Evans v. Continental Grain Co.

• Decision Date: 09 May 1979
• Docket Number: No. 51223,51223
• Citation: 372 So.2d 265
• Parties: Maggie EVANS v. CONTINENTAL GRAIN COMPANY, Wayne Poultry Company and American Motorists Insurance Company.
• Court: Mississippi Supreme Court

Page 265

372 So.2d 265

Maggie EVANS v. CONTINENTAL GRAIN COMPANY, Wayne Poultry Company and American Motorists Insurance Company.

No. 51223.

Supreme Court of Mississippi.

May 9, 1979.

Rehearing Denied July 11, 1979.

Odom & Parrish, J. Ronald Parrish, Laurel, for appellant.

Gibbes, Graves, Mullins, Bullock & Ferris, E. Brooke Ferris, III, Laurel, for appellees.

Before PATTERSON, C. J., and BROOM and BOWLING, JJ.

BOWLING, Justice, for the Court:

This is a workmen's compensation case. Benefits were denied claimant (appellant) by the administrative judge, the commission and the circuit court. We reverse and remand.

Appellant had been employed by Continental Grain Company almost twenty-one years. Her job was to operate a "gizzard peeling" machine and perform other acts of packing and lifting in connection therewith. In her motion to controvert filed November 4, 1976, before the Workmen's Compensation Commission, she alleged that on June 3, 1975, she was injured when she went to the restroom near her place of employment. It was contended that because of a watery and soapy condition on the floor she fell in a sitting position on the concrete floor and was injured. The employer and carrier filed their answer on November 8, 1976, admitting the injury and admitting that appellant was entitled to temporary total disability from June 5, 1975, through September 16, 1975. The answer contended that the appellant's further disability was not the result of the accidental injury of June 3, 1975, but was caused solely by a pre-existing handicap, disease, condition or lesion.

The hearing before the administrative judge was set for February 17, 1977, at the Jones County Courthouse in Laurel. At that hearing testimony was taken only from appellant and a fellow worker, one Verlean Cooley. After this testimony, the hearing was recessed until May 10, 1977, at which time the hearing officer received the testimony of Dr. James C. Bass of Laurel and the deposition testimony of Dr. Donald Cook of Meridian. Other than documentary evidence the testimony of these four persons constituted all presented to the administrative judge.

At the hearing on February 17, 1977, appellant testified regarding her fall. She stated she immediately contacted Mr. Emmett Smith, her foreman, and reported the injury to him. It was decided that she would try to continue her work that day. Appellant reported to work the following day but the pain was so severe that she again contacted Mr. Smith, who sent her to the medical station where a nurse gave her some pills. Mr. Smith requested that she try to work because they were short-handed, and wait until the end of the day's work before seeing a doctor. She was then sent to see Dr. R. L. Alexander, the company physician. Appellant did not work again and has not been able to work since, according to her testimony. She was treated by Dr. Alexander for several weeks until she was told by him that the company's insurance carrier had advised that he would receive no further pay. Consequently, she then went to see another physician, Dr. Victor Applewhite, who stated to her that he could not treat her unless he was paid. After that, appellant contacted the Vocational Rehabilitation authorities who sent her to Dr. Douglas C. Brown, an orthopedic surgeon with the Laurel Bone & Joint Clinic.

Appellant testified that she had schooling only through the seventh grade; that she has tried to do other types of manual work, including housework, but could not do so. She testified that prior to her fall of June 3, 1975, she had had no trouble with her back and was able to do a full day's hard work for almost twenty-one years with appellee-company.

Witness Verlean Cooley also had worked for appellee-company many years and was a member of the company's safety committee. Her positive testimony was that during all the years of employment appellant had had no trouble whatever with her back. She further testified that she has seen appellant a lot of times since her injury and that she appears to be in pain continually and it is obvious that something was still wrong with her.

