Liberty Mutual Insurance v. Blackshear , 197 Ga. 334 ( 1944 )

While, as held by this court in Hardware Mutual Casualty Co. v. Sprayberry, 195 Ga. 393, 397 (24 S.E.2d 315), the term "hernia" as used in the statute means the protrusion of an internal organ or part projecting through an opening in the walls of the abdominal cavity, a rupture of the tissues of the abdominal walls, arising out of an injury in the course of the employment, constitutes the accidental injury, and the hernia is merely a natural resultant therefrom. Accordingly, where the sudden appearance of the rupture is manifested by accompanying pain, immediately and without substantial interval following the accident, and the resulting protrusion follows in due, natural, and uninterrupted course from the rupture, such an injury constitutes an integral part of the hernia within the meaning of the statute.

No. 14701. JANUARY 12, 1944. REHEARING DENIED FEBRUARY 11, 1944. This case arises on the grant of a certiorari from a decision of the Court of Appeals reversing the judgment of the superior court, which approved an award by the Industrial Board refusing compensation to an employee for a hernia. Blackshear v.Liberty Mutual Insurance Co., 69 Ga. App. 790 (26 S.E.2d 793). The question presented is whether, under the evidence before the director and the board as to the first visible appearance of the hernia about a week or ten days after the accident, compensation was allowable under the terms of the Code, § 114-412; and whether the findings by the director and the board, approved by the superior court, were authorized.

The pertinent evidence was as follows: The employee testified that, while he was laying brick, he was struck "on the elbow and right in my back right above the hip" by a bucket of rivets and knocked unconscious; that he was carried to the hospital, remained there until the next day, and was then permitted to go home and lie quiet; that three days after the accident he went back to work for a week; "had himself bandaged up with these little Red-Cross plasters on my back," and afterwards took the bandages off; "I felt pain in front of myself, felt like something wanted to put out of me, and I looked down there after I undressed and there was a bulge coming out there, little place in my stomach there, and I went back to the doctor, and he examined me again and said he thought it was a hernia;" that it was "about a week after [he] went to work on Monday, following the accident on Friday, before [he] noticed this bulging in [his] side;" that "it pained me so much that when I got home I pulled off my clothes and noticed it. Then every time I coughed or sneezed, it hurt me bad;" and that he "had been doing this same thing about a week before this thing appeared on" him. As to any previous pains, the employee said that at the time of the accident, he "felt pain . . in [his] back, down [his] right side of the leg," and "through [his stomach]" and that he "couldn't cough without it hurting." As to pains at the time of his testimony, he said that when he did not wear a truss, it pained him "right here in my groins, in front of the right side of my stomach . . right between the navel and the groin," and sometimes his back hurt. Other than as stated, he did not testify as to any complaint made at any time to any one regarding "stomach" or other pains.

The foreman, who was on the job with the employee at the time of the accident and saw him immediately after he was struck, testified that the employee was knocked flat with his face down; that the foreman did not know anything as to what part of the employee was injured; and that, as to any complaint regarding pain, the employee was then "complaining with his back and side hurting him," the "right side." This witness did not testify as to any complaint being made with regard to pain in the groin or region where the hernia afterwards became visible.

