Summary
In Cromer v. Newberry Cotton Mills, 201 S.C. 349, 23 S.E.2d 19 (1942), we held that a change in condition means a change in the physical condition of the claimant as a result of the original injury, occurring after the first award.
Summary of this case from Brayboy v. Clark Heating Co., Inc.Opinion
15473
November 28, 1942.
Before E.H. HENDERSON, J., Newberry County, June, 1942. Judgment modified.
Proceeding under the Workmen's Compensation Act by M.S. Cromer, employee, opposed by the Newberry Cotton Mills, employer, and the American Mutual Liability Insurance Company, insurance carrier. From a Circuit decree affirming an award of the industrial commission in favor of the employee, both the employer and the insurance carrier appeal.
The order of Circuit Judge Henderson, required to be reported, follows:
This is an appeal from an opinion and award of the South Carolina Industrial Commission. On September 10, 1940, the claimant, M.S. Cromer, was engaged in his work at the Newberry Cotton Mills, and in removing a beam and placing it upon a truck, received an injury to his back. No bones were broken and his injury was diagnosed as a strained back. He was in bed for two weeks, and for three subsequent weeks he stayed around the house, doing no regular work.
Claim was filed with the commission and a hearing was conducted by Commissioner John W. Duncan. On December 31, 1940, the hearing commissioner filed an opinion and award, providing that the defendants should pay compensation to Mr. Cromer at the rate of $9.25 per week for five weeks, beginning September 10, 1940, together with certain medical expenses.
Commissioner Duncan in his opinion made the following statement: "There was testimony to show that Mr. Cromer has since the five week period of disability, due to the strained back, become disabled from other reasons not connected with his back injury, but due principally to disease having no connection with this injury. The claimant did not attempt to show that there was any connection between the present condition and that resulting from the injury of September 10, nor does the medical testimony tend to infer that there is any connection."
In his findings of fact, Commissioner Duncan stated "any disability or other condition which may affect Mr. Cromer since the five week period beginning September 10, is due to conditions in no way connected with the injury of September 10."
And in his conclusions of law he said "there is no evidence to show that the disability, if any, subsequent to the five week period, beginning September 10, was due to or connected in any way with the injury of September 10."
From this award the claimant made application for a review before the full commission on the ground that the award of Commissioner Duncan was not in accordance with the law and the evidence. By an order dated April 3, 1941, the opinion of Commissioner Duncan was affirmed by the full commission.
No appeal was taken by the claimant for this decision to the Court of Common Pleas.
Thereafter the case was reopened by the claimant under Section 46 of the Act, on the ground that he has suffered a change of condition. A considerable amount of medical testimony was taken and it was decided by the hearing commissioner, Mr. Duncan, that the defendants should pay Mr. Cromer compensation at the rate of $9.25 per week beginning at the date of the five weeks compensation paid him originally, such payments to continue until it could be learned that the disability has diminished or terminated entirely. The defendants were ordered to pay the medical expenses also.
From this award of the single commissioner the defendants applied for a review by the full commission upon the following grounds.
1. "That there was a single commissioner opinion and award dated December 31, 1940, which opinion and award were affirmed by the full commission on April 3, 1941, from which there was no appeal, wherein all questions including the extent of injury and duration of disability were fully adjudicated which affirmed opinion and award the employer-carrier has fully complied with so that as to all questions the case is res adjudicata.
2. "That the single commissioner erred in his opinion and award dated January 14, 1942, in that the said opinion and award are contrary to and not supported by the law and evidence in the case, there being no testimony whatsoever upon which a change of condition subsequent to April 3, 1941, could be predicated."
The full commission, by an order, filed on March 16, 1942, affirmed the hearing commissioner and the defendants now appeal to the Court of Common Pleas for Newberry County upon the following grounds:
1. "That the full commission adopted as its own opinion and award the opinion and award of hearing commissioner Duncan, and erred, it is respectfully submitted, in predicating its award upon Section 46 of Workmen's Compensation Act after the hearing commissioner had previously filed an opinion and award dated December 31, 1940, which opinion and award were affirmed by the full commission on April 3, 1941, from which opinion and award there was no appeal wherein all questions, including the extent of injury and the duration of disability, were fully adjudicated. Defendants having fully complied with said affirmed opinion and award have discharged their full liability under the Workmen's Compensation Act and as to all questions the case is res adjudicata.
2. "That the full commission adopted as its own opinion and award the opinion and award of hearing commissioner Duncan and erred, it is respectfully submitted, in predicating its opinion and award upon speculation, surmise and conjecture, in that it was found that there was expert medical testimony to support a change of condition, whereas there was no competent medical testimony to sustain a finding that there had been any change of condition for which defendants would be liable subsequent to April 3, 1941, the date of the original full commission award and opinion and award.
