Brown v. La France Industries, a Div. of Riegel Textile Corp.

• Decision Date: 22 April 1985
• Docket Number: No. 0525,0525
• Citation: 286 S.C. 319,333 S.E.2d 348
• Court: South Carolina Court of Appeals
• Parties: Michael Gary BROWN, Teresa Brown, and Philip N. Brown, a minor under the age of fourteen (14) years by Evelyn Whitlock McAlister, his Guardian ad Litem, Respondents, v. LA FRANCE INDUSTRIES, A DIVISION OF RIEGEL TEXTILE CORPORATION, Appellant. . Heard

Page 348

333 S.E.2d 348

286 S.C. 319

Michael Gary BROWN, Teresa Brown, and Philip N. Brown, a minorunder the age of fourteen (14) years by Evelyn Whitlock McAlister, his Guardian ad Litem, Respondents, v.LA FRANCE INDUSTRIES, A DIVISION OF RIEGEL TEXTILE CORPORATION, Appellant.

No. 0525.

Court of Appeals of South Carolina.

Heard April 22, 1985.

Decided July 15, 1985.

Wm. Douglas Gray, of Watkins, Vandiver, Kirven, Gable & Gray, Anderson, for appellant.

C. Ben Bowen, of Abrams, Bowen & Parham, Greenville, for respondents.

GOOLSBY, Judge:

In this workers' compensation case, La France Industries, a Division of Riegel Textile Corporation, appeals from a circuit court order affirming the award by the South Carolina Industrial Commission of maximum benefits to the claimantsTeresa Brown and Philip N. Brown, the wife and child of Michael Gary Brown, deceased.We affirm.

The issues before us relate to the taking of a deposition after the scheduled hearing was concluded, to the admission of certain medical expert testimony, and to the sufficiency of the evidence to support the finding that Michael Gary Brown died as a result of an injury by accident arising out of and in the course of his employment.

Brown, age 23, worked intermittently at La France beginning in 1973.From April 28, 1977, until his death on October 29, 1979, Brown worked as a weaver for La France.Brown, who had a history of rheumatic fever as a child, suffered from valvular heart disease.

Prior to 1977, La France used "Gusken" looms.These shuttle-type machines were hand-changed by the weavers operating them.During a work shift, one weaver operated three looms.

In 1977, La France purchased several "SACM" looms.These looms were more technically advanced and contained no shuttles.La France gradually phased in the SACM looms as it eliminated the Gusken looms.At first, each weaver operated six SACM looms.Thereafter, each weaver's assignment would vary from seven to ten looms depending upon the weaving pattern being run.

Brown operated the SACM looms from January 13, 1978, to April 28, 1978, and again during the four-month period preceding his death on October 29, 1979.During this time, he was responsible for seven machines.

On October 29, 1979, Brown reported to work at La France at 4:00 p.m. Brown and his wife, who worked in the same department, stopped work at 7:00 p.m. to have supper together.At approximately 7:30 p.m., ten minutes after returning to the SACM looms, Brown collapsed and died.

The claimants filed for maximum benefits under the South Carolina Workers' Compensation Act.They contended Brown died as a result of an accidental injury to his heart and circulatory system arising out of and in the course of his employment with La France.The claimants further contended they were entitled to compensation and funeral expenses in the amount of $82,645.

La France admitted Brown died in the course of his employment but denied his death arose out of his employment.Rather, La France contended Brown's death occurred as a result of natural causes and was not therefore a compensable accident.

The single commissioner, however, found Brown died as a result of an injury by accident arising out of and in the course of his employment.He also concluded the accident, resulting from unusual work conditions, produced unexpected severe emotional strain that aggravated a pre-existing heart condition and caused cardiac failure and sudden death.

The full commission reviewed the findings of the single commissioner and affirmed his award.The decision of the full commission was later affirmed by the circuit court.

This appeal followed.

I.

La France first contends the circuit court erred in sustaining the order of the full commission to the extent that it affirmed the single commissioner's order permitting the taking and submission of Dr. Joseph Hodge's deposition after the scheduled hearing was concluded.

The single commissioner heard the instant case in two separate hearings.He held the first hearing on September 3, 1980, and the second on October 17, 1980.At the conclusion of the second hearing, the single commissioner indicated the case was closed pending the taking and submission by the claimants of Dr. William W. Walker's deposition.

The claimants took Dr. Walker's deposition soon thereafter and submitted it to the single commissioner.

Sometime prior to January 20, 1981, however, and before the single commissioner rendered his decision, the claimants moved before the single commissioner for an order authorizing them to take the deposition of Dr. Joseph Hodge.The claimants argued they had inadvertently failed to request the case be left opened so that they could take Dr. Hodge's deposition.

The single commissioner granted the claimants' motion and reopened the proceedings for the production of additional evidence.In allowing the claimants to take Dr. Hodge's deposition, the single commissioner also authorized La France "to take any expert medical testimony [it] desire[d] by deposition in response to Dr. Walker's deposition and the deposition of Dr. Hodge."

