Boswell v. Liberty Mutual Insurance

1. Whether the hernia existed prior to the accident for which compensation is claimed under the Workmen's Compensation Act is a question of fact; and the director's finding thereon is conclusive when based on competent evidence and in the absence of fraud. Code, §§ 114-412, 114-710.

2. The denial, because the hernia was found to be pre-existing, of medical and hospital expenses incurred by reason of a hernia under Code § 114-412, does not preclude the recovery of compensation under the Workmen's Compensation Act for the period of total incapacity for work which is the result of an aggravation of the pre-existing hernia by an accident arising out of and in the course of the employee's employment.

3. While there is sufficient competent evidence in the record of this case to authorize the director to find that the claimant was not entitled to the medical and hospital expenses which were the result of the operation to remedy pre-existing hernia condition, the evidence leads inescapably to the sole conclusion that there was an accident arising out of and in the course of Boswell's employment which aggravated the pre-existing condition and demands an award of compensation for the period of total disability which was the result of such aggravating accident. The judgment of the trial court sustaining the action of the board, denying compensation, is reversed.

DECIDED JULY 8, 1948. REHEARING DENIED JULY 28, 1948. L. G. Boswell filed a claim with the State Board of Workmen's Compensation for compensation and for medical and hospital expenses due to a hernia and to a subsequent aggravation thereof, both arising out of and in the course of his job as a weaver with Brighton Mills Inc., which carried workmen's compensation insurance with the Liberty Mutual Insurance Company. The claim came on for a hearing before Director Arlie D. Tucker who denied both compensation and medical and hospital expenses. Proceeding regularly, appeal was had to the whole board and subsequently to the Superior Court of Floyd County, Georgia, the award being affirmed on each appeal. The judgment of affirmance in the court below is here excepted to as error.

In substance the testimony of the claimant showed the following: that on the 14th or 15th of May, 1946, while lifting a heavy warp, or roll of yarn, into place behind a loom, he suffered pain in the right side above the groin and there was a slight swelling in that locality; that he had never had any symptoms of hernia, nor any idea that he had a hernia, prior to this time; that he reported the fact of this accident to his foreman, Mr. Joe Frick; that this accident was not disabling and that he continued to work without losing time from his job; that on October 7, 1946, while pulling on a warp which had become stuck something pulled loose in his side, and, suffering great pain, he went to the rest room and found that there was a knot about the size of a guinea egg on his right groin; that he reported to Mr. Frick that he was hurt and had to go to see the company doctor; and that the doctor immediately sent him to the hospital to be operated on for a strangulated hernia. On cross-examination the claimant was questioned in regard to an alleged prior inconsistent statement — that the first accident or hernia occurred some two years previously — made to an insurance investigator upon his return to work after the operation. The claimant denied having made this statement and the investigator's report was neither authenticated nor offered in evidence. Also on cross-examination Boswell denied that he had gone to see Dr. Dawson, the company physician, in April of 1946, and denied that the physician had found a hernia at that time; but he recalled having gone to see Dr. Dawson in May of that year, complaining of feeling generally run down, and recalled that Dr. Dawson had told him that he had a hernia.

The testimony of Beecher Collins, a fellow-worker of Boswell, showed that in May, while they were lifting the heavy warp, Boswell complained that he was hurt; that thereafter Boswell refused to help with heavy lifting because of his weak side; and that later in October, after they had been working a couple of hours in the morning, he saw Boswell with his coat and hat on and Boswell, holding his side, told him that he had hurt himself and that he (Boswell) was hunting Joe Frick, the foreman. On cross-examination Collins testified that he did not know of Boswell ever having complained of his side prior to the accident in May.

Boswell's foreman, Joe Frick, testified that Boswell had complained to him of having something wrong with him for some time, but that he did not recall having been told that Boswell was hurt in May and had not submitted an accident report; and that in October, Boswell had told him that he was sick and hurting and had to go to the doctor, but that he did not understand that Boswell had suffered an accident and did not submit an accident report until after Boswell's return to work.

Dr. Harry E. Dawson, the company physician, testified that Boswell had come to him on April 20, 1946, complaining of general asthenia, and that upon examination, he had found that Boswell was suffering from a reducible femoral hernia on the right side and had recommended an operation; that when he examined Boswell in April, Boswell did not complain of the hernia nor mention the accident, but made only the minor complaint of general asthenia; that he was acquainted with Boswell previous to April, but that this was the first time that he had discovered the hernia; that when he examined Boswell in October, the hernia had become strangulated and that he assisted in the operation following this discovery; that the difference in the operation performed in October and the operation which would have been performed in April if the claimant had abided by his suggestion at that time was that the October operation was far more complicated because the tissues had become altered due to the lack of blood supply to them as a result of the strangulation, although the results of the two operations would have been the same; and that any hernia is apt to become strangulated at any time.

