Employer's Casualty Co. v. United States Fidelity & Guaranty Co.

If I could agree with the majority that "the primary and decisive question is one of fact," a dissent would not be required. The opinion expressly says it is "undisputed" that U.S. F. G. "was the insurer from prior to December 1, 1946, until February 1, 1947; that on the latter date (Employer's Casualty) took over the risk, thus relieving U.S. F. G."

Whether a judgment is supported by substantial evidence is a matter of law. In determining there was or was not sufficient evidence in a considered case Courts are not relegated to miscellaneous statements lifted from the context.

From the so-called factual point of view, it was conceded in oral argument that Dr. Krock made an error when he examined the claimant December 24. This was due to the angle at which X-ray pictures were taken. It does not in any sense reflect upon the high professional standing of the physician, whose status as an extraordinarily competent diagnostician is firmly fixed.

The term "disability" as used in the Compensation Act, appears in insurance policies, many of which have been before the Courts. We have said it was not error to charge the jury that a plaintiff was totally disabled if the proof showed him to be unable to perform, "in the usual and customary manner, all of the material duties of his profession." Pacific Mutual Life Insurance Company v. Riffle, 202 Ark. 94, 149 S.W.2d 57.

In the case before us Prescott began working in August 1925 and was injured December 19, 1946, when U.S. F. G. was the exclusive insurer. The undisputed testimony is that during the latter part of December and through January, