McCarthy v. Indus. Comm'n

• Decision Date: 10 November 1927
• Citation: 194 Wis. 198,215 N.W. 824
• Parties: MCCARTHY v. INDUSTRIAL COMMISSION et al.
• Court: Wisconsin Supreme Court

194 Wis. 198

215 N.W. 824

MCCARTHY

v.INDUSTRIAL COMMISSION et al.^*

Supreme Court of Wisconsin.

Nov. 8, 1927.

Concurring Opinion Nov. 10, 1927.

Appeal from a Judgment of the Circuit Court for Dane County; A. G. Zimmerman, Circuit Judge.

Action by James McCarthy against the Industrial Commission, the Sawyer-Goodman Company, and others, to set aside an order of the Commission denying him compensation for an industrial accident. From a judgment setting aside the order of the Commission, defendant last named appeals. Reversed and remanded, with instructions.--[By Editorial Staff.]

Action by plaintiff to set aside an award of the Industrial Commission denying him compensation for industrial accident. From a judgment setting aside the order of the Industrial Commission, the defendant Sawyer-Goodman Company brings this appeal.

On the 29th day of May, 1923, the plaintiff was in the employ of the Sawyer-Goodman Company. His work was that of scaling logs. While assisting in the breaking of a skidway, a heavy log struck the handle of the cant hook with which he was lifting on a log with such force that it knocked him to his hands and knees. He felt a stinging pain in his groin as soon as he stood on his feet. It was severe enough so that he had to sit down for a little while, probably 10 or 15 minutes, after which he resumed his work of scaling. He worked the rest of the day, but felt soreness in the region of his groin. He had pain during that night, woke up two or three times, and the next morning discovered what he thought was a rupture. He resumed work the next day, and kept on working until the 1st day of July. He did not notify the company of the accident for about two weeks after the accident. Upon consulting a doctor on the 5th day of July, he was informed that he had an inguinal hernia. An operation was recommended, but, upon examination, it was discovered that he had diabetes, and the operation was postponed. No operation had been had at the time of the hearing.

Dr. Bergland, who treated the plaintiff, testified that in his opinion the hernia was traumatic. He based this opinion upon the history of the case and the fact that the hernia was easily reducible. He testified that “reducibility is not always evidence of a traumatic hernia, but is more or less evidence of a recent hernia.”

Dr. A. T. Nadeau was called as a witness on behalf of the employer. He testified that he examined the applicant, and found that he had a hernia. He was asked this question by the examiner:

“From your history, and what you know of the case, would you say this was a traumatic hernia? A. From the history of the case, he did not have any hernia or lump in his side before that blow, so, therefore, the hernia dates back from the time this log struck his cant hook and the sudden sharp strain on his body. We have no means of knowing how old the hernia is excepting the history of the development.”

The foregoing practically includes all of the medical testimony bearing upon the question of whether the hernia was traumatic in its origin. In its findings the commission stated that it was unable to conclude from the evidence whether the hernia was of traumatic or other origin, “and it is therefore not warranted in charging the respondents herein or either of them with liability for compensation.” The circuit court set aside the order of the Industrial Commission denying compensation, on the ground that the evidence permitted no other reasonable inference than that the hernia was of traumatic origin.Schubring, Ryan, Clarke & Petersen, of Madison, for appellant.

Martin, Martin, Clifford & McHale and Clinton McCarthy, all of Green Bay, for respondent McCarthy.

John W. Reynolds, Atty. Gen., and Mortimer Levitan, Asst. Atty. Gen., for respondent Industrial Commission.

OWEN, J.

The Industrial Commission has filed a brief in this case, in which its position is stated as follows:

“It is common knowledge that, except in such specific cases, hernias are a matter of gradual development to which many things have contributed before eventually coming to the point of disablement. The most common causes are constipation, coughs, and advanced age, or those diseases which produce loss of muscle tone. Falls, abdominal blows, and heavy lifting may have material effect upon the production of the end result. It is one of these latter incidents that is most often given as the producing cause in claims for indemnity under compensation. If a fall or an abdominal blow or a heavy lift in the course of employment is responsible for so sudden and considerable a degree of advancement in the hernial condition as to bring it to the point where it becomes disabling, then there is liability under compensation. If any one of these things is a mere incident, and had little, if any appreciable effect upon the hernial condition, then liability does not attach. The issue is upon the real effect produced by the fall or blow or overlift or strain as the case may be.

Any such development of the condition as will render the case compensable must necessarily cause immediate discomfort, at least temporary suspension from work, and outward evidences of pain observable to fellow employees. It will be an occurrence of such consequence as to prompt an employee to speak to his fellow workers and to superiors, and otherwise give visible evidence of the fact that something unusual did occur. Where no such lapse from work was present, no such discomfort experienced, no attitude on the part of the employee indicating his thought that anything unusual did occur, his conduct is not such as to corroborate his claim. Any change of condition which does not provoke such symptoms and such actions is insignificant. The fact that he finds a hernial condition later on does not warrant him in concluding that any prior experience was the responsible cause of the condition, and for like reason does not warrant the commission in finding such to be the fact.

The rules adhered to by the commission in judging the cause of hernial conditions are the same as those that are recognized in other compensation jurisdictions. They are not rules in the strict sense. They are a simple application of the requirement that a compensable condition must be established by evidence, and not be predicated on purest conjecture. ‘Proximate cause’ and ‘proximate result’ are just as essential factors to liability under compensation as at common law. The probability of any direct relationship between an alleged fall or blow or strain sustained in employment and a hernial condition observed later on is not substantiated by absence of those symptoms and actions that characterize the conduct of an employee in every other injury of like seriousness. Having in mind the many and varied causes for the development of hernias, the employee whose conduct does not follow the usual corroborative course has nothing upon which to convince himself that something unusual occurred in the course of his employment, sufficient to produce material effect upon his hernial condition. Much less sufficient is his experience to satisfy others that the hernial protrusion which he later finds had any connection with his labor.”

In Meade v. Wis. M. M. Co., 168 Wis. 250, 169 N. W. 619, a stronger case was presented in favor of the applicant than is presented by the record in this case. In that case the employee slipped while working with a bar. “He had a feeling in his groin as though somebody ran a knife into his side. He sat down for about five minutes. It pained him something awful during that time.” When he sat down he was very pale, and a cold sweat ran over him. He was able to work for about two weeks, at which time he was obliged to cease his labors. He was operated upon, and the doctor who...