Allied Tel. Co. v. Rhodes, 5--5144

• Decision Date: 11 May 1970
• Docket Number: No. 5--5144,5--5144
• Citation: 248 Ark. 677,454 S.W.2d 93
• Parties: ALLIED TELEPHONE CO. et al., Appellants, v. Leo RHODES, Appellee.
• Court: Arkansas Supreme Court

Page 93

454 S.W.2d 93

248 Ark. 677

ALLIED TELEPHONE CO. et al., Appellants, v. Leo RHODES, Appellee.

No. 5--5144.

Supreme Court of Arkansas.

May 11, 1970.

Rehearing Denied June 15, 1970.

House, Holmes & Jewell, Little Rock, for appellants.

Bruce Bennett, El Dorado, and Jack Lee Lessenberry, Little Rock, for appellee.

HARRIS, Chief Justice.

This is a Workmen's Compensation case. Leo Rhodes, appellee herein, was admittedly an employee of Allied Telephone Co., one of the appellants herein, on May 9, 1966. Rhodes filed a claim asserting that on May 9 of the aforementioned year, he suffered an injury to his fourth and fifth lumbar vertebrae while helping to move heavy equipment through a door at the Greenbrier office of appellant company. Though the evidence is somewhat confusing, it appears that he did not go to the office for several days, but was carried on the payroll full-time. On May 23, Rhodes consulted Dr. D. W. Langford, a chiropractor of Conway. Langford took X-rays and his diagnosis was that Rhodes had suffered a subluxation of the fourth and fifth lumbar vertebrae. Five visits were made from May 23 through May 30. Langford said he advised that heat and hot baths would be helpful in relaxing the muscles of the spine. The doctor said that adjustments given were beneficial to Rhodes and his report reflected that he pronounced Rhodes able to resume work as of May 27. The doctor's bill in the amount of $40.00 was paid by appellants, and Langford was advised that the carrier would not be responsible for further treatment. Rhodes returned to duty and the payroll records of the company reflect that he worked at regular duties, including some overtime hours, until July 26, 1966, when Rhodes was involved in a one car accident between 1 and 2 A.M., as he was returning from Conway to his home in Greenbrier. On July 29, appellee was discharged because of unauthorized use of a company vehicle. No claim was made for any alleged injury in the car accident, appellee's claim being based entirely on the May 9 incident. Rhodes has not worked since that time, and the record reflects that thereafter he has been observed or treated by numerous doctors including Dr. Dunaway of Conway, Dr. Carruthers of Little Rock, who X-rayed him at St. Vincent's Hospital, Dr. James R. Morrison, radiologist, a number of doctors at the Veterans Hospital, and Dr. Hundley of Little Rock, who filled out the application for social security benefits. ¹ Dr. Robert Watson, neurosurgeon of Little Rock, operated on Rhodes on two occasions. Though all of these doctors were mentioned by appellee, the record contains only the testimony and reports of Drs. Langford, Morrison, and Watson. The claim was first heard by a referee, who filed an opinion on May 16, 1968, finding that on May 9, 1966, claimant suffered a compensable back injury; that claimant lost no compensable time; further, that Rhodes was involved in an auto accident in a company vehicle but suffered no personal injury; that the claimant was in the course of his employment at the time of that accident. ² The referee found that claimant's back condition was not caused by the injuries of May 9, 1966 or July 26, 1966, nor was his condition aggravated by either accident. The claim was accordingly denied and dismissed. On appeal, the full commission affirmed the referee except that they disagreed that the accidental injury of July 26 arose out of and in the course of claimant's employment. Rhodes then appealed to the Circuit Court of Faulkner County, and on June 12, 1969, that court found that the opinion and finding of the commission was 'not based upon substantial evidence nor a preponderance of the evidence', and held that Rhodes was 'permanently and totally disabled and there is no testimony to the contrary'. The order of the commission was reversed and that tribunal was directed to enter an award in accordance with the opinion of the Faulkner County Circuit Court. From the judgment so entered, appellants bring this appeal.

At the outset, let it be remembered that in making our determination, we are only concerned with whether there was substantial evidence to support the findings of the commission. Stout Construction Co. v. Wells, 214 Ark. 741, 217 S.W.2d 841.

Before discussing the medical testimony, we might mention that Roy Montgomery, a repair man for Allied Telephone Co., testified that he was present when Rhodes stated that he had strained his back while lifting something. Montgomery said Rhodes was off work three or four days, but that he remembered that Rhodes did work during May, June, and July. The witness testified that during the months of June and July, he would see Rhodes nearly every day, the latter being a supervisor who would direct Montgomery and some of his fellow employees where to go and what to do. Montgomery did not note Rhodes complaining about his back after the first few days, and he also said that he had heard complaints by appellee relative to his back prior to the date of the accident.

We have already mentioned the testimony of the chiropractor, Dr. Langford. The deposition of Dr. James R. Morrison, associated with St. Vincent's Hospital in Little Rock, was offered by appellee. Morrison interpreted X-ray films which were made on January 20, 1967, and also read films from Conway Memorial Hospital dated August 3, which had been taken at the direction of Dr. Dunaway. Dr. Morrison said:

'The routine films here on January 20, 1967, showed what appeared to be a minimal loss in height of the 4th lumbar vertebral body, which would appear to be a very definite compression fracture of this area. This was the only area of injury on the initial films. There was a previous myelogram at that time. We did have special bending films of his back on January 20, '67, with the patient's back flexed and extended, and these showed some limitation of motion throughout his lumbar area. * * *

'Ordinarily it takes an injury of some significance to produce this, but certainly in older people we do see compression simply from bending over, and stepping off curbs, and this sort of thing.'

Morrison said that he had had occasion to read his colleague's (Dr. Campbell) diagnosis of the film made at Conway and that the witness and Campbell reached the same conclusions.

On cross-examination, the witness said that he had never examined Rhodes, and that he was not attempting to say that there was any causal connection between appellee's condition and anything that might have happened in the past. When asked what he meant by the term 'compression fracture', the doctor replied:

'I mean that the vertebral body in question, the 4th lumbar, has definitely lost its height. There's a very definite loss in the height of this body, which means it has been compressed to lose this height. Now, we use the term compression fracture and compression injury rather loosely in this business, but I think we're talking about the same thing.'

Upon further interrogation, Dr. Morrison said that it was entirely possible for a compression fracture to be caused by diseased bone.

Appellants offered the deposition of Dr. Robert Watson of Little Rock, who stated that Rhodes had been sent to him by Dr. Dunaway at Conway. He said that Rhodes gave him a history of lifting some heavy...