Summary
In Masonite, the attorney referee disallowed temporary total disability benefits after June 5, the date of estimated maximum medical recovery according to the employer's doctor.
Summary of this case from Davis v. Scotch Plywood Co. of MississippiOpinion
No. 40305.
December 17, 1956.
1. Workmen's Compensation — back injury — evidence justified compensation based on finding that employee continued to suffer temporary total disability in months following examination by employer's physician.
Evidence justified an award of compensation for back injuries sustained by employee based on finding that the employee continued to suffer temporary total disability in the months following the examination by the employer's physician. Sec. 6998-01, et seq., Code 1942.
2. Workmen's Compensation — employee's medical testimony — binding on trier of facts when — may not be arbitrarily disregarded when.
Where the medical testimony of an employee respecting his injury was not in conflict with other medical testimony and was not inherently improbable, incredible or unreasonable, nor was it discredited, the testimony was binding upon the trier of the facts and should not have been arbitrarily, capriciously disregarded.
Headnotes as approved by Ethridge, J.
APPEAL from the Circuit Court of Jones County; LUNSFORD CASEY, Judge.
Deavours Hilbun, Laurel, for appellant.
I. The findings of fact made by the Attorney-Referee and Workmen's Compensation Commission are supported by the weight of the evidence in this cause, and the Circuit Court erred in reversing these findings. Barry v. Saunders Co., 211 Miss. 656, 52 So.2d 493; California Eastern Airways, Inc. v. Neal, 228 Miss. 370, 87 So.2d 895; Cowart v. Pearl River Tung Co., 218 Miss. 472, 67 So.2d 356; Deemer Lbr. Co. v. Hamilton, 211 Miss. 673, 52 So.2d 634; Fischer v. Gloster Lbr. Builders Supply Co. (Miss.), 57 So.2d 871; Hill v. United Timber Lbr. Co. (Miss.), 68 So.2d 420; Majure v. William H. Alsup Assocs., 216 Miss. 607, 63 So.2d 113; T.H. Mastin Co. v. Mangum, 215 Miss. 454, 61 So.2d 298; Railway Express Agency, Inc. v. Hollingsworth, 221 Miss. 688, 74 So.2d 754; Smith v. St. Catherine Gravel Co., 220 Miss. 462, 71 So.2d 221; Sones v. Southern Lbr. Co., 215 Miss. 148, 60 So.2d 582; Thornton v. Magnolia Textiles, Inc. (Miss.), 55 So.2d 172.
E.P. Connolly, Laurel; Travis Moore, Jackson, for appellee.
I. The order and opinion of the Circuit Court of the Second Judicial District of Jones County, Mississippi, is correct in all respects and should be affirmed by this Court, and this matter should be remanded to the Mississippi Workmen's Compensation Commission for further determination in connection with the question of temporary total disability and/or permanent partial or permanent total disability and any and all other matters that might be properly subject to further determination and adjudication by the Mississippi Workmen's Compensation Commission. Anderson-Tully v. Wilson, 221 Miss. 656, 74 So.2d 734; Barry v. Sanders Co., 211 Miss. 656, 52 So.2d 493; California Eastern Airways, Inc. v. Neal, 228 Miss. 370, 87 So.2d 895; Cowart v. Pearl River Tung Co., 218 Miss. 472, 67 So.2d 356; Deemer Lbr. Co. v. Hamilton, 211 Miss. 673, 52 So.2d 634; East v. Pigford Bros. Constr. Co., 219 Miss. 121, 68 So.2d 294; Fischer v. Gloster Lbr. Builders Supply Co. (Miss.), 57 So.2d 871; Hill v. United Timber Lbr. Co. (Miss.), 68 So.2d 420; International Paper Co. v. Handford, 223 Miss. 747, 78 So.2d 895; Karr v. Armstrong Tire Rubber Co., 216 Miss. 132, 61 So.2d 789; Laurel Daily Leader v. James, 224 Miss. 654, 80 So.2d 770; Lindsey v. Ingalls Shipbuilding Corp., 219 Miss. 437, 68 So.2d 872; Lucedale Veneer Co. v. Rogers, 211 Miss. 613, 48 So.2d 148; McKenzie v. Gulf Hills Hotel, 221 Miss. 723, 74 So.2d 830; Majure v. William H. Alsup Assocs., 216 Miss. 607, 63 So.2d 113; T.H. Mastin Co. v. Mangum, 215 Miss. 454, 61 So.2d 298; Miles Sons v. Myatt (Miss.), 61 So.2d 390; Mutual Implement Hardware Ins. Co. v. Pittman, 214 Miss. 823, 59 So.2d 547; National Surety Corp. v. Kemp, 217 Miss. 537, 64 So.2d 723; Pearson v. Dixie Elec. Power Assn., 219 Miss. 884, 70 So.2d 6; Plumbing Heating Service v. Strickland (Miss.), 49 So.2d 243; Railway Express Agency v. Hollingsworth, 221 Miss. 688, 74 So.2d 754; Reyer v. Pearl River Tung Co., 219 Miss. 211, 68 So.2d 442; Sones v. Southern Lbr. Co., 215 Miss. 148, 60 So.2d 582; Stephens v. Moore, 214 Miss. 760, 59 So.2d 346; Sunnyland Contracting Co. v. Davis, 221 Miss. 744, 74 So.2d 858; Tate v. Dr. Pepper Co., 220 Miss. 311, 70 So.2d 602; Thornton v. Magnolia Textiles Inc. (Miss.), 55 So.2d 172; United States Fidelity Guaranty Co. v. Smith, 211 Miss. 573, 52 So.2d 351; Williams Bros. v. McIntosh, 226 Miss. 553, 84 So.2d 692; Horovitz on Current Trends in Workmen's Compensation, pp. 663-65.
