Kroger Co. v. Millsap

• Decision Date: 23 February 1967
• Docket Number: 8 Div. 170
• Citation: 280 Ala. 531,196 So.2d 380
• Parties: KROGER COMPANY v. Elnora MILLSAP.
• Court: Alabama Supreme Court

Page 380

196 So.2d 380

280 Ala. 531

KROGER COMPANY v. Elnora MILLSAP.

8 Div. 170.

Supreme Court of Alabama.

Feb. 23, 1967.

Eyster & Eyster, Decatur, for appellant.

Powell & Powell, Decatur, for appellee.

PER CURIAM.

This is a review by writ of certiorari of a judgment of the Circuit Court of Morgan County, Alabama, awarding workmen's compensation to Mrs. Elnora Millsap.

The petitioner-appellant is the Kroger Company, a Corporation, by whom Mrs. Elnora Millsap was employed.

As we view appellant-defendant's brief and argued assignments of error, the centrial theme of this appeal pivots on whether or not the evidence supports the trial court's factual finding that plaintiff-appellee sustained a seventy-five per cent permanent and a partial disability when she sustained an injury proximately caused by an accident that arose out of and in the course of her employment. There is no contention that she was not accidentally injured while so employed, but the extent of such injury resulting in permanent and partial disability with judgment therefor is the central issue on this appeal.

There are some satellite contentions of error which may be resolved against appellant if the trial court was correct in its factual finding that plaintiff suffered a seventy-five per cent disability as above noted.

It appears from the evidence without dispute that plaintiff had been in the uninterrupted employment of defendant for a period of five years immediately prior to March 9, 1962, and part time for a period of two years immediately preceding the five-year employment period.

Plaintiff was, on March 9, 1962, and for some time prior thereto, rendering service in the meat department of defendant, and while so serving, it was her duty to move by physical effort metal trays of meat. While moving several of these trays at one time, probably weighing thirty pounds, she suffered, as she stooped over, a severe pain in the lower region of her back.

The pain was so severe that she became pale and nauseated. One of her fellow employees took her by automobile to the office of the company physician, Dr. Barrett, a general practitioner, who has had a special interest in gynecology and female neurology for a number of years.

After observing and treating plaintiff regularly for about six weeks, Dr. Barrett referred her to Dr. Beddow, an orthopedic specialist. Dr. Beddow observed and treated her at regular intervals until June 19, 1962, when treatment was suspended.

Dr. Barrett testified that a physical examination of Mrs. Millsap revealed considerable spasm of the large muscle groups which grow up and down the spine on both sides. This muscle spasm prevented free motion of the spinal column. These spasms were more severe in the lower spine. She was tender under pressure in that area. 'In the examination and on X-ray examination it indicated she had had a severe strain of the muscles and ligaments, particularly of the lower spine as they are fastened on to the bones in the lower spine and pelvis.'

Dr. Barrett concluded, after consultation with Dr. Beddow, that the X-rays revealed that Mrs. Millsap has 'a congenital malformation of the lower back, in that the fifth lumber vertebra is fused on to the sacrum, or pelvis bone; and the fourth vertebra, due to the apparent straining of the back, had slipped forward slightly, causing what we call a spondylisthesia (sic), making a constant strain on the portions of the bone which articulare (sic) one which the other to hold the bones together. In addition, there were some early changes of arthritis where the bones come together, showing some arthritic changes had occurred.'

Also, witness testified to some other physiological ailments not connected with the muscle spasm for which he treated her during the six-week period.

Witness further testified:

'Q. What in your opinion was it (muscle spasm) attributable to?

'A. It was attributed to the strain of those muscles and ligaments in the incident in which, I believe, it was metal trays she had stooped over to handle.

'Q. Do you have any judgment about the injury to this back that you are testifying about,--the pain she complained of, would it be associated with an injury such as she sustained on March the 9th?

'A. Yes, it certainly can.

'Q. Would that be,--can you describe the type pain you would expect from an injury to the lower back such as she had, that you saw evidence of?

'A. It can be anything from a very minor aching and slight discomfort, on up to very severe pain on any movement whatsoever of the lower back. In other words, it varies very, very widely as to severity.

'Q. As I understood your testimony, your x-rays revealed she had some malformity of the structure of the lower back?

'A. That is correct.

