Walston v. Gardner

Citation381 F.2d 580
Decision Date07 August 1967
Docket NumberNo. 17188.,17188.
PartiesWilliam H. WALSTON, Plaintiff-Appellant, v. John W. GARDNER, Secretary of Health, Education and Welfare, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Victor F. Schmidt, Columbus, Ohio, for appellant.

Bradley Hummel, Asst. U. S. Atty., Columbus, Ohio (Robert M. Draper, U. S. Atty., Columbus, Ohio, on the brief), for appellee.

Before WEICK, Chief Judge, EDWARDS, Circuit Judge, and CECIL, Senior Circuit Judge.

CECIL, Senior Circuit Judge.

This is an appeal from an order of the United States District Court for the Southern District of Ohio, Eastern Division, affirming the Secretary's denial of appellant's application seeking a period of disability and disability benefits under Section 416(i) and 423, Title 42 U.S.C. The appellant, William H. Walston, filed an application for disability benefits on October 4, 1960, in which he alleged that he became "disabled" within the meaning of the Act on December 4, 1957.1 On December 4, 1957, the appellant, while employed as a driver and salesman for the Lancaster, Ohio, Potato Chip Company, was injured when the truck he was driving skidded off an icy road.

Appellant was born in 1908, and received a seventh-grade education. Prior to his injury, appellant worked at a great variety of jobs, including a leather cutter for shoe manufacturers, a packer of glass products, a machine maintenance man, an appliance salesman, a garbage collector, a furnace installer's helper, a school-bus driver, a watchman, a shell inspector at a munitions plant and an electric knife operator. He served in the Army Medical Corps from 1942 to 1945.

Subsequent to his injury, the appellant worked at only one job, as a real estate salesman, for three months in 1959. He failed to make any sales and lost $750. He stayed at this job until the licensed real estate broker, under whom he worked, died. Appellant stated that he went to the State Employment Office, seeking a job, but was told that there was nothing for a man in his condition. He attempted to get a job as a taxicab driver, but was unable to pass the practical portion of the state license examination. Appellant further testified that he applied for other jobs, but when he listed his infirmities on the application, no one would hire him. Two letters dated April 17, 1961, from the city of Lancaster, Ohio and Janitrol, Inc., state that they were unable to hire appellant because of his physical condition.

Immediately following the accident, the appellant began to feel intense pain in his back. All the medical evidence in this case indicates that the appellant has an infirmity affecting his back, limiting his motion and causing him pain. It is unquestioned that appellant's condition is a result of the accident on December 4, 1957.

Dr. R. G. Reesman, an osteopathic physician, stated in a report dated November 11, 1959, that he first examined the appellant on December 8, 1957. He diagnosed the appellant as suffering from osteo-arthritis, with spikes of arthritis in the spine. He noted that ankylosis was present between the fourth and fifth lumbar vertebrae. He also indicated that the appellant's condition caused pain throughout the entire spine and along the sciatic nerves.

On September 15, 1958, the appellant was examined by Dr. E. V. Mosley, in connection with his claim for workman's compensation. Dr. Mosley reported that the appellant's ability to move his torso was somewhat restricted, and that appellant was unable to lie down or sit without severe pain. He recommended an award based on temporary partial disability.

The findings of Dr. Robert R. Kessler, an orthopedic surgeon, who examined the appellant on December 29, 1958, indicate that there was a moderate dorsal kyphosis, that there was a marked flattening of the lumbar lordotic curve, that the lumbar spine moved rigidly as a segment, that motion of the torso was limited, and that there was a marked tenderness at the lumbar dorsal junction, in the lumbo-sacral region, and over the left posterior superior iliac spine region. X-rays revealed scoliosis to the right and localized osteo-arthritis at the lumbo-dorsal junctions with anterior and lateral spurring. The doctor concluded that appellant's disabilities were of a permanent nature, and that he "would be unable to perform types of work requiring frequent bending, twisting motions and heavy lifting." He rated the appellant's disability from the accident at a "high moderate degree" of approximately 60%.

