King v. Westinghouse Elec. Corp.

• Decision Date: 21 January 1957
• Docket Number: No. 40311,40311
• Citation: 229 Miss. 830,92 So.2d 209
• Parties: Mrs. Hilda KING v. WESTINGHOUSE ELECTRIC CORP. and Liberty Mutual Ins. Co.
• Court: Mississippi Supreme Court

Page 209

92 So.2d 209

229 Miss. 830

Mrs. Hilda KING v. WESTINGHOUSE ELECTRIC CORP. and Liberty Mutual Ins. Co.

No. 40311.

Supreme Court of Mississippi.

Jan. 21, 1957.

Frank E. Shanahan, Jr., Vicksburg, for appellant.

Dent, Ward & Martin, Vicksburg, for appellees.

HALL, Justice.

This is a workmen's compensation case. The appellant was employed by Westinghouse at its plant in Vicksburg, Mississippi, from June 8, 1953 to August 30, 1955, with the exception of a brief period of time in April 1954 when she obtained sick leave from her work and had an operation for the removal of an abscessed ovary. One of the doctors participating in this operation testified that she was back at work and in apparently good condition within a period of about four to six weeks. The other doctor participating in the operation testified that it usually takes sixty to ninety days for a complete recovery. At any rate appellant returned to her work and continued in the employment of Westinghouse until August 30, 1955. On that date she was required to operate a press which is apparently a large and heavy machine into which were fed steel sheets approximately 10 1/2 feet in length, 9 1/2 inches in width, and 3/32nds of an inch in thickness, and weighing approximately 28 pounds. These large sheets were cut by the press into 47 small pieces which were used as braces or brackets in connection with the manufacture of some kind of product.

A supply of these steel sheets was placed on a skid which was elevated a distance of about 6 inches from the floor. Five presses were in operation and it was the duty of a helper to obtain these loaded skids from a warehouse or storage place and transport them to the presses by means of a portable piece of machinery. In doing this work to keep the presses supplied most of the time of the helper was spent in getting materials and transporting them to the presses.

Appellant was required to pick up these large sheets of metal and place them on a kind of table which formed a part of the press. Appellant is a very small woman and it was necessary for her to lift these steel sheets to approximately the height of her shoulders. On August 30, 1955, while doing this work of lifting these steel sheets onto the high table arrangement, the appellant felt something give in her stomach which she said burned like fire. She made complaint immediately to a nurse on duty in the plant who instructed her to go to see Dr. L. J. Clark for attention. Before going to the doctor she reported her condition to the general foreman in the feeder section and tool department of Westinghouse and also a representative of the union contacted this general foreman who went over the job classification with the union business agent and reported that notwithstanding the heavy work, appellant was due to do the work without assistance. Appellant also reported the matter to the supervisor of industrial relations with Westinghouse who told her that if he had as many complaints as the she had he would quit the job if he were she.

Appellant reported to Dr. Clark who examined her on August 31st and found tenderness in the lower left portion of her abdomen and found that she had fever and that her blood count was elevated. He described it as an inflammatory condition. He called in Dr. J. A. K. Birchett on the case who assisted in the treatment. Both of these doctors testified at the hearing and both testified positively that the appellant could not do any work in the future which required lifting. Prior to the hearing these two doctors signed a joint statement describing in detail their findings. In this statement they said that appellant was advised to go home and go to bed and they gave her treatment for trauma and soreness and activation of the trouble in the pelvis, but that on the following day September 1st, her condition became so much worse that she was forced to come to the hospital for treatment. In this statement they both said that her trouble was unquestionably due to a tearing loose of ligaments and adhesions from the previous operation in April 1954. They made a diagnosis of acute peritoneal irritation and advised her to stay in bed and take the necessary treatment to overcome this soreness. She remained in the hospital about eight days and was then allowed to go home and the statement says that she has been observed in the clinic at intervals since then and has apparently shown satisfactory progress, 'but is not, by any means, able to return to this heavy type of work that she had been doing previous to entering the hospital'. The statement further says that she is able to do a secretarial job but that unquestionably the injuries 'were the result of the class of work that she was doing while working at the Westinghouse Electric Corporation'. This statement is dated October 21, 1955.

