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tion under which the work must be performed is within the Act,31 but the breaking of an artificial leg is not.""

§ 94. Physical violence or not

56

At common law the incurring of a disease or harm to health is such a personal wrong as to warrant a recovery if the other elements of liability for tort are present." In recent years the majority of actions grounded upon some physical violence has tended to emphasize the aspect of injury which depends upon visual contact or direct lesion. But that is by no means the exclusive signification of the word either in common speech or in legal use.57 The words "personal injury by accident,” used in many of the Acts, are not limited to injuries caused by violence, but include disease incurred by accident.58 "Personal injury" within the Massachusetts Act is not limited to injuries caused by external violence, physical force, or as the result of "accident" in the sense in which that word is to be given a much broader and more liberal meaning, and includes any bodily injury.59 It includes any injury or disease which arises out of and in the course of the employment, which

54 An injury caused by a strain from rushing work under a time-record efficiency system, whereby a strong, healthy man was kept under a high, nerve-racking tension during every minute of an eight-hour workday, is an injury within the act. In re Manning, Op. Sol. Dept. of L. 279. An injury caused by continuous strain, due to the nature of the work, and which develops gradually, has been held to be an injury covered by the act. In re Sargent, Op. Sol. Dept. of L. 275 (overruling Crellin Case).

55 In re Rodriguez, Op. Sol. Dept. of L. 227.

56 In re Hurle, 217 Mass. 223, 104 N. E. 336, L. R. A. 1916A, 279, Ann. Cas. 1915C, 919.

57 Id.

58 Johnson v. London Guarantee & Accident Co., Ltd., 217 Mass. 388, 104 N. E. 735.

59 (St. 1911, c. 751, as amended by St. 1912, c. 571) Johnson v. London Guarantee & Accident Co., Ltd., 217 Mass. 388, 104 N. E. 735.

causes incapacity for work, and thereby impairs the ability of the employé for earning wages."

$95. Nervous shock

The

"Personal injury by accident" includes a nervous shock. nervous condition of an injured workman is personal injury by accident where he regains his muscular condition, but honestly believes himself unable to work, as is also a nervous shock, pro

60 Id.

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61 Yates v. South Kirby, Featherstone and Hemsworth Collieries. Ltd. (1910) 3 B. W. C. C. 418, C. A. "It can be said that nervous shock due to accident is as much personal injury due to accident as a broken leg." Farwell, L. J., in Yates v. South Kirby, Featherstone and Hemsworth Collieries, Ltd. (1910) 3 B. W. C. C. 418, C. A.

A motorman, whose car collided with another, and who became insane as a result of the shock, suffered an accidental injury. McMahon v. Interborough Rapid Transit Co., 5 N. Y. St. Dep. Rep. 374.

62 Eaves v. Blaenclydach Colliery Co., Ltd. (1910) 2 B. W. C. C. 329, A. C. That the workman, but for want of sufficient will power, could have thrown off the condition of hysterical blindness and neurosis caused by the injury, did not deprive him of his right to compensation. In re Hunnewell, 220 Mass. 351, 107 N. E. 934.

Compensation may be awarded for traumatic neurosis. Finley v. San Francisco Stevedoring Co., 2 Cal. I. A. C. Dec. 174. Where a workman receives a blow on the head, causing no apparent serious injury, but inducing him to sincerely believe that he is incurably injured, which belief incapacitates him for work, he is entitled to compensation until his mental balance is regained. Rollnik v. Lankershim, 1 Cal. I. A. C. Dec. 45. Where there is serious injury to the spinal column of a workman caused by a fall, which results in a long period of total disability, followed by a period of partial disability, during which the workman is in a nervous or hysterical condition known as traumatic neurosis, he is entitled to disability indemnity for the loss of earnings during the latter period. Manfredi v. Union Sugar Co., 2 Cal. I. A. C. Dec. 920. Where an employé, who is injured by accident, and who after the healing of his injuries complains of pain and suffering, loses weight, and gradually becomes an invalid, without any physical cause therefor, and his condition is pronounced by medical experts to be traumatic neurosis, a mental or hysterical condition, which is real and not simulated, though without a physical basis, he is entitled to compensation. Such condition has long been recognized as a natural consequence of nervous shock accompanying bodily injury (Hakala v. Jacobsen-bade Co., 1 Cal. I.

ducing neurasthenia and incapacity, received by a workman while assisting an injured fellow workman.63 The possibility of witnessing some shocking injury to a fellow workman and receiving a nervous shock therefrom is a risk of any employment. Such nervous shock arises out of and is incidental to the employment, and is compensable if it definitely causes the injury. Thus, where an employé is present at the scene of the death by accident of several of his fellow employés while working on the employer's premises, and attempts to aid in their rescue, and becomes insane in consequence of the shock incident to the excitement, peril, and sense of duty to aid in the rescue, such is disability caused by accident. There is no distinction between such mental breakdown and a physical breakdown in so far as they affect the right to compensation. It is only essential in such case that the breakdown, whether mental or physical, be proximately caused by accident occurring in the course of the employment. It has been held by the Michigan Industrial Accident Board, however, that where death or disability results from fright, unaccompanied by any immediate physical injury, no compensation can be had.

