Maleby v. Gulf Refining Co.

PORTER. J. This is a suit under the Workmen’s Compensation Act, in which the plaintiff claims compensation at the rate of $18.00 per week for 400 weeks, less twelve weekly payments which he has received from the defendant Company, for certain physical injuries which he received while engaged in working for said Company. The ldwer Court rejected plaintiff’s demands, and he has- appealed. The sole question presented is one of fact, that - is to say, whether the disability from which plaintiff claims to be suffering is traceable to the accident of which he was admittedly the victim. He was working as a “roustabout” around an oil well belonging to the Company, when a rod hook fell and struck him upon the top of his head. He alleges, in his petition, that the blow fractured his skull, and otherwise inflicted serious damage on, in, and about his head, and his nervous and physical system in general. He testified that about four months after the accident, he began to have epileptic fits, that he would shake all over, froth at the mouth, and become unconscious. He says he began to have these fits about four months after the accident, and that he continued to work until he had the fits. Defendant’s time keeper testifies that plaintiff lost only two days after the accident. He says it occurred on July 10th, 1921. (The petition alleges June 10th as the date of the accident.) The records showing plaintiff’s time, which are undisputed, show that from, say three days after the accident, he put in practically full time; seven days a week of ten hours — -until and including the middle of February, 1922, or seven months. And [70] he is credited with two days in March, and eleven in May. In the latter part of February, plaintiff was sent by the defendant Company to the Highland Sanitarium for examination and treatment. An X-ray picture was made of his skull by Dr. Rutledge, a specialist in radiology, which failed to disclose any fracture, or anything which could account for the fits or other symptoms of which plaintiff complained. Dr. Hendricks, Chief Surgeon of the above institution, thought that, perhaps, there might be some adhesion which the X-ray would not show, and decided upon an operation. He lifted a portion of the bone of the skull where the blow had been received, and found no adhesion, and is quite positive that there is no injury to the skull or brain. Just before the trial, counsel for the Company asked the Court, by motion filed in the record, to appoint three disinterested physicians to examine into the plaintiff’s condition, .for the purpose of determining whether plaintiff is subject to epileptic fits, or other disorders, due to the accident which he received. The Court appointed Dr. J. C. Willis, a leading physician and surgeon of Shreveport', and he reported the result of his examination as follows: “Hon. T. F. Bell, Judge, Caddo Parish District Court, Shreveport, La. • Dear Sir: .On .examination of Mr. E. B. Maleby, at your request, we find that following an injury to his head which he sustained some time ago and an operation on same for the purpose of relieving the pain and pronounced nervous symptoms (fits) which were supposed to have been caused by the injury, he has been relieved to the extent that the so-called fits have discontinued, but that he still complains of nervousness and extreme sensitiveness of the scalp, the condition being technically known as hyperthesiá. This seems to exist to such an extent that brushing or even handling the hair causes marked discomfort, and some pain. This condition, we do not consider serious ordinarily, but we recognize the fact that it is very annoying. I also find that he has a blood pressure (taken on two occasions three days apart) of 155 systolic, and 100 to 105 diastolic. The normal pressure in a man of his age should be 120 systolic and 90 diastolic. Evidently, he has a hypertension from some cause for which I am unable to account, unless it is in some way connected with the accident. This condition, if permament, we consider serious. . However, this patient presents the appearance of being a neurotic, or in other words, he shows evidence of being of an unstable nervous type. Whether these conditions existed previous to the injury, or whether they were entirely caused by the injury, I am unable to say, as I am not familiar with either his past history or condition. However, I am unable to connect them with any present general systemic condition, for his vital organs, such as heart, kidneys and lungs, are in good condition, and his blood examination (Wassernian) shows negative, and with the exceptions noted above, his general condition is good. Respectfully submitted, JCW-B J. C. Willis, M. D.” Dr. Willis was called -as a witness by the plaintiff. The trend of his testimony is along the lines of his report to the Judge. It bears the impress of absolute frankness and impartiality. He evidently realized that he was an advisor of the Court on matters which experts alone are competent to testify. It is not necessary to discuss his testimony, or that of any of the other physicians who testified in the case. The sum of it is, that it is not possible, without further knowledge of the facts of the case, including the physical history of plaintiff’s antecedents, to state with any de [71] gree of certainty,, that the condition of plaintiff is attributable to the accident. It is possible that it is and possible that it is not. He states that plaintiff’s high blood pressure may be the result of several causes— hardening of the arteries, and toxemia, among them — one of the causes of the latter being, as we understand, faulty elimination. He was asked if he found anything that might produce the present condition of the plaintiff which existed before the accident, and answered: “No, not that I could positively state.” Dr. G. H. Cassity testified for the plaintiff, and his testimony is distinctly favorable to him. The trouble about it is the general tenor of his testimony is opposed to that of the other three physicians who testified, including Dr. Willis, and that it appears to be based upon the assumption that plaintiff’s skull was fractured, or that there were adhesions • between the bone and the brain, when the only persons who were competent to give evidence as to the condition of the skull swear positively that no such conditions exist. We refer to Dr. Hendricks, who operated on plaintiff; and to Dr. Rutledge, the radiologist. The latter says: “On lifting the osteopathic flap and examining the inner plate of the skull, it showed absolutely no injury. The dura was perfectly normal, and no adhesions.” He says he found nothing in his examination that would cause epilepsy. He says that intestinal toxemia, or focal infection are common causes of epilepsy. Plaintiff admits that the fits ceased after the operation. He said at the time of the trial that his head was sore; that he could not stand to get hot; that when he got hot, it hurt him all over ; that he could not do any work. It is somewhat significant that the statement as to having fits depends solely upon his own testimony. It is not corroborated by any other witness. It is impossible from the testimony in the record for any court to say with any reasonable degree of certainty that the condition of which plaintiff complains is due to the accident. The rule that plaintiff must establish his case applies to this class of cases, as well as to others. See Haddad vs. Truck Co., 150 La. 327, 90 South. 666, and authorities there cited. The judgment appealed from is affirmed.