Moore v. Arkansas Pipe Line Co.

TALIAFERRO, Judge. Plaintiff sued for and was awarded compensation on the basis of total disability, for the duration thereof not exceeding 400 weeks, at the rate of $20 per week. He alleges and contends that while performing the duties of his employment on April 4th and 6th, 1936, he experienced two accidents, within the meaning and intendment of the Workmen’s Compensation Law, Act No. 20 of 1914, as construed by the courts of the state, resulting directly or indirectly in the degree of disability found by the lower court. Defendants deny that plaintiff suffered any accident at all on said dates and specifically ascribe the impairment of his ability, if any, which is not conceded, solely to pre-existing diseases. In the alternative, defendants contend that if plaintiff did have an accident of any sort, he has entirely recovered from its ill effects and is now and has been since July 1, 1936, able to do manual labor. Compensation was paid him to that date. The suit was instituted against the employer and its insurer, Fidelity & Casualty Company of New York. They have appealed. On Saturday, April 4, 1936, plaintiff was one of a crew of men engaged in the task of lowering strings of six-inch iron pipe into a trench dug for its reception. The process of assembling and lowering the pipe was on this wise: Joints of it would be screwed together on poles, called skids, alongside of the trench. The string of pipe would be gradually shoved forward by the workmen by pry poles until it slid into position on the bottom of the trench. One end of the string of pipe was kept elevated so that the string could be progressively lengthened by screwing additional joints thereto, while the other end would be covered with dirt. The record does not disclose the length of these joints of pipe nor the number united before lowered into the trench. Plaintiff claims that between two and three o’clock the afternoon of April 4th, a line of the pipe was on skids ready to be placed in the trench, but there was a how in it; that they were endeavoring to “line the pipe up over the ditch on poles and had to skid it over to get it in line”; that it required unusually heavy lifting and straining to do this; that the pry pole used by each workman was five or six feet long, three or four inches in diameter, and weighed not exceeding 30 pounds; that he was in a stooping position when executing the physical movements needful to straighten the pipe, *450 and specifically relates the facts of the alleged accident to be as follows: “Q. State to the court just what happened, when you fir.st began to exert your muscular strength to raise the pipe? A. I had pulled up on the pole that I had and kind of jerked and pole kind of slid and I reached under to get a better hold, and in coming up put on all the power I could and kind of snatched and my right foot slipped and that threw the weight on my left foot, and it caused a severe pain in the back, and I stood on the pole a few minutes, stooped over with my weight on the pole. “Q. Stooping over with your weight on the pole? A. Yes, sir. "Q. You say that the pain struck you in the lower part of the back? A; Yes, sir. “Q. What side? A. Kind of on the left side, felt like in the center of the backbone, felt inside. “Q. When you took the second jerk on the pipe, while in that position, you felt this pain? A. Yes. “Q. Now, when you took the second grip on the pipe with your pole, were you in a greater or a less stooping position that before ? A. I was in a greater stooping position that I was before, stooping some lower.” He states that he “went ahead and made the rest of the day; didn’t do so much work. I went below there and fixed the fence across the right of way”. He did not work the following day, a Sunday, but returned to work on Monday morning, the 6th. No more pipe was to be laid. He was directed to assist in measuring off the right of way (trench) to be filled, in strips of SO feet, and in doing so carried one end of a tape line. He stooped over to pick up a little stick, a catch developed in his back, and he was unable to resume an erect position. He lay upon a log for a while and, when his condition was observed by the foreman, he' was sent to Dr. Doles, of Mooringsport, for attention. Dr. Doles only found the prostate gland enlarged and concluded that massaging and rest would remove or relieve his pain and discomfort. The patient was advised to return to his home. He was again seen by Dr. Doles on April 15th and, because his condition had not improved, he was advised to consult Dr. Harmon in the city of Shreveport. Dr. Doles thought it possible that plaintiff was suffering from a sacro-iliac sprain. He is positive that plaintiff in giving the case history, did not refer to or mention any injury or accident prior to April 6th, although asked specifically if he had had any previous injury or accident. He did tell him of his experience on the 6th. He gave to Dr. Harmon the same case-history as he did to Dr. Doles. No mention whatsoever was made of any injury on April 4th. Dr. Harmon found muscle soreness of the lower spine, enlarged and infected prostate, and minor infection of the gums and tonsils. Practically all the other physicians who physically examined plaintiff found the same infections. We are sure each had its incipiency long prior to March 8th, the day he began work for defendant. He was given prostate massages and other treatments by Dr. Harmon deemed to be appropriate for the relief of his ailments. These were repeated often. He made 64 visits to Dr. Harmon’s office and was discharged on July 1st, with the advice that he was able to resume his usual line of work. He was further advised to continue the massaging and warned that not to so do, the improvement attained would be lost. Dr. Harmon was of the opinion that plaintiff’s prostate infection was the principle source of his trouble. Muscle rigidity, subsequently found, he thought was due to a revival of focal infection following cessation of advised prostate treatment. On June 30th, at defendant’s suggestion, plaintiff reported to Drs. B. C. Garrett and Wm. Norphlett for examination. He was thoroughly checked. They were of the opinion that he was not suffering any disability to perform manual labor. It was on the opinion of these physicians and that of Dr. Harmon that compensation payments were discontinued and no further medical treatment given him at defendant’s expense. He thereafter employed counsel who had an x-ray picture made of his lower back on August 27th, and his entire body closely checked and examined by four prominent physicians of the city of Shreveport. These examinations were made during the months of September, October and December, 1936. Defendants