cases of hernia resulting from injury by accident alleged to have been sustained in the course of and resulting from employee's employment, it must be proved:

"1. That it was an injury by accident resulting in hernia.

"2. That the hernia appeared suddenly and immediately following the accident.

"3. That the hernia did not exist in any degree prior to the injury by accident for which compensation is claimed.

"4. That the hernia was reported to the employer within thirty days after the accident."

Appellants' several specifications of error urge that no evidence was adduced to prove the essentials contained in the foregoing section 43-1116, I. C. A., and therefore the findings of fact to the effect that such essentials did exist are not based upon any substantial, competent evidence and consequently the rulings of law and award made and entered in favor of respondent and against appellants are contrary to law, requiring a reversal.

The main point urged by appellants appears to be that the board confused the terms "injury" and "accident" and that the evidence does not disclose that any "accident" happened to respondent, that he "suffered no mishap, there was no fortuitous event. He was performing his duties as he had been doing for two or more years. There was nothing unusual in the work he was doing at the time of the alleged accident. Then, what was the accident? Was it the lifting of the 45-pound cans of ice cream? If so, which one? Or, did he have an accident each time he lifted a can although there was no injury?" Appellants' argument appears to be not wholly based upon the facts inasmuch as it does not appear that respondent's hernia gradually appeared, but rather it appeared more or less instantaneously on the 28th of January. The record does not disclose that the hernia from which respondent was suffering resulted in any manner other than that related by respondent, which was that while lifting and transferring the cans of ice cream on January 28th he suddenly became very sick, together with a severe headache and that night while undressing he noticed a bulge on his left side near the pelvis, low down, later diagnosed as a hernia, and which has grown from about the size of an egg when first noticed to about the size of respondent's fist. Since said date of January 28th when respondent first became sick he has been very sick "along in (his) abdominal structures" and has suffered tenderness throughout his abdomen and has had severe headaches from that time on and which he did not have prior to January 28th. This court in McNeil v. Panhandle Lumber Co., 34 Idaho 773, 203 P. 1068, held that the cause of injury is not required to be proved with absolute certainty. It is sufficient if respondent proves to the satisfaction of the board, with reasonable probability that...