Hines v. Pacific Mills

• Decision Date: 03 January 1949
• Docket Number: 16163.
• Parties: HINES v. PACIFIC MILLS et al.
• Court: South Carolina Supreme Court

51 S.E.2d 383

214 S.C. 125

HINES v. PACIFIC MILLS et al.

No. 16163.

Supreme Court of South Carolina

January 3, 1949

Appeal from Common Pleas Circuit Court of Spartanburg County; T. S Sease, Judge.

Proceeding under the Workmen's Compensation Act by Pacific Mills employer, and Liberty Mutual Insurance Company, insurance carrier, opposed by Melvin E. Hines, employee, to review an award of the Industrial Commission affirming an award of a single commissioner directing payment to employee of a stated sum for serious bodily disfigurement. From an order reversing the award, the employee appeals.

The Order of Judge Sease follows:

This case is before me on appeal from an Award of the South Carolina Industrial Commission affirming an Award of the Single Commissioner, whereby the Defendants were directed to pay to the Claimant the sum of Twelve Hundred and Fifty and no/100 ($1250.00) Dollars 'for serious bodily disfigurement', the basis for such Award, as set forth in the Hearing Commissioner's Opinion, being because of the removal of one of Claimant's testicles and because 'the Claimant has a slight limp'.

The Defendants duly applied to the Full Commission for a review of the Single Commissioner's Award, upon grounds which are substantially the same as those presented by exception to this Court, and the Award of the Hearing Commissioner was affirmed by the Full Commission by an Opinion which simply adopted the Opinion and Award of the Hearing Commissioner as that of the Full Commission.

There is no dispute about the fact that the Claimant sustained an injury by accident arising out of and in the course of his employment with the Defendant-Employer on July 19th, 1946 the other Defendant being the statutory Insurance Carrier for the Employer. It was admitted that the Claimant sustained a left indirect hernia and the Insurance Carrier provided a surgical operation for the correction of such hernia and paid the Claimant the compensation for the temporary total disability to which he was entitled from the time he sustained his injury until he was discharged by the physician and returned to work. Subsequent to that time, however, the Claimant made further claim for compensation, which resulted in the proceedings out of which this appeal arises. The Commission has held that Claimant is entitled to no further compensation for temporary total disability or otherwise than for the disfigurement award which has been made and, there being no appeal by the Claimant from that finding, the same has become final.

The Defendants, however, do challenge the Award for serious bodily disfigurement, the exceptions raising two fundamental questions: (1) that the removal of a testicle does not constitute serious bodily disfigurement within the meaning of the Workmen's Compensation Act as construed by the Supreme Court of this State, and (2) that even if such a condition is compensable that, as a matter of law, there is no causal connection shown in the record between the injury sustained by the Claimant and the conditions for which the disfigurement award has been made.

In view of the conclusions which I reach on the second point it becomes unnecessary to decide the first point, although some brief reference to that question will be made later in this Order.

It appears to be undisputed that the accident that Claimant sustained was suffered when he undertook to pull a pin on a picker machine in the Employer's plant, and that the injury involved only a strain, without any blow or direct contract with the Claimant's person. This is a fact of some importance as shown hereinafter.

Following the injury on July 19th, 1946, the Claimant was referred to Dr. L. G. Able, a surgeon in the City of Spartanburg who examined the Claimant on August 6th, 1946, preparatory to operating for the repair of the hernia. On that examination customarily made as a matter of routine by the surgeon before performing such an operation, Dr. Able discovered that Claimant had a mass in the left testicle, on the same side that he had the hernia. Dr. Able Testified that, where such masses or tumors are found, the dangerous thing about them is cancer, and that is what he suspected. Accordingly, he called in Dr. I. A. Phifer, an urologist (who also testified), and Dr. Phifer concurred with Dr. Able that the testicle should be removed so as to avoid, if possible, the tumor or mass from becoming malignant or cancerous. Dr. Able explained to the Claimant that he intended to remove the testicle, to which the Claimant gave him permission, and on August 8th, 1946, Dr. Able operated, repairing the hernia and removing the testicle in the course of the same operation. It is for this removal and a limp which the Claimant asserts that he has that he has made claim and for which he has been awarded compensation, and it becomes necessary to determine whether there is substantial competent evidence in the record to support a reasonable inference that the removal of the testicle and the limp, or either of them, are causally connected with the accident.

