Strickland v. M.H. McMath Gin, Inc.

• Decision Date: 03 October 1984
• Docket Number: No. 54444,54444
• Citation: 457 So.2d 925
• Parties: Charles W. STRICKLAND v. M.H. McMATH GIN, INC. and American Auto Insurance Company.
• Court: Mississippi Supreme Court

Page 925

457 So.2d 925

Charles W. STRICKLAND v. M.H. McMATH GIN, INC. and American Auto Insurance Company.

No. 54444.

Supreme Court of Mississippi.

Oct. 3, 1984.

Robert G. Germany, Cothren & Pittman, Jackson, for appellant.

Thomas H. Suttle, Jr., Daniel, Coker, Horton & Bell, Jackson, for appellees.

Before WALKER, P.J., and HAWKINS and SULLIVAN, JJ.

SULLIVAN, Justice, for the Court:

This is an appeal from a decision by the Circuit Court of Humphreys County reversing an award by the Workmen's Compensation Commission of disability benefits and medical expenses to appellant for injuries sustained in a fall at work at appellee's cotton gin. The issues presented for decision are whether (1) certain factual inconsistencies between the evidence and the hypothetical question posed to appellant's doctor were so material as to require that the doctor's conclusion be disregarded that the fall caused appellant's back condition, and whether (2) the failure of appellant's Illinois doctors to furnish appellee with a report within the prescribed time on appellant's treatment bars appellant's recovery for the medical expenses incurred in Illinois. We conclude that the discrepancies between the evidence and the hypothetical question were not so significant as to render incompetent the doctor's finding of a causal connection between the fall and appellant's back condition, and conclude that appellant showed no grounds for excusing the requirement that he have his Illinois doctors furnish a medical report to appellee within twenty days of the first treatment in order to secure payment of those medical expenses. We reverse and remand to the full Commission to enter an appropriate award.

I.

At about 4 o'clock p.m. on the afternoon of September 20, 1976, appellant Charles W. Strickland, a truck driver and occasional laborer for appellee, McMath Gin, Inc., was assisting several co-workers in the repair of a cotton press. A co-worker standing on top of the press ten feet above appellant was passing metal weights, known as "dogs" down to appellant to carry them outside. As he was walking away with one of the "dogs" he slipped upon some grease and water and fell backwards onto the concrete floor. Appellant managed to hold the weight away from him to prevent being crushed by it and was able to break the fall with his elbows. Although he sensed pain in his lower back, he got up and completed the day's work. Less than an hour after he left work, he attempted to get out of his vehicle when the pain in his back became so strong that he required the assistance of a friend to help him out of the car.

The next morning, after he reported the injury to his employer, he was sent to a doctor who recommended hospitalization. Over the next three to four weeks, appellant was treated by several doctors in various hospitals in Mississippi. As his condition was not improving and as he had no funds to support himself in Mississippi, he requested that he be transferred to a physician or hospital in Chicago, Illinois, where his family lived. His treating physician refused to transfer him, so on October 14, 1976, he left Mississippi and entered the VA hospital in Chicago. For the next ten months he was treated in several Chicago area hospitals for his back injury.

The accident was described in Strickland's motion to controvert as occurring when a "co-worker threw a 130-pound iron piece of equipment down to claimant from a height of 10 feet" which he caught but "was thrown backward to the ground, twisting to avoid being crushed". At the hearing before the administrative judge, Strickland testified that the weight was handed to him and that he was carrying it outside when he slipped and fell. He estimated that the weight of the "dog" was between 35 and 40 pounds. The only medical evidence in the record from the Mississippi physicians was that the appellant suffered from a back pain, source undetermined.

Dr. Allan Hirschtick, an orthopedic surgeon from Chicago, Illinois, testified by deposition on behalf of appellant. Dr. Hirschtick testified that he saw appellant on two occasions in February, 1977, and in September, 1978. In his opinion, the appellant was suffering from a herniated intervertebral disc which occurred as a result of his injury on the job in September, 1976. The deposition contained a lengthy hypothetical question posed to Dr. Hirschtick concerning the appellant's injury to which no objection was made by the attorneys for the employer. In pertinent part, the hypothetical question described the injury as occurring in the following manner:

... While he is standing on a floor with some grease and water beneath his feet, a fellow employee passes or drops down to him a metal weight of approximately 130 pounds from the height of approximately ten feet to this man, who in the process of receiving the metal falls backward holding the metal away from his body, lands on his rear, and then falls further so that his back then strikes the floor and he strikes a glancing blow to the back of his head.