The physician at the hospital, who examined and treated the employee immediately after the injuries, testified that he found "contusions on the right side of [the employee's] back and some contusions on his right elbow, nothing else of any particular moment," but noticed no hernia until "he came in about a week or a few days over a week, between one and two weeks after the accident, with pain in his right inguinal region and he had a hernia in that region;" that there was no appearance of such a hernia while the employee was at the hospital following the accident; that "the pain in his side was relatively of short duration, he said it bothered him about a week or ten days;" that when the physician "first saw him," as to his "complaining of pain in the right side," the employee was complaining "not at all," but his complaints were only as to "his back and elbow." The physician testified that the hernia, as it was developed when he saw it, was an "ordinary inguinal hernia, right side . . a protrusion through the inguinal ring," and that it was "possible" that "this condition could have developed in this same time from the injury." 1. Upon an appeal to the superior court from any final award or other final decision of the Industrial Board, the findings of fact made by the board within its power are, in the absence of fraud, conclusive if they are supported by any competent evidence. Code, § 114-710; MarylandCasualty Co. v. England, 160 Ga. 810, 812 (129 S.E. 75);London Guarantee Co. v. Boynton, 54 Ga. App. 419 (2), 423 (188 S.E. 265); Ga. Power Co. v. Patterson, 46 Ga. App. 7,8 (166 S.E. 255); and cit.; United States Fidelity c. Co. v.Price, 38 Ga. App. 346 (144 S.E. 146); United StatesFidelity c. Co. v. Christian, 35 Ga. App. 326 (3) (133 S.E. 639). In such a case, not only may an issue of fact arise from contradictory evidence, but contrary implications consistent with the testimony may arise from the proved facts; and in still other ways the question of what is the truth may remain an issue of fact despite uncontradicted evidence in regard thereto. Cooper v. Lumbermen's Mutual Casualty Co., 179 Ga. 256, 261 (175 S.E. 577). In order to render any finding of fact demanded as a matter of law, not only must there be no controversy in the evidence material to the issue involved, but the implications and inferences which logically and properly arise from the evidence must necessarily lead to only the one conclusion. EmployersLiability Assurance Cor. v. Woodward, 53 Ga. App. 778 (3) (187 S.E. 142); Paschal v. Foremost Dairies, 56 Ga. App. 397 (192 S.E. 634).

2. The rule under our workmen's compensation law as to hernia is somewhat different from that applying to other injuries, in that not only must the hernia have resulted from injury by accident arising out of and in the course of the employee's employment, but it must be definitely proved to the satisfaction of the Industrial Board that such resulting hernia "did not exist prior to the accident," and "was accompanied by pain," and "appeared suddenly" and "immediately followed [the] accident." Code, § 114-412.