The full commission found no abuse of discretion in the single commissioner's order allowing the proceedings to be reopened for the purpose of taking Dr. Hodge's deposition.The circuit court affirmed.

In a workers' compensation case, the claimant must assume the burden of establishing that the employee's death was proximately caused by an accident arising out of his employment.Lorick v. South Carolina Electric & Gas Co., 245 S.C. 513, 141 S.E.2d 662(1965).Where medical evidence is necessary to establish the employee's death resulted from accidental injury, the evidence must be offered by the testimony of skilled professionals.SeeArnold v. Benjamin Booth Co., 257 S.C. 337, 185 S.E.2d 830(1971);Mize v. Sangamo Electric Co., 251 S.C. 250, 161 S.E.2d 846(1968).When the claimant inadvertently omits production of this proof, an opportunity should be afforded the claimant to supply such omission in the interests of justice.Independent School District No. 1 of Tulsa County v. Albus, 572 P.2d 554(Okla.1977).

We find the single commissioner did not depart from the essential requirements of the law in reopening the case and in allowing the claimants the opportunity to present additional testimony.In South Carolina, it is well established that the decision of the trial judge to allow a party to reopen his case will not be reversed unless the opposing party was prejudiced thereby.SeeMcKay, Robinson, and Tate, Practice and Procedure, 11 S.C.L.Q. 93(1958).A trial judge enjoys considerable latitude and discretion in these matters.SeeNash v. Gardner, 232 S.C. 215, 101 S.E.2d 283(1957);Harley v. City of Spartanburg, 230 S.C. 478, 96 S.E.2d 828(1957);Allen v. Watson, 20 S.C.L. (2 Hill) 319(1834).Similar discretion reposes with the single commissioner.Exxon Co. v. Alexis, 370 So.2d 1128(Fla.1978);Stanley v. United Iron Works Co., 160 Kan. 243, 160 P.2d 708(1945).

In the case before us, La France suffered no prejudice by the reopening of the claimants' case.La France was expressly authorized to present rebuttal testimony and failed to do so.We therefore find La France's contention to be without merit.SeeRoman v. Broussard, 255 So.2d 135(La.App. 3rd Cir.1971);Crump v. Fields, 251 Miss. 864, 171 So.2d 857(1965);Croteau v. Harvey & Landers, 99 N.H. 264, 109 A.2d 553(1954);100 C.J.S.Workmen's Compensation§ 596 at 843(1958);cf.Holcombe v. Dan River Mills, 333 S.E.2d 338(S.C.Ct.App.1985)(Industrial Commission Rule 67-31 relating to adjournment gives the single commissioner discretionary power with respect to the taking of additional testimony).

II.

La France next contends the circuit court erred in finding Dr. Hodge qualified as a medical expert.It complains Dr. Hodge is not qualified in cardiology.

Whether a witness is qualified as an expert witness in a workers' compensation case is a matter resting largely within the discretion of the Commission.SeeState v. Caldwell, 283 S.C. 350, 322 S.E.2d 662(1984);Prince v. Associated Petroleum Carriers, 262 S.C. 358, 204 S.E.2d 575(1974);Micciche v. Forest Hill Cemetery Ass'n, 46 Lack.Jur. 261, 55 Pa.D. & C. 620(1945).To be competent as a medical expert, a witness must have acquired by reason of study or experience or both such knowledge and skill in the medical profession as to be better qualified than the fact finder to form an opinion on the particular subject of his testimony.Botehlo v. Bycura, 282 S.C. 578, 320 S.E.2d 59(Ct.App.1984).A witness in a workers' compensation proceeding "will be permitted to express his opinion on a medical question when it appears that he is qualified so to do by reason of his training, experience, and practice."100 C.J.S.Workmen's Compensation§ 537e at 550(1958).A physician is not incompetent to testify as an expert witness simply because he is not a specialist in the particular branch of medicine involved in the case.Hill v. Carolina Power & Light Co., 204 S.C. 83, 28 S.E.2d 545(1943);see100 C.J.S.Workmen's Compensation§ 537e at 550(1958).The fact that the witness is not a specialist in the particular branch involved affects only the weight of the witness's testimony and affords no basis for completely rejecting it.Hill v. Carolina Power & Light Co., supra.

Dr. Hodge is a medical doctor and surgeon specializing in general and thoracic surgery since 1952.He has treated people for cardiovascular problems and has written for publication a number of articles relating to cardiovascular surgery.

We find no abuse of discretion in qualifying Dr. Hodge as a medical expert in the area of cardiology.

III.

La France further contends that the testimony obtained from both Dr. Walker and Dr. Hodge was based upon improper hypothetical questions.

A.

La France objected to the hypothetical question asked of Dr. Walker because it indicated Brown was...