3. "That the award and the opinion and award are contrary to the law and the evidence in the case."
The appeal was heard by me while presiding at the April 27, 1942, term of the Court of Common Pleas for Newberry County.
Taking up the first ground of the appeal, I do not think that an award of the Industrial Commission stands on the same basis as the judgment of a Court. Such a judgment, after the adjournment of the Court for the term, becomes final and conclusive and is res adjudicata. In some respects the award of an Industrial Commission is final and conclusive also, but a compensation act must be construed as a whole, with regard to the purpose of the legislation. Unlike a judgment of a Court, the Industrial Commission is given a continuing jurisdiction over its awards. This continuing jurisdiction conferred upon Industrial Commissions varies in the different states. In South Carolina such continuing jurisdiction is conferred for one purpose by Section 46 of the Act, which provides in part as follows:
"Upon its own motion or upon the application of any party in interest on the ground of a change in condition, the industrial commission may review any award, and on such review may make an award ending, diminishing, or increasing the compensation previously awarded, subject to the maximum or minimum provided in this article, and shall immediately send to the parties a copy of the order of the award."
It will be noted that in the event of a change in condition, the commission may review "any award." No doubt the purpose of this section is to enable the commission to end compensation in cases where the change in condition amounts to a complete recovery; to enable it to diminish compensation where the change in condition is for the better; and to increase compensation where the facts developed upon a review show that the change in condition is for the worse. This continuing jurisdiction is given so that full justice may be done in any particular case.
As stated in a footnote to 71 C.J., 1430, "the right of the Commission to open an award during the period of compensation, under a provision that the award may be reopened on a change in the employee's condition, is similar to that of a Court to open a judgment during the term at which it was rendered."
In 71 C.J., 1197, it is said: "Such statutes must be considered together with other provisions of the act, and when so considered in the light of statutes empowering the commission, on the ground of change of condition, to review its award at any time, and providing that the award is conclusive on all parties unless proceedings are taken within a stated time, it is held that the legislative intent is that, except for a change in condition, the award is final and conclusive on all questions within its jurisdiction unless the statutory proceedings are taken within the time limit, and after such proceedings are commenced and determined it is conclusive on all such questions except for a change in condition."
And at page 1432 of 71 C.J., we find: "Where a tribunal, making a certain award, order, or finding under the compensation act, has a continuing jurisdiction over it and is authorized to alter or set it aside, it has the power to do so within the statutory limitations of its authority, although the employee or other party to the proceeding has, by lapse of time or otherwise, lost the right to appeal from the original award, order, or finding, or the absolute right to a rehearing, and, except for the exercise of such right to review by the original tribunal, the original award, order, or finding has become final."
See, also, 71 C.J., 1441.
It seems to me that it may be regarded that there was written into the first award, as a matter of law, that it was subject to review for change in condition under Section 46 of the Act.
In view of this continuing jurisdiction possessed by the commission, I do not think that the first award in this case amounts to res adjudicata to the extent of depriving the claimant or the commission of the right of review for a change in condition granted by Section 46 of the Act. No doubt the first award was conclusive in all respects other than for a change in condition, but as to this the power and the jurisdiction of the commission was a continuing one for this purpose.
The two Georgia cases upon which the defendants mainly rely, Aetna Insurance Company v. Davis, 172 Ga. 258, 157 S.E., 449, and Perry v. American Insurance Company, 65 Ga. App., 130, 15 S.E.2d 471, appear to deal with cases where compensation was disallowed in the first award. It is manifest that where there is no compensation awarded there can be no increasing or diminishing of it.
See 71 C.J., 1432, Section 1387.
In the present case there was an award for disability, the claimant having been given compensation for a period of five weeks, thereby showing that disability did result to some extent from the accident.
Every case in which a commission increases or diminishes compensation on account of a change in condition involves an alteration by the commission of its previous findings. Upon review the commission necessarily considers testimony with reference to the degree of disability which was not presented to it at the first hearing. In the present case the award of the hearing commissioner dated December 31, 1940, and the concurring opinion of the full commission on April 3, 1941, were based upon the evidence and information at that time presented to the commission. The mere fact that there is a difference between the first award and the award made after a review, does not entitle a defendant to claim that the first award is res adjudicata. The question before the commission upon the review was, has there been a change in condition, a question which was not at all before the commission at the first hearing.
In my opinion the first ground of the appeal should be overruled.
Taking up next the second ground of the appeal, it is clear that a change in condition means a change in the physical condition of the claimant as a result of the original injury, occurring after the first award.