'Q. Do you have a judgment about the extent of it timewise,--how long it was?

'A. It's a congenital thing, which means she was born with it,--had it all her life, which produces a certain element of weakness in the lower back, which makes it more subject to strain than a normal back would be.

'Q. Would a back having that condition, without examination revealing it, have any symptoms till a patient got an injury to that area that warned her of it?

'A. No, none whatever.

'Q. Then you might have a given number of persons that might have this same condition and go through life without knowing it?

'A. That might be true.

'Q. And if they got an injury to this area would that aggravate the condition from the standpoint of both pain and recovery?

'A. It would.

'Q. Would this patient, in your opinion, always have a weak back as the result of this accident?

'A. I think she would, yes.

'Q. Do you believe, Doctor, that she could work in a position or anywhere and do the type of work she related to you she was doing at the time she was injured, in the future?

'A. My opinion is that she would be unable to do that type work.

'Q. Permanently?

'A. Possibly permanently, unless the condition was corrected by surgery, and I am not an orthopedist, and I wouldn't want to venture a statement as to how successful that particular treatment would be from surgery.'

Dr. Beddow testified that he first saw plaintiff as a patient on May 2, 1962. She gave a history that she had had back trouble for three years, and had had some of this pain at least a week out of a month since that time, and that doing work at Kroger's grocery, lifting and bending, had made the pain more severe.

In laymen's speech, the witness testified:

'She had an abnormal low back, which would lead to a weakened low back. The sacrum is supposed to be (that is the lower portion of the back, at the pelvis),--is supposed to be one bone. There are five segments growing together making the bone. The first of those segments wasn't grown together; it was partly separated, and contact between the movable part of it, which resulted in traumatic arthritis.

'Q. Did you find evidence of recent injury to that area of her back?

'A. Not on x-ray. * * * I was convinced she had pain there, and this could be caused by injury or aggravated by injury.

'Q. Did you find evidence of any recent injury to that area?

'A. Not objective, except for the muscle spasm and soreness.

'Q. Did you find muscle spasm present?

'A. Yes, there was some. I didn't mention it here (using notes).

'Q. Was the area you are discussing what we call tender when you press it, or under pressure?

'A. Yes, sir.

'Q. Did that indicate she might have had an injury in that area of her back?

'A. It could have been caused by it. Let's say it could have been aggravated by injury. She had back trouble long before we are talking about here.

'Q. Is it your opinion, Doctor, that she had this abnormal condition in her lower back for many years, maybe born with it?

'A. Yes, sir.

'Q. Assuming they have never had an examination or x-ray, is it correct to state a person might have this condition she had, and not know it till they were injured in that area of the back?

'A. Not know it till they were examined,--yes, sir.'

It appears that plaintiff went back to work for defendant in its meat department, in the fall of 1962, with the approval of Dr. Barrett. She performed the same duties as before, and worked for about six months. She got a renewal of the same injuries and pain that happened during her former employment. She went back to Dr. Beddow, who testified with respect to the second episode, in part, as follows:

'Q. THE COURT: What about the last time you saw her? (Referring to the second episode)

'A. She hadn't gotten over it as much as she had the first time. She doesn't now wear her brace; doesn't do much of anything, so now she is more disabled than before, than she was in '62. She has two strains now.

'Q. THE COURT: You think she got another one from going back to work?

'A. Yes, she went to doing the same thing she had before, and did the same thing she did before.

'Q. So that got her in worse condition than after the first episode?

'A. Yes.

'Q. THE COURT: What is her disability now?

'A. It's the same injury as she had before; I guess we'll have to call it twenty now.

'Q. In your opinion it would have to be doubled?

'A. Yes, the same injury.

'Q. It was the same thing as she had before, but she has got it again?

'A. Yes, sir.

'Q. THE COURT: When you say twenty percent disability, is that considered twenty percent, she can do twenty percent of what a normal person can do, or do you take into consideration other factors other than using a normal person as a standard?

'A. We have to, because there are certain things she could do. She can do a sedentary job. She can't do anything requiring lifting or bending.

'Q. And whether she is working in a meat department, doing the tasks there required or doing similar type work in some other vocation. * * *

'A. Anything requiring lifting or bending, or working over her head. She couldn't do work over her head.'

Plaintiff testified that she was 38 years old at the time of the trial; that she had a formal...