Walters Bros. Builders v. Loomis, 44044

• Decision Date: 13 June 1966
• Docket Number: No. 44044,44044
• Citation: 187 So.2d 586
• Court: Mississippi Supreme Court
• Parties: WALTERS BROTHERS BUILDERS and Aetna Casualty & Surety Company v. E. C. LOOMIS.

Page 586

187 So.2d 586

WALTERS BROTHERS BUILDERS and Aetna Casualty & Surety Company v. E. C. LOOMIS.

No. 44044.

Supreme Court of Mississippi.

June 13, 1966.

W. Thad Cochran, Watkins & Eager, Jackson, for appellant.

Binder & Bush, Pyles & Tucker, Jackson, for appellee.

SMITH, Justice:

This case involves the workmen's compensation claim of appellee and cross-appellant, E. C. Loomis, based upon an injury sustained during the course of his employment by Walters Brothers Builders, appellant. Aetna Casualty & Surety Company was the employer's workmen's compensation insurance carrier.

The Attorney Referee found that (1) claimant had reached maximum recovery on August 5, 1963, and had a 30% permanent partial disability of the right arm and (2) a preexisting condition of arthritis and bursitis was a material contributing factor in the result following injury, and that 20% of the disability was attributable to the preexisting condition.

The Full Commission affirmed the findings of the Attorney Referee.

On appeal, the circuit court reversed the Commission and held that (1) there was no substantial evidence to support its finding that a preexisting condition was a material contributing factor in the result following injury and (2) claimant had suffered a complete loss of use of his right arm, the result of which was total incapacity to earn wages as a painter, or in any other employ.

The court concurred with the finding of the Commission that the injury was to the right arm, a scheduled member, and that claimant's compensation was limited to 200 weeks as specified in Mississippi Code Annotated section 6998-09(c)(1) (Supp.1964), at the rate of $35 per week.

From that judgment, Walters Brothers Builders and Aetna Casualty & Surety Company have appealed here, and claimant, E. C. Loomis, has cross-appealed.

Appellants, Walters Brothers Builders and Aetan Casualty & Surety Company, contend that the finding of the Commission was based upon substantial evidence and should be reinstated.

Appellee and cross-appellant, E. C. Loomis, contends there was no substantial evidence to support the Commission's finding and the circuit court was correct in reversing the Commission but erred in relating the injury to the arm, a scheduled member, and should have held that the disability was to the body as a whole.

The evidence shows that Loomis was a painter and was injured in September 1962 when he fell from a 5 1/2 to 6 foot ladder while painting a carport, striking a concrete driveway with his right shoulder. On the same day, he was examined by Dr. Wood. A tentative diagnosis was thought to show an 'acromioclavicular separation.'

Upon further examination the next day, Dr. Wood was of the opinion that there was no capsule tear. Four days later, he was again seen by Dr. Wood who reported that, 'examination * * * showed 'freezing' of the right elbow, from old arthritis due to immobilization * * * He gives a history of old bursitis in that shoulder * * * still soreness. Soreness and restriction of motion indicated more of a bursitis of shoulder.'

About a month later, on what apparently was claimant's last visit to Dr. Wood, x-ray did not show calcification, but it was Dr. Wood's opinion that he had a 'mild acromioclavicular separation without capsule tear, but now has a (sic) exacerbation of an old bursitis or either a tenosynovitis of the long head of the biceps.'

On October 25, 1962, Dr. Wood referred claimant to the Jackson Bone & Joint Clinic for examination and evaluation, where he was seen by Dr. W. C. Warner, an orthopedic surgeon.

Dr. Warner saw him about a dozen times between that date and August 5, 1963, the date on which the Attorney Referee held that claimant had reached maximum recovery. The treatment prescribed over that period was physical therapy, and exercise and continued injections of hydrocortisone.

On August 5, 1963, Dr. Warner reported, '* * * we are discharging him as of this date, with an estimated permanent disability of approximately 15% of the right upper extremity.'

The Attorney Referee's findings of percentages as to the permanent partial disability of the right arm and as to the degree to which the preexisting condition contributed to the result are based upon testimony of Dr. Nix, a physician to whom claimant had been referred by his attorneys shortly before the hearing for examination and evaluation of his injury.

Appellee and Dr. Nix testified at the hearing in support of the claim. Appellee gave a history of bursitis in his right shoulder and right elbow prior to his injury and said that he had consulted his personal physician who treated him for it. On further examination, his recollection of the details was vague and he minimized the seriousness of the condition. The doctor who diagnosed and treated him, and who was his family physician, did not testify. Appellee stated the condition had not persisted and that pain had subsided in a few days.

The x-ray examination of the claimant by Dr. Nix included comparison views of the left shoulder demonstrating minimal change in the acromio-clavicular joint with a widening of the joint space on the right, also that there was a small amount of calcification in the subdeltoid bursa on the right. Claimant failed to give Dr. Nix the history of preexisting bursitis.

In testifying, Dr. Nix stated that claimant initially appeared to have pain when using his right shoulder. The measurement of the right arm measured one-half centimeter less in circumference than the left arm. There was minimal weakness of flexion, extension and abduction of the right shoulder. He had almost normal range of motion of the right shoulder, although he stated he had considerable pain when he elevated his arm beyond forty-five degrees. He was given the Yergason test for acute bicipital tenosynovitis, and that was negative. Dr. Nix concluded that claimant had a frozen shoulder syndrome, with a second diagnosis of sub acute tenosynovitis. This was explained as an inflammation of the biceps tendon as it passes through the groove in the humerus at the shoulder. He concluded that the claimant had a 25 to 30 percent permanent partial disability of the right upper extremity. He stated that his opinion was based on the history given him by the claimant as well as his clinical findings.

Dr. Nix testified that on another occasion on which he had examined claimant he had found him suffering from osteoarthritis in his knee. He said that when claimant was referred to him for examination in connection with his injury that he 'had no information of him ever having a problem with his shoulder before.' He stated he had been in good general health until the time of the accident. Dr. Nix further testified that if he had been informed by claimant that there had been a prior diagnosis by another doctor of an arthritic or bursitis condition in his right elbow and right shoulder this would have had some effect upon his own diagnosis and he would have included another diagnosis which he did not include. He...