Commissioner Duncan in his opinion of January 13, 1942, in the statement of the case said that Mr. Cromer was totally disabled for several weeks immediately following September 10, 1940, after which his disability seemed to lessen to some degree and from all appearance was in the process of recovery. However, along toward the end of the year, 1940, his condition again started affecting his ability and condition to grow worse. In the findings of fact he said:
"The claimant had never completely recovered from the condition or conditions which resulted from his original injury."
* * *"It is found now that the conditions disclosed in these medical reports together with the injury sustained, produced a condition affecting the entire physical makeup of Mr. Cromer, as well as the mental, which totally disabled him at the time from doing any work."
And in the conclusions of law the commissioner stated that "the evidence last received, which is practically expert medical testimony shows conclusively that Mr. Cromer has never recovered sufficiently to return to work and he is now unable to do work of any kind."
In considering the facts, the extent to which the Court may go upon appeals from the industrial commission is set forth in the case of Buckman v. International Agricultural Corporation, 196 S.C. 153, 13 S.E.2d 133, 134, where it is said: "The findings of fact by the industrial commission on a claim under said act are conclusive unless there is no testimony to support such findings; but its findings of fact must be founded on evidence and cannot rest on surmise, conjecture or speculation. Rudd v. Fairforest Finishing Company, 189 S.C. 188, 200 S.E., 727, and cases cited therein; and Cagle v. Judson Mills, 195 S.C. 346, 11 S.E.2d 376."
Our first inquiry is, then, Is there any evidence to support the finding of the commission that there has been a change in condition since the time of the first award?
In my opinion there is evidence in the record to support this finding of the commission. The testimony taken at the first hearing on December 16, 1940, shows that after the first five weeks claimant became able to help around the house and continued to do so for the next four weeks. About nine weeks after the injury, he suffered some kind of attack and became much worse. This condition continued until about the first of January, 1941, at which time he became better and was able to wait on himself and to get around without help. He continued in this improved condition for about three months, and about the first of April, 1941, he began to get worse, and is now in a helpless condition and totally disabled. Some one has to wait upon him all the time, feed him, dress him, and put him to bed. In June, 1941, upon examination by a physician it was found that he had first, marked hypertrophic arthritis; second, certain sequelae resulting from a cerebral accident occurring nine weeks after the injury to his back; third, syphilis; and fourth, marked arteriosclerosis. Several of these dated back prior to the time of the accidental injury.
It seems to me that this evidence which was given by some of the doctors, by Mrs. Lillie Rowe, the daughter of the claimant, and by Thomas Rowe, her husband, furnishes some evidence of a change in condition taking place after the first hearing and award and before the review and later award.
The defendants stress the point that Dr. F.E. Zemp did not see the claimant prior to the time of the first award, and from this fact they argue that the testimony of this physician, as well as that of Dr. Fred C. Brinkley, could throw no light upon a change in condition. It seems to me, however, that the testimony of Dr. Zemp does throw light on this case, even though he did not examine Mr. Cromer prior to June 17, 1941, since it enables us to compare the former condition shown by other testimony, with the subsequent condition developed by the evidence of Dr. Zemp. The medical testimony, of course, must be taken in connection with the testimony, of Mr. and Mrs. Rowe, with whom the claimant resides, and who have, therefore, had an opportunity to observe his condition from day to day throughout his period.
My conclusion is that there is some testimony to support the finding of the commission with respect to a change in condition.
The next question which must be determined is, Is there any evidence to support the finding of the commission that the change in condition was a result of the original injury? Here again we must remember that the Court is not authorized to review the findings of fact by the commission except for the one purpose of determining whether or not there is any evidence to support the award, the function of the commission being similar to that of a jury in a law case.
On this point the single commissioner stated in the opinion of January 13, 1942, as follows:
"Mr. Cromer was injured by accident on September 10, 1940. The voluminous medical testimony and reports of physicians who examined him all tend to show that Mr. Cromer was an extremely fragile man at the time of this accident. His condition, however, whatever it may have been up until the accident, was not sufficient to disable him, but he had as a fact worked with fair regularity as will be shown by the weekly wages earned. The injury from the original accident on September 10, in some manner evidently caused other conditions which had hitherto been dormant to become active and affect his entire physical makeup.
* * *"The original injury was to the spine and while it may not have been, within itself, a very serious injury, it came at a time when the employee was unable from other physical conditions to throw off the effects of the injury.
"It is further found that then numerous medical facts which were disclosed by the doctors who examined Mr. Cromer after this injury, although they were admittedly present at the time of the injury, did not disable him nor prevent him from earning a living.
* * *"Consideration is also given to the fact that Mr. Cromer did work regularly and earned an average weekly wage of more than Fifteen ($15.00) Dollars for a number of years up until the date of the accident. This fact the commissioner believes is entirely sufficient upon which to base the conclusion that the numerous physical findings, other than the injury, however bad that it may have appeared to be, they did not actually disable him, it must be concluded that the injury was the precipitating influence causing these preexisting conditions to contribute to his disability."
