In re Johnson, 1992

• Decision Date: 05 January 1937
• Docket Number: 1992
• Citation: 63 P.2d 791,51 Wyo. 111
• Parties: IN RE JOHNSON; v. IDEAL BAKERY OF RAWLINS JOHNSON
• Court: Wyoming Supreme Court

63 P.2d 791

51 Wyo. 111

IN RE JOHNSON;

JOHNSON v. IDEAL BAKERY OF RAWLINS

No. 1992

Supreme Court of Wyoming

January 5, 1937

APPEAL from the District Court, Carbon County; V. J. TIDBALL, Judge.

Proceeding under the Workmen's Compensation Law by Arthur Johnson claimant, against the Ideal Bakery of Rawlins, Wyoming employer. From an order allowing the claimant compensation the employer appeals.

Reversed and remanded.

For the appellant, the cause was submitted upon the brief of D. R. Higley of Rawlins.

The order of award in this case is not sustained by the evidence. Claimant testified that while assisting in loading an obsolete bread wrapping machine, he was injured on or about August 20, which resulted in a hernia. The employer's evidence was to the effect that the machine was moved on or about July 22. The attending physician testified that Johnson, the claimant called on him about the 23d of August and told him that the injury had occurred recently. The doctor testified that in his judgment the injury occurred within a week of August 22. It is clearly established that the only bread wrapping machine that was moved was the one moved on July 22. In order to recover compensation for hernia, it must be clearly proven: (1) That the hernia is of recent origin; (2) That its appearance was accompanied by pain; (3) That it was immediately preceded by some accidental strain suffered in the course of the employment; (4) That it did not exist prior to the date of the alleged injury. Sec. 124-122 W. R. S. 1931, as amended by Chapter 4, S. L. 1935. The evidence in this case fails to meet the requirement of sub-division 3 of the quoted section of the statute, and the order of award made by the trial court should be vacated and set aside.

The cause was submitted for respondent upon the brief of A. R. McMicken of Rawlins.

The only point to be decided on appeal is whether there is substantial evidence to sustain the award. Christensen v. McCann, 41 Wyo. 101-106. There is evidence in the record that Johnson helped move a five-ton oven and a big wrapping machine on August 18, 1935; and that on August 20, he had a severe pain in his right side, and that he was examined on August 25 by Dr. Barber, who operated on claimant for hernia on September 3 or 4. It is likely that claimant was mistaken as to the exact dates that he assisted in moving the wrapping machine and five-ton oven, and that the actual date was somewhere between July 22 and a few days after August 3, at which last time the records of the railway office show that the new oven arrived. But the material fact is whether claimant sustained the injury in question in the manner charged. In either event, claimant would have been entitled to compensation as it is admitted that he did the lifting, and there was no attempt on the part of the employer to show that claimant had a hernia prior to the time in question, nor is there evidence to show that his injury might have occurred afterwards by the moving of new machinery for the employer. It is submitted that the award made by the trial court should be sustained.

KIMBALL, Justice. BLUME, C. J., and RINER, J., concur.

OPINION

KIMBALL, Justice.

The case is under the Workmen's Compensation Law. After a trial without a jury, the workman was allowed compensation for hernia. The employers appeal, contending that the evidence is insufficient to sustain the award. The statute, Sec. 124-122, R. S. 1931, as amended by Ch. 4, Session Laws of 1935, provides:

"A workman in order to be entitled to compensation for hernia must clearly prove:

"1. That the hernia is of recent origin;

"2. That its appearance was accompanied by pain;

"3. That it was immediately preceded by some accidental strain suffered in the course of the employment;

"4. That it did not exist prior to the date of the alleged injury. * * *."

The question for decision is whether there was substantial evidence to meet the third condition imposed by the statute, i. e., that the hernia "was immediately preceded by some accidental strain suffered in the course of the employment."

The employers operate a bakery where the workman during July and August, 1935, was employed in delivering goods to customers and in helping at other jobs. The workman, in his report of accident, filed September 3, 1935, and also in his claim for award, filed March 11, 1936, described the accident as follows: "About August 18, 1935, I helped move a 5-ton oven, and a big wrapping machine. On August 20, I had a severe pain in right side. Examined by Dr. Raymond Barber August 23, 1935." The injury was described as "right inguinal hernia, incomplete."

Dr Barber was a witness for the workman, and the only...