Tobey v. L & P Const. Co.

• Citation: 370 S.E.2d 897,296 S.C. 122
• Decision Date: 24 May 1988
• Docket Number: No. 1194,1194
• Court: South Carolina Court of Appeals
• Parties: Jerry TOBEY, Jr., Respondent, v. L & P CONSTRUCTION COMPANY, Employer, and Pennsylvania National Mutual Casualty Company, Appellants. . Heard

Page 897

370 S.E.2d 897

296 S.C. 122

Jerry TOBEY, Jr., Respondent, v. L & P CONSTRUCTION COMPANY, Employer, and Pennsylvania National Mutual Casualty Company, Appellants.

No. 1194.

Court of Appeals of South Carolina.

Heard May 24, 1988.

Decided July 11, 1988.

Harold E. Trask, Jr., and Belton T. Zeigler, of Sinkler & Boyd, Charleston, for appellants.

Donald H. Howe and Alvin Hammer, Charleston, for respondent.

GARDNER, Judge:

Jerry Tobey, Jr., (the claimant), in this workers' compensation case, maintains that he suffered on June 18, 1985, a work-related back injury while working for L & P Construction Company (the employer). The single commissioner found as a matter of fact that the claimant had not proved that the "accident" of June 18, 1985 had occurred. On appeal to the full commission, the findings of fact by the single commissioner were affirmed. On appeal to the Court of Common Pleas, the trial judge vacated the commission's order and remanded the case to the full commission for "further determination of all issues presented." We reverse and remand.

The evidence of record is conflicting as to whether an "accident" occurred as alleged on June 18, 1985. The claimant testified that on June 18, 1985, he, along with Jeffrey Nailling (Nailling) and Claude Peeples (Peeples) were setting framing grates. According to the claimant, he, Peeples and Nailings had lifted one of the grates and were moving it into position where it could be set into a bed of wet mortar. The claimant testified that, if the grates were not seated with care, their weight would push the mortar into the drain. He further testified that when he and his co-workers, Peeples and Nailling, were about to set one particular grate in place, he felt a sharp pain in his back, dropped his end of the grate, stood up and walked around complaining of the pain; he testified that he told Mr. John C. Richardson (Richardson), the construction superintendent, of the accident on the day it happened or the following day. The claimant, however, did not seek medical attention until about ten days after the purported accident; he continued to work for the employer until August 1985 when he fell in the shower at home.

At the hearing Peeples testified that he in fact was working with Tobey at the time in question but that Tobey did not drop the grate, and did not complain of pain or back injury during the time that he was working. And Richardson testified that at no time in June 1985 did the claimant make a report to him. Additionally, there was testimony to the effect that the claimant had complained of back pain a good while before the accident occurred.

Dr. Morris, the plaintiff's family doctor, testified in his deposition that he had treated the claimant for prostatitis but had never before treated him for back injury; he testified that about ten days after the alleged "accident," the claimant came to him complaining of pain in his right leg and hip for which Dr. Morris prescribed drugs. Eventually, the complainant, while he was in the shower bathing, experienced a collapse of his leg, and then went to Dr. Morris; it was about this time that the claimant quit working for the employer.

Dr. Morris' deposition testimony and correspondence indicate that the claimant had suffered, what he believed to be, a herniated nucleus pulposus (a herniated disc). Dr. Morris testified that he saw the claimant on July 29, and at that time the claimant displayed the first objective symptom of some sort of injury; that symptom, the loss of his right ankle reflex, was a new development. From this symptom, Dr. Morris concluded that there was something in his lower back putting pressure on the nerve that controlled the reflex. At that time he was given a stronger anti-inflammatory drug. Sometime around the middle of August 1985, the claimant was referred to Dr. Barrone, a neurosurgeon from Charleston, South Carolina. Dr. Morris testified that he consulted with Dr. Barrone. After the hearing before the single commissioner on December 17, 1985, although the claimant's attorney had made no reservation for subsequent evidence or testimony, he attempted to introduce the results of a CT scan made by Dr. Robert N. Steinberg and copied to Dr. Barrone on December 24, 1985. On January 3, 1986, Dr. Morris reported this diagnosis to the claimant. A motion was made before the single commissioner to include the CT scan and accompanying diagnosis as part of the record. The motion was denied; this denial was affirmed by the full commission. This Court, however, has carefully examined the report and given it due consideration in its decision making process.

The single commissioner's decision reviews the conflicting testimony and concludes with emphasis in his written decision, that the claimant had a pre-existing back injury or condition; the hearing commissioner found as a matter of fact that the accident alleged to have occurred on June 18, 1985, had not occurred; the effect of the commissioner's order, although expressed more euphemistically, is that the single commissioner found as a matter of fact that the claimant had untruthfully testified that he was injured while working. There is substantial evidence...