It seems to me that one of the most important facts is that for a period of forty years, the claimant had done work at the mill up until the time of this accident, and from that very time on, he has been more or less disabled and is now totally disabled. It will be noted that the commissioner gives consideration to this fact along with the medical testimony.
I think also that the testimony of Mr. and Mrs. Rowe showing the condition of Mr. Cromer beginning at the time of the accident and continuing with various improvements and relapses up to the point of total disability, is some testimony in support of the commission's findings.
The medical testimony is conflicting as to whether the change in condition is a result of the original injury, or whether it is a result of illness disconnected with the injury.
Dr. R.W. Houseal was of the opinion that the present condition of Mr. Cromer is not a result of the accident. Dr. Fred C. Brinkley had never seen the claimant, but in reply to a hypothetical question, stated that he felt that any accident which had disabled a man who has been active all these years had lowered his resistance.
Dr. Zemp in the course of his testimony stated:
"Q. Now, if this man in lifting a warp beam weighing 200 pounds, and he felt something crack, taking into consideration he was sixty-six years of age at that time, and that he was disabled instantly, almost, and he had had any pre-existing disease, would or not that have aggravated disease or condition that he had that was in a dormant state, in your professional opinion? A. To some degree, yes, or to a minor degree, I would say.
"Q. Could that degree become better or worse, taking into consideration the man's age of sixty-six and he had been able to work all of these years and never had any accident or any disability or sickness? A. Yes, it could.
"Q. It could do that? A. Yes.
* * *"Q. Now, that arthritis condition that he had, would a strain or a jerk or heavy lift, would there have been a remote possibility of it aggravating that condition that you stated? A. It could stir it up, certainly.
"Q. Would it stir it up instantly or over a period of time? A. It would, stir it up instantly. It could do that. In fact, if you want to know what I think could have happened, I could tell you that. Often, where you have marked changes in the vertebra, sharp edges to the vertebra, and it is a good deal roughened, when you lift something very heavy or injure the spine, you may break off a little bit of that bone which is an over production of bone, and cause some considerable amount of pain in the back. He could have either done that or just had a back sprain.
"Q. A man of 66 years of age would have been more apt to ring or break off that little bone that you speak of than a younger man? A. Yes, that is true. The bones are a little more brittle. Now he also has a very marked general arteriosclerosis involving all of these red lines and these arteries in the pelvis (indicating on printed design). The x-ray picture showed a marked arteriosclerosis, also some calcification. These arteries show up very prominently in the x-ray, which is unusual for it to do that. Marked arteriosclerosis is shown at the base of the brain and on down the leg and everywhere. There was a stone in the presence of the gall bladder region, a stone which I take to be a gall stone from the size of it or location. He also has syphilis, which involves the entire system.
"Q. Now, doctor, if he had this syphilis and it in a dormant stage, could that accident or strain or lift have aggravated that syphilitic condition until it would become disabling and have affected the heart in any way or the blood stream? A. It would not make any difference in the syphilis, it could have thrown an added strain on the arterial system, which is very hard to say how much damage is due to general arteriosclerosis and how much might be due to the syphilis but we do know that syphilis does affect the arteries which we call the athermatous condition. Now also there was a very slight evidence of previous paralysis of the right arm and right leg.
"Q. What do you mean by previous, do you mean he had a slight paralysis prior to the injury or after the injury? A. That all dates back to nine weeks after the accident when he had the cerebral accident.
"Q. Could it have been possible for the accident to have had any connection with that? A. It could to a minor degree.
* * *"Q. Well, a man could have a cerebral condition in a dormant state and if he did not have an accident, he might not ever develop it, is that true? A. Yes, that is true.
* * *"Q. Now, doctor, you say that you believe, or it is your opinion, that from the history and from your findings, that he had a cerebral embolus approximately nine weeks after September 10, 1940? A. Yes.
"Q. And I believe you also testified that it might possibly have come from this strain which he sustained in September 10? A. It could have been a contributing factor.
* * *"Q. Doctor, if you found a man, say Mr. Cromer, 66 years old, having worked at one place for about forty years, only absent on two occasions with minor trouble such as influenza during that period of time, lifting weights of 200 pounds and doing his work daily, and then had this accident and fell to the floor suffering with pain, carried to a doctor's office and to his home, given a hypodermic, staying in bed two weeks and then the balance of the history as given to you, from your examination, would you say that in your medical opinion that strain or heavy lift contributed or accelerated or aggravated the condition? A. I would say it very likely did.
"Q. Doctor, you say that in your opinion it very likely did contribute to his condition? A. Yes.
