E.C. Womack, Inc. v. Ellis

• Decision Date: 10 March 1969
• Citation: 209 Va. 588,166 S.E.2d 265
• Court: Virginia Supreme Court
• Parties: E. C. WOMACK, INCORPORATED, and Continental Insurance Company v. Lonnie ELLIS, Jr.

Page 265

166 S.E.2d 265

209 Va. 588

E. C. WOMACK, INCORPORATED, and Continental Insurance Company v. Lonnie ELLIS, Jr.

Supreme Court of Appeals of Virginia.

March 10, 1969.

James L. Miller, Norfolk, (Williams, Worrell, Kelly & Worthington, Norfolk, on brief), for appellants.

Leonard B. Sachs, Norfolk, for appellee.

Before EGGLESTON, C.J., and BUCHANAN, SNEAD, I'ANSON, CARRICO, GORDON and HARRISON, JJ.

BUCHANAN, Justice.

Lonnie Ellis, Jr., forty-seven years old, was employed by E. C. Womack, Incorporated, as a truck driver. On October 5, 1965, while in the course of his employment, he was injured when the truck he was driving was in collision with a bullozer. On November 5, 1965, he filed his claim for compensation with the Industrial Commission, as provided by Code § 65--84.*

Thereafter Ellis and Womack's insurance carrier entered into a written agreement providing that Ellis would receive compensation at the rate of $39 per week from October 12, 1965. On November 23, 1965, the Industrial Commission entered its order approving the agreement.

On January 20, 1966, Womack's insurance carrier filed with the Industrial Commission an application for a hearing on alleged change in condition, Code § 65--95, on the ground that Dr. Jones had reported that he had dismissed Ellis and ordered him to return to work on January 17, 1966.

Hearing on the application was had before Commissioner Harwood on March 25, 1966, at which all medical reports in the file were made a part of the record and Ellis was examined as a witness. He testified that he had not been able to sleep 'much' and that he ached all the time in his head and in his hand and his nose bled every day; that after he was discharged from the hospital on January 11 he went back to see Dr. Jones 'because I was hurting,' and Dr. Jones told him there was nothing more he could do for him and that he 'could go back to work and live with it.'

Dr. Jones stated in a letter dated January 21, 1966, that Ellis was first hospitalized October 11, 1965, and after four or five days' treatment with traction he was symptom free, so he discharged him, but Ellis was back in his office next day complaining of his back; that he recently hospitalized Ellis again and had consulted with a neurosurgeon and orthopedist, and they were unable to find any objective cause for his complaints; that he felt that Ellis exaggerated his symptoms and he accordingly ordered him to return to work, realizing that a hearing would probably be requested.

At the conclusion of the hearing Commissioner Harwood suggested and it was agreed that Ellis be examined by Dr. Taylor, an orthopedic surgeon. Dr. Taylor examined Ellis on April 15, 1966, and reported to the insurance carrier by letter of April 21. He described his examination at length and concluded with the statement that he could find no evidence of disability 'other than some mental aberration here that causes this reluctance to use both the left leg and right arm.' He said he believed that Ellis should see a neurosurgeon 'to be sure that he has not suffered brain damage as a result of his accident,' and then if that was normal, 'he should see a psychiatrist to return to work.'

Accordingly Ellis was examined by Dr. Clare, neurosurgeon, who filed his report on May 20, 1966, which concluded with the statement that Ellis was extremely difficult to evaluate; that he undoubtedly had tenderness and disability in his right hand and seemed to have some problem with his left leg. 'There is a large hysterical component. I do not believe it is deliberately malingering. I feel he should be evaluated by a psychiatrist for conversion reaction.'

On June 6, 1966, Commissioner Harwood delivered an opinion in which, after reviewing the record, the finding was made that 'compensable incapacity for work had ceased by the date of examination by Dr. Taylor on April 15, 1966.' The award of November 23, 1965, was accordingly vacated and set aside as of April 15, 1966.

Thereafter, Ellis, on October 25, 1966, filed with the Commission his petition for a hearing on the ground of change in condition. A hearing on this petition was had before Commissioner Harwood on March 1, 1967, at which all medical reports in the file were made part of the record and letters from Dr. Jackson, Dr. Andamson and Dr. Mingione were filed in evidence and Ellis testified in person.

The testimony of Ellis was indicative of his condition. He said, 'I'm having terrible trouble with my head. I've been bleeding ever since at the nose and my hand is still swollen, my knuckle knocked out of place and my hand is still aching me. * * * but my knee don't bother me now as bad as my hip, * * * it just aches, aches, ache all the time in my hip and when I make a step on it, like I'm going downstairs, if I make the wrong step on it, I give away on that side and fall right out. I fell out once or twice with it. * * * my head is aching me now so bad I don't know what to do.' He testified he was not able to drive a truck any more; 'I have this, look like a nervous condition and my head aches me bad and I bleeds at my right nose.'

Dr. Jackson, in a letter dated December 2, 1966, set out the details of his examination and expressed his belief that Ellis was totally incapacitated and permanently disabled to return to gainful employment. Dr. Adamson said in his letter of February 13, 1967, 'that his history and examination suggest to me that he is having mild reflex sympathetic dystrophy as a result of the injury received in October of 1965.' Dr. Mingione's letter states that Ellis' 'mood is labile, in that there are frequent episodes of gross anxiety and tremors which are difficult to see as being other than psychologically induced. There are outbursts of tearfulness and a general thought content which is depressive in tone. The psychiatric symptoms are multiple, and are felt to be incapacitating. * * * The association between the onset of these symptoms and the accident is such so as to suggest a relationship, especially in the seeming absence of psychopathology prior to the injury.'

The opinion by Commissioner Harwood of September 7, 1967, reviews prior proceedings and the evidence and concludes:

'We find and conclude that a change in condition,...