At the same time in an endeavor to keep the weight off his body, he makes a sudden twisting motion.

The facts contained in the hypothetical appear to have been taken from the motion to controvert and not from the testimony given by the appellant before the administrative law judge.

On December 19, 1979, the administrative judge entered an order finding that there was no credible medical evidence to establish that the herniated intervertebral disc was in any way related to the accidental injury. This finding was based on the ruling of the administrative judge that the unopposed hypothetical question submitted to Dr. Hirschtick contained material facts which were not in the record.

The full Commission reversed the administrative judge as to the admissibility of the hypothetical question. The Commission found that the hypothetical contained two facts that were inconsistent with the testimony, (1) the object involved weighed 40 pounds, not 130 pounds; (2) Strickland was walking with the object rather than catching the object when he fell. The Commission found that the inconsistencies in the hypothetical question as to the details of Strickland's fall were not such as to justify "rejection of the unopposed testimony of a qualified and disinterested expert without the opposing parties' objection." The Commission found that on a preponderance of the evidence Strickland's back condition was directly related to the compensable accident of September 20, 1976, and ordered that the employer pay temporary total disability benefits of $68 per week for a period of approximately two years beginning on the date of the accident. The Commission also ordered the employer to pay for all reasonable and necessary medical services, including those rendered to Strickland by Dr. Hirschtick and by the Chicago area hospitals.

On appeal, the circuit court of Humphreys County, Mississippi, reversed the Commission order on the ground that the hypothetical question posed to Dr. Hirschtick should not have been considered because material facts contained in the hypothetical were not in evidence in the case. That court thus found that there was no credible medical evidence establishing a causal connection between Strickland's condition and his injury. The court further found that the employer did not authorize and is, therefore, not responsible for any medical services, supplies or treatment that Strickland obtained outside the state of Mississippi.

II.

WERE THE INCONSISTENCIES IN THE HYPOTHETICAL QUESTION SO

MATERIAL AS TO REQUIRE THAT DR. HIRSCHTICK'S

OPINION BE DISREGARDED?

It is elemental that a compensation claimant generally has the burden of proof of showing an accidental injury arising out of employment and a causal connection between the injury and the claimed disability. Potts v. Lowery, 242 Miss. 300, 134 So.2d 474 (1961). If the hypothetical question and Dr. Hirschtick's response to that question must be disregarded, then the appellant has clearly not shown credible medical evidence to support a finding of disability, temporary or permanent, as a result of the injury. The Workmen's Compensation Commission is the trier of facts, as well as the judge of credibility of the witnesses, and the findings of fact supported by substantial evidence should be affirmed by the circuit court. Roberts v. Junior Food Mart, 308 So.2d 232 (Miss.1975). All questions of law and fact are reviewable by the circuit judge in reviewing a compensation case, Mississippi Code Annotated Sec. 71-3-51 (1972), but unless prejudicial error is found or the verdict is against the overwhelming weight of the credible evidence, the Commission's order shall be affirmed. Johnson v. Ferguson, 435 So.2d 1191, 1195 (Miss.1983). While the procedural rules of the Mississippi Workmen's Compensation Commission provide that the general rules of evidence shall be relaxed in compensation hearings so as to permit the introduction of any relevant and competent evidence pertaining to the issue that will throw light on the matter in controversy, (Rule 8. See Dunn, Third Edition, Mississippi Workmen's Compensation, page 594), this does not relieve lawyers from their obligation to object to a hypothetical question if it assumes facts that are not in evidence. Alexander v. Campbell Construction Company, 288 So.2d 4, 7 (Miss.1974).

It is a question of law for this Court to determine whether a hypothetical question on which an expert's opinion is based is supported by sufficient evidence. See Belesky v. City of Biloxi, 412 So.2d 230, 233 (Miss.1982). While it is generally recognized that, where facts are disputed, a party may state facts in a hypothetical question consistent with his theory of the case, Magnolia Hospital v. Moore, 320 So.2d 793, 798 (Miss.1975), a party may neither assume facts unsupported by any evidence, Washington v. Greenville Manufacturing and Machine Works, 223 So.2d 642, 644 (Miss.1969), nor...