Saleneek v. Industrial Accident Commission

TYLER, P.

J.

Certiorari to review the action of the Industrial Accident Commission in denying petitioner ad-' ditional compensation for an alleged new and further disability resulting from an original injury.

The record discloses that petitioner while at work on December 1, 1921, sustained a ventral hernia, or rupture.

[791]

An application was filed with respondent Commission on February 24th of the following year as a result of which the Commission awarded him, certain compensation. Being dissatisfied with the amount of the award, petitioner filed a writ of review in this court for the purpose of having the award annulled. This petition was denied September 5, 1922. Thereafter he applied to the Commission for a permanent disability allowance for his hernia and. on March 21, 1924, the Commission allowed him compensation for a permanent partial disability of ten per cent, amounting to the sum of $833.20. He claimed that the allowance was inadequate and again petitioned this court for a writ of review. This petition was denied on October 17, 1924. A petition for rehearing in the supreme court was then filed. This petition was also denied by that court. On June 3, 1924, Saleneek again applied to respondent Commission for further compensation. This proceeding was predicated upon the claim that the hernia had increased in size and that certain back trouble had developed as a result thereof. A hearing was had by the Commission. Upon such hearing three of the physicians who had previously examined petitioner filed reports. One of them in his report stated in effect that the hernia was larger, but the other two found no material change in the condition thereof, one reporting that he could hardly find the hernia at all. With this conflict before it, the Commission called two other physicians to examine petitioner. Their reports are to the effect that there had been no increase in the size of the hernia since the previous award. The Commission, in accordance with this testimony, found that the evidence was insufficient to establish as a fact that the applicant’s ventral hernia was any worse than it was at the time of the decision as to the extent of his disability on March 21, 192'4, and he had not, therefore, suffered any new and further disability. It further found upon sufficient testimony that the alleged painful condition of Saleneek’s back was not in anywise caused or aggravated by his injury or the treatment thereof. It is apparent that these findings are not only based upon conflicting testimony, but that such testimony preponderates in favor thereof. Saleneek applied for a rehearing and this petition was denied on November 12, 1925. The present petition followed.