Larson v. State

320 P.2d 763, 79 Idaho 446, 1958 Ida. LEXIS 246

• Court: Idaho Supreme Court
• Decided: January 10, 1958
• Docket: 8564
• Status: Published

Opinions

SMITH, Justice.

Appellant, November 14, 1955, then aged 41 years, received a personal injury caused by an accident arising out of and in the course of his employment with respondent employer, in regard to which event no dispute exists. Respondents recognized liability for and paid certain expenses of medical treatment accorded appellant for contusions sustained in area of the right side of his abdomen and right flank, caused by the accident.

The existing controversy is based upon appellant’s assertion, denied by respondents, that a hernia, by which appellant became afflicted, was caused by such accident and for which he made claim for workmen’s compensation benefits. He has appealed from an order of the industrial accident board denying recovery on his claim.

Appellant assigns error of the board in finding that the hernia did not appear suddenly and immediately following the accident; that the hernia was not reported to the employer within thirty days, and that the hernia did not result from the accident.

I.C. § 72-316, relating to cases of hernia, reads as follows:

“Hernia. — In all cases of hernia resulting from injury by accident alleged to have been sustained in the course of and resulting from, employee’s employment, it must be proved:

“1. That it was an.injury by accident resulting in hernia

“2. That the hernia appeared suddenly arid immediately following the accident.

“3. That the hernia did not exist in any degree prior to the injury by accident for which compensation is claimed.

“4. That the hernia was reported to the employer within thirty days after the accident.”

The board found: “It is probable that claimant’s hernia did not exist in any degree prior to claimant’s accident of November 14, 1955,” which meets the requirement of subparagraph 3 of the above quoted section of the statute. The remaining findings of the board, within the purview of subparagraphs 1, 2 and 4 of said section of the statute, regarded in the light of appellant’s specifications of error, raise the issues involved in this proceeding.

Since the evidence is undisputed it may be reviewed as a matter of law to determine its sufficiency to sustain the findings. If the findings are clearly unsupported as a matter of law, it is within the province of this court to set them aside and the decision based thereon. Ybaibarriaga v. Farmer, 39 Idaho 361, 228 P. 227; In re Hillhouse’s Estate, 46 Idaho 730, 271 P. 459; Bybee v. Idaho Equity Exchange, 57 Idaho 396, 65 P.2d 730; In re Black, 58 Idaho 803, 80 P.2d 24; Pauli v. Preston Theatres Corporation, 63 Idaho 594, 124 P.2d 562; Aranguena v. Triumph Min. Co., 63 Idaho 769, 126 P.2d 17; Benson v. Jarvis, 64 Idaho 107, 127 P.2d 784; Miller v. Bingham County, 79 Idaho 87, 310 P.2d 1089. A brief review of the evidence follows.

The accident of November 14, 1955, occurred while appellant was unhooking a tow chain attached to a motor grader and a towing vehicle, when an unexpected forward movement of the towing vehicle caused the chain to come loose with a sudden whiplashing motion. The chain lashed around appellant’s midsection throwing him to the ground some feet away. He stated, “The wind was knocked out of me and I struggled to get up and Mr. Smith [a co-employee] grabbed on to hold me down in case I had any broken bones. * * * I was in considerable pain. - * * * I looked at my stomach and seen it was red and black on my right side.”

Dr. Wilson, to whom appellant reported shortly after the accident, described the injury as contusions extending from a point below the lower end of the sternum following underneath the rib margin into the right flank area, which caused appellant a great deal of soreness. The doctor did not then or thereafter examine appellant for hernia.

November 16, 1955, appellant made due claim for compensation; in the claim, after describing how the accident happened, he stated the nature of his injury to be, “right side-and back badly bruised.” The employer’s district engineer, who executed the report of the employer appended to the claim, certified that appellant was employed by the employer on the date of the accident, November 14, 1955, and had been so employed since 1947.

November 16, 1955, appellant complained of cramps after eating, and on November 19, 1955, he still experienced soreness in the area injured. Treatment included “pain killing” tablets. The attending physician released appellant to return to work on November 21, 1955. Appellant’s work with the employer terminated February 6, 1956.

February 7, 1956, appellant complained to Dr. Wilson of sudden pain in the upper portion of his shoulders, but did not receive any treatment therefor. He thought he had the “flu”. He did not attribute the pain to lifting a sanding machine the day previous.

A few days prior to February 23, 1956, appellant applied for work with another employer. His pre-employment physical examination revealed him to be afflicted with a right inguinal hernia. February 24, 1956, he told Dr. Wilson of the discovery of the hernia, wondering if it was related to the accident of November 14, 1955. Dr. Wilson doubted such relationship, stating however that he did not tell appellant at any time that the hernia was not the result of that accident.

