Chapman v. Foremost Dairies, Inc., 18651

• Decision Date: 22 May 1967
• Docket Number: No. 18651,18651
• Citation: 154 S.E.2d 845,249 S.C. 438
• Court: South Carolina Supreme Court
• Parties: William C. CHAPMAN, Appellant-Respondent, v. FOREMOST DAIRIES, INC. and Travelers Insurance Company, Respondents-Appellants.

Page 845

154 S.E.2d 845

249 S.C. 438

William C. CHAPMAN, Appellant-Respondent, v. FOREMOST DAIRIES, INC. and Travelers Insurance Company,

Respondents-Appellants.

No. 18651.

Supreme Court of South Carolina.

May 22, 1967.

Roy McBee Smith, Spartanburg, for appellant-respondent.

Butler, Chapman & Parler, Spartanburg, for respondents-appellants.

BUSSEY, Justice.

This is a Workmen's Compensation proceeding in which the claimant-employee appeals from a circuit court order reversing a compensation award. The employer has appealed from the order of the circuit court settling the case on appeal. Additionally, the employer has filed an appeal denominated as a 'contingent appeal' with respect to a procedural question, which latter appeal this court is asked to consider only in the event that the order of the circuit court denying compensation be held erroneous.

The claimant was for a number of years employed by the employer at its plant in Spartanburg in its engineering department. At about 4 o'clock A.M. on the morning of June 23, 1961, the claimant while on duty slipped upon some spilled cream and fell upon a concrete ramp. In this fall he injured his right hip and right leg. It is undisputed that this injury arose out of and in the course of his employment. The claimant immediately reported the accident to his immediate supervisor who stated that he would make a proper report thereof. While the injury was painful, the claimant apparently did not think that he was seriously injured. He was scheduled to leave in a day or two after the accident on his annual vacation. He sought no medical attention and went on a planned vacation trip to Florida, during which trip he suffered much discomfort. Upon return from his vacation trip, nineteen days after the accident, he sought medical attention, and upon examination it was discovered that he had a ruptured appendix. He was hospitalized for the ruptured appendix on July 12, 1961, and remained there for ten days. He was given heavy doses of antibiotics to localize the infection, and in August 1961 he was hospitalized again and an appendectomy was performed on August 22, 1961. The claimant returned to work at his usual duties on September 30, 1961, and no compensation was claimed, as at that time claimant had sustained no loss of wages as a result of his accident.

While the claimant still had pain in his right hip throughout the period of time that he was being treated and operated on for the ruptured appendix, and called such to the attention of both the attending physician and the surgeon who performed the appendectomy, neither of these doctors apparently attributed any particular importance thereto, and, as far as the record disclosed, made no attempt to treat or alleviate his injured hip.

Upon his return to work, the claimant continued to experience difficulty with his hip injury but such did not apparently materially interfere with the performance of his duties. His general health, however, started to decline and his discomfort increased from the pain in his right hip and leg. He lost weight from 183 pounds to 123 pounds, although the record does not show the precise date upon which his weight loss commenced. In any event, on April 27, 1963, the claimant had to stop work and seek medical attention. Between May 11, 1963 and August 9, 1963, when he was admitted to the Medical College Hospital in Charleston, he was hospitalized several times in Spartanburg and was seen by various doctors in Spartanburg, all of whom concluded that he probably had a hidden cancer. The preliminary or tentative diagnosis at the Medical College was the same, but on August 22, 1963 an exploratory operation disclosed that he had no cancer, but instead had a large abscess in the psoas muscle of the right hip. This abscess was opened and drained, following which the claimant's condition improved, but he was still totally disabled at the time of the hearing, commenced before the single Commissioner in January 1964.

A pathological study done at the Medical College showed evidence of internal hemorrhage at the site of the abscess which medical witnesses described as a hematoma. A culture was taken from the abscess at the time of the operation and the surgeon who performed the operation testified, 'There was no growth in the culture. It would seem to be a sterile abscess at the time we operated.'