The director found as a matter of fact that the claimant had a pre-existing hernia prior to the alleged date of injury in May, 1946; that from the testimony of Dr. Dawson, it was impossible for him (the director) to believe that the claimant suffered any injury in October which aggravated the pre-existing hernia; and "that it is obvious from the evidence that the testimony of the claimant can not be relied upon." He therefore denied the claim for compensation. 1. "In all claims for compensation for hernia resulting from injury by accident arising out of and in the course of the employee's employment it must be definitely proved to the satisfaction of the Department of Industrial Relations: . . fifth, that the hernia did not exist prior to the accident for which compensation is claimed." Code, § 114-412. "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; Maryland Casualty 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), and cit.; . . United StatesFidelity c. Co. v. Price, 38 Ga. App. 346 (144 S.E. 146);United States Fidelity c. Co. v. Christian, 35 Ga. App. 326 (3) (133 S.E. 639)." Liberty Mutual Ins. Co. v. Blackshear,197 Ga. 334, 336 (28 S.E.2d 860). The State Board of Workmen's Compensation is not bound in every case to accept the literal statement of the witnesses before it merely because such statements are not contradicted by direct evidence; but it may reject the same when inconsistent with reason or in conflict with facts which in the opinion of the Board have been satisfactorily established or with implications and inferences which logically and properly arise from the evidence. Cf. Macon St. R. Co. v.Barnes, 113 Ga. 212 (8) (38 S.E. 756); Cooper v.Lumbermen's Mutual Casualty Co., 179 Ga. 256, 261 (175 S.E. 577); Liberty Mutual Ins. Co. v. Blackshear, supra, and citations.

From the testimony of Dr. Dawson that the claimant at the time of his first examination in April did not complain of hernia or of having suffered an accident, but only of general asthenia; of Dr. Dawson that the examination was in April, with the hernia then existing, prior to the alleged date of the accident in May; and of Joe Frick that he had not been told that Boswell suffered an accident or was hurt in April or May, the director was authorized to draw an inference that if Boswell had been injured in May (or in April) he would have gone to the doctor and complained of that rather than of general asthenia, and to find as a fact therefore that the evidence did not sufficiently negative the fact of a pre-existing hernia. Under the rules of law above stated, we must affirm the director's finding of fact that there was a pre-existing hernia and his denial of the claim under Code § 114-412 for medical and hospital expenses incurred in remedying such hernia.

2. Code § 114-412 "deals exclusively with the principle of law regarding compensation for hernia or for death therefrom. Therefore it necessarily follows that, unless the evidence shows that the claimant is entitled to compensation for total or partial disability under some other principle of law under the Workmen's Compensation Act, the claimant is not entitled to prevail in this case." American Mutual Liability Ins. Co. v.Gunter, 74 Ga. App. 500, 511 (40 S.E.2d 394). However, the denial because the hernia was found to be pre-existing, of medical and hospital expenses incurred by reason of a hernia under said Code section does not preclude the recovery of compensation under the act for the period of total incapacity to work which is the result of an aggravation of the pre-existing hernia by an accident arising out of and in the course of the employee's employment. Ibid. The testimony of the claimant that on October 7, 1946, while he was pulling on the warp which had gotten stuck, he felt something pull loose in his side, and, suffering great pain, he went to the rest room and found that there was a knot about the size of a guinea egg on his right groin; of Beecher Collins that the claimant told him, immediately after the claimant's discovery of this additional protrusion and while they were at work on this day, that he had hurt himself and that Boswell was holding his side and appeared to be in great pain; of Joe Frick that the claimant told him that he was sick and hurting; and of Dr. Dawson that, when Boswell came to his office on October 7, the hernia was strangulated whereas previously it had been reducible, was uncontradicted and unimpeached. The alleged previous contradictory statement of the claimant, which was never authenticated or offered in evidence, did not contradict, but rather affirmed the claim of Boswell that he had at this time suffered an aggravating accident. Though the director said that the testimony of Dr. Dawson refuted Boswell's allegation that he suffered an aggravating injury in October, we have searched the doctor's testimony most painstakingly and have found nothing therein which in any way contradicts the fact of the occurrence of such an accident; and, on the other hand, Dr. Dawson in fact substantiated Boswell's claim that he suffered an aggravation by his testimony that the hernia in October was strangulated and that the resulting operation was far more complicated than that which had been previously recommended. While Dr. Dawson did say that any hernia may become strangulated at any time, this did not negative in the slightest the claim that in fact the strangulation occurred while Boswell was pulling on the stuck warp and hence was an accident arising out of and in the course of his employment; but it merely says that the strangulation would not necessarily have to arise out of an accident such as that out of which the evidence shows that it actually did arise. We think that, at the least, the evidence, and every reasonable implication and inference which can be drawn therefrom, necessarily leads to only one conclusion and demands a finding that Boswell suffered an accident which aggravated the pre-existing hernia condition. It is clear that prior to this aggravation Boswell had no difficulty in continuing his work as a weaver, though he needed an operation to make him entirely whole, and that as a direct consequence of the aggravation he was totally incapacited for work during the period required for the operation and for his recuperation from the operation, which was testified to be a period of from six to eight weeks by Dr. McCall, the surgeon who performed the operation — though the result of this operation was the same as that which he needed to have performed prior to the aggravation. It is therefore our opinion that, while there is sufficient competent evidence in the record to authorize the director's finding that the claimant was not entitled to the medical and hospital expenses which were the result of the operation to remedy the pre-existing hernia condition, the evidence leads inescapably to the sole conclusion that there was an accident arising out of and in the course of Boswell's employment which aggravated the pre-existing condition and demands an award of compensation for the period of total disability which was the result of such aggravating accident.American Mutual Liability Ins. Co. v. Gunter, supra, p. 516. See, in this connection, Heflin v. Red Front Cash Carry Stores (Ind.App.), 73 N.E.2d, 494; Ross v. Smith, 169 Md. 86 (179 A. 173).

The judgment is reversed with direction that the judge of the superior court recommit the case to the State Board of Workmen's Compensation to hear evidence as to the period of time during which the claimant was totally disabled, and upon findings therefrom to make an award of compensation to the claimant in accordance with and in conformity to the law and this opinion.

Judgment reversed, with direction. Gardner and Townsend, JJ.,concur.