Appellee Lucious Fields claims temporary disability benefits under the Workmen's Compensation Act, received while working for his employer, appellant Masonite Corporation. On February 28, 1955 Fields sustained and injury to his back while loading railroad cars for appellant. At appellant's clinic, Dr. J.H. Danner diagnosed his trouble as a pulled lumbar muscle, fibrositis. He received medical treatment for that disablitiy until April 29, when Dr. Danner referred him to Dr. G.E. Holder, physician in charge of appellant's clinic. Dr. Danner last saw appellee on April 29. After referral, Dr. Holder examined appellee and prescribed medication and treatments for him until May 26, 1955, which was the last time he saw or examined appellee.
In the meantime, Dr. Holder referred appelle to Dr. T.S. Eddleman of Jackson, an orthopedist. Dr. Eddleman examined appellee once, on May 5. From his examination, he concluded that appellee had suffered a strain in the muscle tissues of the back, constituting a temporary disability, and that he should be able to return to work in another month, or by June 5, 1955. He said that from his examination he "would not have expected" any residual disability after June 5. He "felt" that appellee would be able to go back to work in that time, "from an orthopedic standpoint".
Appellant's physicians concluded that appellee had recovered from the injury, and discharged him from medical care by them on May 26. None of the three physicians who testified for appellant, Drs. Danner, Holder and Eddleman, examined appellee after May 26, when compensation payments were stopped.
On July 29, 1955, appellee applied to the Commission for additional temporary total disability benefits, and a hearing was had before the attorney-referee. At that hearing, which began in September 1955 and with several recesses was concluded in November, the three doctors testified for appellant as outlined above.
Appellee testified that he was still suffering from the same back disability, and cannot work. After appellant's physicians discharged him on May 26, he went to see a doctor of his own choice, Dr. Dennis P. Granberry, Jr., of Laurel, who first examined claimant on June 14, 1955. Dr. Granberry examined him, and prescribed medication and treatment on twelve different occasions, the last time being October 6, 1955. Dr. Granberry diagnosed appellee's injury as "severe lumbosacral and sacroiliac sprain", and prescribed treatment accordingly. He testified that from the first time he saw him on June 14 through the last time, October 6, appellee had improved but was still presently suffering from this disability; that he has not reached his maximum recovery from this injury, and as of October 6, 1955 appellee was incapable of doing any kind of physical labor. His prognosis was that it would take from six to twelve months from the first time he examined appelle for him to reach a full recovery.
The attorney-referee allowed appellee additional temporary total disability benefits for a period from May 26, to June 5, 1955, but disallowed any further benefits from that date. He found that appellee had sustained an injury arising out of and in the course of his employment, but basing the period of benefits upon the prognosis of Dr. Eddleman, who examined appellee on May 5, he held that he should accept Eddleman's estimate that appellee should be recovered within a month, by June 5, and terminated disability payments on that date. The Workmen's Compensation Commission affirmed the attorney-referee's order.
(Hn 1) The Circuit Court of the Second Judicial District of Jones County reversed the order of the Commission, insofar as it denied compensation benefits after June 5, 1955. It entered a judgment for claimant for compensation up to and including the date of the last examination by Dr. Granberry on October 6, 1955, and remanded the case to the Commission to determine whether disability has continued after October 6, 1955. The learned circuit judge correctly pointed out that Dr. Granberry's examination and treatment of appellee began where that of the employer's doctors left off, and that there is no evidence in the record to contradict that of appellee and Dr. Granberry that appellee continued to suffer a temporary total disability in the months following the last examination by appellant's physician on May 26. We agree with the opinion of the circuit court.
The decision of the Commission and the attorney-referee were based wholly upon the estimate and prognosis of Dr. Eddleman, who examined appellee on May 5, 1955, that he should be recovered within a month, by June 5. Dr. Eddleman "felt" that this should occur. The Commission's decision was without any support in the record other than this opinion. On the other hand, the testimony of Fields and Dr. Granberry is positive and uncontradicted, to the effect that appellee has continued to suffer a disability from this injury at least through the date of Dr. Granberry's last examination on October 6. The results of Dr. Granberry's examination of Fields, as summarized in a letter from him of August 25, 1955, were made known to appellant. Yet appellant made no effort to have its physicians re-examine appellee to determine whether they agreed to Dr. Granberry's diagnosis.
(Hn 2) Hence the latter's testimony, and that of appellee stand uncontradicted to the effect that through October 6, 1955, Fields was suffering a temporary total disability resulting from the injury received in his employment. This testimony was not in conflict with the other medical testimony, and was not inherently improbable, incredible or unreasonable, nor was it discredited. Under these circumstances it should be taken as binding upon the trier of facts. It should not be arbitrarily and capriciously rejected. M.T. Reed Const. Co. v. Martin, 215 Miss. 472, 476, 61 So.2d 300 (1952) is directly in point on the issue in this case. See also Reyer v. Pearl River Tung Co., 219 Miss. 211, 68 So.2d 442 (1953); International Paper Co. v. Handford, 78 So.2d 895, (Miss. 1955).
Affirmed and remanded.
McGehee, C.J., and Lee, Holmes and Gillespie, JJ., concur.