Gifford v. Cook-McCann Concrete, Inc.

• Decision Date: 08 October 1974
• Docket Number: No. 4376,COOK-M,4376
• Citation: 526 P.2d 1197
• Parties: James GIFFORD, Appellant (Claimant-Employee below), v.cCANN CONCRETE, INC., Appellee (Employer below).
• Court: Wyoming Supreme Court

Page 1197

526 P.2d 1197

James GIFFORD, Appellant (Claimant-Employee below), v. COOK-McCANN CONCRETE, INC., Appellee (Employer below).

No. 4376.

Supreme Court of Wyoming.

Oct. 8, 1974.

Edward L. Grant of Osborn & Grant, Cheyenne, for appellant.

Franklin J. Smith of Pattno & Smith, Cheyenne, for appellee.

Before PARKER, C. J., and GUTHRIE and McCLINTOCK, JJ.

Mr. Chief Justice PARKER delivered the opinion of the court.

James L. Gifford, a cement finisher for Cook-McCann, while helping to level cement on August 11, 1972, became breathless and dizzy but, limiting his activities, stayed on his job the remainder of the day. The next day he contacted a physician, who later testified: "Examination and chest X-rays resulted in a diagnosis of left pneumothorax (collapsed lung) due to a ruptured bleb of pulmonary emphysema." Claimant, after receiving some treatment in the hospital, returned home but was later readmitted and submitted to surgery. Temporary total workmen's compensation benefits, as well as medical expenses, were paid to him until the entering of the order from which the present appeal is taken. That order was the result of an objection by the employer, the hearing on which was held November 8, 1973. The only medical evidence was that of the attending physician, who on direct examination testified that claimant was 100 percent disabled as far as cement finishing or other heavy physical labor was concerned but was not disabled to perform sedentary work. No other witness testified concerning the extent of the disability, and of course, resolution of the percentage to which the claimant was entitled required amplification or correlation of the factors which the witness had mentioned. Little was done in this regard by counsel, and the court during the latter part of the testimony undertook to elicit from the doctor an estimate about the disability of the claimant as 'a whole man.' The doctor responded that he did not understand the meaning of the question. There followed considerable colloquy during which he testified, 'until such time as he is trained and undertaking work of the type I have described (sedentary or mental), I would estimate his disability as a whole man at seventy-five to eighty percent.' After further discussion the witness said, 'Judge, I just don't understand the statutes relative to disability for heavy labor vs. disability for sedentary work well enough if there are such statutes.'

The doctor testified that the underlying condition inflicting the claimant was pulmonary emphysema; that the heavy work he was doing on August 11 resulted in rupture of a bleb on his left lung and its collapse. The lung was reexpanded but subsequently there was a recurrence of the same symptoms, and it was determined that he should have surgery with the hope of being able to remove the bleb so that it did not rupture in the future. At the time of surgery, it was found that the entire lung was covered by multiple blebs so that their removal would have resulted in essentially a removal of the entire lung. All the surgeon was able to do was to scarify or roughen the inner and outer pleura so that the lung wall would adhere tightly to the chest wall and thus not permit the lung to collapse. The witness said he could only estimate...