Condon v. First National Stores, Inc. , 65 R.I. 129 ( 1940 )

I am unable to concur with the other members of the court in their disposition of this cause. To my mind it is clear, from uncontradicted evidence, that when the petitioner consulted a physician early in December 1937, he had a hernia as a result of the strain which he had suffered during the month just before; that this hernia grew worse and caused his collapse and disablement on October 17, 1938; and that before the latter date he made no report to the respondent of the above-mentioned strain or of the resulting hernia.

In fact the trial justice so found in his decision, in which he stated: "It is not disputed that the petitioner sustained a hernia in November, 1937 which was not reported to the employer. It is also not disputed that this collapse and the first disablement from this hernia took place on October 17, 1938." He also found in that decision that "there is no question that the Director of Labor was right in finding that the petitioner was disabled October 17, 1938 from a hernia sustained the previous November while the petitioner was an employee of the respondent." I do not see anything in the decree that detracts from these statements in the decision.

In my judgment it is also clear, from undisputed evidence in the cause, that when the petitioner consulted a physician early in December 1937, he not only had this hernia, but was informed by the physician that he had it, and was advised to have an operation for it without much delay; and that he then had notice that the hernia was the result of the strain that he had suffered during the month just before. He himself testified that he experienced a strain in November, 1937, while lifting a hundred pound bag of sugar; that he then got a sharp pain in his groin on the left side; that he did not think much about it at the time but that he went to a physician about it the next month and was then advised that he had a hernia and told "not to let it go too far."

The other physician, who operated on the petitioner soon after the disablement in 1938, testified to the "history" of the petitioner, evidently as given him by the latter himself. This included an account of the above strain with "a sudden sharp pain in the left groin", followed by a swelling which had persisted in that area, with intermittent attacks of mild pain; an examination by the first physician on December 7, 1937; his diagnosis of an acute hernia and his advising an operation. The hospital report, made on November 24, 1938, when the petitioner was admitted for the operation, was also read in evidence; and it showed his "history", in which it was stated: "The chief complaint was swelling on the left side in the left groin. Duration about one year."

This was all proper evidence against the petitioner; it was uncontradicted and to my mind it clearly proved that on or about December 7, 1937 he had an acute hernia in his left groin as a result of the strain of November 1937, and had notice of this hernia and of the cause of it; and that the symptoms of it persisted until his collapse. Yet he did nothing about the matter in the interval; but continued to work for the respondent in its store, in the same kind of work as before, and gave no notice to the respondent of what had happened to him in November 1937 or of the fact that he had a hernia or of the trouble which he was having with his health.

I do not find any evidence that he was prevented from giving such notice by anything of the nature of accident, mistake or unforeseen cause; nor was anything of that nature relied on in his behalf. Nor can I find any evidence that the respondent had any knowledge or notice of any hernia or strain until after the disablement of the petitioner.

As pointed out in the opinion of this court, this is not a case of a petition for compensation to an employee for disablement from an accidental injury suffered in the course of his employment. On the contrary, the petition is brought solely under art. VIII of the workmen's compensation act, which article deals almost entirely with occupational diseases; and under § 2 of that article an employee cannot recover for disability caused by a nonaccidental hernia, unless it answers this description: "Hernia, clearly recent in origin and resulting from a strain, arising out of and in the course of employment and promptly reported to the employer."

The trial justice in his rescript found, as above stated, and correctly in my judgment, that the petitioner was, within the meaning of the above § 2, disabled on October 17, 1938 from a hernia sustained during the previous November. He also found, correctly, that under art. II, § 4, no compensation is payable for an injury that does not incapacitate the employee for a period of at least three days from earning full wages. He therefore, following the reasoning of the director of labor in this case, found that there was no compensable injury to the petitioner to be reported until after October 20, 1938. From this he drew the conclusion that the petitioner had "complied in all particulars with the provisions of Article VIII, Section 2."

Therefore, in paragraph 4 of his decree, he made the following finding: "That said hernia was clearly recent in origin and promptly reported to Respondent employer which also had actual notice thereof." It is obvious to me that this finding and the above conclusion are squarely based on his interpretation of the statutory language, above quoted, defining a compensable nonaccidental hernia. According to that interpretation the period of time, to be used in deciding whether the hernia was clearly recent in origin and was promptly reported to the employer, would begin three days after the employee's disablement from the hernia.

Therefore, the above conclusion and finding of the trial justice cannot properly be treated as determinations of facts unless he was correct in his interpretation of the above statutory definition of a compensable nonaccidental hernia. In my opinion he was clearly wrong in that interpretation and his decree should, therefore, be reversed.

In the opinion of the court, art. VIII, § 2, is quoted, wherein it is provided that the disablement of any employee resulting from any of the listed occupational diseases or conditions shall be treated as the happening of a personal injury by accident and that the procedure and practice provided in the chapter "shall apply to all proceedings under this article . . . ." This language here quoted is immediately followed, however, by a clause which is indeed quoted in that opinion but, it seems to me, is then ignored, whereas, in my judgment, it is vital in this cause. This clause is "except where specifically otherwise provided herein."

To me it seems obvious that this clause refers to item 27 of the schedule, wherein a compensable nonaccidental hernia is defined; and that the requirements of that item, according to settled rules of the interpretation of language, should prevail over what precedes.

To my mind it is clear that the language of item 27 cannot reasonably be interpreted except as providing that the disablement of an employee resulting from a nonaccidental hernia cannot give him a right to compensation under the act, unless that hernia satisfied, at the time of the disablement, three conditions, the first being that the hernia was then clearly recent in origin, the second that it had resulted from a strain arising out of and in the course of the employment, and the third that it had been "promptly reported to the employer."

It is also clear to my mind that the period of time to be considered in determining whether the hernia was, at the time of the disablement, "clearly recent in origin" should begin when the hernia originated, not when it became compensable; and that the period to be considered in determining whether it had been "promptly reported to the employer" should begin when the hernia had resulted from the strain and the employee had knowledge or notice of such hernia and that it had so resulted.

It seems to me that not to construe this language of the statute in this way is virtually to nullify plain language inserted in the statute for the reasonable protection of the employer against too broad liability for something that is not the result of an accident and is not an occupational disease. And in saying this I am not overlooking the rule that this statute should be construed liberally in favor of employees in order to effectuate its particular purposes.

It is a well-known fact, of which we may properly take judicial notice, that a hernia is likely to subject a man to very serious results from muscular strains in the region of the abdomen; but that such results can usually be prevented by proper treatment. It is, then, no more than fair to an employer that an employee, who has knowingly suffered a hernia from a muscular strain, incurred in the course of this employment, should, as acondition of being able to recover from that employer for a later disablement caused by such hernia, give prompt notice of it to the employer, so that the latter may see that reasonable precautions are taken against the danger of such later disablement, as by relieving the employee from such strains or by means of a surgical operation.

I believe that to give such reasonable protection to employers was the object of the general assembly in inserting in the statute the provision now in question; and that we should not defeat that object by giving to that provision what, in my judgment, is a very unreasonable interpretation.

My conclusion, as above stated, is that the trial justice erred in his construction of this provision; that his award of compensation to the petitioner cannot properly be sustained on any ground that does not depend upon this interpretation; and that therefore his decree should be reversed.