Smith v. Mercy Hospital

• Decision Date: 27 October 1939
• Docket Number: 6683
• Parties: HARRY O. SMITH, Employee, Respondent, v. MERCY HOSPITAL, Employer, and STATE INSURANCE FUND, Surety, Appellants
• Court: Idaho Supreme Court

95 P.2d 580

60 Idaho 674

HARRY O. SMITH, Employee, Respondent, v. MERCY HOSPITAL, Employer, and STATE INSURANCE FUND, Surety, Appellants

No. 6683

Supreme Court of Idaho

October 27, 1939

WORKMEN'S COMPENSATION-HERNIA-REPORT TO EMPLOYER-INJURY BY ACCIDENT-INDUSTRIAL ACCIDENT BOARD-FAILURE TO MAKE FINDINGS-REVERSAL.

1. The failure of Industrial Accident Board to find "that the hernia was reported to the employer within thirty days after the accident" was immaterial where board did find "that the employer received notice of the injury within thirty days after the happening thereof." (I. C. A sec. 43-1116, subd. 4.)

2. The purpose of provision of compensation act that it must be proved "that the hernia was reported to the employer within thirty days after the accident" was to give employer timely advice of employee's condition, its cause and the time thereof, and not to require use of words contained in statute, as respects findings. (I. C. A., sec 43-1116, subd. 4.)

3. The words "injury" and "accident" as used in Workmen's Compensation Act are not synonymous. (I. C. A sec. 43-1116.)

4. Whether an "injury" was by accident must be determined by Industrial Accident Board. (I. C. A., sec 43-1116.)

5. Where trial court has failed to find on all material issues made by pleadings, case should be reversed and cause remanded with instructions to make specific findings upon such material issues.

6. Where Industrial Accident Board failed to find that hernia appeared suddenly and immediately following accident and that hernia did not exist in any degree prior to injury by accident, supreme court would not assume that board in effect found that hernia did not appear suddenly and immediately following accident and that it existed in some degree prior to injury by accident, but would remand case with instructions to board to make specific findings upon such issues. (I. C. A., sec. 43-1116.)

APPEAL from the Industrial Accident Board.

Proceedings under Workmen's Compensation Act. From an order of the Industrial Accident Board, awarding compensation the employer and State Insurance Fund appeal. Reversed and remanded with instructions to permit the introduction of such further evidence as may be deemed necessary and to make specific findings of fact and conclude accordingly.

Award reversed and remanded with instruction.

Clarence L. Hillman, for Appellants.

Since the burden of proof was upon respondent to prove, among other things, each of the following: (1) That the hernia was an injury by accident resulting in hernia; (2) that the hernia appeared suddenly and immediately following the accident; (3) that the hernia did not exist in any degree prior to the injury for which compensation is claimed; and (4) that the hernia was reported to the employer within 30 days after the accident, a failure of the board to specifically find on any one of those issues was in effect a finding against respondent on such issue and in favor of appellant. (Arizona Commercial Min. Co. v. Iron Cap Copper Co., 29 Ariz. 23, 239 P. 290, 294; Ingle v. Ingle et ux., 183 Wash. 234, 48 P.2d 576; George C. Pendergast Const. Co. v. Goldsmith et al., 273 Mo. 184, 201 S.W. 354.)

Where, as in this case, the Industrial Accident Board finds that the sole injury was a hernia resulting from injury by accident and that it did not appear suddenly or immediately following the accident, or that the hernia existed to some degree prior to the injury for which compensation is claimed, or that the hernia was not reported to the employer within 30 days after the accident, it is reversible error for the board to make an order or award in favor of claimant. (I. C. A., secs. 43-1116, 43-1404, 43-1408, 43-1409, 43-1410 (as amended Sess. Laws 1937, chap. 175, secs. 1, 2, 3); Const., Art. 5, sec. 9 (as amended, see 1937 Laws, p. 498); In re Black, 58 Idaho 803, 80 P.2d 24.)

Earl E. Garrity, for Respondent.

That the Industrial Accident Board sufficiently found that the hernia appeared suddenly and immediately following the injury and did not exist in any degree prior to the injury. (In re Hillhouse, 46 Idaho 730, par. 3, at p. 734, 271 P. 459; Page v. State Ins. Fund, 53 Idaho 177, 22 P.2d 681; par. III, Findings of Fact, Rulings of Law and Award, file No. 146114.)

BUDGE, J. Ailshie, C. J., and Givens, Morgan and Holden, JJ., concur.

OPINION

BUDGE, J.

--Respondent was granted an award by the Industrial Accident Board for hospital, surgical and medical fees and compensation for loss of services, as a result of a hearing had upon his notice of injury and claim for compensation filed with the board October 11, 1938. The injury for which such claim was made was a hernia. This appeal was taken from the order of the board.

Appellants' assignments of error raise one main point, namely, that the findings of fact do not support the rulings of law or the award. Section 43-1116, I. C. A., contains the following with reference to the proof in cases of hernia:

"In all cases of hernia resulting from injury by accident alleged to have been sustained in the course of and resulting from employee's employment, it must be proved:

"1. That it was an injury by accident resulting in hernia.

"2. That the hernia appeared suddenly and immediately following the accident.

"3. That the hernia did not exist in any degree prior to the injury by accident for which compensation is claimed.

"4. That the hernia was reported to the employer within thirty days after the accident."

The findings of fact in so far as they contain any reference to the essentials set forth in the foregoing statute recite:

"That in the early spring of 1937, the claimant received a right inguinal hernia; that thereafter he wore a truss to prevent its protrusion; that on the said 22nd day of April, 1938, the claimant as part of his duties for the Mercy Hospital was lifting one of the patients therein from a bed onto a wheel chair; that in so doing and while straining to lift said patient, claimant felt a sharp sudden pain in his left groin that at the time he supposed it was a pinch from the truss he was wearing; that shortly thereafter, because of the pain, claimant rested for approximately two hours then resumed his regular work; that the following day claimant reported his injury to the Secretary of the Mercy Hospital; that he continued to do his regular work although suffering soreness and some discomfort in the left groin.

"That on the 18th day of July, 1938, the pain having become more noticeable, claimant visited a physician and on the advice of said physician claimant was operated on; that at the time of said operation the attending physician noticed a prominent bulge in the left groin which he diagnosed as a hernia; that he thereupon performed a double herniotomy, repairing both the hernia in the left groin and the one in the right; that in said operation it was revealed there was a separation of the muscles on the left side and an incomplete direct inguinal hernia with no definite sac; the peritoneum was bulging through the opening, and after reduction of the hernia it left the peritoneum loose and wrinkled indicating a hernia of recent origin; that at the right hernia there was a definite sac indicating it was a hernia of longer duration that claimant remained in the hospital and in bed for a period of three weeks; that on the 29th day of August, 1938, all claimant's disability for work ceased and that he now has no...