"Q. Now, to what extent do you feel that the back strain contributed to his condition? A. Well, I would say anyone in the condition that he was in when this thing happened, that it is possible that his condition could be aggravated or stirred up. I might give you all an illustration.
"Q. Well, doctor, how long do you feel that the aggravation from the back strain would continue? A. Well, as I say, in this particular case, I don't know whether I could give a definite statement on just how long because it would all depend on how severe the injury was at the time. If it was a pretty serious injury, it would last for quite a while, but just a slight injury, it would not last very long."
In the case of Green v. City of Bennettsville, 197 S.C. 313, 15 S.E.2d 334, 340, the Supreme Court said: "The principle of law, where an injury aggravates a pre-existing condition or disease, was settled in the case of Cole v. State Highway Department, 190 S.C. 142, 2 S.E.2d 490, where Mr. Justice Fishburne states the weight of authority in compensation cases leans to the view that even where an injury aggravates a pre-existing condition or disease so that the disability is continued for a longer period than would normally result from the injury alone, such disability is nevertheless compensable."
It seems to me, therefore, that there is some evidence to support the finding of the commission that the change in condition is the result of the original accident, from which the claimant had never fully recovered.
My conclusion is that the second ground of the appeal should be overruled.
I think also that the third ground of the appeal, which is "that the award and the opinion and award are contrary to the law and evidence in the case," should be overruled.
It is therefore ordered that the exceptions of the defendants be, and they hereby are, overruled; and the opinion and award of the South Carolina Industrial Commission dated March 16, 1942, be, and it is hereby, affirmed.
Messrs. Haynsworth Haynsworth, of Greenville, Counsel for Appellants, cite: As to Jurisdiction of Industrial Commission, in the absence of an appeal, under Section 45 of Workmen's Compensation Act, to re-open a case in which they had previously determined matters of fact: (Ga.), 15 S.E.2d 471; 200 S.C. 308, 20 S.E.2d 713; 198 S.C. 419, 18 S.E.2d 341 (4); 71 C.J., 1435; (Ill.), 183 N.E., 220; (Ill.), 149 N.E., 805; (Okla.), 16 P.2d 1073; 190 S.C. 142, 2 S.E.2d 490; Sect. 60 of Act. As to Finding of Fact of Industrial Commission, from which there is no appeal, being Res Judicata of that factual issue: (Ill.), 137 N.E., 462 (1); (Mo.), 61 S.W.2d 950; 185 S.C. 497, 194 S.E., 447; 186 S.C. 374, 195 S.E., 646; 189 S.C. 188, 200 S.E., 727; 190 S.C. 425, 3 S.E., 2d 493; 191 S.C. 458, 4 S.E.2d 908; 196 S.C. 97, 12 S.E.2d 839; 197 S.C. 434, 15 S.E.2d 662. As to award of Industrial Commission on change of condition being based on Speculation, Surmise and Conjecture: 196 S.C. 153, 13 S.E.2d 133; 189 S.C. 188, 200 S.E., 727; 190 S.C. 425, 3 S.E.2d 492; 196 S.C. 346, 11 S.E.2d 376.
Mr. R. Aubrey Harley, of Newberry, and Mr. Sol Blatt, of Barnwell, Counsel for Respondent, cite: As to Jurisdiction of Industrial Commission to entertain Plaintiff's claim for further Compensation on a change of condition and not being conducted by former Award: (Mich.), 210 N.W., 251, 254; (Ga.), 146 S.E., 45, 46; S.C. Act, Secs. 7035-46; (Ga.), 157 S.E., 449; (Ga.), 15 S.E.2d 471; (Ga.), 12 S.E.2d 355; 71 C.J., Sec. 1387; (Ill.), 137 N.E., 462; (Ga.), 8 S.E.2d 542; Illinois Work. Comp. Act, Sec. 19, Paragraph (h); (Ill.), 183 N.E., 220; 190 S.C. 142, 2 S.E.2d 490. As to sufficiency and competency of evidence to sustain Commission's Findings of Fact: Sec. 60 of Act; 189 S.C. 188, 200 S.E., 727, 728; 193 S.C. 66, 7 S.E.2d 712, 719; 188 S.C. 393; 193 S.E., 530, 532; 186 S.C. 374, 195 S.E., 646, 647; 197 S.C. 434, 15 S.E.2d 662, 664; 190 S.C. 142, 2 S.E.2d 492; 191 S.C. 458, 4 S.E.2d 908, 9th. Syllabus; 191 S.C. 165, 4 S.E.2d 7, 9, 10.
November 28, 1942. The opinion of the Court was delivered by
This case comes to us upon the eleven exceptions of the appellants to an order of the Honorable E.H. Henderson, presiding Judge, upon an appeal in the Court of Common Pleas of Newberry County, from an opinion and award of the South Carolina Industrial Commission. The facts and history of the case need not be stated here, since they are clearly and adequately set forth in the order of the Circuit Judge, dated May 30, 1942, which will be reported.
