Opinion
No. 41240.
October 19, 1959.
1. Workmen's compensation — back injury — evidence warranted award for temporary total and thereafter permanent partial disability benefits for subsequent back injury.
Evidence including showing that heavy equipment operator, who had sustained a back injury prior to his employment, while operating a bulldozer sustained another back injury resulting in a slipping forward of a vertebra necessitating an operation, sustained finding of commission that temporary total and thereafter permanent partial disability resulted from such subsequent back injury warranting award for temporary total and thereafter permanent partial disability benefits.
2. Workmen's compensation — penalties — failure to pay compensation or controvert claim.
Where although employers reported alleged injury they neither paid compensation nor controverted the claim, penalty was properly imposed. Sec. 6998-19(e), Code 1942.
3. Workmen's compensation — Commission properly refused to compel contribution.
Where compensation claim was for disability which arose as result of injury on November 29 or 30, 1954, and not for injury on October 9, 1953, commission properly refused to compel contribution on part of insurer covering 1953 employment.
Headnotes as approved by Lee, J.
APPEAL from the Circuit Court of Hinds County; LEON F. HENDRICK, Judge.
Watkins Eager, Jackson, for appellant.
I. The burden of proof was upon the employee to prove that he suffered a distinct new injury in the course of his employment on November 29, 1954. Such burden has not been sustained and such issue is not supported by any substantial or credible evidence. Central Electric Power Co. v. Hicks, 236 Miss. 378, 110 So.2d 351; Freeman v. Mississippi Power Light Co., 230 Miss. 396, 92 So.2d 658; J. B. Manufacturing Co. v. Cochran, 216 Miss. 336, 62 So.2d 378; William Bros. v. McIntosh (Miss.), 84 So.2d 692; Dunn, Mississippi Workmen's Compensation, Sec. 168.
II. Claimant's testimony was inconsistent with and completely impeached by his prior statements and admissions to all of the doctors to whom he went prior to the filing of the claim more than two years after the alleged incident. California Eastern Airways v. Neal (Miss.), 87 So.2d 895.
III. Claimant's story is contradicted and impeached by the undisputed evidence that he did not tell his employer of any such bulldozer-tree incident. California Eastern Airways v. Neal, supra.
IV. The testimony of claimant as to any bulldozer-tree incident was not corroborated by any other testimony or any physical evidence or any other fact or circumstance. Bradshaw v. Stieffel, 230 Miss. 361, 92 So.2d 565; Lee v. Halton Lumber Co., 230 Miss. 655, 93 So.2d 641; Smith v. Dauber, 155 Miss. 694, 125 So. 102.
V. Employee here, as a matter of law, in view of the above facts, has not met his his burden of proof by any substantial or credible evidence. Alexander Smith, Inc. v. Jenette, 232 Miss. 166, 98 So.2d 455; Anderson v. Ingalls Shipbuilding Corp., 229 Miss. 670, 91 So.2d 756; California Eastern Airways v. Neal, supra; Continental Oil Co. v. Pitts (Okla.), 13 P.2d 180; Corn Products Refining Co. v. Industrial Commission (Ill.), 128 N.E.2d 919; Feddock v. New Jersey Realty Co. (N.J.), 101 A.2d 48; Fibrigo v. E. Vitale Co. (Conn.), 7 A.2d 385; Mox v. Morrison (Mo.), 230 S.W.2d 873; Orchard, etc. Co. v. Peterson (Neb.), 256 N.W. 37; Powell v. Ohio Oil Co. (La.), 120 So. 30; Reyer v. Pearl River Tung Co., 219 Miss. 211, 68 So.2d 442; Rice v. Charles Miller Co. (N.J.), 10 A.2d 271; Sampey v. Southern Production Co. (La.), 74 So.2d 764; Union Colliery Co. v. Commission (Ill.), 148 N.E. 262; Wilson v. Indiana Gas Water Co. (Ind.), 130 N.E.2d 498; Wright v. Louisiana Gas Fuel Co. (La.), 140 So. 712.
VI. There being insufficient evidence to sustain a finding that an accident occurred on November 29, 1954, claimant here cannot recover on the ground of aggravation of his prior injury by regular routine work. Anderson v. Ingalls Shipbuilding Corp., supra; Franks v. The Goyer Co., 234 Miss. 833, 108 So.2d 217; Ingalls Shipbuilding Corp. v. Howell, 221 Miss. 824, 74 So.2d 863; Rushing v. Water Valley Coca-Cola Bottling Co., 232 Miss. 338, 98 So.2d 870; T.H. Mastin v. Mangum (Miss.), 61 So.2d 298; Welborn v. Joe N. Miles Sons, 231 Miss. 827, 97 So.2d 734.
