Central Elec. & Machinery Co. v. Shelton

Decision Date10 March 1969
Docket NumberNo. 45248,45248
Citation220 So.2d 320
PartiesCENTRAL ELECTRIC AND MACHINERY COMPANY and Fireman's Fund American Insurance Companies v. H. T. SHELTON.
CourtMississippi Supreme Court

Daniel, Coker, Horton & Bell, Alben N. Hopkins, Jackson, for appellants.

Mitchell & Rogers, Tupelo, for appellee.

BRADY, Justice:

This appeal involves a claim for workmen's compensation benefits made by appellee, H. T. Shelton, who began working for the appellant, Central Electric and Machinery Company, on November 5, 1964. Appellee testified that on Friday, July 1, 1966, while at work he stopped in some grease and his feet slipped and that a bad pain hit him in his back. He stated that the incident occurred in the middle of the evening, but that he continued to work until quitting time. He further testified that he did not report the incident to anyone at that time. Appellee returned to work Saturday and was to work a full day, but at noon, according to his testimony, he told the foreman, Johnnie Akins, that he was hurting and had to go. Monday was a holiday. Appellee returned to work Tuesday and worked until 1:30 Wednesday, at which time he again notified his foreman that he was suffering and had to quit. He did not work the remainder of the week. He next returned to work on Monday, July 18, and worked until 3:30 on Friday. Appellee testified that about 11:00 on Friday, July 22, he again hurt his back picking up a heavy piece of steel, which he estimated weighed one hundred and fifty pounds.

It was stipulated by and between claimant and defendants that if Mrs. H. T. Shelton, wife of the claimant, testified as a witness she would corroborate the dates of the two alleged injuries, which injuries were reported to her by the claimant on his arrival home, and that she would also corroborate his testimony as to the pain and difficulty suffered thereafter and his pain up the present time.

The proof of the appellant established that appellee had injured his back in a car wreck in 1964, and in an on-the-job accident in December 1965, the latter of which had been the basis of a previous workmen's compensation claim. Witnesses for the appellant testified that the company had an arrangement whereby appellee could work when he felt like working.

The appellee first saw a doctor on July 27, which is less than four weeks after his first injury, at which time he went to Dr. Aubrey Harris, his family doctor. The record discloses that he notified Dr. Harris that about three weeks before he had sustained an injury to his lower back. At this time Dr. Harris found, as reflected in his report, the obvious symptom of tenderness in appellee's lower lumbar spine. However, it was only upon appellee's second hospital admission on October 26, 1966, that an x-ray of the lower spine showed narrowing between the intervertebral disc space between L-5 and S-1 which was not present three months prior thereto. This along with other findings suggested a ruptured disc in the lower lumbar spine. In the record of this hospitalization Dr. Harris noted the accident and injury of early July 1966.

Dr. Harris referred appellee to Dr. Royce Franks, an Orthopedic Surgeon. Dr. Franks, who testified for the appellee, stated that he first saw the appellee on March 13, 1967, on the complaint mainly of pain in the lower back and left leg. The record discloses that the appellee gave him a history of both injuries. Dr. Franks had previously seen the appellee in January 1966 in connection with injuries resulting from an automobile accident. X-rays taken in March 1967 showed generalized hypertrophic spurring of the lumbar spine, most marked on the L-4 and L-5 vertebrae. Dr. Franks felt that the appellee probably had a herniated lumbar disc. Appellee was admitted to the hospital on March 21, 1967, for a myelogram which showed a herniated L4-5 disc on the left. On March 22 exploratory surgery revealed that L4-5 was bulged and herniated and the disc was removed. Appellee was hospitalized ten days. Dr. Franks testified that when he last saw appellee on September 8 appellee was still complaining of low back and left leg pain. Dr. Franks testified that based on the history given him by appellee the probable cause of the injury was one or both of the incidents in July 1966.

Dr. Franks on cross-examination testified that when he examined the appellee in 1964 he found a degree of degenerative arthritis which indicated that appellee had had the condition for several years. He stated that it was possible considering appellee's condition that the injury could have been the result of the ordinary wear and tear of life. He testified that at the time of the hearing appellee was totally disabled and attributed at least 50% of the injury to the pre-existing degenerative condition. A letter written by Dr. Franks dated November 14, 1967, was put in evidence which stated that appellee had a 15% partial permanent disability and that he had reached maximum medical recovery.

A meticulous study of the record and the briefs in this cause disclose that the cardinal issues presented in this cause are primarily factual and relate to (1) whether or not the claimant sustained the injuries complained of on the dates of July 1, 1966, and July 22, 1966, and whether or not these injuries arose out of and in the course of his employment by the apellant, Central Electric and Machinery Company; (2) whether notice of injury was received by the appellant, Central Electric and Machinery Company; and (3) the duration of temporary total disability and the degree of permanent partial disability suffered by appellee. Involved also factually was the question of what degree, if any, pre-existing diseases, handicaps or lesions played as a contributing factor to his injuries and disability.

In support of their contention that the appellee's injury was not work connected, appellants urge strongly the testimony of Mrs. Twila Dye and rely upon documentary evidence identified in connection with her testimony which shows written applications for benefits under a hospital group insurance policy, one of which was prepared by Mrs. Dye for said benefits, signed and given by the appellee together with statements by his doctors that his injuries were not work connected, and also upon appellee's efforts to obtain social security benefits. Mrs. Dye testified that the first time she knew anything about a workmen's compensation claim was when she received a B-9 form from Dr. Franks. She contends that the appellee denied that the injury was work connected and that at that time she wrote on the top of the form 'THIS IS NOT A WORKMEN'S COMP. CLAIM.' The appellants contend that the weight of the testimony in the light of these facts and circumstances is overwhelmingly against the finding of facts by the Workmen's Compensation Commission that appellee's injuries arose out of and in connection with his employment.

While it is true the appellee signed written statements in connection with a group insurance policy, in one of which Dr. Harris corroborated his statement that the injury was not work connected and in another of which Dr. Franks likewise coroborated appellee's statement that his injuries were not work connected, the fact nevertheless remains that Mrs. Dye prepared one of the forms for the appellee and that appellee testified that he made the application for group insurance disability benefits and the statements necessary to obtain the same because Mrs. Dye had advised him he would not be able to obtain compensation benefits. Appellee also stated that it was imperative that he obtain the disability payments and too he felt it was imperative that he assert his injuries were not work connected, as reflected by this statement of the appellee: 'I didn't have the money. That is the only way I could get it...

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