Crenshaw v. Pendleton Mfg. Co.

• Decision Date: 04 February 1949
• Docket Number: 16179.
• Parties: CRENSHAW v. PENDLETON MFG. CO. et al.
• Court: South Carolina Supreme Court

54 S.E.2d 61

215 S.C. 66

CRENSHAW v. PENDLETON MFG. CO. et al.

No. 16179.

Supreme Court of South Carolina

February 4, 1949

Watkins & Watkins, Anderson, for appellants.

W K. Charles, Greenwood, for respondent.

TAYLOR, Justice.

On November 7, 1944 respondent while employed by the Pendleton Manufacturing Company suffered injuries arising out of and in the course of his employment for which on May 14, 1946 the South Carolina Industrial Commission made an award which was paid in full. Within the statutory period respondent made application for further compensation on the grounds of a change of condition. Pursuant to a hearing on such application an award was made granting claimant compensation as being totally and permanently disabled. A review was had before the whole commission which sustained the findings of the single commissioner. An appeal was taken to the Circuit Court which resulted in an order by the Honorable G. B Greene affirming the award from which the appellant Pendleton Manufacturing Company and its insurance carrier Maryland Casualty Company appeals to this court upon exceptions which pose the question of whether or not there is any testimony to support the findings of the Industrial Commission that respondent has undergone a change of condition and such is the result of the injury sustained by him on November 7, 1944.

It is a well established rule of law that in Workman's Compensation Cases, the court can only review the facts to determine whether there is any competent evidence to support the findings of the Commission, and, if the facts are capable of sustaining the inference of fact drawn from them by the Commission, the findings are conclusive in the absence of fraud. Shehane v. Springs Cotton Mills, 206 S.C 334, 34 S.E.2d 180; Elrod v. Union Bleachery, 204 S.C. 481, 30 S.E.2d 73. The award will be upheld if there is a scintilla of evidence supporting the award. In re Crawford, 205 S.C. 72, 30 S.E.2d 841.

Respondent testified that the injury was sustained to the left shoulder but the condition has become progressively worse until 'pretty well every joint in me is sore except my elbow.'

Mrs. Foster who is claimant's daughter and lives next door testified as follows:

'Q. Are you frequently over at your father's? A. Every day.

'Q. Mrs. Foster, state whether or not, in your opinion, your father is in worse condition now than he was in August of 1945 when we had a hearing before. A. He certainly is.

'Q. From your observation, to what extent is his condition worse, his physical condition? A. Well, he's not able to do anything. The only thing he does is sit around the house. There's nothing much to do but bring in a little water and he may bring in a bucket or two of water a day, and then he has to go to bed.

'Q. Is he able to walk with ease? A. No. I can see him from my house toddling down to the barn, and he will stop maybe before he gets to the barn.

'Q. State whether or not be can dress himself? A. No, sir. I have had to help put his clothes on when I am there.

'Q. How about his shoes? A. I think he goes with them untied most of the time.

'Q. Prior to that first injury he had was his health good; was he able to perform his usual activities and duties and work regularly? A. Yes, sir. I worked with him and we went back and forth together every day.

'Q. Has he been able to work since 1945? A. Nothing only here a few months ago he tried it and he fell out. The fact of the business, I thought he was gone.

'Q. Will you state for the benefit of the Commissioner here Mr. Crenshaw's present physical condition? A. Well, he's a good deal worse now than he was at the first hearing.

'Q. To what extent is he worse, in what way; what parts of the body are involved now that weren't involved then? A. It seems like he's worse in his shoulders, right arm, leg, foot, all over seems like.'

The testimony of claimant, his wife and daughter to the effect that claimant has undergone a change of condition for the worse since the hearing is evidence to be considered by the Commission in rendering its award.

Dr. L. E. Mays witness for the claimant testified as follows:

'Q. State whether or not his condition has progressed, gotten better or worse since then? A. I would say he has a somewhat worse condition than he did then because, to begin with, his trouble was mainly in one shoulder, the left shoulder, and it has involved other joints since I have been taking care of him.

'Q. State whether or not this condition could be attributed to an injury that he received in November, 1944, when he received an injury to his shoulder. A. It would be possible. Do you want me to make a statement along that line or just answer your question?

'Q. Yes, sir. A. I would say more than likely the injury aggravated the preexisting condition, and since that time it has spread to involve other joints.

'Q. Then the aggravation could progress right on to the extent it has now, involving other joints? A. In my opinion, I think it could have.' * * *

'Q. And that could be traceable to the injury, from an aggravation standpoint? I mean the progressing condition of the arthritis could be the outgrowth of an injury aggravating a preexisting arthritis? A. Could I qualify that?

'Q. Yes, sure. A. In this sense it possibly could: We know arthritis is aggravated by inactivity. One important thing is to keep the joints working, and when a person is hurt they are more likely to be inactive for a while; and due to inactivity, yes.'

Where medical testimony is relied upon to sustain an award of the Industrial Commission it is not sufficient to say that the condition of claimant could possibly have arisen or it would be possible to have resulted from the injury. This court has gone so far as to hold in cases where medical testimony is relied upon that testimony to the effect that it is the witness opinion that such ailment most probably came from the cause alleged was sufficient to sustain an award by the Industrial Commission. Ashley v. South Carolina Highway Dept., 213 S.C. 354, 49 S.E.2d 505; Mack v. Branch No. 12, Post Exchange, 207 S.C. 258, 35 S.E.2d 838; Rivers v. V. P. Loftis Co. et al., 1949, 214 S.C. 162, 51 S.E.2d 510.

A study of the testimony presented by Dr. Mays shows that he stated that 'more than likely' claimants injuries aggravated a preexisting condition which since that time has spread to involve other joints.

Volume 25, pages 286, 287, of Words and Phrases, Perm.Ed., defines the words 'probably' and 'likely' as follows:

'The term 'likely' means probable or reasonably to be expected. Vohs v. A. E. Shorthill & Co., 130 Iowa 538, 107 N.W. 417, 419, citing Webst. Dict.; Cent. Dict.

"Likely,' as used in instructions relative to preponderance of evidence, is not a proper synonym of 'probable.' Howard v. State, 108 Ala. 571, 18 So. 813, 816.

'Words 'probably' and 'likely' are used synonymously in indicating consequences likely to flow from an existing condition of an injured person. Barron v. Duke, 120 Or. 181, 250 P. 628, 632.

'The word 'likely' means 'probable,' and is equivalent to that word as used in a question to a physician in an action for personal injuries, as to what, in his opinion, would be the 'probable'...