VII. Failure of an employee to give notice of an alleged compensable accident is an absolute bar to any compensation benefits. Bolton v. Murdock (N.M.), 307 P.2d 794; Nelson v. Reid Wachman (Minn.), 36 N.W.2d 544; Ogletree v. Jones (N.M.), 106 P.2d 302; Teague v. Appleton Co. (S.C.), 68 S.E.2d 878; Travelers Ins. Co. v. Burden, 94 F.2d 880; Van Vomelon v. Town (Wis.), 249 N.W. 60; Larson's Workmen's Compensation Law, Sec. 78.20 et seq.
VIII. The allowance of penalties by the Commission is reversible error. Cumbest Manufacturing Co. v. Pinkney (Miss.), 83 So.2d 74; Southern Engineering Electric Co. v. Chester, 226 Miss. 136, 84 So.2d 535.
IX. In the alternative, but only in the alternative: If this Court holds that claimant has sustained his burden of proof of the bulldozer-tree incident, this cause must still be reversed and remanded for error of the Commission in refusing either to make Zurich a party to the proceedings and divide the liability between the two carriers. Brock v. Jones Laughlin Supply Co. (La.), 39 So.2d 904; Carpenter v. Arrowhead Steel Products Co. (Minn.), 259 N.W. 535; Denver Producing Refining Co. v. Phillips (Okla.), 21 P.2d 42; Dunbar Fuel Co. v. Cassidy (N.H.), 128 A.2d 904; Employers Casualty Co. v. United States Fidelity Guaranty Co. (Ark.), 214 S.W.2d 774; Meszaros v. Goldman (N.Y.), 121 N.E.2d 232; Mund v. Farmers' Cooperative (Conn.), 94 A.2d 19; Peniston v. City of Marshall (Minn.) 255 N.W. 860; Quinn v. Automatic Sprinkler Co. (N.J.), 142 A.2d 655; Reynold Drilling Co. v. Phillips (Okla.), 22 P.2d 111; Robinson v. State Industrial Comm. (Okla.), 56 P.2d 827; Stansbury v. National Auto Cas. Ins. Co. (La.), 52 So.2d 300; Walker v. Hogue (Idaho), 185 P.2d 708; White v. Taylor (La.), 5 So.2d 337; Larson's Workmen's Compensation Law, Secs. 95.12, 95.31.
Pyles Tucker, Jackson, for appellee.
I. The evidence supports the finding of the Commission, as affirmed by the Circuit Court, that appellee sustained an accidental injury which arose out of and in the course of his employment. Deemer Lumber Co. v. Hamilton, 211 Miss. 673, 52 So.2d 634; Lindsey v. Ingalls Shipbuilding Corp., 219 Miss. 437, 68 So.2d 872; Port Gibson Veneer Box Co. v. Brown, 226 Miss. 127, 83 So.2d 757; Sones v. Southern Lumber Co., 215 Miss. 148, 60. So.2d 582; Williams Bros. v. McIntosh (Miss.), 84 So.2d 692; Wilson v. International Paper Co., 235 Miss. 153, 108 So.2d 554.
II. There is substantial evidence of causal connection between the accidental injury which appellee sustained in the course of and arising out of his employment and his disability. Port Gibson Veneer Co. v. Brown, supra; Shivers v. Biloxi-Gulfport Daily Herald, 236 Miss. 303, 110 So.2d 359; Thornbrough Well Servicing Co. v. Brown, 223 Miss. 322, 78 So.2d 159.
III. The evidence establishes that the employer had actual notice of the occurrence of the injury and reported the same to the carrier, and through the carrier to the Commission. Ingalls Shipbuilding Corp. v. Dickerson, 230 Miss. 110, 92 So.2d 354; Pearl River Tung Co. v. John's Estate (Miss.), 83 So.2d 95; Port Gibson Veneer Co. v. Brown, supra.
