Syllabus by the Court.
The evidence was insufficient to authorize a finding that the hernia alleged to have been sustained by the claimant for compensation arose suddenly or that it arose immediately following an accident.
FELTON, J., dissenting.
Error from Superior Court, Chatham County; John Rourke, Jr., Judge.
Proceeding under the Workmen's Compensation Act by G. C. Beckmann, claimant, opposed by Quality Motors Incorporated, employer, and Royal Indemnity Company, insurance carrier. To review a judgment of the superior court denying their appeal from an award, made by a member of the Industrial Board, that employer and insurance carrier should furnish claimant a radical operation for the cure of hernia and pay all reasonable medical and hospital expenses not exceeding $500, the employer and insurance carrier bring error.
Judgment reversed.
George C. Beckmann, on April 24, 1940, filed with the Industrial Board a claim for compensation against his employer, Quality Motors, Incorporated, in which he stated that he "was injured on January 17, 1940, while moving an oil drum, having felt something slip in his groin which developed to be a hernia, " and that "he has been examined and treated by Dr. R. E. Oliver * * * who advises an immediate operation and wearing of a truss." This claim was heard before Honorable Harry E. Monroe, a member of the Industrial Board, on July 10, 1940. The employer admitted that on January 17, 1940, the claimant was employed by it as service manager at $37.50 a week. The employer and insurance carrier denied that the claimant had sustained an accidental injury causing a hernia while engaged in the performance of the duties of his employment. Dr. Robert E. Oliver, a practicing physician, testified in part for the claimant as follows:
"I examined Mr. Beckmann about January 17, this year. After that I examined him about the 31st. He now has a hernia. There is an apparent protrusion at this time. I have prescribed an operation for him. At the time I first examined him there was no bulging, there was tenderness over the external inguinal ring. His condition was such at that time that after an examination I thought there was no hernia present. That there was only a strain of the ligaments and muscles in the inguinal region.
"Q. If there were a slight tear in the abdominal wall which would only admit a small protrusion, would that only be discernable by incision at that point or could that be told by feeling? A. Of course there is a limit to the size of the protrusion that you could probably feel with the finger. There might have been such an injury that
rent any tissues that you couldn't feel. The only way you could find out would be by incision. I have known Mr. Beckmann some time and have never known him to have a hernia before this. From my experience as a physician I know it is a definite fact that hernias start from some initiative cause and that they progress in size as time goes on with additional work, the bulging becomes more and more pronounced. The examination that I made was at Mr. Beckmann's request."
The claimant testified in part as follows: "on or about January 17 of this year I had an injury at the place of business. I was heading up a barrel of oil and just as I started to lift it up I felt a pain in my side, down in the region of my groin. I had to let it back down. I couldn't keep on working. My job is not a laborer's job. I was able to continue work. My position is supervisor, not laborious work. As soon as I felt that pain I didn't move for a second or two. * * * I did not slip or fall or have an accident of any kind. It was just an ordinary strain."
B. L. Duke testified in behalf of the claimant in part as follows: "I am employed by Quality Motors and I was in Mr. Beckmann's department about January 1. I remember what happened that day when Mr. Beckmann was lifting a drum of oil. We buy oil in bulk, barrels contain 55 gallons. It weighs about 300 pounds. It requires two men to lift the barrels and Mr. Beckmann and I were heading up one when he seemed to be in pain and later on during the day he remarked to me that he thought he had ruptured himself lifting the barrel. The only thing I noticed happened at the time we were lifting it he seemed to be in pain and was holding his side. He let go of the barrel."
The claimant further testified as follows: "The next day Dr. Oliver came. He is a customer. While he was there I told him I had a pain in my side and went in the wash room and he told me to take my clothes down and he examined me. I still have pain there. It goes and comes. It kept on hurting a little worse and worse and the next time the doctor came in the latter part of the month I asked him to examine it again. It was around January 31. There was a swelling at that time, he punched up there and I hollered. I had never had a rupture before. I have not lost any salary. My claim is entirely for surgical fee for an operation which I am willing to undergo."
"Q. You did not feel any pain at that time? A. It must have hurt or I wouldn't have asked the doctor to look at it. I had pain enough to let the barrel down and I called Mr. Dukes.
"Q. It was a couple of days later before you felt pain? A. No, it was the next day when the doctor came in.
"Q. Was it the next day when you felt pain? A. No, that is when the doctor examined it.
"Q. Did you feel any pain at that time, you said you didn't, didn't you? A. I don't know. * * * It must have pained me or I couldn't (wouldn't) have called the doctor. My guts didn't fall right down on the floor.
"Q. You signed a statement 'I did not feel any pain and did not do anything about it until a couple of days later when for the first time I began to feel pain.' A. It was the next day when it gave me a lot of trouble. At the time this happened I must have felt pain. I dropped the barrel. As to which is correct, I must have had a pain or I wouldn't have dropped the drum. I did not report it at that time to any one connected with the Quality Motors. The first report I made was on January 31 when I handed the report to Mr. Ferguson. I didn't send for Dr. Oliver he just happened in. I know he comes in about every two weeks to have his car fixed."
The claimant testified on redirect examination in part as follows: "I am foreman of the service department and all notices like that are submitted to me. On the date of the accident I had enough discomfort to drop the barrel. I still work for the Quality Motors and have lost no time."
The employer and insurance carrier introduced in evidence the signed statement of the claimant as follows:
"I am employed as Service Manager of the Quality Motors at a salary of $37.50 a week. On the 17th day of January, 1940, at about 5 o'clock in the afternoon, I was moving an oil drum and felt something slip in my groin. I did not feel any pain and did not do anything about it until a couple of days later when, for the first time, I began to feel a pain. Dr. Robert L. Oliver happened to come in the place and I asked him to examine me. He examined me at that time and said that there appeared to be a slight strain. He did not prescribe any treatment, except to stay off
my feet as much as I could. It kept hurting me, and about two weeks later he examined me again and told me that I was ruptured. At the time that I moved the drum I did not slip or fall. It was just the strain. I did not think anything of it at the time as it seemed to be just a slight strain and did not make any report of it until the 31st day of January when I made up the report. This was the day of, or the day after the second examination by Dr. Oliver. The same day that I made up the report I gave it to Mr. Ferguson. When Dr. Oliver first examined me, he felt the injured place and had me cough. He said that I only appeared to have a slight strain, but said nothing about my being ruptured. Some of the men, who have been injured at the plant, have been sent to Dr. Oliver. I have never been ruptured, nor examined for a rupture nor worn a truss before this time. I have had no general physical examination that I can remember by any doctor for probably 15 years. The reason that I made no report of this occurrence until after the second examination, was because I did not think that I had been hurt, and thought nothing of it until Dr. Oliver told me that I had a rupture."
The claimant, recalled, testified as follows: "I did not write this statement. They wrote it out and I signed it. I first made a statement of the entire matter before witnesses, then this was dictated in my presence. After it was finished I was asked if it was correct, then a copy of it was sent to me at my place of business. I read it over carefully and made a correction of it then and eventually signed it, and sent it back. I have never had any pain before. I am such a man that I did not have any experience with hernias. I didn't know there had to be pain immediately following the accident. Being such a man I could take it although I suffered discomfort I didn't call it pain at that time. I feel the same way now as I felt then. I have a numbness like your foot goes to sleep. That is the way I felt the time I lifted it as far as I can remember. As far as I can remember I felt pain."
Dr. Oliver, recalled, testified: "At the time I examined Mr. Beckmann on January 18 I probed around the region of the groin. It was very tender. He told me at that time that he had pain in his side and that is the reason I examined him to determine what the pain...
