King & Heath Const. Co. v. Hester, No. 50271
| Decision Date | 12 July 1978 |
| Docket Number | No. 50271 |
| Parties | KING & HEATH CONSTRUCTION COMPANY and New Hampshire Insurance Company v. G. W. HESTER, Jr. |
| Court | Mississippi Supreme Court |
Downey & Jennings, John H. Downey, Jackson, Armis E. Hawkins, Houston, for appellant.
Hilbun & Yoste, Charles T. Yoste, Starkville, for appellee.
Before SMITH, P. J., and SUGG and BROOM, JJ.
BROOM, Justice, for the Court:
Workmen's compensation benefits were by order of the administrative judge denied claimant, G. W. Hester, Jr. (appellee). Claimant appealed to the Mississippi Workmen's Compensation Commission which unanimously affirmed the order of the administrative judge. Then claimant appealed to the Circuit Court of Yazoo County which reversed the commission, and remanded the cause to the commission for determination of degree of disability and award of benefits to claimant. We reverse the circuit court and reinstate the commission's order.
In April 1974 claimant was employed by King & Heath Construction Company (appellant, employer herein) and was laying plastic water pipes in Yazoo County where the employer was constructing a rural water line. Claimant's contention is that he got off a tractor which he operated and manually attempted to get a piece of pipe in position so it would properly go into a ditch. He said, "I felt a sharp pain in my back and burning in my back." His version was that he told fellow employee Butler, "I think I broke my back."
According to the record, claimant operated the tractor in his work until August 3, 1974, when he voluntarily left his employment. Claimant and the employer's other workers lived in Webster County but stayed in motels in Yazoo County while at work, and went home on weekends. He worked about twelve hours the day of the accident and continued to work the remainder of the week. During the week following the accident, claimant put in eleven to twelve hours each day. During the five day work week of April 22-26, he put in fifty-four hours. He averaged working eleven hours daily (twenty work days) in the month of May 1974, and about the same per work day thereafter until Friday, August 2, 1974, on which day he worked ten hours and quit his job. He worked the same hours as his coworkers through the summer except he was hospitalized July 8-12. After the alleged injury, claimant's roommate, Henley (also his travel companion), did not recall that claimant said anything about any job related injury. Henley remembered an occasion when claimant had some medicine which Henley understood was for "rheumatism"; and on one occasion claimant asked Henley for some of Henley's medicine for "all over" complaints. Claimant's foreman, Hardin, testified that he never noticed claimant having any difficulty with his work, and he said claimant made no complaint to him. Hardin said that he saw claimant and others engage in wrestling during the summer on different occasions after the alleged injury. Two of the men who wrestled with claimant testified to such activities and stated that claimant never complained to them about his back, although he did wrestle and throw them around.
According to Mr. Heath, who owned the construction company, claimant complained to him one time about the equipment, and stated that he hurt his back jumping on the pipe. Claimant told him on one occasion that he had been to the doctor.
Medical proof submitted for the claimant was that of a general practitioner, Dr. Laird, who stated that in his opinion claimant was totally disabled, and he attributed the disability to claimant's April 1974 alleged back injury. Dr. Laird stated that he first saw claimant on account of the back injury on May 4, 1974, but Dr. Laird's clinical notes revealed no indication of any job related accident. The doctor's notes dated July 5, 1974, make no indication about any job injury, on which date he ordered claimant admitted to the Oktibbeha County Hospital as of July 7. The standard form surgeon's report which was signed by Dr. Laird and dated August 17, 1974, indicates that the date of the accident was "about 1 month ago." (Note that a month ago would date the injury July 17). Paragraph 5 of the report asked that the surgeon's report "(S)tate in patient's own words where and how accident occurred," and there was typed in on the blank, "(W)as pulling on cable and pain started in back." (This also conflicts with claimant's version). According to this report, Dr. Laird referred claimant to the VA Hospital, and afterward Dr. Laird's testimony is that he may have referred claimant to Dr. Tutor in Tupelo, who did not testify although it appears that claimant had surgery on his back in the fall of 1974. Dr....
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