IV. When there is substantial evidence to sustain the finding and order of the Commission, as affirmed by the Circuit Court, it is well settled that the action of the Commission will not be disturbed on appeal. Alexander Smith Inc. v. Genette, 232 Miss. 166, 98 So.2d 455; Brown Buick Co. v. Smith's Estate (Miss.), 52 So.2d 654; City of Moss Point v. Collum, 230 Miss. 139, 92 So.2d 456; Deemer Lumber Co. v. Hamilton, supra; Houston Contracting Co. v. Reed, 231 Miss. 213, 95 So.2d 231; J. B. Manufacturing Co. v. Cochran, 216 Miss. 336, 62 So.2d 378; Lee v. Halton Lumber Co., 230 Miss. 655, 93 So.2d 641; Malley v. Over the Top, Inc., 229 Miss. 347, 90 So.2d 678; M.T. Reed Construction Co. v. Martin, 215 Miss. 472, 63 So.2d 528; Reyer v. Pearl River Tung Co., 219 Miss. 211, 68 So.2d 442; Sones v. Southern Lumber Co., supra; Wallace v. Copiah Lumber Co., 223 Miss. 90, 77 So. 316; Williams Bros. v. McIntosh, supra; Wilson v. International Paper Co., supra.
V. The liability of appellants for the penalties provided by law was correctly determined by the Commission. Alexander Smith Inc. v. Genette, supra; Dependents of Harris v. Suggs, 233 Miss. 533, 102 So.2d 696; Southern Engineering Electric Co. v. Chester, 226 Miss. 136, 84 So.2d 535.
APPELLANT IN REPLY.
I. The burden of proof was upon the employee to prove that he suffered a distinct new injury in the course of his employment on November 29, 1954. Such burden has not been sustained by any substantial or credible evidence. Alexander Smith, Inc. v. Genette, 232 Miss. 166, 98 So.2d 455; Hardy v. Masonic Benefit Assn., 103 Miss. 108, 60 So. 48; Hill v. United Timber Lumber Co. (Miss.), 68 So.2d 420; Jakup v. Lewis Grocer Co., 190 Miss. 444, 200 So. 597; James v. Federal Royalty Co. (Miss.), 44 So.2d 543; Lockhart v. Bethea (Miss.), 44 So.2d 851; Port Gibson Veneer Box Co. v. Brown (Miss.), 83 So.2d 757; Quockting v. United States, 35 L.Ed. 501; Shivers v. Biloxi-Gulfport Daily Herald, 236 Miss. 303, 110 So.2d 359; Thomas v. Williamson, 185 Miss. 83, 187 So. 220; Truckers Exchange Bank v. Conroy, 190 Miss. 242, 199 So. 301.
II. There being insufficient evidence to sustain a finding that the tree-bulldozer accident occurred, claimant here cannot recover on the ground of aggravation of his prior disability by regular, normal, routine work.
III. Failure of appellee to give notice of an alleged compensable accident is an absolute bar to any compensation benefits and would cause a reversal of the award here. Ingalls Shipbuilding Corp. v. Dickerson, 230 Miss. 110, 92 So.2d 354; Port Gibson Veneer Box Co. v. Brown, supra; Larson's Workmen's Compensation Law, Sec. 78.20.
IV. The allowance of penalties by the Commission is reversible error. Alexander Smith, Inc. v. Genette, supra; Dependents of Harris v. Suggs, 233 Miss. 533, 102 So.2d 696; Southern Engineering Electric Co. v. Chester, 226 Miss. 136, 83 So.2d 811, 84 So.2d 535.
Young, Daniel Coker, Jackson, Amicus Curiae.
I. Even assuming Zurich had been properly made a party and that apportionment is a proper remedy under the law, such a remedy would not be appropriate in this case. Hale v. General Box Manufacturing Co. (Miss.), 87 So.2d 679; H.C. Moody Sons v. Dedeaux, 223 Miss. 832, 79 So.2d 223; Osborn v. Thomas, 221 Miss. 682, 74 So.2d 757.
II. There is no provision in Mississippi practice for a defendant to bring in another party defendant. Anderson v. Babcock Wilcox Co., 256 N.Y. 146, 175 N.E. 654; Brock v. Jones Laughlin Supply Co. (La.), 39 So.2d 904; Denver Producing Refining Co. v. Phillips (Okla.), 21 P.2d 42; Dunbar Fuel Co. v. Cassidy (N.H.), 128 A.2d 904; Employers Casualty Co. v. United States Fidelity Guaranty Co. (Ark.), 214 S.W.2d 774; Hanson v. Independent School District, 50 Idaho 81, 294 P. 513; Kahne v. Robinson, 232 Miss. 670, 100 So.2d 132; Mund v. Farmers Cooperative (Conn.), 94 A.2d 19; Robinson v. State Industrial Comm., 57 P.2d 828; Security Life Ins. Co. v. Brunson, 176 Miss. 893, 170 So. 825; Stansbury v. National Auto and Gas Casualty Ins. Co. (La.), 52 So.2d 300; Walker v. Hogue (Idaho), 85 P.2d 708; White v. Taylor (La.), 5 So.2d 337.
