Cross v. Concrete Materials

• Decision Date: 13 June 1960
• Docket Number: No. 17668,17668
• Citation: 236 S.C. 440,114 S.E.2d 828
• Parties: Luther L. CROSS, Respondent, v. CONCRETE MATERIALS and The Travelers Insurance Company, Appellants.
• Court: South Carolina Supreme Court

Page 828

114 S.E.2d 828

236 S.C. 440

Luther L. CROSS, Respondent, v. CONCRETE MATERIALS and The Travelers Insurance Company, Appellants.

No. 17668.

Supreme Court of South Carolina.

June 13, 1960.

Figg, Gibbs & Grimball, Charleston, for appellant.

Steinberg, Levkoff & Spitz, Charleston, for respondent.

STUKES, Chief Justice.

This is an appeal from an award of workmen's compensation. The claim was denied by the Hearing Commissioner who was reversed by a divided, three to two, decision of the Commission, which latter was affirmed by the Circuit Court. Appeal to this Court followed.

Claimant was struck in the face by the crank of a starting engine on the back of a crane. He suffered injuries to his face and teeth but he missed no time from work and the employer paid the medical and dental expenses. At the time and until some days afterward he did not mention the fall from the platform on which he stood, or any injury to his hip. The latter is the basis of the present claim.

The medical experts for claimant and for the appellants agree that he has osteoarthritis of the left his which antedates the accident. The contention of claimant, which was sustained below, is that the claimed fall which followed the injury to his face aggravated the arthritic condition of his hip and has since disabled him. This brings into play the rule that when the testimony of medical experts is relied upon to establish causal connection between an accident and subsequent disability or death, in order to establish such, the opinion of the experts must be at least that the disability or death 'most probably' resulted from the accidental injury. Baker v. Graniteville Co., 197 S.C. 21, 14 S.E.2d 367; Branch v. Pacific Mills, 205 S.C. 353, 32 S.E.2d 1; Mach v. Branch No. 12, Post Exchange, 207 S.C. 258, 35 S.E.2d 838; Radcliffe v. Southern Aviation School, 209 S.C. 411, 40 S.E.2d 626; Ashley v. South Carolina Highway Dept., 213 S.C. 354, 49 S.E.2d 505; Rivers v. V. P. Loftis Co., 214 S.C. 162, 51 S.E.2d 510; Burgess v. Belton Mills, 215 S.C. 364, 55 S.E.2d 292; Windham v. City of Florence, 221 S.C. 350, 70 S.E.2d 553; Brady v. Sacony of St. Matthews, 232 S.C. 84, 101 S.E.2d 50; Richardson v. Wellman Combing Co., 233 S.C. 454, 105 S.E.2d 602; Annotation, 135 A.L.R. 516.

The expert who testified for appellants examined claimant first on Dec. 22, 1958. The accident was on the preceding Oct. 6th. Claimant gave him no history of a fall. Turning to the evidence of the doctor who examined claimant first on April 10, 1959, and testified in his behalf, he recited the history which claimant gave him of the accident on October 6, 1958, and the fall of about six feet from the platform to the ground when claimant landed on his feet, with the most of his weight on his left foot. We quote from his testimony on direct examination: 'It is difficult to establish clinically a definite correlation between the accident of October 6, 1958 and the present condition of the left hip. This is because the presence of a disability in the hip was not brought to light until some time after the accident. It is possible, however, that the osteoarthritis was quiescent at the time but was aggravated by the injury.'

Under the lead of counsel for claimant the witness went further, as follows:

'Q. If the fall occurred and he landed in a twisted position on the left leg or foot, would that sudden jar awaken the quiescent arthritic condition if it pre-existed?

'A. It is possible.

'Q. It is possible, Doctor, or probable?

'A. It's probable.'

On cross-examination, the witness said that he realized that 'probable' means more likely than 'possible' and he appears to have reverted to his first expressed opinion, before the above leading by counsel. Finally, in answer to questions by the Hearing Commissioner, the witness gave the following answers, quoting from the record:

'The Witness: Thank you sir. What I meant by this is that to make this statement I had to assume that Mr. Cross fell off of the platform and landed with his main weight on his left leg. If that was correct, I could also assume that he had a quiescent type of osteoarthritis in the hip prior to that because insofar as I know, he had not complained of any trouble in his hip prior to that time. To summarize it, I would be willing to say that if it can be shown that he actually fell like he said he did, that it's possible that the quiescent osteoarthritis was aggravated by the injury.'

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'The Witness: (Osteoarthritis) is a condition of degeneration which in some case in some people is a part of the wear and tear of life. It's just a part of the degenerating process of the body. The feeling as I understand it is that it develops after strain over a period of many years. There's one other kind of arthritis, osteoarthritis that I can recall at this particular moment, and that's the traumatic osteoarthritis. In my experience that's been a more rapidly progressing type of arthritis, and I didn't consider it as being a part of this picture.'

It is inescapable that the opinion of the witness, as first and finally expressed by him, is that the causal connection here is possible but he was unwilling to opine that it is 'most probable.' That is the fair appraisal of his testimony. Therefore, the evidence was insufficient to sustain the finding of causal connection, for which the judgment will have to be reversed and the award set aside.

Compare Daley v. Public Savings Life Ins. Co., S.C., 113 S.E.2d 758, where there was competent evidence of aggravation of pre-existing osteoarthritis by compensable accident, and award was affirmed; and Glover v. Columbia Hospital, S.C. 1960, 114 S.E.2d 565, where an accident aggravated dormant cancer and the expert testimony met the 'most probable' rule, which it did not in the case sub judice.

Apparently fearing the inadequacy of the medical testimony, claimant cites Ballenger v. Southern Worsted Corp., 209 S.C. 463, 40 S.E.2d 681, and contends that, disregarding the expert medical evidence, the testimony of claimant and his wife that he suffered symptoms in his hip only after the accident is sufficient to sustain the finding of causal connection. In the first place, the argument overlooks the testimony of claimant and his wife that he was troubled with the same leg in 1946, that it went 'limber' and he lost the use of it for about three months, which he attributed to the extraction of teeth and accompanying injection of novocain. He testified that in walking then he would 'swing it and set it down--I mean just the knee part.' Tr. f. 121. In the second place, in Ballenger's case expert testimony was not relied upon by him, as here; it was a simple accident by which very hot liquid dye entered the eyes of the injured workman and he was as competent to testify as to his ability to use them before and after as was any expert. The case is distinguished here as it was in Ashley v. South Carolina Highway Dept., supra, 213 S.C. 354, 49 S.E.2d 505, 507, from which we quote: 'In Ballenger v. Southern Worsted Corp., supra, an award for impairment of vision was sustained solely upon lay testimony, although the medical testimony was positively to the effect that the condition of claimant's eyes was in no way related to the accident. A like situation is found in the case of Poston v. Southeastern Const. Co., 208 S.C. 35, 36 S.E.2d 858. A reading of these...