Gosnell v. Bryant, 17905

• Decision Date: 02 May 1962
• Docket Number: No. 17905,17905
• Court: South Carolina Supreme Court
• Parties: Otis E. GOSNELL, Appellant, v. Curtis G. BRYANT and Employers Mutual Liability Insurance Company, Respondents.

Page 405

125 S.E.2d 405

240 S.C. 215

Otis E. GOSNELL, Appellant, v. Curtis G. BRYANT and Employers Mutual Liability Insurance Company, Respondents.

No. 17905.

Supreme Court of South Carolina.

May 2, 1962.

Charles & Charles, Greenwood, for appellant.

Watkins, Vandiver, Freeman & Kirven, Anderson, for respondents.

MOSS, Justice.

This is a workmen's compensation case, wherein an employee appeals to this Court from an order of Honorable J. B. Pruitt, Judge of the Tenth Circuit, affirming an order of the South Carolina Industrial Commission denying a claim for compensation. The question here for determination is whether there was any competent evidence to support the finding of fact by the Commission that there was no causal connection between the employee's injury of April 22, 1959, and his asserted disability based on an injury to his back for which he filed a claim on February 26, 1960.

Otis E. Gosnell, the appellant herein, a saw mill worker, while employed by Curtis G. Bryant sustained a compensable injury when a cant hook he was using to roll logs onto a saw mill carriage slipped, struck him in the chest, and knocked him to the ground. Gosnell was sent immediately to a physician, Dr. D. O. Royal, whose examination disclosed a fracture of the eighth rib on the right side.

The record shows that on May 6, 1959, Otis E. Gosnell, the employee, Curtis G. Bryant, the employer, and his insurance carrier, Employers Mutual Liability Insurance Co., reached an agreement, which was reduced to writing, in regard to compensation for the injury sustained. This agreement recited that while rolling logs with a hook, the hook slipped and the handle thereof hit the employee in the ribs on the right side. It was further agreed that the employee, for such injury, would receive compensation payable from April 30, 1959, until terminated in accordance with the provisions of the Workmen's Compensation Law. This agreement was approved by the Industrial Commission on May 21, 1959, and pursuant thereto, medical care was furnished to the employee and temporary total disability compensation was paid until May 10, 1959.

Three hearings were conducted by a single Commissioner on the claim of the appellant for disability compensation based on an injury to his back. The single Commissioner, on December 5, 1960, found that the employee did, on April 22, 1959, suffer an injury, by accident, arising out of and in the course of his employment. He also found that the employee returned to work on May 13, 1959, but that he became disable again on September 25, 1959, and was totally disabled to perform his work. He directed the employer and the carrier to make weekly compensation payments from said date until terminated by the Commission. The employer and his carrier appealed to the full Commission on the ground that there was no competent evidence to support the finding of the single Commissioner that the employee suffered disability beyond May 13, 1959, that was causally related to his injury of April 22, 1959. On April 10, 1961, a majority of the full Commission filed its order reversing the single Commissioner and finding 'as a fact that the employee, Otis E. Gosnell, after May 10, 1959, suffered no further disability causally related to his covered injury of April 22, 1959.' Gosnell appealed to the Circuit Court and by an order dated July 20, 1961, the Honorable J. B. Pruitt affirmed the full Commission in denying the claim of the appellant. Timely notice of intention to appeal to this Court was given.

It is now well established that the burden is upon the claimant to prove such facts as will render his injury compensable within the provisions of the Workmen's Compensation Act, and such award must not be based upon surmise, conjecture or speculation. Brady v. Sacony of St. Matthews, 232 S.C. 84, 101 S.E.2d 50; Glover v. Columbia Hospital, 231 S.C. 410, 114 S.E.2d 565; and Packer v. Corbett Canning Co., Inc., 238 S.C. 431, 120 S.E.2d 398. We have likewise held that it is the exclusive function of the Industrial Commission to settle questions of fact. The limit of the inquiry which the Circuit Court and this Court is permitted to make is whether there is any evidence reasonably tending to support the conclusions of the Commission. Corley v. S. C. Tax Commission, 237 S.C. 439, 117 S.E.2d 577, and Steed v. Mount Pleasant Seafood Co., 236 S.C. 253, 113 S.E.2d 827.

The appellant, immediately after he was struck in the chest by a cant hook slipping off a log, went to the office of Dr. D. O. Royal. An examination by this physician, including the taking of x-ray pictures, disclosed a fracture of the eighth rib on the right side. The appellant was given eight treatments by this physician and he saw him the last time on May 8, 1959 and dismissed him as being able to resume work on May 13, 1959. The appellant resumed his work on May 14, 1959. This physician testified that the appellant did not complain of any trouble with his back. The appellant admits that he did not tell the physician about any pain in his back. This physician did not see the appellant again until February 10, 1960 and it was at this time that complaint was made about low back pain. This physician gave as his opinion that since the appellant returned to his work on May 14, 1959 and did the same type work satisfactorily until September 25, 1959, that the appellant was fully recovered from the injury to his rib, and if there had been any damage to appellant's back from the injury, such would have shown up within this period of time. It is perfectly apparent that this physician gave no medical opinion in support of the employee's contention that his low back pain was the result of his injury.

It further appears that the appellant was examined by Dr. William A. Boyd, an orthopedic surgeon of Columbia, South Carolina. It was his diagnosis that the appellant had sometime in the past received a lumbosacral strain with resulting instability of the low back structure and that he had received aggravation superimposed upon a preexisting osteoarthritis, all of which combined to render him totally disabld. Dr. Boyd did not give any medical opinion that these conditions were in any way related to the injury received by the appellant on April 22, 1959.

Thus, it is clear that there is no medical testimony in support of the appellant's contention that his disabling low back condition was causally related to the established covered injury of April 22, 1959. We have held that when the testimony of medical experts is relied upon to establish causal connection between an accident and subsequent disability, in order to establish such, the opinion of the experts must be at least that the disability 'most probably' resulted from the accidental injury. Cross v. Concrete Materials, 236 S.C. 440, 114 S.E.2d 828. The medical testimony in this case does not accord with the foregoing requirement.

The appellant testified of the injury to his right side on April 22, 1959 and of his treatment by Dr. Royal therefor. He admits that he returned to his former...