III. Apportionment is not a proper remedy in any event. Alderman v. Barge Thompson Co. and Aetna Casualty Surety Co., MWCC Claim No. 402947-54-338; Fisackerly v. Armstrong Cork Co. and Travelers Ins. Co., MWCC Claim No. 503516-55-241; Fisackerly v. Bailey Steel Construction Co. and Commercial Standard Ins. Co., MWCC Claim No. 402375-55-240; Travelers Ins. Co. v. Cardillo, 225 F.2d 137.
APPELLANT IN REPLY.
I. The brief amicus curiae was not properly filed under the circumstances in this case and its argument is not confined to the issues presented in the pleadings and the evidence developed under the trial of the case. Burnside v. Burnside, 228 Miss. 180, 86 So.2d 333.
II. The Mississippi Workmen's Compensation Commission is not bound by technical or formal rules of procedure but has general authority to make such investigation and inquiry and conduct such hearings against any interested parties to ascertain the rights of the parties. Phillips v. T.H. Mastin Co., 223 Miss. 44, 77 So.2d 677; Kughn v. Rex Drilling Co., 217 Miss. 434, 64 So.2d 582; Walters v. Blackledge, 220 Miss. 485, 71 So.2d 433.
III. Zurich Insurance Company should not be permitted to argue the merits of its case on its liability on the few facts that were developed in this cause when it alleges it is not a party to the cause. Hill v. United Timber Lumber Co., 221 Miss. 473, 73 So.2d 247; Thyer Manufacturing Co. v. Keys, 235 Miss. 229, 108 So.2d 876.
IV. Zurich discusses the question of "apportionment" which is not a proper basis for adjudication until the case has been remanded for full development of facts. Fisackerly v. Armstrong Cork Co., MWCC #503516-55-241; Fisackerly v. Bailey Steel Construction Co., MWCC #402375-55-240; Alderman v. Barge Thompson Co., MWCC #402947-54-338; Roling v. Hatten Davis Lumber Co. (Miss.), 85 So.2d 486; Travelers Insurance Co. v. Cardillo, 225 F.2d 137.
The claimant, Herbert V. Strickland, in a hearing before the attorney-referee for compensation benefits on account of an alleged disability sustained on November 29 or 30, 1954, was awarded against his employer, Maloney Construction Company and its insurer, General Accident Fire and Life Assurance Corporation, temporary total and thereafter permanent partial disability benefits. The Commission approved, and, on appeal, the circuit court affirmed. The employer and its insurer have appealed here.
(Hn 1) The principal contention of the appellants is that the testimony of the appellee is unreasonable, incredible, without corroboration, and so impeached that it is insufficient on which to base an award.
At the time of the hearing, Strickland was 36 years of age, married, and had four children. Prior to 1947, when he became a member of the armed forces, he worked for Maloney Construction Company as the operator of a bulldozer. In the air force, at first he did road and bridge construction. Later he did electrical work. In 1949, in sliding down a pole, he sustained an injury to his back which was diagnosed as a strain. However after 47 days in the hospital, he recovered, returned to general duty, thereafter participated in baseball and basket ball, had no further trouble with his back, and was discharged as a hardship case in June 1951.
Following his discharge, Strickland worked for a year and a half as a truck driver for Independent Linen Service, with only a slight kidney trouble in 1952. In the first part of 1953 he went back to work for Maloney Construction Company as a heavy equipment operator, which was definitely considered to be hard labor. Weather conditions permitting, he worked 10 hours a day for 6 days in the week. On October 9, 1953, while lifting the clutch from a D-7 tractor, he received a back strain. After collecting compensation benefits for two weeks, and apparently fully recovered, he returned to work and performed the same duties thereafter without pain or discomforture.
According to Strickland, either on November 29 or 30, 1954, while working in a subdivision behind the Deaf and Dumb School in the City of Jackson, he pushed over a tree. The roots caught in the blade of the bulldozer, threw it upward, and, when it came down, it snatched his back, causing a knot to form in it. As a result he could hardly lift his foot. He parked the bulldozer and told P.J. Maloney, one of the partners, that he had hurt his back and would have to go to a doctor. Maloney gave his permission and the claimant first saw Dr. Kendall, who referred him to Dr. T.H. Blake. Dr. Blake made x-ray pictures and advised that he had found a spondylolisthesis, that is a slipping forward of a vertebra on the one beneath, and that an operation to fuse the bone would be necessary. Subsequently Strickland entered the Veterans Hospital on December 10, 1954, where the operation was performed on March 11, 1955, with satisfactory results, by Drs. Robertson and Spencer.
