Opinion
No. 3904.
November 18, 1954.
APPEAL FROM DISTRICT COURT, EAST BATON ROUGE PARISH, JESS JOHNSON, J.
Dodd Hirsch Barker, Baton Rouge, for appellant.
Durrett Hardin, Baton Rouge, for appellee.
Plaintiff sues the defendant, Huff Truck Lines, Inc., and its workmen's compensation insurance carrier, Employers' Casualty Company, for compensation under the Employer's Liability Act claiming weekly compensation at the rate of $26 per week for a period not exceeding 400 weeks during the period of his disability. He alleges that the defendant, Huff Truck Lines, Inc., is engaged in a hazardous business as defined by the Workmen's Compensation Law of Louisiana, LSA-R.S. 23:1021 et seq., and that on February 2, 1953, and June 25, 1953, while in defendant's employ and while unloading freight from one of defendant's trucks he felt a catch in his back. He further alleges that each of the accidents was immediately reported to the defendant; that his injury was diagnosed or described as lumbosacral sprain; that the injury suffered in the two accidents has totally and permanently disabled him to do and perform his work as that of a warehouseman or freight handler. He further alleges that the defendant has failed and refused to pay him the compensation due to him and that its refusal is capricious and arbitrary and without probable cause and he also seeks to recover the statutory penalty of 12% and attorney's fees of $1,000.
The defendant admitted the employment and admitted that on February 2, 1953, while plaintiff was in its employ that he claimed to have suffered a back strain and that based upon plaintiff's representations he was furnished competent and adequate medical treatment at the expense of defendant, Employers' Casualty Company, and was paid workmen's compensation benefits at the proper compensable rate and that plaintiff returned to work on February 23, 1953, and worked fairly regularly for defendant, Huff Truck Lines, Inc., through June 25, 1953, and on June 26, 1953, plaintiff failed to report for work and on the evening of that date called at the office of defendant and demanded his pay check at which time plaintiff was advised that the manager of defendant, Huff Truck Lines, Inc. had carried his check to her home; plaintiff gave no reason for not having returned to work on June 26, 1953 and made no complaint of having hurt himself at all on June 25, 1953 and at that time while in the office appeared to have been drinking intoxicating liquor. About a week prior to June 26, 1953, Mary Belle Huff, manager of defendant, had advised its employees, including plaintiff, that if anyone stayed away from work without a good reason that the employee would be laid off, and plaintiff knew of that and knew that he had remained away from work on Friday June 26, 1953 but he gave no adequate reason for having remained away from work and when he telephoned Mary Belle Huff at her home the evening of June 26, 1953 about his pay check, she told him that she was laying him off, and there would be no need for him to report to work. He made no mention whatever to her or to anyone in authority at Huff Truck Lines, Inc. that he had hurt his back or had sustained any injury at all on June 25, 1953. The following day, Saturday, June 27, 1953, he came to the office and got his pay check and did not say anything whatever about having hurt his back on June 25, 1953. He did ask Mary Belle Huff if he could come back to work and she told him that he could not and he still made no mention to her of any alleged back injury.
Further answering, respondents specifically denied that plaintiff sustained any accidental injury at all on June 25, 1953 and respondents specifically denied that plaintiff hurt his back at any time while working for Huff Truck Lines, Inc., after he returned to work for them on or about February 23, 1953.
The defendant admitted that the plaintiff reported the accident of February 2, 1953, but denied that plaintiff reported any accident occurring on or about June 25, 1953. It admitted the compensation rate sued for to be $26 per week but denied that it was due the plaintiff any compensation. It admitted that its co-defendant, Employers' Casualty Company, carried its workmen's compensation liability insurance at the time of the alleged accident and injuries and denied categorically the other allegations of fact contained in plaintiff's petition.
On the issues as reflected by the pleadings, the case was tried in the lower court and judgment was rendered in favor of defendant and against the plaintiff, rejecting his demands and dismissing his suit. Plaintiff has appealed from the judgment and contends here that he established the occurrence of an accident and his total disability by the preponderance of the evidence adduced on the trial of the case.