Whether the claimant is entitled to compensation depends upon whether there is any competent evidence to support a finding of causal connection between claimant's fall on his hip and the abscess which finally disabled him. It is not contended that his fall and injury to his hip had any causal connection with the reptured appendix which he suffered. It is contended, however, that the accident caused the hematoma in and around the psoas muscle, which hematoma upon becoming infected from some source (most probably the ruptured appendix) turned into the abscess which caused the disability. The question before us is simply whether there is any competent evidence to support this theory of causal connection upon which the award of the Commission was based.

All of the doctors who testified agreed that a hematoma, such as the claimant had, provided or formed a good culture medium for the formation of an abscess such as claimant developed. There does not seem to be any disagreement as to the possibility or probability of the hematoma, which developed into an abscess, having been caused by the fall sustained by claimant. There was substantial agreement among the medical witnesses as to an abscess, such as the claimant had, remaining in a suppressed or sterile state for a long period of time, though there was some difference of opinion as to the length of time, and the circumstances under which an abscess would remain in a sterile state.

Much of the evidence, and a lot of argument here, is addressed to what effect the administration of antibiotics, and the amount or course thereof, will have in suppressing an abscess and causing it to remain in a sterile state for a long period of time. The materiality of such does not readily appear. The surgeon who performed the appendectomy in the summer of 1961, and who also participated in the diagnostic examinations in the summer of 1963, testified for the employer. He repeatedly gave it as his opinion that the most likely and probable source of the infection was the ruptured appendix which occurred sortly after the fall claimant sustained. His opinion in that respect was confirmed by other medical evidence, and none contradicts such probability. It would seem logically to follow that the abscess having formed, shortly after claimant's injury in the summer of 1961, just why or how it became sterile and did not disable him for so long a period of time is immaterial. We are concerned with causation and not with precisely why the disabling effect was delayed.

Briefly summarized, all of the medical evidence admits that claimant's theory of causal connection is possibly correct, but the only medical evidence which meets the most probable test is the testimony of Dr. Walter D. Hastings, Jr., who did not attend the claimant, but was called as an expert witness and testified in response to a hypothetical question. It is contended, however, by the employer that his testimony should have been excluded and that such was of so probative value. The order of the circuit court was predicated upon what we think was an erroneous analysis and rejection of the testimony of Dr. Hastings.

The hypothetical question addressed to him was as follows:

'Dr. Hastings, assuming that it is established that a claimant slipped upon some slick substance and fell very hard upon a concrete floor upon his right hip, crushing a metal flash light in his right hip pocket, and had pain in his right hip and leg from that day forth; that two weeks after the fall, the claimant's appendix ruptured and he was given heavy doses of antibiotics and a month later an appendectomy was performed; that he went back to work a month and a half after the appendectomy and worked for some 19 months, during which time he continued to have pain in his right hip and leg, losing a great deal of weight, having a loss of appetite and a generally progressing weakness until he was finally unable to work; that thereafter he was confined to his bed and hospitalized on three occasions during a period of three months for the purpose of diagnosis; during these hospitalizations he was administered heavy doses of antibiotics; that claimant's condition was not successfully diagnosed, it being finally assumed that he had a cancer; that after this an exploratory operation was performed at the Medical College and a large sterile, retroperitoneal psoas abscess was discovered in the right psoas muscle, was drained and the abdomen was closed; that a specimen from this abscess, under the microscope, showed evidence of a hematoma or internal hemorrhage in the psoas muscle; that the claimant had been a vigorous man before the fall, without other injuries to his right hip and leg.

'Now based upon those assumed facts, Dr. Hastings, do you have an opinion as to the cause for the abscess in the muscle?'

The record reflects that the foregoing question was submitted to Dr. Hastings some time in advance of the hearing for study, and that in response thereto, he testified as follows:

'A. Well, in my opinion the causation of the psoas abscess would most probably have been an infection of a hematoma in the psoas muscle derived from the infection of a ruptured appendix which this man had. The infection would travel in the direction of the psoas muscle, one of the main directions that the infection does travel and would seem most probably to have involved the hematoma or blood clot which was back there and from that he got a big sterile abscess or a big abscess which was either sterilized itself or with repeated course of antibiotics was sterilized.

'Q...