Section 2(f) of the South Carolina Compensation Act, Act July 17, 1935, 39 St. at Large, p. 1233, provides:

"Injury' and 'personal injury' shall mean only injury by accident arising out of and in the course of the employment, and shall not include a disease in any form, except where it results naturally and unavoidably from the accident.'

It is settled by the decisions of the Supreme Court of this State that a Claimant who asserts the right to compensation carries the burden of establishing the necessary facts to entitle him to such compensation; that there is no presumption in favor of compensability (Rudd v. Fairforest Finishing Co., 189 S.C. 188, 200 S.E. 727); that Awards of the Industrial Commission may not rest upon surmise, conjecture or speculation, but must be founded upon substantial evidence, and that if the evidence is all one way, or if the findings of the Commission are based on surmise, speculation or conjecture, that the issue becomes one of law for the Courts and not of fact for the Commission (see Rudd v. Fairforest Finishing Co., supra; In re Crawford, 205 S.C. 72, 30 S.E.2d 841; Sligh v. Pacific Mills, 207 S.C. 316, 35 S.E.2d 713; McDowell v. Stilley Plywood Co., 210 S.C. 173, 41 S.E.2d 872, and numerous other cases cited in West Publishing Company Digest, Workmen's Compensation, k1409).

I have given most careful consideration and study to the evidence in this case in an effort to see whether there is any evidence, as distinguished from speculation and surmise, upon which it can be found as a reasonable inference by the fact finding body that the conditions for which the award was for were causally connected with the accident, and after such study and consideration the conclusion seems to be inescapable that there is no such evidence and that, therefore, the award of the Commission must be reversed.

There are certain well established rules with respect to the effect of expert testimony. It is unquestionably the law, as stated in Poston v. Southeastern Const. Co., 208 S.C. 35, 36 S.E.2d 858, and Ballenger v. Southern Worsted Corporation, 209 S.C. 463, 40 S.E. 681, that expert testimony is not binding upon the fact finding body if there be competent substantial evidence to the contrary. However, it is equally well established as said in Smith v. Southern Builders, 202 S.C. 88, 24 S.E.2d 109, 114, in quoting from an Opinion of the Court of Appeals of Virginia [Lawson v. Darter, 157 Va. 284, 160 S.E. 74], the Supreme Court in this State said:

'In matters of this kind which are not of common knowledge, we must accept the opinion of experts.'

See also Crocker v. Life Insurance Company of Virginia, 183 S.C. 439, 191 S.E. 312, where lay testimony, as to an apparent condition of health, was held not to create an issue of fact against medical evidence that cancer existed.

And in Baker v. Graniteville Co., 197 S.C. 21, 14 S.E.2d 367, 370, the Supreme Court, in holding that there was no evidence on which a finding of fact of aggravation or acceleration of a previous condition could be based, uses this language:

'The testimony of the physicians as to the want of any causal connection between the traumatic injury and the erysipelas from which Baker died was not binding upon the Industrial Commission. The opinion of an expert witness is intended to aid the Commission in coming to a correct conclusion, and the weight and credit to be given such testimony was a matter, of course, to be determined by the Commission. But when the Commission in effect disregards such expert testimony it must perforce find other competent evidence in the record upon which to base its findings. The evidence given by the physicians is that the trauma suffered by Baker was not a factor in accelerating or aggravating the infection and septicemia which was virulent in Baker's blood stream when he received the blow. And there is no other evidence in the record except such as is based upon surmise and conjecture, upon which the findings of the Commission can be planted.' (Emphasis mine.)

And the extent of the effect of hypothetical evidence is stated, in Smith v. Southern Builders, 202 S.C. 88, 24 S.E.2d 109, to be:

'that the probative value of expert testimony based upon hypothetical facts stands or falls with the existence of the facts upon which it is predicated'.

And where medical evidence is relied upon to create an issue of fact, it is not sufficient that the doctors testify as to possibilities, but "they must go further and testify at least that, taking into consideration all the attending data it is their professional opinion (that) the result in question most probably came from the cause alleged." Quotation in Mack v. Branch No. 12,...