3. The word "immediately" has been defined by this court and by various other courts of the country. The case of Williams v.Preferred Mutual Accident Association, 91 Ga. 698, 699 (17 S.E. 982), dealt with the question of liability under an accident policy that required the insured to be "immediately" wholly disabled. In that case it was said that this word "has two distinct significations, one of time, and the other of cause and effect;" that in the sense of time it is synonymous with "quickly" or "presently;" and that when used with reference to a disability, "immediately" refers to time, and "the period . . indicated by it is [not] the same as that which would be expressed by the words ``reasonable time,'" or "as soon as practicable," which might apply in matters involving "something to be done voluntarily by human agency." In that case it was said that "it would perhaps be going too far to say" that in a case such as was there involved the word "immediately" "means precisely the same thing as ``instantly' or ``momentarily.'" But the rule was laid down clearly and emphatically that the word when used with reference to time means "without delay." This ruling was followed in Vess v. United Benevolent Society ofAmerica, 120 Ga. 411 (47 S.E. 942). While there appears to be some contrariety of authority on this subject (Order of United Commercial Travelers v. Barnes, 72 Kan. 293, 80 P. 1020, 82 P. 1099, 7 Ann. Cas. 809; Rathbun v. Globe Indemnity Co.,107 Neb. 18, 184 N.W. 903, 24 A.L.R. 191; Hallack Howard Lumber Co. v. Bagly, 100 Colo. 402, 88 P.2d 442; 29 Am. Jur. 880, § 1167, and cit.), most of the courts in accident- or disability-insurance cases have recognized the rule which appears to have been definitely announced in this State, and have held that this word, when used with reference to time, means "without delay," "presently," or "without any substantial interval." Preferred Masonic Mut. Accident Asso. v. Jones, 60 Ill. App. 106 ; Kennard v. Travelers Protective Asso. of America,157 Va. 153 (160 S.E. 38); Burrell v. Provident Life Accident Ins. Co., 162 Tenn. 672 (39 S.W.2d 1031); Wall v. Continental Casualty Co., 111 Mo. App. 504 (86 S.W. 491); and case-notes, 24 A.L.R. 226, citing also cases from Alabama, Arkansas, Indiana Kansas, Kentucky, and New York. Like rulings as to the meaning of the word "immediately" have been made with respect to hernia cases. Johnson v. Green (Idaho), 127 P.2d 770; Young v. La. Highway Comm., 11 La. App. 388 (121 So. 627); case-notes. 114 A.L.R. 1341. Accordingly, we can not adopt the rule as laid down by the Court of Appeals in the Sprayberry case (69 Ga. App. 196), supra, and in the instant case, wherein it was said that the term "immediately" means merely "a relative and reasonably close coincidence between the accidental injury and the hernia," where it also appears that "no other agency intervened" save the accidental injury. Such a rule would strain the language of the statute, which plainly provides that the hernia must have "appeared suddenly" and must have "immediately followed [the] accident," and have been "accompanied by pain." The meaning of this word, as we construe it, is that there must not have been any substantial interval between the accident and the manifestation of the rupture, and appearance of the hernia following in due, natural, and uninterrupted course therefrom. However, although it has been held by this court in HardwareMutual Casualty Co. v. Sprayberry 195 Ga. 393 (supra), and by the Court of Appeals in the same entitled case that the term "hernia" as used in the statute means the protrusion of an internal organ or part projecting through an opening in the walls of the abdominal cavity, we think that the rupture of the tissues of the abdominal walls, arising out of an injury in the course of the employment, constitutes the actual accidental injury, and that the hernia is merely a natural resultant therefrom; and that the sudden appearance of the rupture, as manifested by accompanying evidences of pain, immediately and without substantial interval following the accident, constitutes an integral part of the resulting hernia within the meaning of the statute; although, under the Sprayberry decision, the statute would not have application unless the rupture was actually followed naturally, in due course, and without interruption by a resulting protrusion. Thus, the rupture must appear immediately and be accompanied by pain without any sort of substantial interval following the injury, and the resultant hernia must follow in due, natural, and uninterrupted course from the rupture. See, in this connection, Maryland Casualty Co. v. Robinson, 149 Va. 307 (141 S.E. 225); Hay v. Swiss Oil Co., 249 Ky. 165 (60 S.W.2d 385); Arduini v. General Ice Cream Co., 123 Conn. 43 (192 A. 314, 114 A.L.R. 1333); Rudd v. Fairforest Finishing Co.,189 S.C. 188 (200 S.E. 727); Robbins v. Original Gas Engine Co., 191 Mich. 122 (157 N.E. 437).

(a) So far as this particular case is concerned, under the rule embodied in the first division of the opinion, it appears that the finding of the board was authorized, though it might not have been demanded by the evidence, and should not have been reversed, under the rule just stated or even if the rule stated by the Court of Appeals should be taken as the correct test. In this case, the protrusion did not appear until about ten days after a bucket of rivets had struck the employee on his elbow and back above the hip, and until after he had returned to his work in about three days, and thereafter worked for about a week. The evidence of the attending physician went merely to show that it was "possible" for "this condition [to have] developed" during this time from the injury. This testimony with other evidence did not necessarily constitute conclusive proof to the board either that the rupture or hernia "appeared suddenly" and "immediately" after the accident, and was accompanied by pain, and that the hernia was the result of the accident, so as to demand a finding for the employee. Especially is this true, where it does not appear that, either at the time of the injury or subsequently until the actual protrusion, the employee ever complained to anyone of any pain in the region of the hernia, although he testified at the hearing that he actually suffered such pain; and where the testimony of the attending doctor showed that the only pains complained of to him by the employee after the injury were "in his side" and "in his back and elbow;" that "the pain in his side was of relatively short duration," and that the first complaint as to pain in the hernia region was coincident with the first physical protrusion, about ten days after the injury, and seven days after the employee returned to work.

Judgment reversed. All the Justices concur.