Fortune Furniture Mfg. Co., Inc. v. Sullivan, 47071
| Decision Date | 14 May 1973 |
| Docket Number | No. 47071,47071 |
| Citation | 279 So.2d 644 |
| Parties | FORTUNE FURNITURE MANUFACTURING COMPANY, INC., and Associated Indemnity Company v. Daniel R. SULLIVAN. |
| Court | Mississippi Supreme Court |
Daniel Coker, Horton, Bell & Dukes, Donald V. Burch, Jackson, for appellants.
John D. Sibley, Okolona, for appellee.
In 1957, while working for the Futorian Manufacturing Company, Inc., the appellee, Daniel R. Sullivan, sustained an injury diagnosed as a ruptured disc at L-3 on the left side of the vertebral column. Even though the appellee was advised by his physicians to undergo an operation to repair the damage at the site of the ruptured disc, he declined to do so. Eventually, the claimant settled his claim with Futorian Manufacturing Company, Inc., based upon a fifteen percent (15%) impairment of his body as a whole due to the back injury. Subsequently, he was employed by the Fortune Furniture Manufacturing Company as a truck driver. Claimant advised the president of the Fortune company that he had been having back trouble, and the president was aware that Sullivan would likely have more trouble with his back. Claimant's employment required him to deliver chairs manufactured by Fortune to various customers throughout the United States. Upon arriving at the point of delivery, the driver was required to unload the chairs himself. Despite the fact that Mr. Sullivan experienced some pain in his back, he continued to perform his driving and unloading duties for some time, and was obviously a willing worker.
The claimant testified that on April 21, 1970, he hauled a load of one hundred sixty-eight (168) chairs to Carlisle, Pennsylvania. While unloading the chairs at Carlisle, he found it necessary to stand on a barrel in order to reach a chair located near the top of the thirteen-foot six-inch load. He lost his footing, fell off the barrel while holding a seventy-pound chair, and reinjured his back. Despite the pain associated with his reinjured back, he continued to drive and unload chairs until he returned to his employer's place of business.
In his testimony, claimant stated that upon arriving at defendant's plant in Okolona, Mississippi, he advised the president that he had hurt his back again, and would not be able to work for a few days. He consulted a local physician and was referred to a specialist in Memphia, a Dr. Matthew Wood. After the circumstances of the Carlisle injury were explained to the physician, a myelogram was performed which revealed that claimant had a ruptured disc at L-4 on the right side. Dr. Wood testified that this injury occurred at a different level in the spine from the previous injury. The claimant underwent surgery to remove the ruptured disc at L-4. His surgeon testified that in his opinion, claimant had suffered a fifteen percent (15%) permanent impairment of the body as a whole.
Since the operation, claimant has been unable to work due to constant pain in his left leg. On one occasion, in an effort to work, however, he did make a trip to New York for another company.
The claimant's wife testified that when her husband came back from Pennsylvania he could not get out of the truck without help. She also testified as to his suffering since that time.
Dr. Shumaker, as a witness for the employer, testified that claimant had a history of herniated lumbar discs beginning at least fifteen (15) years before the trial. Dr. Shumaker also stated that on November 7, 1969, claimant came to him for treatment of a back ailment and told the doctor that he had been experiencing similar back pains for the past several years. Dr. Shumaker diagnosed claimant's problem as an acute herniated lumbar disc. Upon examining him, Dr. Shumaker noted that his patient experienced considerable pain in attempting to get onto the examining table. The doctor testified that claimant could not lift his legs because: 'He just couldn't bear me to even lift them.' After a subsequent visit to Dr. Shumaker on the eleventh (or nineteenth) of November 'still complaining of severe low back pain,' the claimant was advised to see a specialist. There is also testimony that the claimant said he hurt his back in a fall on a curb.
The president of the company testified that the claimant did not tell him that he had been injured in Carlisle, Pennsylvania, but he said he knew about the claimant's back trouble. He said he did not believe that the claimant was hurt on his job.
The attorney-referee entered the following order:
'Having considered all the evidence in this cause and based upon what I consider to be substantial evidence, I find that the claimant did not sustain an accidental injury as alleged and that the claimant's present condition, incapacity or disability, if any, is not related to his employment with Fortune Furniture Company, Inc.' (Emphasis added.)
On appeal to the Workmen's...
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