On December 23, 1954, P.J. Maloney, to whom Strickland reported his injury, made up and forwarded to the Workmen's Compensation Commission Form B-3, which is the employer's first report of industrial injury. Strickland was listed as a heavy equipment operator, injured on November 29, 1954, while "operating Caterpillar D-7 Tractor". In answer to the question as to how the accident happened, he said "former back injury aggreviated by operating tractor". His work and pay schedule was shown to be six days a week with ten hours a day at $2.10 per hour. This report was received by the commission and filed on December 30, 1954.
P.J. Maloney and his brother Pete, the two partners in the company, and Lamar Robinson, their foreman, testified that Strickland came on the job Monday morning November 29th and said that he waked up the night before with a pain and catch in his back. However, he worked that day and did not go to the doctor until the following day. P.J. admitted that he sent the accident report to the commission, but said that he knew better when he did it; that Strickland was not operating the tractor when the alleged injury occurred; and that he sent the report because he wanted to be fair to "Strick". Pete admitted that they were pulling up brush, trees and stumps on Monday; that there were two turn-arounds at the end of the street on the Carraway job; and while he did not recall whether it was necessary for Strickland to push a tree down at that place, he would not say that such was untrue. However, P.J. said that the trees were pushed down on Saturday before. Robinson was not certain about the matter. Strickland denied that he told these witnesses that he had trouble with his back on Sunday, and said definitely that the injury did not occur on Monday.
Dr. Blake, who examined Strickland following his October 9, 1953, injury, testified that he found a narrowing of space between the last vertebra and the sacrum and advised an exploration and spinal fusion. Then he said "I believe I did" tell the patient. Strickland, on the other hand, said that the doctor did not tell him. Again, Dr. Blake testified that, in the history, Strickland waked up in the middle of the night with severe pain in the lower back and it was impossible for him to work the next day, and that he had no record that the claimant related a history of injury on November 29. On the contrary, Strickland said that he did not recall telling Dr. Blake that he had spells previously, and that the Doctor had twisted the history around to suit himself.
On the question of what constitutes material conflicts between a doctor and his patient compare Shivers v. Biloxi-Gulfport Daily Herald, (Miss.) 110 So.2d 359.
In Port Gibson Veneer Box Co. v. Brown, 226 Miss. 127, 83 So.2d 757, it was contended that the evidence of three disinterested witnesses outweighed the testimony of the claimant. But the Court said that this "was an issue for the commission to determine as the triers of fact", and that such finding in favor of the claimant was not against the overwhelming weight of the evidence. The Court also made the following observation: "It may be said from a searching consideration of the whole record that there are grounds to doubt the validity of the claim; but this is true in many cases involving issues of fact, and the facts in this case were resolved in favor of the claimant by the commission." See also Thornbrough Well Servicing Co. v. Brown, 223 Miss. 322, 78 So.2d 159. In the present case, it could hardly be said that the Maloneys and Robinson, the foreman, were disinterested.
According to Dr. Blake's testimony a spondylolisis is a pedicle defect on the spine and is usually congenital, whereas spondylolisthesis is a displacement of a vertebra.
Dr. Robertson was of the opinion that the spondylolisthesis had been present for some time, but that, if for a year prior to November 29, 1954, Strickland had no trouble with his back and then sustained the injury, as he testified, the back condition was aggravated thereby. Dr. Spencer's evidence was to the same effect.
While Dr. Blake had no history of the alleged injury on November 29 or 30, upon the assumption that Strickland did have such an injury at that time, he conceded that the condition of his back would be aggravated as a result.
(Hn 2) Although the appellants reported the alleged injury, they neither paid compensation nor controverted the claim. Therefore, the penalty was properly imposed. Section 6998-19(e), Code of 1942 Rec.; Southern Engineering Electric Co. v. Chester, 226 Miss. 136, 83 So.2d 811; Smith v. Genette, 232 Miss. 166, 98 So. 455; Harris v. Suggs, 233 Miss. 533, 102 So.2d 696.
(Hn 3) The claim in this case was for a disability which arose as the result of an injury on November 29 or 30, 1954, not for an injury on October 9, 1953. Without deciding whether the commission, in a proper case, may compel contribution on the part of different insurers, it is sufficient to say that, in this case, the commission properly refused to do so.
From which it follows that this cause must be, and is, affirmed.
Affirmed.
Roberds, P.J., and Hall, Holmes and Ethridge, JJ., concur.