Krell v. South Carolina State Highway Dept.

• Decision Date: 03 February 1961
• Docket Number: No. 17743,17743
• Citation: 237 S.C. 584,118 S.E.2d 322
• Court: South Carolina Supreme Court
• Parties: Fred A. KRELL, Appellant, v. SOUTH CAROLINA STATE HIGHWAY DEPARTMENT, Respondent.

Page 322

118 S.E.2d 322

237 S.C. 584

Fred A. KRELL, Appellant, v. SOUTH CAROLINA STATE HIGHWAY DEPARTMENT, Respondent.

No. 17743.

Supreme Court of South Carolina.

Feb. 3, 1961.

Thomas Kemmerlin, Jr., Columbia, for appellant.

Daniel R. McLeod, Atty. Gen., David Aiken, Asst. Atty. Gen., for respondent.

TAYLOR, Justice.

This is a workmen's compensation case.

Claimant, while working for the South Carolina State Highway Department, developed kidney trouble unconnected in any way with his employment, and on March 13, 1942, had his left kidney removed. On October 18, 1942, claimant consulted his physician and was informed that the kidney incision was healed and was dismissed from further treatment. Claimant returned to work and on November 20, 1942, fell from a stool while reaching for some papers while on his job with the respondent. As a result of this fall claimant received a back injury and an operation on his back made necessary by this injury was performed in December of 1944.

Claim was filed with the South Carolina Industrial Commission and on August 30, 1945, October 26, 1945, and December 19, 1945, hearings were held before Commissioner W. Raymond Johnson. On April 24, 1946, the Commissioner filed an opinion and award in favor of the claimant. No appeal was taken from this opinion and award. Within the time allowed by statute, claimant applied for a review of award on change of condition. On January 26, 1955 and December 13, 1955, hearings were held before Commissioner John W. Duncan, who, on November 26, 1957, filed an opinion and award denying claimant any further benefits under the Workmen's Compensation Law. Application was duly made to the Industrial Commission for a review thereof; and on June 25, 1958, the Industrial Commission affirmed the single Commissioner. Claimant then appealed to the Court of Common Pleas for Richland County. After hearing, the Honorable George T. Gregory, Jr., on March 14, 1960, filed an order overruling all exceptions and affirming the award of the Industrial Commission; and it is from this order that claimant now appeals to this Court contending that the uncontradicted evidence shows that the claimant sustained a compensable injury and, further, that the Industrial Commission failed to make an award, findings of fact, and conclusions of law as required by Section 72-354, Code of Laws of South Carolina, 1952.

In passing upon the question of compensable injury, the Commission found as a fact that claimant did not sustain 'any hernia condition as a result of his aforesaid injury by accident of November 20, 1942' and cites Sec. 72-154, Code of Laws of South Carolina, 1952, which provides:

'In all claims for compensation for hernia or rupture, resulting from injury by accident arising out of and in the course of the employee's employment, it must be definitely proven to the satisfaction of the Commission:

'(1) That there was an injury resulting in hernia or rupture;

'(2) That the hernia or rupture appeared suddenly;

'(3) That it was accompanied by pain;

'(4) That the hernia or rupture immediately followed an accident; and

'(5) That the hernia or rupture did not exist prior to the accident for which compensation is claimed.'

Claimant contends that he was suffering from an incisional hernia and, therefore, the rule heretofore referred to does not apply. The Circuit Court ruled against this contention and affirmed the findings of fact as determined by the Commission. Nowhere in the original hearing was any reference made to an 'incisional hernia' or 'break in the left side wall' as a result of the accident of November 20, 1942. The award was made and compensation paid claimant for 'injury to his back * * * resulting in the necessity of an operation'; and there was no appeal from this award and the file closed.

On April 23, 1947, three days before the ending of the statute of limitations period, claimant filed claim and request for hearing thereon. In claimant's application for review on change of condition, he gave his reason as being 'that the break in his left side wall again began giving him trouble.' However, at the latter hearing, he took the position that he had a hernia as a result of his accident of November 20, 1942, and that the hernia was not considered in the original award.

If a review of a compensation agreement or settlement is sought on the change in the condition of the employee, a change in condition must be shown, and it must be causally connected with the original compensable accident. Weymer v. Industrial Commission, 404 Ill. 271, 88 N.E.2d 841; Wallace v. Leitzen, 243 Minn. 481, 68 N.W.2d 372; Shafaransky v. Cosmos Footwear Corp., 277 App.Div. 803, 96 N.Y.S.2d 706; Macedo v. Atlantic Rayon Corp.,...