As hereinbefore stated, the only two witnesses other than appellant and Mrs. Cooley were Dr. James Bass and Dr. Donald Cook. The sole evidence offered by appellee was that of Dr. Bass. His testimony will be discussed later but the occasion should be referred to at this time in regard to developments at the end of the February 17, 1977, hearing. Appellant's attorney filed a motion to set the case for further hearing in order to enable him to present medical evidence of appellant's disability. He stated in this sworn motion that at the beginning of the hearing he was prepared to present and rely on the testimony of Dr. Douglas C. Brown, who, as stated before, had treated appellant at the instigation of the Vocational Rehabilitation authorities. The sworn motion of appellant's attorney then stated that on the day of the hearing and before being called to give testimony, Dr. Brown, "at the last minute," informed appellant's attorney that his testimony would not conform to the written reports he previously had given after his examinations and treatments of appellant. Copies of these reports were attached to the verified motion. It was also stated it had been ascertained that all the reports given by Dr. Brown had not been made available to appellant's attorney.

The reports of Dr. Brown attached to the motion showed that he had examined and treated appellant on at least four occasions subsequent to the company's physician, Dr. Alexander, stopping his treatment because his pay was stopped. On January 6, 1977, Dr. Brown wrote:

Today the patient continues to have pain in the left lumbar spine with radiation to the left leg. She notes that it gets better at times with her brace, but at other times the pain is worse. Today the examination shows tenderness over the left sciatic nerve. Lumbar disc instability with degenerative arthritis L-5, S-1 and left S-1 nerve root impingement. Again I feel that this patient should be hospitalized for a myelogram for a possible laminectomy and fusion. At the present time she is being given Equagesic until an authorization for surgery can be obtained from Vocational Rehabilitation.

On February 10, 1977, Dr. Brown wrote:

Today this patient's case was discussed with her lawyer, and I was informed that she has a case going to court on Thursday, 2-17-77.

My opinion at the present time is that her symptoms are probably due to the fall that she supposedly sustained some two years ago. I still feel that she merits hospital examination, myelography, and possibly laminectomy and fusion.

At the present time she is totally disabled from her previous occupation. However, this may be changed if her condition is found to be amenable to surgical correction.

It just so happened that Dr. Brown was an associate in the Clinic headed by appellees' only witness, Dr. James Bass. His testimony will be discussed later at more length, but at this point it should be stated that his testimony on direct examination was that he had seen appellant one time and that was on August 18, 1975, and he found her without any physical trouble or disability of any kind. It is not for this Court to cast aspersions on anyone but it does appear curious to say the least as to why Dr. Bass' associate, Dr. Brown, changed his mind on February 17, 1977, after having examined and treated appellant for several months.

At the May 4, 1977, hearing before the administrative judge, appellant offered the deposition of Dr. Donald Cook of Meridian, Mississippi. It was stipulated by attorneys for appellees that Dr. Cook was a qualified practicing orthopedic surgeon. Dr. Cook stated that he first saw appellant on March 31, 1977, at which time she was complaining of pain in the lower back area. The history taken by him showed that she had not had any such complaints prior to her fall on June 3, 1975. He explained the process of every person over the age of twenty years developing some extent of degenerative disc condition in their back; some, of course, developing much worse than others. Dr. Cook stated that in his opinion the appellant had such a condition at the time of her injury but that the condition was "traumatically exacerbated" by the injury. When asked his opinion as to the cause of "traumatic exacerbation" of the disc, his opinion was based on her clinical history and medical probabilities that it was the injury she reported. He explained that "exacerbation" specifically means "making worse," and that in the case of appellant, it was the stretching or straining of the bands surrounding the discs. He testified that in appellant's situation, traumatic exacerbation referred specifically to the bringing on of symptoms by injury. He further testified that in his opinion appellant was temporarily totally disabled from performing her previous occupation. His prognosis was undetermined; that appellant would need further treatment in an effort to relieve her condition, and that unless she received this treatment, the longer the situation continued, the poorer the rehabilitative potential and in all probability she would end up unemployable and "on the road to welfare." Dr. Cook also testified that he found "objective findings" regarding appellant's back condition. He examined appellant a second time on April 20, 1977, and found her condition basically unchanged. At the end of direct examination, Dr. Cook repeated his diagnosis as to the cause of appellant's disability, "again based on the clinical history...