Appellant then reported to Dr. Shrum, who verified the fact that appellant was afflicted with a right inguinal hernia, with some swelling in the area of the right groin. The doctor advised immediate surgery because of imminence of strangulation.

Appellant testified that he suffered considerable pain in his right side and right flank area and that he had a dragging sensation of pain in the right side of his abdomen right after the accident, which he suffered intermittently; tablets administered him by the doctor relieved the pain. After returning to work he noticed this dragging sensation after having worked and when tired. He did not realize that he had a hernia until the pre-employment physical examination had during February, 1956. While the doctors at that time told him that he had some swelling in the area of his right groin, he had not particularly noticed it. A report of a medical examination made of claimant November 5, 1954, on his application for life insurance, admitted in evidence, shows that appellant was not then afflicted with any hernia or rupture. Appellant testified that he had no accident from the time of that examination until the accident of November 14, 1955, and that he had no accident thereafter.

Claimant told Mr. Nash, agent of his former employer, of the discovery of the hernia. Mr. Nash testified of his telling appellant that regardless of whether the hernia was compensable he should have it repaired, because it was a matter of emergency; he stated that the employer “don’t recommend any particular physician.”

Dr. Shrum, upon operating February 29, 1956, found that appellant suffered a large, right, direct inguinal hernia, which he repaired. In reference thereto Dr. Shrum’s testimony appears:

“A. It was a direct hernia.

“Q. Would you explain the difference between a direct and an indirect hernia? A. Well, the indirect hernia, which is the most common type, comes through the layers of the abdominal wall in an oblique fashion, and the direct hernia comes straight through and comes through more medially through the midline and comes through an area which they call Hesselbach’s Triangle. Generally the direct hernia is found in the older age group, beyond fifty, whereas the indirect is found in the younger men * * *.

“Q. When a direct hernia is found in a man of the age of claimant [41 years], * * * does that indicate anything to you as to the cause? A. Since the direct hernia is rare in a younger person, you try to look for some cause * * *

“Q. Is it usually caused by accident? A. I believe it is, yes.”

The doctor stated that he found nothing to indicate that the hernia was of long standing, such as scar tissue. With reference to the dragging sensation which appellant experienced, the doctor testified:

“Q. Doctor, of what significance is the dragging pain complained of by claimant ?

‡ sfc

“A. That is a symptom we frequently find with inguinal hernia. Q. Is that a symptom that would appear after the hernia appeared? A. Yes.”

Since Dr. Wilson at no time examined claimant for a hernia, his testimony, hereinbefore referred to, on the question of causal connection is- of no probative value, and is entirely insufficient upon which to base any finding.

The undisputed evidence shows that the hernia did not exist prior to the accident of November 14, 1955; also, the accident of that date points without contradiction to the hernia as an injury which appellant thereby received. The symptomotology to which appellant testified points to the occurrence of the hernia as one of the results of the accident, as an injury then received; also, Dr. Shrum’s testimony undisputedly points to the traumatism as .the causative factor of the hernia. Clearly the requirements of subparagraphs 1 and 2 of I.C. § 72-316 that said accident resulted in the hernia and that the hernia then appeared suddenly and immediately, are fully met by the undisputed evidence.

Subparagraph 4 of I.C. § 72-316, to the effect that a hernia must be reported to the employer within 30 days after the accident, constitutes a requirement that the injury by accident resulting in the hernia must be so reported in order to be compensable. The referred to mandate of the statute is shown to have been observed in the case here. This is true simply because appellant’s employer had knowledge of the accident November 14, 1955, immediately upon its occurrence, which caused appellant to suffer injuries, and the hernia was an injury by him so received. Whatever knowledge appellant then had, so did his employer within the 30-day statutory requirement.

The statutory provision that “the notice to or knowledge of the occurrence of the injury on the part of the employer shall be deemed notice or knowledge, as the case may be, on the part of the surety,” is included among those provisions which must be read into all contracts of workmen’s compensation insurance. I.C. § 72-806. “ ‘Employer’ * * * includes his surety so far as applicable.” I.C. § 72-1010. See also Smith v. McHan Hardware Co., 56 Idaho 43, 48 P.2d 1102; In re Cain, 64 Idaho 389, 133 P.2d 723, and authorities therein cited.

