Grissom v. H. K. Ferguson Co. , 9 McCanless 580 ( 1959 )

Me. Chibe Justice Neil

delivered the opinion of the Court.

This is a workmen’s compensation case coming to this Court on appeal from the Chancery Court of Knox County. The Chancellor entered a decree awarding compensation to the injured employee based upon a 50 per cent permanent partial disability to the body as a whole. The total amount of this award was $1,410. It is from this decree that the Chancellor granted an appeal.

The appellee, Ralph H. Grissom, Jr., was employed as a pipe-fitter by the appellant, H. K. Ferguson Company, and suffered an injury to his back and arm while so employed. The only issue on this appeal relates to the extent of Grissom’s disability.

The teclmical record and bill of exceptions were filed on February 16, 1959. Tbe assignments of - error with supporting brief were not filed until April 29, 1959. On the same date the counsel for the appellee, Grissom, files his motion to strike the assignments of error because the same does not comply with the rules of this Court. We think the motion is well taken and is sustained. However, the Court has given full consideration to the brief of counsel upon all factual issues.

As we view the determinative issue it involves no technical rule of law. It is purely a question of fact as to the extent of Grissom’s disability, i. e. whether or not there is any material evidence to support the Chancellor’s decree.

The record discloses that the accident and injury arose out of and in the course of the appellee’s employment. There is little if any dispute as to the facts. The petitioner Grissom, worked for the defendant in October, 1956, at which time he suffered this injury to his back. He was confined to a hospital for a month; he still wears a brace occasionally.

Regarding the nature of his injury he testified, as follows:

“Q. What kind of suffering and what was your disability that you know yourself about while at St. Mary’s? A. Well, I have got an arm that when I raise it up it felt like somebody kicking me in the back.

“Q. Which arm is that? A. My left arm.

“Q. Did you tell Dr. Carlson about that arm? A. Yes, sir, and it feels numb and just tingles like it is asleep all the time.

“Q. What about your back? A. That is what I am talking about, unless I use my arm, tbe back gives me some trouble, but don’t give me near as much, trouble as when I raise my arm.

“Q. Is there any heavy lifting in the pipe fitting trade? A. Yes, sir, all of it is heavy lifting.

“Q. Can you do any lifting? A. No, sir.

“Q. Why? A. On account of my back.

“Q. What happens to your back, is it sore or stiff? A. Sore.

“Q. Is it better now or worse than it was when you were discharged from the hospital? A. I can’t see no change in it.”

Petitioner testified he had worked some since the accident for T.Y.A., but only light work, because he could not do the work required of a pipe-fitter. He had a physical examination by T.Y.A. similar to one given before going into the Army. A girl filled out the questionnaire, she put down the answer “he had no broken bones”. The witness was cross-examined at length about statements he made, or did not make, to a Dr. Capps at New John-sonville.

We next consider the testimony of Dr. C. Sanford Carlson, a capable orthopedic surgeon, regarding the injury complained of. He gave the following testimony:

“Q.. I believe Mr. Grissom’s family called you in to look after him at St. Mary’s Hospital when he was injured? A. Yes, sir.

‘ ‘ Q. What injuries did he have ? A. I found he had a compression fracture of the first lumbar vertebra.

“Q. Is that in the lower part of the hack? A. That’s in the mid lower part of the hack.

‘£ Q. What did you do about the treatment substantially and how long did he stay in the hospital? A. We administered conservative or non-operative treatment, we initially placed him in a body cast and then that was replaced with a back brace; he was discharged from the hospital on November 21, 1956.

“Q. I believe he was injured on October 26, 1956? A. Yes, sir.

‘ ‘ Q. When he was discharged, was he wearing a back brace? A. Yes, sir.

“Q. Was anything necessary for him to do except to go about and let nature take its course and heal the bone? A. No, sir.”

He later examined the petitioner’s arm but found only subjective symptoms. Shortly before the trial Dr. Carlson examined the petitioner and testified at length as to the extent of disability. His final conclusion was “that he has a residual permanent partial disability of between 10.% and 15% to the body as a whole.” On cross-examination he testified that in his opinion the petitioner was not “malingering”, but that he had been cooperative and had been “honest in his reporting his symptoms.”

We have heretofore stated the conclusion of the Chancellor as to the extent of petitioner’s disability. We think the foregoing testimony amounts to some material evidence to support his decree.

We have considered other evidence in the record. But do not decide any factual issue based upon the weight or preponderance of the evidence.

The Chancellor’s decree is affirmfed. The cause is remanded for such orders as may be necessary to enforce the decree.