O'Neal v. Multi-Purpose Mfg. Co., MULTI-PURPOSE

• Decision Date: 14 May 1962
• Docket Number: MULTI-PURPOSE,No. 42310,42310
• Parties: E. G. O'NEAL v.MANUFACTURING COMPANY and St. Paul Mercury Insurance Company.
• Court: Mississippi Supreme Court

Page 860

140 So.2d 860

243 Miss. 775

E. G. O'NEAL v. MULTI-PURPOSE MANUFACTURING COMPANY and St. Paul Mercury Insurance Company.

No. 42310.

Supreme Court of Mississippi.

May 14, 1962.

P. L. Douglas, Starkville, for appellant.

Wm. J. Threadgill, Columbus, for appellee.

LEE, Presiding Justice.

E. G. O'Neal made a claim against Multi-Purpose Manufacturing Company and its insurer for workmen's compensation benefits. The attorney-referee awarded compensation for permanent partial disability at the rate of $10 per week, commencing July 20, 1959, and payable during the continuance of such disability, as provided by Section 8(c)(25) of the Workmen's Compensation Law, as amended, Code 1942, Sec. 6998-09(c)(25), together with the expenses for medical services and supplies incidental thereto. The Commission, by a vote of two to one, reversed the order of the attorney-referee and denied benefits. On appeal, the circuit court affirmed the order of the Commission, and the claimant has appealed to this Court.

O'Neal is a welder by occupation. In July 1958, he underwent a gallbladder operation. Thereafter, in October of the same year, he underwent another abdominal operation. The surgery, in both instances, was successful.

While working in the employ of the Multi-Purpose Manufacturing Company on July 1, 1959, he lifted a housing for a tractor elevator or stills. A pain hit him in the abdomen. He reported the injury to his shop foreman, K. T. Sanders, who later, after O'Neal became nauseated, carried him to Dr. W. L. Stallworth for examination. On the advice of the doctor, O'Neal stayed off his feet and did no work until July 20th, at which time he returned to his job. He followed, as nearly as he could, the advice of the doctor not to lift anything heavy, and his employer furnished help to handle heavy objects. Because of pain and discomfort in connection with his work, Dr. Stallworth, who continued to see O'Neal a number of times, put an abdominal type brace on him. The claimant had worked regularly from July 20, 1959, until June 22, 1960, the date of the hearing. All employees had been given wage increases and his wage was increased from $1.47 to $1.55 per hour. O'Neal cannot lift as much as he did before the injury, and he suffers pain, if he tries to do so. His shop foreman testified that his work was satisfactory both before and after the injury, and that he could do as much welding as ever, but admitted that he had instructed O'Neal not to lift anything heavy.

As stated above, Dr. Stallworth examined and treated the claimant. On December 7, 1959, Dr. Elton S. Thomas examined him. Dr. Dempsey C. Strange of Oktibbeha County examined the claimant on April 8, 1960. Thereafter, on April 30, 1960, Dr. Glenn B. Richardson examined the claimant. Drs. Stallworth and Strange did not testify, but their statements, by agreement of the parties, were introduced in evidence.

Dr. Stallworth, in his written statement under date of September 21, 1959, referring to his examination of the claimant on July 1, 1959, and subsequent treatments, said: 'At this time he complained of acute tenderness at the site of an old gall bladder incision. This scar was very weak, potentially herniated. He was seen at intervals since that time, he continued to have discomfort at work. On September 11, 1959, he was measured for an abdominal support-Camp binder. He was advised to continue to wear this while at work or either resort to further surgery, which is very likely to be needed in the future.'

Dr. Elton S. Thomas testified at a hearing on October 11, 1960. He had seen O'Neal on December 7, 1959, and made a complete examination. He said that the claimant was having pain, on palpiation, in the old gallbladder incision. At that time, he found no evidence of hernia in the abdominal wall. His diagnoisis was 'a strain of the muscles of the abdomen and strain on the post-operative wound.' This affected the scar tissue, and the muscular structure of the entire abdominal wall, including the soft tissue. Of course if he developed a hernia, it should be repaired by surgery. While he thought that the man ought to have already recovered from the injury, at the same time he was of the opinion that a full recovery should be effected within three more months from the time he saw him. At the time he did not think there was a potential hernia. Whether one would develop was conjecture. The doctor did not know whether or not O'Neal had improved during the next three months, because he had never seen him again. He was asked if, three months after his examination, a competent doctor found tenderness and soreness in this area, how long it would require for a recovery. The doctor replied that, under such circumstances, he 'could not possibly state how long in the future this man's pain would continue or his strain of the abdominal wall would continue, because it would be a very unusual situation.' The doctor knew Dr. Dempsey Strange, regarded him as a reputable physician and surgeon, and said that he would accept that doctor's diagnosis.

Dr. Dempsey C. Strange of Starkville examined O'Neal on April 8, 1960. His statement, of the same date, said: 'I have examined Mr. E. G. O'Neal today. He gave a history of lifting heavy object while at work on July 1, 1959, at which time he experienced severe pain in right upper abdomen. This was in old scar from gallbladder surgery. There is no rupture now, only tenderness, but in my opinion this man is a potential candidate for a hernia, exaggerated by this injury.'

Dr. Glenn B. Richardson was offered as a witness for ...