We have carefully studied the record in this case and there is not any doubt in our mind that plaintiff suffered an accident on February 2, 1953, as alleged, which produced disability and that he was paid compensation. The defendant by paying compensation and furnishing medical treatment between February 2, 1953 and February 23, 1953, or until plaintiff resumed his work, is not controverted. The only purpose the plaintiff could have urged this previous back strain into the one that he claimed to have suffered on June 25, 1953 would be for the purpose of showing that he had suffered a previous injury to his back which would more likely recur again, and which in fact he alleges occurred again on June 25, 1953, when he was doing practically the same type of work, unloading merchandise from a truck. Therefore, it would serve no useful purpose to analyze the testimony of plaintiff and his witnesses showing the occurrence of the first accident and we will confine our analysis of the evidence to the accident happening on June 25, 1953.
It is plaintiff's testimony that on the morning of June 25, 1953, he and Willie Jones, the truck driver, were directed to carry two pieces of crated machinery to the Istrouma Laundry in the City of Baton Rouge. Plaintiff claims that before he started out on the trip that morning that he complained to the warehouse dock foreman, Louis Griffin, that he should not send him on a trip like that to unload heavy machinery because of his injured back and that the dock foreman knew of his back condition.
Plaintiff testified that while he and one of the Istrouma employees were up in the truck forcing the machine on the skids and the other was bearing down on the skids was when he injured his back arid he stated he had a quick catch right in the same spot (meaning the place where he had had the previous catch on February 2, 1953). He was then asked by his counsel:
"Q. Did you continue to work? A. No, sir, there wasn't any more work. We had one more stop. I forget the name of the place, but it is up the road, some kind of place where they makes tanks. We had some bands on skids that weigh around somewhere between four or five hundred pounds, well, when we got up there the employees was supposed to unload their own with a winch and well I got checked out up there."
Plaintiff stated that he told the truck driver that he had injured his back and that when he returned to the terminal he reported the injury to Louis Griffin, the foreman. That the foreman did not tell him anything or to go see a doctor; that it was at the end of the day's work and he went home and went to bed because he felt so bad and that his back was hurting and he had no where else to go. This accident happened about noon Thursday and plaintiff did not report for work Friday morning. He sent his father to defendant's office to get his check Friday morning but his father was told he could not get the check without a written order and he returned home and plaintiff went to defendant's office late in the afternoon on that date and requested his check. His check was not delivered to him because Miss Huff, manager of defendant, had carried the checks to her home. Plaintiff saw Mr. Neyland, the bookkeeper, and Miss Burkhalter, a stenographer or clerk, and Mr. Neyland told him that Miss Huff had carried the checks to her home and then plaintiff decided that he wanted to talk to Miss Huff over the telephone and see if he could go to her home and get his check. Plaintiff states that he told Mr. Neyland that he did not come to work that day because he had hurt his back and he also claims he told Miss Huff over the telephone that he had hurt his back or had been to see the doctor that day and that was his reason for not reporting to work. Plaintiff admits that Miss Huff told him during the telephone conversation that he was through but he contended that he did not know what she meant. The testimony of Mr. Neyland and Miss Burkhalter is to the effect that plaintiff came to the office and inquired about his check and stated to them that the reason he did not come to work that day was because he had some bills to pay and they also testified that he was under the influence of intoxicating liquor, and that he did not mention anything about a back injury.
Willie Jones, who was driving the truck and working with plaintiff at the time he claims he suffered the accident, testified that at the time they were unloading the second crate of machinery it got off of the skids and that he heard the plaintiff say that he had hurt his back. He stated that plaintiff got in the truck and did not do any more work that afternoon and that he called in at the office and checked the plaintiff out. After the machinery had been unloaded at the Istrouma Laundry they then went on up the road to deliver some strips of tin or iron which were to be unloaded by the use of a crane or winch at the consignee's place of business. Jones said the plaintiff did not assist in doing any work in unloading these strips but just stood around. However, the plaintiff says that he did assist in unloading these strips by hooking the tongs on the bundles of merchandise. Plaintiff and Jones rode back together to the warehouse. Plaintiff testified that they arrived there about four o'clock and Jones testified that they arrived there between two and three. Jones said that they knocked off that afternoon because there was no more work or trucking to be done and that he did not see the plaintiff after he went to put up his tractor and came back to the warehouse. The plaintiff said they did not get there until four o'clock and he reported the happening of the accident to the dock foreman, Griffin, but that he did not report it to the manager, Miss Huff, because he thought she was not there. When plaintiff did not get his check Friday afternoon he returned to defendant's office the next morning and he then found out that his card had been pulled and he considered that he had been fired. The evidence then shows that after he walked out of the office he stated to James Walker that the defendant was going to have trouble with him if they laid him off on account of his back and it is the testimony of Willie Bankston that a similar statement was made to him the following Monday morning.
