Md. Cas. Co v. Robinson

• Decision Date: 19 January 1928
• Citation: 141 S.E. 225
• Court: Virginia Supreme Court
• Parties: MARYLAND CASUALTY CO. et al. v. ROBINSON.

141 S.E. 225

MARYLAND CASUALTY CO. et al.

v.ROBINSON.

Supreme Court of Appeals of Virginia.

Jan. 19, 1928.

Error to Award of Industrial Commission.

Proceeding under the Workmen's Compensation Act by Morgan P. Robinson, opposed by Commonwealth of Virginia Library Board, employer, and the Maryland Casualty Company, insurer. To review an award of the Industrial Commission in favor of claimant, employer and insurer bring error. Affirmed.

Sinnott, May & Leaman, of Richmond, for plaintiffs in error.

Sands, Williams & Lightfoot, of Richmond, for defendant in error.

PRENTIS, P. This is an appeal from an award of the Industrial Commission of Virginia in favor of Morgan P. Robinson as an employee of the library board of the state. He is the state archivist, who was injured while engaged in moving a metal shelf of books in the library building. No question is made as to the right of Robinson to compensation, if under the Compensation Act, there is any liability on the employer and the Maryland Casualty Company as the insurance carrier for the commonwealth. The assignment of error is equivalent to a demurrer, and that under the facts the Industrial Commission erred in awarding any compensation.

1. It is claimed that the notice of the accident was insufficient.

The injury occurred between November 22 and 26, 1926, but notice of the claim was not given until early in February, 1927.

Section 23 of the Workmen's Compensation

Act (Acts 1918, c. 400) is the pertinent provision, and reads:

"Every injured employee or his representative shall immediately on the occurrence of an accident or as soon thereafter as practicable, give or cause to be given to the employer a written notice of the accident, and the employee shall not be entitled to physician's fees nor to any compensation which may have accrued under the terms of this act, prior to the giving of such notice; unless it can be shown that the employer, his agent or representative, had knowledge of the accident, or that the party required to give such notice had been prevented from doing so by reason of physical or mental incapacity or the fraud or deceit of some third person; but no compensation shall be payable unless such written notice is given within thirty days after the occurrence of the accident or death, unless reasonable excuse is made to the satisfaction of the Industrial Commission for not giving such notice, and the commission is satisfied that the employer has not been prejudiced thereby."

The reason for the failure to give the notice sooner is clearly shown. The employee was conscious of inconvenience and soreness in his left side, but he did not know that he had suffered the hernia for which he afterwards claimed, and he did not attribute his pain to the accident. It was not until the night of February 7th, while undressing, that he felt a sharp pain in the groin, and discovered that a knot had appeared. The next day he consulted his physician, who, after examination, diagnosed his trouble as a hernia, and advised an operation, which operation the surgeon successfully performed on the 2d day of March.

The commission was well justified in holding that the claimant was, under the act, excused from giving notice at an earlier date; that the notice was given as soon as practicable, and was sufficient. The requirement of notice necessarily implies knowledge of the injury for which claim is made. In this case it was not only impracticable, but impossible to give the notice before the claimant first learned of the hernia through the external manifestation.

It is also apparent that the employer was not in any way prejudiced by the delay.

While the burden of showing a reasonable excuse for such delay in giving notice is upon the claimant, after this is shown to the satisfaction of the commission, then the burden is upon the employer to show that he has been prejudiced by the delay. In this case, as we have indicated, the notice was given as soon as practicable, the excuse for the delay is fully explained, and the employer has not been prejudiced.

2. The claim is based on section 2, subsec. (e), of the Workmen's Compensation Act, which reads:

"In all claims for compensation for hernia 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 Industrial Commission:

"First: That there was an injury resulting in hernia;

"Second: That the hernia appeared suddenly;

"Third: That it was accompanied by pain;

"Fourth: That the hernia immediately followed an accident;

"Fifth: That the hernia did not exist prior to the accident for which compensation is claimed.

"All hernia, inguinal, femeral, or otherwise, so proven to be the result of an injury by accident arising out of and in the course of the employment, shall be treated in a surgical manner by radical operation. If death results from such operation, the death shall be considered as a result of the injury, and compensation paid in accordance with the provisions of section thirty-nine. In nonfatal cases, time loss only shall be paid, unless it is shown by special examination, as provided in section twenty-eight, that the injured employee has a permanent partial disability resulting after the operation. If so, compensation shall be paid in accordance with the provisions of section thirty-one with reference to partial disability.

"In case the injured employee refuses to undergo the radical operation for the cure of said hernia, no compensation will be allowed during the time such refusal continues. If, however, it is shown that the employee has some chronic disease, or is otherwise in such physical condition that the commission considers it unsafe for the employee to undergo said operation, the employee shall be paid as provided in section thirty-one."

It is observed then that the statute requires the claimant to prove:

First. That there was an injury resulting in hernia. As to this requirement, the finding of the commission is clear, and is justified upon the uncontradicted evidence of the claimant and the surgeon. The hernia resulted directly from the injury as claimed.

Second. To justify compensation the act requires that the hernia appear "suddenly." The contention is made that this means that it must appear immediately. As to this defense the commission says this:

"This commission has had the same question before it, and has ruled adversely to the contention here made. It is, of course, true that to obtain a recovery in a hernia case, there must be a sudden occurrence to account for the hernia, but it" (meaning the statute) "does not say that there must be a...