The appellants, in their brief, have stated that their exceptions to that order make for our consideration three questions, and we adopt their statement of those questions involved as follows:
"1. Does the South Carolina Industrial Commission have jurisdiction to review an award, under Section 46 of the Workmen's Compensation Act, where a Single Commissioner has previously issued an award limiting and fixing disability, in so far as the injury is concerned, to only five weeks, which award was affirmed by the Full Commission, and from which Full Commission award there was no appeal?
"2. Is the question of disability and extent of injury res adjudicata when a Single Commissioner makes an award finding that respondent was disabled for only five weeks as a result of the injury, and that any injury or other condition which may affect respondent after the five-week period was in no way connected with the original injury, which award was affirmed by the Full Commission, and from which Full Commission award there was no appeal?
"3. Is the Single Commissioner's award on change of condition, dated January 13, 1942, which award was affirmed by the Full Commission and by the order of the Court of Common Pleas, based on speculation, surmise and conjecture?"
The majority opinion and award of the South Carolina Industrial Commission, dated March 16, 1942, from which the defendants-appellants appealed to the Circuit Court, and which was affirmed by the order of Judge Henderson, was rendered under the provisions of Section 46 of the Workmen's Compensation Act of 1936, as amended, being Section 7035-49 of the Code of Laws of South Carolina for 1942, which reads: "Upon its own motion or upon the application of any party in interest on the ground of a change in condition, the industrial commission may review any award, and on such review may make an award ending, diminishing, or increasing the compensation previously awarded, subject to the maximum or minimum provided in this article, and shall immediately send to the parties a copy of the order of the award. No such review shall affect such award as regards any moneys paid but no such review shall be made after twelve months from the date of the last payment of compensation pursuant to an award under this article."
In the case of Cole v. State Highway Department, 190 S.C. 142, 2 S.E.2d 490, this Court passed upon a question so similar to the one now before the Court that in our opinion that case is controlling here. In the Cole case the claimant, in the course of his employment, sustained a lacerated wound on his shin, which injury later developed into a chronic ulcer. Shortly after his injury, the claimant entered into a written agreement with the appellant, with the approval of the industrial commission, for compensation and two months later signed a so-called final compensation settlement receipt, acknowledging the payment of $13.95 in final settlement of all claims for compensation, subject to review as provided by law. Upon his return to his employment, the claimant was unable to perform heavy work and was given lighter tasks, but on account of the condition of his original wound which had never healed, he was unequal to it, and resigned his employment about October 1, 1937. On February 25, 1938, the claimant applied for a review of the award upon the ground that his wound had not healed, and that he was totally and temporarily disabled, and a hearing was held to determine the matter. Mr. Justice Fishburne, speaking for this Court in that case, said, beginning at page 146 of the State reports, at page 492 of 2 S.E.2d:
"It is contended by the appellant that there is no evidence sufficient in law to sustain the claim for temporary disability beyond October 1, 1937. If there is any evidence to support the award of the Industrial Commission, then its decision is final. Rudd v. Fairforest Finishing Company, 189 S.C. 188, 200 S.E., 727.
* * * * *
"We agree with the lower Court that there was sufficient evidence for the commission to base its finding that the respondent was disabled beyond October 1, 1937. Although he did resume work for a few weeks, commencing August 6th, the testimony is susceptible of the reasonable inference that his physical condition was such on account of his unhealed wound, that he was in effect still disabled. It is evident that the disability had not fully terminated, and that during the entire period he was being treated by a physician.
"The weight of authority in compensation cases leans to the view that even where an injury aggravates a pre-existing condition or disease so that the disability is continued for a longer period than would normally result from the injury alone, such disability is nevertheless compensable.
"So that the fact that the respondent had varicose veins does not defeat recovery under the facts in this case, even should it be concluded that his injury was aggravated by reason of them. Hartford Accident Indemnity Company v. Industrial Acc. Commission, 32 Cal.App. 481, 163 P. 225; Schneider, Workmen's Compensation, Secs. 259, 290.
* * * * *
"The testimony not only shows that the respondent had not recovered when he returned to work on August 6th, and when he again ceased to work, on October 1, 1937, but the appellant knew that the disability continued, and that respondent's injury had not terminated. In fact, * * * the wound had not healed on April 13, 1938, * * *. For these reasons the position of the appellant is untenable, that the disability terminated on August 6, 1937, or on October 1, 1937. Nor is the appellant in a position under the evidence to complain that the case was reopened.