The witness, Louis Griffin, dock foreman for the defendant at its warehouse, testified that plaintiff never did make any statement to him about injuring his back on Thursday afternoon when he claims to have reported it to him and the first he knew about it was Saturday morning. He saw the plaintiff Friday evening when he went to the office of defendant to get his check and admitted that plaintiff had asked him to borrow a dollar but at that time he told the plaintiff he hadn't cashed his check and did not have a dollar to lend him.
Plaintiff went to defendant's place of business on Monday morning, June 29, about six o'clock a.m. He stated that he went there to see if he couldn't get an authorization to go see a doctor but when he found that his card had been pulled he finally concluded that he had been fired and he left without having any further contact with Miss Huff, the manager.
Dr. Willard J. Dowell, an orthopedic surgeon of Baton Rouge was the only medical expert who testified in the case. He first saw the patient and examined him on July 2, or about 1 week after the accident is alleged to have happened. At that time he made the following examination and report of plaintiff's condition to plaintiff's attorney:
"Thank you for referring Judison Alexander to me for examination and report. This patient was examined on July 2, 1953. He gave a history of two back injuries while employed by the Huff Truck Lines. The first injury occurred in February 1953. At that time the patient stated he was picking up a bundle of paper and injured his back. He was seen by Dr. McVea. He says that Dr. McVea strapped his back and later gave him heat treatments. The patient describes having lost two weeks from work at that time. The second injury occurred on about June 25, 1953. The patient states that he injured his back that time on pushing up on some washing machines. The patient described low back pain following that injury. He states he has had no medical treatment this time as his employer would not send him for treatment.
At the time of my examination he was complaining of low back pain with no radiation up his back or to either leg. He did describe some tiredness in his right leg. He said that the pain in his back is aggravated by bending of the spine, but not by coughing or sneezing.
On examination it is noted that the patient had a rather small inadequate back support which he had been wearing. There was some tenderness over the lumbosacral joint. There was some tightness of the lumbar muscles with the patient standing. It was rather difficult to evaluate this, as the patient didn't have as much muscle spasm when he was in a prone position. There was some restriction of lumbar flexion with the patient able to flex his spine and hips so that his fingertips were eight inches from the floor. There was a complete range of lateral motion, rotation, and extension of the spine. There was a complete range of hip motion. The patient complained of some discomfort on straight leg raising at 95 degrees bilaterally. The legs were of equal length on clinical examination. Tendon reflexes of the legs were active and physiological. There was no impairment of skin sensation noted in the legs.
As no X-rays had been made, X-rays of the lumbosacral spine were taken at the office of Dr. David S. Malen and were reported by Dr. Clyde Smith. These X-rays showed no evidence of fracture or dislocation. They did show a slight narrowing of the disk space between L-4 and L-5, and L-5 and S-1. There were rather large hypertrophic spurs formed on the anterior surfaces of L-4 and L-5.
It is my opinion that this patient has incurred a recurrent lumbosacral sprain. The fact that he has some narrowing of the disk space between L-4 and L-5 and L-5 and S-1, along with the arthritic changes may contribute to his recurrent back injuries. I feel that he is in need of treatment at this time and recommend a lumbosacral corset. I estimate that he will be partially disabled for six weeks. I would suggest deferring any evaluation for any permanent disability until maximum improvement has taken place."
He saw the plaintiff and examined him on four or five subsequent occasions at the request of plaintiff's attorney, where similar examinations and reports were made to plaintiff's attorney.
The district judge, with the conflicting factual testimony of the witnesses in the case, was compelled to either accept plaintiff's evidence and that of the witness Jones that he suffered an accident or accept the testimony of Miss Huff, the manager of defendant, and defendant's other witnesses that plaintiff suffered no compensable accident because he did not report any accident to the management or claim that he had suffered a back strain growing out of the incident of June 25 until after he had been fired. That plaintiff made no request of defendant at any time for medical assistance or attention following the accident of June 25 and that he knew that he should have reported any accident to defendant's management. Plaintiff's action in reporting at six o'clock a.m. on Monday, June 29, his usual working hour, couldn't be considered as an effort on his part to obtain a medical authorization to go see a physician because the weight of the evidence shows that he did not ask Miss Huff for permission to see a doctor on Saturday and he did not mention anything about permission to see a doctor when he was in the office and talked to the bookkeeper, Mr. Neyland, on Friday afternoon.
