Ray v. Garner Construction Co.

Sam Bobinson, Associate Justice. This is a workmen’s compensation case. Appellant, Hollis W. Bay, who lives at Sheridan, claims that he was injured while working for appellee, D. H. Garner Construction Company on a job in North Little Bock on June 10, 1960. The Workmen’s Compensation Commission denied compensation and Bay has appealed. On the 23rd day of June, 1960, Bay was operated on for two ruptured discs. There is no question about the discs being ruptured. The only issue is whether there is substantial evidence to sustain the Commission’s finding that Ray was not injured in the course of his employment. Appellant is 42 years of age and has been a heavy equipment operator for many years. He also preaches on occasion. In April, 1960, he went to work for appellee operating heavy equipment, such as bulldozers, motor graders, etc. Some time prior to June 11, 1960, he made arrangements with his employer to take off from work the week beginning June 13 so that he could help to conduct a revival meeting in Pine Bluff. ■ He worked up until noon Saturday, June 11, the usual quitting time for the week. The next day, Sunday, June 12, and also on Monday and Tuesday, he preached at Pine Bluff. On Wednesday, June 16, he drove from his home at Sheridan to Pine Bluff to attend the revival service. His wife was with him and they stopped at a super market to get some groceries. He stooped over to get a box of crackers; a sharp and severe pain struck him in the back causing him to become prostrate with pain on his back on the floor of the super market. His wife called Dr. Heirs, a chiropractor of Pine Bluff who had treated Ray for back trouble 10 or 15 times since March 9,1960. Dr. Heirs immediately went to the super market where Ray was still on his back on the floor. With the help of others the doctor got him into an automobile and took him to the doctor’s office. There, a medical doctor was called who administered some shots for pain. Later Ray returned to his home and the next day went to see Dr. Guy Smith, a chiropractor in Little Rock. This was on Thursday. The following Saturday Dr. Smith recommended surgery to relieve the back condition, and then, for the first time, Ray notified his employer of his claim of having been injured eight days previously. Dr. Horace Murphy was called and the following week, on June 23, he operated and found two ruptured discs which he repaired. Ray was off from work about 4 months and has a 20% permanent disability. The issue is not whether the evidence is sufficient to sustain a finding other than that made by the Commission, but is there substantial evidence to sustain the order that the Commission did make. Definitely, there is substantial evidence to sustain the Commission. Appellant claims he was injured in the course of his employment in this manner: He testified that a short time before the end of the work day on Friday, June 10, he cleaned the tracks of the tractor he was operating, and a stone weighing 10 or 12 pounds was lodged in one of the drive sprockets; that he dislodged it; that he tossed it aside and felt a sharp and severe pain in his back. He claims that at that time he injured his back and that such injury resulted in two ruptured discs. This is the alleged injury for which the Commission denied compensation. There is no evidence at all that appellant received an injury as he claims, except what he says about it; but there is substantial evidence that the discs in appellant’s back were not ruptured as he claims on June 10, 1960. Appellant does not say that he felt any pain when he removed the rock from the sprocket, but claims that when he tossed it aside he felt a sharp and severe pain, but notwithstanding such pain he got back on the tractor and drove it to the usual parking place for the night. Although there were two other men on the job, he said nothing to them about having been injured and nothing about being in pain. He drove to his home at Sheridan Friday night and drove back to work the next day and worked the usual time for Saturdays, 5% hours. Again he said nothing about having been injured and his fellow workers observed nothing unusual about him as he went about his work in the ordinary manner. Although in making his claim for compensation he says he was in great pain the Saturday morning following the alleged injury on Friday, he drove from his work in North Little Bock to his home at Sheridan, and on Sunday he went to Pine Bluff to preach at the revival. He again attended the revival on Monday and Tuesday. On Wednesday he drove from his home at Sheridan to Pine Bluff, and while stooping for a box of crackers in a super market, he suffered the injury that disabled him. He claims to have had a severe pain in his back ever since the alleged injury in North Little Rock on Friday. It would not be unreasonable for the Commission to believe that if he was suffering such pain he would not have stooped for the crackers. The act of stooping in itself was sufficient to cause his disability. Appellant says that he bent his knees in stooping for the crackers. This would put him in a squatting position. Dr. Murphy, who operated on him, testified that a squatting position seems to produce more ruptured discs than anything else. Moreover, Dr. Murphy testified that it does not take a severe injury to cause a ruptured disc; that it can be caused by pushing back a chair or bending over; that a slight motion can cause this type of injury; such things as coughing or sneezing could cause this particular condition that appellant complained of. No doubt appellant had a weak back when he stooped for the crackers. He testified to having had trouble with his back for 10 or 15 years. Dr. Smith corroborated him on that point. Furthermore, appellant testified that prior to the time of the alleged injury he had X-ray pictures made of his back, but at the time of the hearing before the Commission he said he could not remember who made the pictures. He spoke in a derogatory manner of the doctors who made the pictures, but still could not remember who the doctor was, nor did he produce the pictures. His testimony on that point may have caused the Commission to believe that if his memory was a little better the doctor who made the pictures could have been called as a witness and the X-rays produced, clearing up the question of when the discs ruptured. Appellant admitted to having had a pain in his back at the point of the ruptured disc ever since two weeks after he went to work for appellee; that the pain had been constant since that time up to the time of the operation; that the pain had gone down into his toes and the ball of his foot. He stated that he had taken sleeping pills in order to sleep; that the pills had been prescribed for his wife, but he did not know what doctor had prescribed the sleeping medicine. Perhaps the Commission thought it remarkably strange that a man would not know what doctor was prescribing for his wife. Dr. John Hundley, an orthopedic surgeon, examined Ray on behalf of the appellee and testified positively that Ray denied to him that he had ever had any trouble with his back prior to the alleged episode on June 10, 1960. The record is replete with evidence to the effect that Ray had been having trouble with his back for many years. Dr. Hundley also testified that if appellant had received an injury causing a ruptured disc as he claims on June 10, the pain would have been so excruciating he could not have worked 5% hours the following day and could not have preached at Pine Bluff. When all the evidence is considered, it cannot be said that it is not substantial to sustain the finding of the Commission. Affirmed.. Harris, C. J., and Johnson, J., dissent.