Colonial Insurance v. Industrial Accident Commission

CARTER, J. Petitioner, insurance carrier for the employer, was unsuccessful in its attempt to have respondent, Industrial Accident Commission sustain its defense of the statute of limitation to a claim for workmen’s compensation filed by respondent, Miles E. Nickles.

Nickles suffered a right inguinal hernia in the course of his employment on January 3, 1944. He filed his application for compensation on August 31, 1944. According to applicant’s testimony, he consulted Dr. Hull on January 5, 1944, and was advised that he had the hernia. The following day at the suggestion of Dr. Hull he consulted Dr. Gamble, a doctor for petitioner carrier. The latter examined him. Later on he was examined by Drs. Gillis, (and Dr. Gillis’ brother) Townsend, and Watson. In the medical report of Dr. Gamble it is stated [439]that Nickles first consulted him on January 6, 1944, and “Injection treatment versus surgery was discussed. This case to me seemed to be an injectable type so the patient was ordered to purchase a truss and return later for injections. However the insurance carrier intervened and withdrew the patient from my professional care.” (Emphasis added.) Dr. Gillis’ report, dated January 20,1944, referred to an examination on January 18, 1944, and remarks: “He (Nickles) reported to Dr. Gamble on January 6th, who told him he had a rupture and advised a truss which the injured procured and which he has worn since.” Dr. Gillis’ second report dated April 19, 1944, referring to a consultation of April 18, 1944, states: “You will note from my report to you of January 20, 1944 that this man presented a right, indirect, inguinal, reducible hernia which I believed should be repaired surgically. Authority was granted by your office to proceed with the surgery but the injured has decided not to have it done. Instead he procured a truss which he has been wearing continuously. He has been able to continue with his work. He has reported in here periodically for observation only.

“I examined him last on April 18, 1944, at which time I noted that there was no clinical evidence óf any right-sided hernia now, but this would be expected in view of the fact that he has been wearing the truss continuously. I believe that if he took the truss off and allowed it to remain off for a few hours the right inguinal hernia would again be present.

‘‘ This man still states that he is not going to accept surgery, at least not temporarily, and is going to continue wearing the truss and continue working. Under the circumstances I have no further recommendations to make.” (Emphasis added.) It will be noted that that report covers the period including, and for some time prior to April 18, 1944. Six months prior to August 31, 1944, the date the application was filed would be March 1, 1944, a date before the last consultation and within six months after the injury was received.