also had a picture made of plaintiff’s back by an experienced roent-genologist. Neither of the pictures disclosed any bone injury, that is, no fracture or displacement. Both revealed a “lipping” (exostosis) at the joints of the eleventh and twelfth thoracic vertebrae and of the first lumbar vertebra. This process, called “lipping” is a growth at the back *451 bone joints and may be due to trauma of the cartilage or disease. It results from nature’s efforts to correct the ill effect of injury or disease, and may cause- serious pain and discomfort. Flexation of the involved joints is more or less impaired, and chances for injury to the back materially enhanced thereby. Whether this lipping has brought about an arthritic condition at the locus, there is not unaninimity of opinion. There is also disagreement concerning the period of its existence. The decided preponderance of the testimony is that its incipiency antedated the alleged accidents. There is no dissent among the several physicians who gave testimony in the case on these points: (1) That plaintiff’s disability, regardless of its nature, present and past, could have been caused by focal infection or by trauma, or by a combination of the two; (2) That 'if plaintiff suffered the injury alleged by him on April 4th, the ill effects of it would have soon disappeared, but for the influence of the infection. Not one of the nine doctors was willing to say that plaintiff was totally disabled. Dr. Herold was of the opinion that he was not able to resume work which would require any straining, while Dr. Paine was certain in the belief that he would have to improve materially before he should resume oil field work. Other doctors, sworn for plaintiff, were not interrogated on this point. Defendant’s physicians were of the opinion that he was able to perform manual labor. Plaintiff’s physicians thought he experienced some sort of trauma of the lower back and that this injury aggravated and moved to increased activity the dormant infections, and the two together produced the disability complained of. An equal number of physicians for defendant, of as extensive experience and having as splendid reputations, are as equally positive that disease alone accounts for plaintiff’s trouble. All these physicians advance reasonable and plausible theories upon which they predicate their opinion. All are honest, no doubt, but all are not correct. Several of them were certain plaintiff’s disability could be due to the prostatic condition alone. The medical testimony is inconclusive as to material points in the case, save as above mentioned. It certainly does not establish to that degree of certainty necessary'to definitely make a finding thereof, that plaintiff’s present disability, regardless of the extent, is due to an accident of the character he claims to have experienced on April 4th. Plaintiff’s version of the accident on April 4th is substantially corroborated by only one fellow workman. It is passing strange that of the many men who were there at the time moving the pipe and filling th,e trench, only one could be induced to testify in his behalf. Usually fellow workmen are eager to aid an injured brother when their testimony will do so Two of these workmen testifying for defendants state they did not see the first alleged accident and never heard such happened. The foreman of the crew was there when the “bow” in the pipe was removed and is positive no accident occurred and is positive plaintiff did not tell him of it, although plaintiff says he did. We are not convinced that plaintiff was injured at all on April 4th. It is virtually unbelievable that when the facts were so fresh in his mind, he would have omitted mentioning this incident to Drs. Doles and Harmon- when giving the history of the case; and especially is this true when Dr. Doles quizzed him particularly as to accidents or injuries prior to April 6th. So far as the record discloses,' no mention was made by him of the alleged accident on April 4th to anyone, until he was examined on June 30th by Drs. Garrett and Norphlett. It is not improbable that at that time he had sensed the probability of the discontinuance of compensation. It is shown that many persons have this same affliction and never know it until revealed by the x-ray. Some cases are accompanied by intense pain and some not. It seems improbable to us that if plaintiff had undergone the straining and experienced the pain he says he did on April 4th, he could have continued to work. He returned Monday to do any work assigned him and no doubt was given light work because there was no more pipe to be connected or laid. It also seems strange that the violent strain did not incapacitate him for work, while the mere stooping to pick up a stick did so. It is also a significant fact that subsequent to .discontinuance of compensation payments, so far as the record discloses, plaintiff was not treated by any physician. He was advised to continue the prostatic treatment, but evidently did not follow this advice. If *452 impecunious, a splendid Charity Hospital in the city of Shreveport would minister to his ailments. These facts tend to strongly support defendants’ contention that if plaintiff had any accident at all in April, 1936, the ill effects of such had been removed by July 1st and plaintiff’s present disability, if any, is simply the result of infectious activity following cessation of the prescribed treatment. We concur in this position. Apparently, plaintiff was willing to sit idly by and allow his system to again become charged with poison from the infected areas, rather than try to secure a measure of relief which probably would unfavorably affect his chances to procure additional compensation. Plaintiff argues alternatively that should it be held that the testimony does not establish that an accident occurred on April 4th, he is still entitled to recover on account of the accident of April 6th, under the case of Jackson v. Travelers Insurance Company, 180 La. 43, 156 So. 169. In view of the conclusion reached by us on other issues of the case, we are not called upon to decide whether' the incident of April 6th amounted to an accident within the meaning of the Workmen’s Compensation Law, as expounded in the Jackson case. We held that the effects of that incident had been effaced on or before the date plaintiff was discharged by Dr. Harmon on July 1, 1936, and that whatever present disability plaintiff has is directly due to diseases antedating the alleged accident. Plaintiff’s case has not been made out to the degree necessary to warrant recovery. For the reasons herein assigned, the judgment appealed from is annulled, avoided and reversed, and plaintiff’s suit dismissed at his cost. HAMITER, J., dissents.