* * * * *
"It appears to be the more generally accepted rule that, where compensation has been paid and the award approved and the case closed, it may still be reopened on the grounds of a change in the employee's condition, where the question of the permanency of the injuries was not considered in the settlement; and a final receipt or a release will not preclude a review on such grounds; not even, it has been held, where the receipt recites that the disability has ceased. 71 C.J., Sec. 1470, page 1472.
* * * * *
"We think from this testimony that the Industrial Commission could reasonably have concluded that there was a change in condition which justified a reopening of the case. * * *"
In the case of Next of Kin of Clinton Cole v. Anderson Cotton Mills et al., 191 S.C. 458, 4 S.E.2d 908, there was testimony to the effect that when the employee came to work on a certain morning he seemed well; that toward the middle of the day he complained of pain in his right shoulder, which he suffered while pulling on a wrench to tighten a nut; that he grew worse, suffering much pain, was taken to the hospital and operated on; that pneumonia developed and he died. Two physicians testified that the injury to the employee's shoulder could have caused his death. The finding of the Industrial Commission in that case was that the death of the employee resulted from an accident, within the meaning of the Workmen's Compensation Act. In that case, this Court said at page 468 of 191 S.C. at page 912 of 4 S.E.2d:
"This Court cannot say that there was no evidence to sustain the finding of fact by the Commission.
"It follows that the exceptions must be and are overruled and the judgment affirmed."
In the case of Phillips v. Dixie Stores, Inc., et al., 186 S.C. 374, at page 377, 195 S.E., 646, at page 647, this Court said: "* * * If there were absolutely no evidence in support of the findings of fact by the commission, we might say that the question thus becomes a question of law. But whether there is a sufficiency of evidence, is strictly a matter of fact, and the findings of the commission thereabout are final."
In the case of Spearman v. F.S. Royster Guano Company et al., 188 S.C. 393, at page 397, 199 S.E., 530, at page 532, this Court affirmed and caused to be reported the decree of the Circuit Judge, in which it is stated of the State Reports: "As the outset, it should be remembered that by Section 60 of the [Workmen's Compensation] Act, which provides the right of appeal to the Courts of Common Pleas, the awards of the Industrial Commission, are `conclusive and binding as to all questions of fact', and the courts have jurisdiction only with relation to `errors of law under the same terms and conditions as govern appeals in ordinary civil actions.' This means, as I understand it, that the courts have jurisdiction to review awards of the Industrial Commission only where there is no substantial evidence to support the findings of fact of the Commission, or in other words that the court has jurisdiction identical with the jurisdiction of the Supreme Court in jury cases in determining whether a verdict should have been directed. * * *"
Under the language of Section 7035-49 of the Code of 1942, and for the reasons given by Judge Henderson in his order, we are of the opinion that the respondent was entitled to a review of his award, on the ground of a change in condition. And as we have already seen, it is not the province of this Court to determine whether the greater weight of the evidence supported the finding that a change had taken place in the condition of the claimant such as would warrant an extension or enlargement of the award, or whether the greater weight of the evidence supported the finding that such change resulted from the injury of September 10, 1940. Such facts must be determined by those whose duty it is to find the facts. The duty of this Court is to determine whether there was any competent evidence in support of the findings of the fact-finding tribunal. The Transcript of Record contains the testimony of those who were in intimate association with the claimant, and it contains also the expert testimony of several physicians, and other evidence upon which the findings of fact in the case could be, and were, made by the fact-finding tribunal, and this Court is bound thereby.
This Court, therefore, affirms the judgment of the Circuit Court and adopts the order of Judge Henderson in all respects except one, in which respect that judgment for the following reasons is modified with regard to the date at which compensation should begin.
The injury to the respondent was sustained on September 10, 1940, whereupon he was taken to Dr. R.W. Houseal, who diagnosed the condition of the patient, as that of a strained back, and treated him for about five weeks, during which time the respondent was confined to his home and was unable, even when not actually confined to his bed, to perform any gainful work. The condition of the patient improved, and he was discharged from further treatment, insofar as the injury was concerned, at the end of this period of five weeks. It was for that period of weeks, beginning at the date of his injury, and ending when he was discharged by Dr. Houseal, that the first award of compensation was made by the industrial commission.
With reference to that period of time, Dr. Houseal testified at the original hearing on December 16, 1940, before the single commissioner:
"I kept him in bed, his pain gradually decreased and after about two weeks he was able to sit up and walk about. I think after about five weeks he was very much better and had very little pain in his back.
"Q. During those five weeks would you say he was a man qualified to do manual labor? A. No.
"Q. After the five weeks would you say he could do manual labor as of course you know his job in the cotton mill? A. Yes.
"Q. Would you say he was able to do that sort of labor? A. I did not see very much difference between his condition at the end of five weeks and probably it was before he got sick."
