Benjamin F. Shaw Co. v. Musgrave

• Decision Date: 02 July 1949
• Citation: 222 S.W.2d 22,189 Tenn. 1
• Parties: BENJAMIN F. SHAW CO. v. MUSGRAVE.
• Court: Tennessee Supreme Court

222 S.W.2d 22

189 Tenn. 1

BENJAMIN F. SHAW CO. v. MUSGRAVE.

Supreme Court of Tennessee.

July 2, 1949

Error to Circuit Court, Hamilton County; L. D. Miller, Judge.

Workmen's Compensation action by R. B. Musgrave against Benjamin F Shaw Company. To review an adverse judgment, the defendant brings error.

Affirmed.

C. G. Milligan, Chattangooga, for plaintiff in error.

Wood & Wood, Chattanooga, for defendant in error.

BURNETT Justice.

This is an action for benefits under the Workman's Compensation Law. Code,§ 6851 et seq. The trial judge found in favor of the petitioning workman and fixed his disability as total allowing him the full recovery under the Act.

The plaintiff in error in his brief and assignments of error states the question before us as follows:

'Petitioner a steam fitter employed by defendants, was disabled by a heart aliment known as pericarditis with effusion. There is no dispute about the employment, nor the wage of the petitioner, and the case hinges on the question of whether or not the disease resulted from an injury by accident arising out of and in the course of his employment.'

The petitioner operated a band saw, sawing some galvanized iron gratings. He says that in operating this saw it was necessary for him to wrig up some kind of a contraption with a two by four which was placed against the saw and on this two by four he rested his chest and kept his weight or pressure against the two by four to force the saw through these gratings. He says also that these gratings were spaced about an inch apart, and 'when each bar was sawed, the release of the pressure of the saw would cause the grating to move forward suddenly and then stop suddenly--giving the body of your petitioner a sharp blow over the heart area of the chest; these blows culminated on the first day of May, 1948 with a blow causing your petitioner to have an injury in this area of the chest, muscle, fascia and bones, and particularly to the heart, causing pericarditis, with effusions, which causes permanent disability'.

It is testified that in the course of this process the petitioner experienced approximately seven thousand, nine hundred and eighty jars to his chest and that as a result of these jars his chest became sore and he suffered intensely therefrom. He says that as a result of this he went to the company doctor and the company doctor diagnosed his condition as a chest strain. He was apparently suffering intensely and not able to get relief from the heat treatments which the company doctor prescribed for him and he, therefore, went to a hospital in Chattanooga. The heart specialist at the hospital diagnosed his condition as pericarditis with effusion. All other doctors agreed at that time that this was his trouble. This condition, pericarditis with effusion, is a disease due to an infection. This disease is described by the doctors testifying herein as an inflammation of the membraneous sac surrounding the heart, and they say that effusion means that the pericarditial sac has filled with a liquid and contains pus blood or something of the kind and that it causes total and permanent disability. It is said by all the doctors that this trouble may be remedied by an operation which is rather dangerous. One doctor says that when such an operation is performed that it is fatal in about 60 percent of the cases.

This disease is always due to an infection. It sometimes starts with an open infection, sometimes due to trauma, or some disease condition of the heart. 'The infection starts, the germs are carried around in the blood stream and an infection starts in the pericardium,--the heart muscles itself.' 'If you have it caused by disease, you don't necessarily have to have any trauma, but if you have trauma where there is some bruising or contusing of the heart, or heart muscles, then the infection in the blood stream starts growing.'

Another doctor says that the infection may be caused by 'streptococcus, tuberculosis and trauma,--trauma is not an infection,--trauma is merely the bruising of the tissue that can be a seat of infection. For instance, you can bruise your leg and get an infection,--you can bruise a bone and get osteomyelitis, because dead tissue is present and circulation is interfered with and infection sets in, but trauma is not infection, that is what I mean.'

This same doctor testifies that: 'The constant blows on the chest could bruise the chest wall and extend to the pleura, and pass on into the pericardium, but infection would have to be a secondary thing in a bruise. Now, the question is, whether he was bruised enough to injure tissues that infection would settle there, would be very, very difficult to say. Peculiar occurrences do happen and it is barely possible that it could.'

This doctor again says: 'Now, if it is conceivable that the bruise of the chest laid the field open for an infection that would not have been there unless he had the bruise, and then as this formulated and got into the blood stream and lodged in the chest, then you could say it was the same cause as a bruise on the thigh might cause a brain abscess, yet the brain was never hit, neither was the chest. I am not saying that the brain or chest caused the infection. I am saying that is a possible injury.'

This doctor is asked on cross examination:

'X 15 Now, Doctor, in view of the history which Mr. Musgrave gave you, of a sore throat, with sore glands in his neck, and cold that had existed over a period of three weeks before you saw him, I will ask you if the condition which caused pericarditis was not probably due from the sore throat, involved glands, etc.? A. That is a question I have turned over in my mind ever since I have been on this case. Usually a cold will clear up in a week or two weeks,--is gone. It is conceivable the organisms are still present,--just laying there for a suitable place to grow. Now, whether he would have overcome the whole thing if he had not had the injury to the chest, that nobody can say. I don't know. Certainly the organism has to come from some where, and it does not perforate through the skin,--there was no cut,--there was no laceration,--it had to come through the blood stream. Whether it came from the throat or whether it came from elsewhere we don't know. We do know organisms are always present in the throat, and that they are always open to attack; that is the reason a bruise on the leg or a broken bone are so dangerous,--that is the reason we give streptomycin frequently following an injury. I swear I don't know whether it--it is possible yet I can't say. We all have organisms there, and whether this particular organism was from the cold we don't know. We didn't culture it. He evidently felt well enough to go back to work,--was working.'

Again the doctor was asked:

'X 30 Doctor, I will ask you if it is not more probable that this man's condition,--that is, the pericarditis, was the result of an infection than it was the result of trauma? A. You are dividing the pericarditis into cause and factor, and the question does not mean anything. I think everybody will admit Mr. Musgrave has an infected pericardium,--an acute pericarditis, which was infectious,--they are always infectious. Two, we will have to admit it didn't go directly through the skin,--it would have to be through the blood stream,--the source of infection being unknown,--whether it came from the throat or a pimple on the body, or infected direct, or where. Three, the history of the case states that he had a bruise--or rather that he was hit--don't say bruise,--in other words, there was no obvious bruise,--that he was hit on the chest with a machine repeatedly; and fourth, it was in that area that infection took place. Now, the question is, whether there was enough bruising done to the chest wall, or pleura and pericardium to be a suitable field for infectious germs, that are going through the blood stream, to settle there, to me is the basis of the whole thing, and nobody knows, as those bacteria have no tags on them as to where they come from.' (Emphasis supplied).

And again this Doctor says: 'The only possibility the blow had caused the adhesive pericarditis was with sufficient injury to the tissues of the chest wall, and the pleura and pericardium, to make a suitable field for infection to set in and produce the disease. Now, that is as clear as I can put it. Whether that...