Dr. Dowell, in making his diagnosis of plaintiff's disability accepted plaintiff's history of two back strains, which, together with the X-ray radiograms showing widening of spaces of the disc of the vertebrae as well as the spurs and arthritic condition, could reach no other conclusion than that the physical findings on his examination were consistent with the history plaintiff had given him. There is no doubt in our mind that the plaintiff's arthritic condition with the widening of the spaces between the disc of the vertebrae and the work plaintiff was doing would naturally be conducive to his backache. The doctor frankly admitted the accident and back strain had nothing to do with aggravating or producing the arthritis or the widening of the spaces between the intervertebral discs but that coupled with plaintiff's posture and the strain he is purported to have suffered all were conducive to produce the disability that he had.
The doctor recommended in practically all of his examinations of the plaintiff that he return to some form of light work and that would be the only way to tell whether or not he could resume his former labor.
With this maze of conflicting testimony before the trial judge, who had an opportunity to see and who perhaps knew the witnesses who testified, and who was in a far better position than we are to evaluate their credibility and the effect of their testimony, denied the plaintiff's claim. For us to say now that he was wrong and reverse his judgment we would have to point to some error of fact reflected by the record. Plaintiff evidently did not consider the accident and injury seriously until after he knew he was discharged for breaking the rules of the defendant in failing to report to work. It was not until after he was discharged that he considered the accident because he went to see his lawyer before he even went to see a doctor about his back and his only approach to the doctor was through his lawyer.
When we take into consideration the number of claims currently being made for compensation before the courts on account of back strains, and from the great number of cases we have read and examined, it is our opinion that courts ought to go to scrutinizing the testimony in these cases more carefully because of the nature of the disability claimed. It is easy to allege and to prove a back strain because the examining physician has to give so much consideration to the history of the strain supplied by the plaintiff, especially when considered with a congenital deformity or a diseased condition of the vertebrae. If the examining physician knew all of the facts and the various things the claimant actually did or said at the time, or immediately following one of these lumbosacral strains, he would be in a position to properly evaluate a claimant's disability at the time of his examination. If Dr. Dowell had known at the time he first examined the plaintiff in this case, that the claimant made no further complaint to the witness Jones other than to say he hurt his back but showed no outward emotion by evidence of pain immediately following the strain after pushing on the box, and also while hooking the tongs to lift the box of merchandise which was being unloaded by the winch at the truck driver's last destination; returning to the employer's place of business that afternoon without reporting an accident to the management; exhibiting no outward emotion of any disabling condition on the way back to the warehouse to Jones or when he called at defendant's office Friday afternoon or Saturday morning to get his check, no doubt it would have caused the doctor to have modified his diagnosis.
Finding no manifest error in the judgment appealed from the same is hereby affirmed.
Judgment affirmed.
Being of the opinion that the plaintiff has proven an accident, injury and total disability under the compensation laws and interpretation thereof by the Courts, I am duty bound to respectfully dissent.
The majority opinion apparently is based upon the proposition that the plaintiff did not suffer an accident and attempts to explain Dr. Dowell's finding of total disability with the statement: "* * * If the examining physician knew all of the facts and the various things the claimant actually did or said at the time, or immediately following one of these lumbosacral strains, he would be in a position to properly evaluate a claimant's disability at the time of his examination. If Dr. Dowell had known at the time he first examined the plaintiff in this case that the claimant made no further complaint to the witness Jones other than to say he hurt his back but showed no outward emotion by evidence of pain immediately following the strain after pushing on the box, and also while hooking the tongs to lift the box of merchandise which was being unloaded by the winch at the truck driver's last destination; returning to the employer's place of business that afternoon without reporting an accident to the management; exhibiting no outward emotion of any disabling condition on the way back to the warehouse to Jones or when he called at defendant's office Friday afternoon or Saturday morning to get his check, no doubt it would have caused the doctor to have modified his diagnosis."
