Potts v. Lowery

• Citation: 134 So.2d 474,242 Miss. 300
• Decision Date: 20 November 1961
• Docket Number: No. 42030,42030
• Parties: Hugh POTTS, d.b.a. Potts Motor Company and Fidelity & Casualty Company of New York. v. H. C. LOWERY.
• Court: United States State Supreme Court of Mississippi

Page 474

134 So.2d 474

242 Miss. 300

Hugh POTTS, d.b.a. Potts Motor Company and Fidelity &amp Casualty Company of New York. v. H. C. LOWERY.

No. 42030.

Supreme Court of Mississippi.

Nov. 20, 1961.

Watkins & Eager, Shelby Rogers, Jackson, George Thornton, Kosciusko, for appellants.

Crawley & Ford, Kosciusko, for appellee.

LEE, Presiding Justice.

This is an appeal by Hugh Potts, d. b. a. Potts Motor Company, and its insurer from a judgment of the circuit court which affirmed an order of the Workmen's Compensation Commission, awarding to H. C. Lowery permanent partial compensation and other incidental benefits under the provisions of the workmen's compensation law.

It will be obvious, from a statement of the facts, that the claimant is clearly entitled to the benefits which were awarded to him. The solution of the problem here depends on the simple question as to whether this liability rests on the appellant-insurer or the succeeding carrier, which assumed coverage on this business on April 20, 1958, after the appellant-carrier had cancelled its policy thereon.

It is contention of the appellant-insurer that the effect of the original injury to the claimant had abated and was dormant at the time of its cancellation; that thereafter the disability and operation, for which the claimant was awarded benefits, resulted from a re-injury or aggravation of his preexisting condition; and, for that reason, it is not liable for payment of such benefits.

H. C. Lowery, forty-seven years of age, was an experienced mechanic. He had been employed for several years in that capacity by Potts Motor Company. On Friday, May 24, 1957, While repairing an automobile, the two-foot can, upon which he was standing, slipped from under him and caused him to fall upon the motor of the car. At that time, he felt 'something popping' in his neck. Although he suffered some discomfiture, he finished the day's work and also worked a part of the following day. On Sunday, he entered the hospital in Kosciusko and he was visited that day by appellant, Hugh Potts. Dr. Paul E. Mink, after a thorough exammination, diagnosed the trouble as a protruding intervertebral disc, and placed the patient in traction. Realizing that this case was properly one for a specialist, the doctor referred him to Dr. Orlando J. Andy, professor of neurosurgery at the University of Mississippi Medical Center in Jackson; and on May 31st, the patient was transferred to that hospital. Dr. Andy, from his examination, found that Lowery had suffered a ruptured cervical disc. X-rays and studies confirmed that the trouble was between the sixth and seventh cervical discs. Dr. Andy, being of the opinion that the chances were fifty-fifty that successful treatment could be effected by therapy with traction and without operative procedure at the time, adopted that course and pursued the same for a period of ten days.

Lowery was then permitted to return home where he continued to wear a collar on his neck and traction by weights on his limbs. His condition worsened, and, on June 21st, he was hospitalized for treatment until July 3rd. Under advice of his doctors to perform light work with great care, he returned to the job the latter part of July and was so engaged for about three months. In November, during a four-day period, he was unable to work at all. From time to time, including October 21st Dr. Mink had observed the existence of the same symptoms.

Milton Moore, a fellow worker, who gave corroboration as to the manner in which the accident occurred, observed that Lowery appeared to have lost part of the use of his neck and shoulders, and said that he complained all of the time about his trouble. In his opinion, Lowery's capability to work had been affected forty to fifty percent. Hugh Ellington, the company service manager, estimated that Lowery's ability to perform had been impaired twenty-five percent, and said that he often complained of pain and would be out, and that his condition seemed to be chronic.

At all times during his work, and even on other occasions, Lowery wore the collar for support of his neck, and, nearly every night, kept himself in traction at home. During the period from the date of the injury until the time of his operation, and subsequently, it was necessary for him to take large amounts of aspirin, B. C.'s, and, at times, narcotics, for the relief of pain.

On September 1, 1958, it was necessary for Lowery to return to the hospital in Kosciusko for treatment for about a week. He went back to work on September 16th. Later, after examination and consultation with Dr. Andy, Lowery entered the University Hospital, where he submitted to an operation by Dr. Andy on November 16th. He was discharged from the hospital on November 29th, and went back to work for Potts Motor Company on January 5, 1959.

In the final medical report dated October 22, 1957, which must be mailed to the company on the day treatment terminates, Dr. Mink stated 'There is still residual tenderness in the neck. The defect remains and will likely recur.' In addition, he also said 'Patient discharged But Not As Cured', with the capitalized expression typed in red.

In the opinion of Dr. Mink, the condition at the time of the operation was a mere recurrence of the condition following the original injury. A re-injury and a recurrence, as brought out in the questioning, was one and the same thing. It was 'a flaring of the original disease process caused by--He may not have done anything, it may have just occurred.' He had never heard of any separate and distinct trauma. 'There was no physical or structural difference in his cervical spine in 1958 from that which was precipitated in May 1957 * * * The same identical condition obtains.'

Dr. Andy testified that definitely the injury, which he corrected by surgery, was the one which Lowery sustained at the time he was working on the car. He conceded that there were temporary alleviations of this trouble, but that 'the typical history is usually recurrence irrelative of what a patient is doing'; that Lowery complained of many episodes of pain while working; and that the condition could have been aggravated by merely turning the neck while in bed. The pre-existing condition and the symptoms are two separate entities. One would not necessarily have to have an aggravation of the condition in order to have recurrence of the symptoms. He could suffer no aggravation of the condition whatsoever and yet have recurrence of the manifestation of pain. He was positive in his opinion that the defect, sustained as a result of the incident in May 1957, was the defect...