In Page v. State Insurance Fund, 53 Idaho 177, 22 P.2d 681, 682, the claimant, December 4, 1931, upon striking her right groin against a corner of the table, felt severe pain in that area. The next day she notified her immediate superior of the accident and injury. She was unable to work four days during the period December 6-23, 1931. On the latter date she was laid off work. During most of January, 1932, she was confined to her bed on account of her condition attributable to the accident, and February 7, 1932, two months and three days after the accident, she consulted a physician who found her to be afflicted with a right direct inguinal hernia. March 12, 1932, she filed a claim for compensation and thereupon obtained an award. The evidence showed that claimant was unaware that she was suffering from a hernia until her physician so advised her February 7, 1953. This Court in affirming the award of the industrial accident board stated:

“Respondent testified that she did not know that she was suffering from hernia until so advised by her physician on February 7, 1932. The evidence conclusively shows, as hereinafter pointed out, that the employer had actual knowledge through its agent of the accident and injury and respondent’s condition the day following the accident, although respondent did not specifically state, in so many words, that as a result of the accident she was suffering from hernia. The reason she did not so state was that she did not know at that time nor until she was so informed by her physician. She gave the agent or representative of her employer all of the information concerning her injury. Notice of a physical injury carries with it notice of all things which may he reasonably anticipated to result from it. Bates & Rogers Const. Co. v. Emmons, 205 Ky. 21, 265 S.W. 447, 448. The requirement of the report necessarily implies knowledge of the injury for which claim is made. It was impossible in this case for respondent to report to the employer that the injury from which she was suffering was known as hernia until she knew that such injuries were so denominated, and this she first learned from her physician, on February 7, who diagnosed it as such. She reported the accident and her physical condition to the agent of the employer the day following the accident. Such condition was afterwards diagnosed as hernia. The employer was possessed of the same knowledge as respondent and was in a position to make a diagnosis as well as respondent was, and the mere fact that she had not reported the hernia, by so designating it, when in truth and in fact it was such, does not justify refusing compensation on that ground.”

In Hancock v. Troy-Parisian Co., 60 idaho 576, 94 P.2d 674, the claimant, October 4, 1938, as a result of a slipping accident, felt pain in her right side which she reported shortly to her immediate superior. At home that evening she was “puffed up” at the place, where she had felt the pain in her right side. October 22, 1938, she quit her work. January 9, 1939, three months and five days after the accident, a physician repaired a ventral hernia in her right abdominal wall. She obtained compensation pursuant to her claim therefor filed February 23, 1939. This court upheld the award since the undisputed evidence pointed to the hernia, as later diagnosed and operated, as the result of the accident; also showed that the claimant had not previously experienced pain in her right side; that she reported the hernia within thirty days after the accident to her employer in that, while she did not tell him she had suffered a hernia, she did give him all the information she had, thereby meeting the requirement of the statute, now I.C. § 72-316, that the hernia be reported to the employer within such thirty-day period.

In Smith v. Mercy Hospital, 60 Idaho 674, 95 P.2d 580, 582, the claimant, April 22, 1938, as the result of an accident felt a sudden pain in his left groin. The following day he reported the incident to his immediate superior. He continued working, with some discomfort in the left groin. July 18, 1938, almost three months after the accident he visited a physician who repaired an incomplete, indirect left inguinal hernia. Claimant made claim for compensation benefits August 10; 1938, and pursuant thereto obtained an award. There, as here, the employer and surety contended that the hernia was not reported within thirty days after the accident. This Court said:

“Little merit appears in appellant’s contention that the board failed to find ‘that the hernia was reported to the employer within thirty days after the accident.’ The board did find ‘that the employer received notice of the injury within thirty days after the happening thereof.’ The salutary purpose of the provision of section 43-1116, I.C.A. [now I.C. § 72-316], providing for notice to the employer is that the employer be timely advised of the employee’s condition, its cause and the time thereof, rather than a specific use of the words contained in the statute and such has been the interpretation of subdivision 4 of section 43-1116, I.C.A. [now subdivision 4 of I.C. § 72-316].” Citing and quoting from Page v. State Insurance Fund, supra. (Emphasis supplied.)

We therefore are constrained to hold that appellant complied with subparagraph 4 of I.C. § 72-316.

Appellant assigns further error of the board in finding that the repair of the hernia was without authorization of respondents, employer and surety. Such assignment has merit. The evidence shows that the employer in nowise attempted, to direct or control appellant’s choice of a physician; also that appellant tried to get in touch with the representative of the employer’s surety, but could not, due to absence of the representative; also that Dr. Shrum deemed operative procedure to be an emergency, and that the employer’s representative was fully cognizant of such circumstance.

Moreover, if the employer fails to provide reasonable medical and similar services to the injured employee, the latter may do so at the employer’s expense. I.C. § 72-307.

The order of the industrial accident board is reversed and the cause remanded to the board with instructions to enter an award of compensation benefits in favor of appellant. Costs to appellant.

PORTER and McQUADE, JJ„ concur.