The basis for the finding of no accident apparently is the conflicting testimony of the plaintiff that when he returned to the warehouse he reported the accident with that of the defendant's witnesses that he did not report the accident nor did he make any request at any time for medical assistance following the accident of June 25th and that he knew he should have reported the accident to the defendant's manager. From this testimony the deduction was made that the plaintiff evidently did not consider the accident and injury serious until after he knew he was discharged for breaking the rules of the defendant company and failing to report to work.
The failure to report the accident is the entire basis of the majority opinion. I am of the opinion that the plaintiff did not report the accident to anyone in authority, but nevertheless, plaintiff has proven the accident, injury and resulting disability by ample testimony.
Plaintiff had been working for Huff Truck Lines, Inc. for quite some time at a wage of $40 per week, and in February 1953 it is admitted by the defendant that he suffered a back injury, was treated by the doctor and paid a couple of weeks compensation and thereafter returned to work. On June 25, 1953, while assisting in the unloading of a large machine the plaintiff testified that he injured his back. Plaintiff stated that he was pushing on the machine and thereafter he did no more work.
The driver of the truck fully corroborated the plaintiff with regard to the happening of the accident. His testimony with regard to the actual happening of the accident was as follows:
"Q. Did Judison try to help you unload the machine? A. Yes, sir, we — me and him and a white man pushed it back to the back on the rollers and it worked all right and when we got it back to the back we put it on skids to let it down on skids and it had slipped off the skids so we had to push it back on the truck and that's when I heard Judison say he had hurt his back.
"Q. He said it out loud that he had hurt his back? A. Yes, sir.
"Q. Did he continue to work with you after he said that? A. No, sir, I told him to go on and take it easy and me and some other boys, four or five of us, we let it down on the ground and that's where I checked him out."
This testimony is fully corroborative of the plaintiff's as to when and how the accident happened. After the accident the driver made one more delivery and then returned to the warehouse. The preponderance of the testimony is to the effect that the plaintiff did not report the accident when he returned on Thursday evening, June 25th. He did not return to work on Friday but sent his father for his check. They refused to give the check to his father, who testified that the plaintiff had told him he had injured his back but that he didn't tell anyone at the defendant's place of business because they did not ask him. Plaintiff states that between 5:30 and 6:00 he went to defendant's place of business in order to get his check. Present at the time plaintiff came there was the bookkeeper, stenographer, and a foreman. The testimony of the office employees is to the effect that the plaintiff was drinking and that he did not tell them anything about any accident or injury to his back. He talked to Miss Huff on the telephone and it was her testimony that plaintiff must have been drinking and further that he did not report any injury or accident to her. She told him at that time that he was through, in other words, fired. Plaintiff reported the next morning to get his check and found out that he was definitely fired for not reporting to work the previous day. The plaintiff then told a fellow employee, Bankston, that: "* * * 'They wants to lay me off and I am down in my back' and I say, 'Yeah?' and he says, 'if they do I will mess them up,' and that's far as I know about it." He also told James Walker, another co-employee, that "his back was out on him and looked like they were trying to get rid of him," and that if they got rid of him he "was going to lay up on them."
Miss Huff, who apparently runs the business, testified on cross examination as follows:
"Q. When did you first realize that Judison had hurt his back on June 25th? A. Well, now, sir, I don't like your question. Do you mean when was I first told? I haven't realized it yet.
"Q. Well, when were you first told that Judison had hurt his back? A. I was first told it by one of my men later that Saturday morning. Someone came in and * * * can I quote what was told me?
"The Court: Yes. A. All right, someone came in and told me that when Jodda left my office and went out there he said that his back had been hurt on Thursday and that he certainly was going to make me pay if I fired him.
"Q. Now, who told you that? A. I don't remember.
