Barclay v. General Motors Corp. , 309 Mich. 534 ( 1944 )

I am of the opinion the holding of the department should be affirmed.

Plaintiff's right to an award, if any, is under the provisions of the statute as it stood in 1937 (Act No. 61, Pub. Acts 1937 [Comp. Laws Supp. 1940, § 8485-1 et seq., Stat. Ann. 1942 Cum. Supp. § 17.220 et seq.]), and the act of 1943, cited by my Brother, has no bearing upon the issue in this case. Was the hernia of recent origin? A recurrent hernia is not a hernia of recent origin.

The department found that the disabling hernia suffered by plaintiff was a recurrence of a former hernia in 1936, and the evidence at the hearing, inclusive of plaintiff's own testimony, establishes beyond cavil such to be the fact. Plaintiff admits that he had a hernia in the same groin in 1936 and then had an operation at a hospital and by direction of his doctor wore a support for about nine months and at times, later, it pained and swelled to the size of a small egg. After the hernia in 1942, plaintiff went to the company doctor who examined his condition and took his history but did not perform an operation. The doctor testified:

"I have never seen a hernia as large as Mr. Barclay has, that hadn't been present for a matter of, I would say, a matter of years. I don't think it is a matter of days or a matter of weeks; a hernia that large could not happen in a matter of two or three weeks and still have the man continue to be on his feet, and it would take a tremendous — it would be a tremendous amount of disability. In fact, it would be practically a fatal thing to have a hernia develop in a few weeks to the size Mr. Barclay's was when I examined him. In fact, most of the time hernias, or acute hernias, are very small, and we sometimes have to make several examinations to determine whether there is a hernia present or not."

Dr. Howard B. Barker testified that he examined and operated on plaintiff; that October 20, 1942, plaintiff "had a left inguinal hernia, recurrent;" that plaintiff "had a large left inguinal hernia on the left side, with numerous adhesions between the various layers of the abdominal wall." At the time of the operation he found plaintiff "had a large sac with a large neck or opening, sac showed considerable peritoneal fat around it. There were adhesions between the muscle, the adjacent muscle and the neck of the sac, and adhesions between the various layers of muscle, or external oblique fascia and the internal oblique muscles," which indicated "that there had been a previous disturbance of the muscles and, of course, in this case, we assumed that the previous disturbance was the previous operation," and the adhesions and a portion of the neck of the sac being thick would indicate that the hernia had existed for some time.

Plaintiff testified that following the operation in 1936, the hernia had been getting worse and started to bother him just a few months after he went back to work and has bothered him "on and off, all along;" that he first noticed the swelling more than a year "after I had taken the last injection," which "would be somewhere around * * * 1937 or 1938."

The denial of an award is affirmed, with costs to defendant.