Dr. Clark testified that after the operation in April 1954 appellant returned to her work and that her condition at that time was 'apparently all right'. He also said that he did not remember any aftereffects that appellant incurred as a result of the April 1954 operation. He further said that Dr. Birchett made a pelvic examination of appellant and that he, Dr. Clark, did not feel qualified to give an opinion as to her present condition, and that Dr. Birchett would be in a better position to do so. The doctor confirmed the writing of the aforesaid letter of October 21st.

Dr. Birchett testified that his specialty is gynecology or female surgery and obstetrics. He said that after the operation in 1954 the appellant 'made a pretty good recovery'. He said that he was called in by Dr. Clark on August 31, 1955, and he found the patient not only complaining of considerable pain, but she apparently was in pain. Upon examination he concluded that she had adhesions as a result of the operation and 'the act of strain or picking up had caused a tearing of these adhesions and in my opinion that was the cause of the disability and her complaint'. He stated that the tearing was of a relatively recent nature. He explained the treatment given to her in the hospital in September 1955, and in answer to the question 'How did she appear to respond to the treatment', he said 'Well, her inflammation subsided'. He was asked whether she had reached a period of maximum improvement and his reply was 'I didn't find at this time (November 18, 1955) any residual reaction'. Immediately he was asked whether or not she was at this time qualified physically to do the heavy industrial type work she was doing at the time she was injured. And he replied 'Well, my advice to Mrs. King was to get some kind of industrial work which would not entail too much physical or manual exertion. * * * Well from the history she gave that she picked up something that weighed twenty-five to twenty-eight pounds, I assumed it wouldn't be wise for her to go back to that type of work and that was my recommendation to her. I cautioned her about working around home. I said, 'Don't get home and work in the garden and pull up this and do heavy work around home.' I don't feel she should have any strenous exertion for some period of time.' He was then asked 'What period', and he said 'She is probably as well today as she will ever be, which I consider satisfactory.' He further said that she should refrain from anything that would entail a lot of lifting or pulling and that it was his opinion that there was a causal connection between the strain she was was engaged in and the tearing which he found at the time of the first examination. On cross examination he repeated that he found no residuals from the injury which she received on August 30th but he immediately repeated that he advised Mrs. King against doing any type work that would require lifting, not only in her employment, but around home. He was also asked if he didn't advise her against doing heavy lifting after the operation in April 1954 and he replied 'for only a limited time'. He further said that if she had a type of work at the Westinghouse plant which would not require lifting, she would be physically able to do it 'provided it is not a type of work which would entail pulling on the abdominal muscles'.

Upon examination by the attorney-referee Dr. Birchett said that the 1955 accident was in association with the operation and the exertion caused the breaking of these adhesions, and that her disability was caused by a combination of the aftermath of her operation and the accident.

The supervisor of industrial relations for Westinghouse testified, as above stated, that he told Mrs. King 'if I had as many complaints as she had, I would quit, if I were her', and that she left her badge with him and asked if she could keep the appointment which the nurse had made with the doctor and he told her to do so. He was asked on cross examination whether he had a job at Westinghouse that is available for Mrs. King that she would be able to do, and his reply was 'when an employee quits we don't just make a job for them. Some of them we re-employ'. He also said that they have some jobs that are light work but he did not say that any such job was available to the appellant.

The attorney-referee made the following findings of fact: '1. On August 8, 1955, claimant, Mrs. Hilda King, was an employee of defendant Westinghouse Electric Corporation in Warren County, Mississippi, at an average weekly wage of $42.53. 2. That on said date claimant sustained a compensable injury within the scope and course of her employment and that as a result thereof was temporarily and totally disabled from the date of said injury until September 15, 1955. 3. That there is no residual of said injury nor is there any permanent partial disability to claimant as a result of said injury.' The attorney-referee therefore awarded the claimant $25 per week for a period of two weeks.

It will be noted that the attorney-referee in his findings gave the wrong date of the injury, which...