The appellant was examined at the Veteran's Administration Center in Cincinnati, on November 5, 1959, in connection with his application for a pension. The report states that appellant's ability to move his torso was about 75% of normal, and that the appellant complained of pain on extreme dorsal flexion. Moderate crepitation on motion of the right ankle was noted, although there was no swelling or deformity. Some tenderness was noted at the lumbo-sacral joint. The report further reiterated the presence of arthritis in the lumbar and dorsal regions of appellant's spine. The neuro-psychiatric examination revealed that the appellant was somewhat "tense and anxious" during the examination.

Doctor Richard G. Smith, an osteopathic physician and surgeon, submitted three reports dated December 15, 1959, October 4, 1960, and November 15, 1960. His reports state that appellant has a "permanently disabled lower back" and that appellant is "permanently disabled for active work." He confirmed the existence of arthritis, and noted the presence of injured discs. He stated that appellant's ability to move his torso was severely restricted. Dr. Smith further found that appellant has "chronic spondylitis and is unable to work." He stated that there was 100% limitation of motion in the lumbar vertebrae and very limited motion from the dorsal spine to the sacrum, and that ankylosis was present, as well as scoliosis and fibrositis of the lumbar area and both thighs. He noted that appellant walked bent over and that he did not respond to therapy. He considered the appellant unemployable.

Dr. Mignon Hummel, a chiropractor in Lancaster, stated, in a report dated November 17, 1960, that appellant had pain in his lower back, down his right leg and through his knee. She noted stiffness in his entire spine. She performs chiropractic adjustments on the appellant, free of charge, when the appellant feels that the pain is too unbearable.

On October 4, 1960, Dr. Arnold W. Jenkinson, an osteopathic physician and surgeon, stated that "as a result of chronic arthritis process of lower spine he (the appellant) is unable to work." His later report dated April 14, 1961, notes the existence of scoliosis extending from the lumbro-sacral joint to mid-dorsal region. The entire lumbar spine and lower dorsal area was affected with osteoarthritis, with extensive marginal spiking. The body of the twelfth dorsal showed "definite wedging anteriorly, suggestive of a minor compression fracture at this point." The appellant's spine was found to be markedly rigid as a result of his infirmities.

Dr. Carl Richard Coleman, an orthopedic surgeon, examined the appellant on February 27, 1961. He found that there was a loss of the normal lumbar lordosis, restriction of motion, and moderate osteoarthritic changes of the lumbo-sacral vertebrae and lower thoracic vertebrae. During the examination the appellant complained of severe pain on motion of the spine, although the motions were fairly well coordinated. The doctor noted that appellant was belligerant throughout the examination, stating that he wanted nothing to do with rehabilitation centers because they "just won't work." The doctor further stated that "this man in my impression would be a rather poor employment risk mainly because of his personality and his emotional problems as well as because of the moderate degree of physical disability which he presents. It is, however, notable that his emotional situation far overshadows his physical limitations."

On July 26, 1961, the appellant was referred to Dr. Julius Hoffman, a psychiatrist and neurologist, for a psychiatric examination. Dr. Hoffman reported that the appellant refused to submit to such an examination, because he did not consider his impairment to be mental.

Dr. Charles F. Bowen, a radiologist, submitted a report dated June 8, 1962, in which he stated that appellant's right ankle showed a diseased condition believed to be the beginning of a "charcoitis joint", a progressive neuropathic muscular disease. He also reported that there were some rather large arthritic spurs involving all the bodies of the lumbar vertebrae and "there is no doubt that this man has a bad back and this condition would preclude his doing any substantial, gainful work."

The appellant submitted to a psychiatric and neurological examination before Dr. Fernando Mata on September 14, 1962. The neurological examination revealed that the appellant's spinal movements were somewhat limited by alleged pain. Passive movements of both hip joints elicited pain in the low back region. The doctor observed that the appellant walked with a cane, and kept his left hand on his left lumbro-sacral area and limped noticeably. Dr. Mata performed a series of other tests and concluded that this was an "essentially normal neurological examination." The psychiatric examination indicated that the appellant had a personality pattern disturbance, with a paranoid personality and psychophysiologic musculoskeletal reaction, manifested by constant back pain.

Appellant testified at the hearing that he did not take any medication to relieve his pain or improve his condition because he did not believe in it. He stated that there is no cure for arthritis and that there is no use in trying to fool yourself. Because of his pain and discomfort, appellant has not had a good night's sleep since the accident. He has had several blackouts since that time. He still...

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