"Q. You don't recall? One of your employees? A. One of my employees, so I promptly called Willie Jones in, my trailer driver, who testified this morning, and asked Willie if he knew anything about it and he said that the only thing he knew was when they were unloading out there at the Istrouma Laundry Jodda said that he had hurt his back when they were unloading the thing and I said to Willie, 'Did he say that he had strained his back, did he say he had injured his back, or what?' and he said, 'No, he just said that it made his back hurt to unload,' and now that is all I have ever heard about it. Willie said that he was not under the impression that he was injured, I told him, I said, 'You know my rules, that if anybody is hurt on the job, report it immediately.' "
This is practically the entire testimony upon which the majority opinion rests. There is no doubt in my mind that the plaintiff thought he had hurt his back and so told the driver of the truck. I agree with the majority opinion that possibly plaintiff did not think that his back was seriously injured and further that he did not report it to the bookkeeper, stenographer, foreman or manager, Miss Huff, but he did tell two co-employees after he found that he was fired that he had hurt his back or was down in his back, and also, Miss Huff, the manager of the business knew from Saturday morning that he claimed a back injury. She did not call plaintiff back in nor did she order him to report to a doctor. Apparently she made no further inquiries.
Had this been all the testimony other than plaintiff's own that he was totally disabled, then I would be of the opinion that he had failed to prove an accident, injury and disability by sufficient testimony, but on July 2d 1953, or approximately one week after the accident, he consulted an attorney and was examined by Dr. Dowell. The doctor's findings on this visit are quoted at length in the majority opinion. There can be no doubt that Dr. Dowell was of the opinion that the plaintiff had incurred a recurrent lumbosacral sprain, and the fact that he had some narrowing of the disk space between L-4 and L-5 and L-5 and S-1, along with the arthritic changes might have contributed to the recurrent back injury. He felt that the plaintiff was in need of treatment and estimated that he would be partially disabled for six weeks, and he deferred any evaluation for any permanent disability until maximum improvement had taken place. This medical testimony is unquestioned and undisputed in the record, and it is the only medical testimony in the record.
Thus, we have an employee who had previously suffered a back sprain, had been treated and gone back to work after payment of two weeks' compensation, who several months later testified that he hurt his back while unloading heavy machinery, and who immediately told the driver of the truck, and although he did not tell anyone in authority at the place of business of his employer upon his return, he did on the morning of the second day after the accident tell two fellow employees, one of whom presumably must have told Miss Huff. He then went to a competent doctor who found that he had suffered a back injury. There is no intimation that he suffered a back injury other than as contended. The doctor's testimony, in my opinion, clinches plaintiff's claim of an accident and injury to his back, regardless of whether the plaintiff himself thought it was serious or not. The effects of plaintiff's failure to report the accident and his threats to "lay up" on the defendant amount to nothing in view of Dr. Dowell's definite testimony.
It is also argued that this law suit was brought about as a result of the defendant having discharged the plaintiff. The plaintiff did state that if he was discharged he would "lay up" on the defendant, but his reason was always "because I am down in my back," or "my back is hurt." In my opinion, such testimony is corroborative of plaintiff's claim that he injured his back and, further, there can be no question of it when we consider Dr. Dowell's testimony.
Dr. Dowell again examined this plaintiff on August 27, 1953, and he testified:
"* * * I at that time concluded that I felt this patient had made some improvement since the time of my last examination but I do not feel that he is completely recovered. His slow recovery is probably on the basis of changes noted in the x-rays mentioned in my last report. I felt that this patient was capable of returning to most types of work, but I would not recommend any lifting of very heavy objects, but I felt that he could do a reasonable amount of bending in his back. I would suggest letting the patient return to work and defer any final evaluation until he has been back at work approximately six to eight weeks. This will enable me to determine just how well his back holds up under hard labor."
We see from the above testimony that plaintiff on August 27, 1953 was still not able to return to his former work which entailed lifting of very heavy objects. Dr. Dowell re-examined plaintiff on September 22nd and rendered a report of September 24, 1953. In this report he states that plaintiff told him he had not returned to work because he didn't feel his back had made any further improvement and he was unable to do any heavy lifting. On this examination Dr. Dowell found very little change from the previous examination and he concluded:
"I don't feel that this patient has made much change since the time of my last examination. I feel that some of his back discomfort may be due to the narrowing of the disc spaces between L-4 and L-5, and L-5 and S-1. I would still suggest that this patient make every attempt to return to work to see how his back does with a reasonable amount of work."
Thus, from the doctor's testimony at this time plaintiff was still unable to do heavy lifting.
On March 26, 1954 plaintiff was again examined by Dr. Dowell and a report rendered on March 29th. In this report he stated:
"This patient has shown no improvement since my last examination, and actually has more limitation of motion in his spine at this time than he did at the time of my last examination. I feel that he is still partially disabled at this time. It is difficult to say just how much of it is due to the sprains which he incurred and how much is due to narrow disc spaces and arthritic changes in his back."