§ 96. Hernia

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A hernia or rupture due to the employé's exertions in the performance of his work is compensable where it is caused directly,

A. C. Dec. 328), and is to be distinguished from malingering (Kelly v. Pacific Electric Ry. Co., 1 Cal. I. A. Dec. 150). "It seems to be entirely a fallacy to say that a man's right to compensation ceases when the muscular mischief is ended, but the nervous or hysterical effects still remain." Cozens-Hardy, M. R., in Eaves v. Blaenclydach Colliery Co., Ltd. (1910) 2 B. W. C. C. 329, C. A.

63 Yates v. South Kirby, Featherstone and Hemsworth Collieries, Ltd., 3 B. W. C. C. 418, C. A.

64 Reich v. City of Imperial, 1 Cal. I. A. C. Dec. 337.

65 Visser v. Mich. Cabinet Co., Op. Mich. Indus. Acc. Bd., Bul. No. 3, p. 24. 66 Zappala v. Industrial Ins. Commission, 82 Wash. 314, 144 Pac. 54, L. R. A. 1916A, 295.

A workman, who ruptured himself while trying to turn a wheel without

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and not merely aggravated, by the accident, notwithstanding a prior structural weakness in the region where the injury occurred.68 But where an existing hernia is well formed and of long standing, the descent of the bowel into the hernial sac is an incident of such great likelihood to occur at any time from any cause, or from no cause, as not to be a proper charge against the employer or industry." In Coley's monograph on Hernia in Keen's Surgery, vol. 4, p. 27, it is said: "Kaufman of Zurich has made a careful study of this question based upon medical jurisprudence. These are his conclusions: A hernia, in order to be entitled to any indemnity, must appear suddenly, must be accompanied by pain, and must immediately follow an accident. There must be proof that hernia. did not exist prior to the accident." 70

Relative to hernia the Nevada Industrial Commission made the following statements and adopted the following rules, which wil! prove of general interest:

"Hernia has been well said to be the stumbling block in the amicable adjustment of personal injury cases. Physicians agree that hernia, or rupture, due to an accident-real traumatic herniais rarely met with, and that most of the so-called ruptures atany wrench or jerk, suffered a personal injury by accident. Fenton v. Thorley & Co., Ltd. (1903) 5 W. C. C. 1, H. L.

67 Puljevich v. Lime Rock Sugar Co., 1 Cal. I. A. C. Dec. 165.

68 Bell v. Hayes-Ionia Co. (Mich.) 158 N. W. 179.

Where hernia was caused by the strain from lifting a gasoline engine, the workman was entitled to compensation, though the hernia would not have resulted but for a pre-existing physical weakness. Robbins v. Original Gas Engine Co. (Mich.) 157 N. W. 437.

69 Kavas v. Northern Electric R. R. Co., 2 Cal. I. A. C. Dec. 196; United States Fidelity & Guaranty Co. v. Rawling, 1 Cal. I. A. C. Dec. 64.

A claim based on incapacity caused by hernia following an injury may be allowed, though medical examination shows prior existence of hernia. In re Miro, Op. Sol. Dept. of L. 728.

70 Massa v. Crowe, 1 Conn. Comp. Dec. 86. In Dufrene v. Risdon Tool & Machine Co., 1 Conn. Comp. Dec. 411, compensation was awarded for a hernia due to overexertion in lifting; claimant feeling a sudden severe pain in the groin at the time.

tributed to accidents or "strains" during employment are not the result of employment, but coincident with employment. Courts and Commissions, however, disagree-failing to recognize that this subject is purely scientific and belongs more to the province of medicine rather than law.

"Very briefly, the following is the accepted teaching of medical science regarding hernia the world over, and which has been for fifteen or twenty years. This teaching is corroborated from a surgical standpoint by all noted surgeons: In a perfectly normal man, one in whom the canal is closed, as nature intended it should be during childhood, it is impossible to produce a hernia by traumatism or accident alone, unless the accident be so great as to puncture or rend the abdominal or belly wall itself. This is a real rupture. This real and true condition is very rare. The common or so-called rupture, which is really all we meet with, is a diseased condition present, which exists from birth, and which predisposes this man to a rupture, showing, so that he can see it most any time. This 'sac' in which the rupture shows up must be present to start with, or may be months or years in forming. It cannot be formed at once. If the man is honest and happens to be at his regular labor, of course he attributes the showing up of his so-called rupture to whatever force is applied to the abdomen. It is not an accident. The fact is it is simply the final step in the evolution of the disease called hernia.

"A hernia cannot, therefore, be considered a permanent partial disability due to an injury. However, it is a permanent, partial disability. It cannot be so considered even in an honest man who really notices the swelling for the first time while at work. Neither can it be so considered by a dishonest man, who had his hernia for a long time and states that he noticed it after a strain, etc. The fact remains the same; i. e., that it is a diseased condition, a permanent partial disability a long time in coming.

"In adopting a ruling on hernia, this Commission has been guided by the advice of its chief medical adviser. It has leaned towards