Smith v. Pittsburgh Coal Co. , 1919 Pa. Super. LEXIS 103 ( 1919 )

Opinion by

Porter, J.,

This case originated by the filing of a claim petition by appellee under the Workmen’s Compensation Act of 1915 for compensation for disability resulting from umbilical hernia or rupture alleged to have been sustained by him in lifting the end of a coal car while employed by appellant in one of its mines. The referee allowed the plaintiff compensation during the period for which he was disabled. The defendant appealed to the Workmen’s Compensation Board, alleging errors of law on the part of the referee, but the board dismissed the appeal. The defendant then appealed to the court below, which affirmed the finding of the board, and from that action we have this appeal.

We must accept the findings Of fact by the referee and the Workmen’s Compensation Board as final, and upon those findings the rights of these parties are to be determined. The appellant contends that thfe findings of the referee do not establish a case in which the claimant is entitled to “compensation for personal injury to, or for the death of such employee, by an accident, in the course of his employment.” The referee found that the plaintiff suffered an umbilical rupture while, in the course of his employment, assisting his father to put a coal car upon the track, the father bearing his weight on one end and the claimant lifting on the other. That the lifting of the car and the strain of the abdominal pressure resulting therefrom caused the hernia. The learned counsel for the appellant argues that because the evidence did not establish and the referee did not find that “there was any breaking, slipping or jarring of the car — only the muscular exertion required by the lifting,” the injury which the plaintiff sustained cannot be held to be “by an accident,” within the meaning of the Workmen’s Compensation Act. of 1915. It is argued that the legislature contemplated that the injury, in order to be compensable, must be caused by the application of some external force, the occurrence of some unforseen or unexpected event, other than the injury itself, of which the employee himself is not the agent. The argument goes to the extent of maintaining that the accident must be in the external circumstances of the injury, the events leading up to it; that the word “accident” or “accidental” cannot be held to apply to the injury itself but must be confined to the source of the injury. This question has been ably and interestingly argued, by the learned counsel for the appellant and the appellee, and the English case of Fenton v. Thorley & Co., L. R. 1903, Appeal Cases 443; 19 Law Times Rep. 648, and many other authorities have been cited. We do not deem it necessary, however, to discuss the question for the reason that we must accept it as settled by the decision of the Supreme Court in Wolford v. Geisel M. & S. Co., 262 Pa. 454. In that, case the claimant was engaged in the operation of moving a heavy piano. “His suffering dated from that time until his death. He continued to work until May 11th, at noon, when he was obliged to give up because of his being incapacitated. His physician found that he was suffering from severe pain in his right side extending down through the abdomen into the leg. After his death an autopsy was held and it was found he had an abscess under the right kidney and that this abscess had produced pneumonia which caused his death. His physician reported the cause of his death as perinephritic abscess due to the injury received in moving a piano on May 4th, abscess followed by localized peritonitis.” Another physician testified, as stated in the report of the Workmen’s Compensation Board, that the abscess was the result of an injury and that the abscess could not have originated from natural causes. There was in that case no suggestion of an external accident, or unusual incident in the operation in which the employee was engaged. The injury to the employee was the only unusual or unexpected occurrence. The strain to which the employee had voluntarily subjected his body in the course of his employment had proved to be greater than it could bear, and the injury resulted. With the facts so found the Supreme Court said: “This chain of circumstances therefore justified the inference that the accident produced the abscess and the abscess caused pneumonia which resulted in the death of Wolford.”

Counsel for appellant further contend that this claimant was not entitled to compensation for the reason that there was in his case a congenital predisposition to hernia. The referee stated in-his report that the claimant testified that two summers before the accident, while he was swimming, he discovered a small lump, about the size of a pea, on the abdomen in the same region of the present hernia. Doctor Weil, the physician who operated upon him after the accident, testified that in view of this history of the case and the condition which he found, there must have been a weakness of the abdominal wall at that point, and that hernia was not curable without an operation. The referee further found that this condition of the plaintiff had never caused him any pain, inconvenience, or disability prior to this accident; that he underwent a physical examination, by the physician of the defendant company, a short time prior to the accident, for the purpose of ascertaining his condition, and that the physician told him he was all right. The report of the physician to the defendant company was not offered in evidence. The opinion of the learned president judge of the court below, which will appear in the report of this case, so satisfactorily disposes of this branch of the contention of the appellant that we deem it unnecessary to discuss it further.

The judgment is affirmed and the appeal dismissed at cost of the appellant.