At the end of that period of five weeks, the condition of the claimant was so much improved that for the next ensuing four weeks he was able to do such work at his home as bringing in and stacking wood, feeding the cow, and performing other household chores. This improved condition, which lasted for four weeks, ended nine weeks after the injury.
At the same hearing at which Dr. Houseal testified as quoted above, other witnesses testified as to the condition of the respondent from the time of the injury down to the date of that hearing on December 6, 1940. Upon the testimony given on that date, covering the entire period of time since the injury to the respondent's back, the single commissioner found that the respondent has "sustained an injury by accident arising out of and in the course of his employment, resulting in a strained back, which disabled him five weeks, beginning September 10," and "that any disability or other condition which may affect Mr. Cromer, since the five-week period, beginning September 10, is due to conditions in no way connected with the injury of September 10." The respondent was accordingly awarded compensation for five weeks beginning September 10, 1940. This ruling and award were later reviewed, adopted and affirmed by the majority of the full commission, from which later opinion and award there was no appeal.
On April 21, 1941, the respondent, through his attorneys, made a request, under Section 46 of the Workmen's Compensation Act, that the case be reopened because of a change in the condition of the respondent, and requested that the industrial commission appoint a physician to examine him. The commission accordingly ordered respondent to report to Dr. E.F. Zemp, on June 10, 1941, for examination.
Upon that examination, it was found by Dr. Zemp that the respondent was then totally disabled, and, among other things, that: "About 9 weeks after the injury he evidently had a cerebral accident, probably due to an embolus. This affected his eyes and speech in particular. The embolus was in the form of a `stroke,' * * *" Dr. Zemp also found in that examination that the condition of the respondent, as it then existed, was due, among other things, to "certain sequelae, resulting from the cerebral accident occurring 9 weeks after the injury."
At the subsequent hearing before the single commissioner on September 24, 1941, when the case was reviewed under Section 46 of the Workmen's Compensation Act, Dr. Zemp testified that in his opinion the respondent: "Had some lesion in the brain that happened nine weeks after his accident, that was in the form of a stroke, I would say. Whether it was an embolus or thrombus or rupture of a vessel, I could not say, but he had some lesion in the brain around what we call the `speed' center, and around that center it was not a typical one which caused some of the disability."
At the original hearing on December 16, 1940, the commissioner could not, of course, have taken into consideration the results of the above-mentioned examination, which was not made by Dr. Zemp until six months thereafter, and naturally it was only when the case was reopened, and the evidence was disclosed revealing the cerebral accident which the respondent had sustained nine weeks after his original injury, that it could be determined that the respondent's subsequent total disability was in part due to the cerebral accident and to the sequelae which resulted therefrom. Furthermore, it could not have been determined at the first hearing that such a change in condition as was caused by the cerebral accident was connected with, or influenced or caused by the original injury nine weeks earlier, as is indicated by some evidence in the record of the hearing on September 24, 1941. We therefore think that the award, covering the period of time beginning at the time of the cerebral accident nine weeks after the original injury, was proper, because such accident, particularly in its relation to the original injury, was not revealed until the examination by Dr. Zemp six months thereafter, and his subsequent testimony thereabout.
But we think that the order of Judge Henderson should be modified with respect to the period of four weeks immediately prior to the cerebral accident, during which period the condition of the respondent was known to the commission, and was considered and determined in its first award. We have seen that the respondent was originally awarded compensation for the first five weeks after his injury, during which time he was, for all practical purposes, entirely disabled. But at the end of the period of that five weeks, Dr. Houseal discontinued his treatments and pronounced him able to perform his usual work. Members of respondent's family testified that he was improved in his condition and that he was able to do certain work at his home during that period. All of the facts pertaining to that period of four weeks were before the industrial commission upon the original hearing on December 16, 1940, and upon the termination of that hearing the commissioner disallowed any compensation for that period, thus constituting an adjudication, in the absence of any change in condition relating to that period. The changes that have subsequently been shown in the respondent's condition took place after the expiration of the four-weeks' period of improved health, which period terminated when the respondent suffered the cerebral accident.
Therefore we are of the opinion that the Circuit Judge erred in affirming so much of the award of January 13, 1942, of the industrial commission, as provided compensation to the respondent "beginning at the date the five weeks compensation was paid him originally." The judgment of the Circuit Court is therefore modified to the extent that that portion of the award will read: "beginning at a date nine weeks after September 10, 1940."
In all other respects, all of the questions before us in this appeal have been fully discussed and, we think, correctly decided, in the order of the Circuit Judge.
Judgment modified.
MESSRS. ASSOCIATE JUSTICES BAKER, FISHBURNE and STUKES and CIRCUIT JUDGE L.D. LIDE, ACTING ASSOCIATE JUSTICE, concur.