Plaintiff was again examined by Dr. Dowell on April 1st and again on May 18, 1954. Of the April examination the doctor testified that plaintiff was not doing quite as well. As to the May examination he rendered a report in which he stated:
"This patient has shown some improvement since my last examination. However he still has muscle spasm in his lower back in certain positions. I consider him partially disabled at this time. I am unable to state whether or not he will have any permanent disability."
Dr. Dowell was asked the following question and gave the following answer:
"Q. Doctor, in the condition you found him in on your last examination, in your opinion do you think the man is fit at this time to do any heavy lifting or pushing large heavy objects? A. No, I would not recommend heavy lifting now. I think he probably could go back to work, but I would recommend sending him back to light work and let him gradually work in and see what he could do. I don't recommend heavy lifting now.
"Q. From your examination, Doctor, and your conversations with this patient on these various visits and examinations, would you have an opinion as to whether or not his complaints were legitimate in connection with his back? A. Well, I can't say whether it is legitimate. I would say that his complaints are consistent with the physical findings here."
There is no doubt but that Dr. Dowell considered the plaintiff as having aggravated his back condition by the lifting injury, and that one day prior to the trial on May 18, 1954 after examination of plaintiff, he was still of the opinion that plaintiff could not do any heavy lifting.
While the majority opinion speaks of a maze of conflicting testimony, the only conflicts relate to whether the plaintiff reported the accident to Miss Huff, the office manager, the Stenographer, or Wilson, the foreman. As I view the case it is immaterial, when we consider all the other testimony which I have outlined, whether he reported the accident and injury to his back to the people named or not. As he actually suffered the accident and injury and is totally disabled as a result thereof, he is entitled to compensation, and I say that his own testimony, together with that of the driver of the truck, whom he told at the time about having hurt his back, and his statement to two of his fellow employees that he had hurt his back and because of that, if they discharged him he would "lay up on them" or "mess them up", and the further positive testimony of Miss Huff that on Saturday morning she was told by one of her employees that plaintiff had injured his back as he claimed, and Dr. Dowell's frank, unimpeached and unquestioned testimony that within one week after the accident he found the patient suffering with a back injury and thereafter examined him quite a number of times and even the day before the trial of the case and he still found the plaintiff suffering with a back injury and unable to perform any labor which involved the lifting of any heavy object, make it immaterial whether plaintiff reported the accident or did not report the accident to anyone in authority.
Furthermore, much is made of the fact that the plaintiff did not request medical assistance from his employer. It is equally true that the employer knew that this man on Saturday morning claimed a back injury on the previous Thursday, yet the employer insisted upon his discharge without requesting the plaintiff to report to the company doctor. It would appear to me that it is equally true that it behooves the employer as well as the employee, upon learning of an alleged accident and injury, to immediately request the employee to report for a medical examination. From the testimony it would appear that even if plaintiff had not been discharged and had returned to work that he would have been unable to perform his full duties. I say this in view of Dr. Dowell's testimony. An important part of Dr. Dowell's testimony is that in which he states that his physical findings were consistent with the plaintiff's history as given to him by the plaintiff. If plaintiff's case depended upon his testimony alone, then false testimony by him to the effect that he had reported the accident would be entitled to great weight. It is of no effect, however, where plaintiff's accident, injury, and resulting disability is proven not only by his testimony but by corroborative testimony of various fellow employees and a reputable doctor who gave the only medical testimony in the case.
Dr. Dowell testified at length, and if astute counsel for the defendant had thought that knowledge of such facts as are set forth in the quote from the majority opinion at the beginning of this dissent would have caused Dr. Dowell to modify his diagnosis, there is not the least doubt in my mind but that a hypothetical question containing such facts would have been propounded to Dr. Dowell. Whether the doctor knew or did not know such facts could not have changed his diagnosis, for the injury to the back was apparent to Dr. Dowell. There is no contention that this injury resulted from any other accident or strain. The contention is that there was no accident and no injury to the back and therefore no disability. It is strange that the defendant did not have any medical testimony in this case. When the plaintiff suffered his previous back injury in February he was sent to Dr. McVea.
For the above reasons I am of the opinion that the plaintiff should be awarded the judgment as prayed for and I therefore respectfully dissent.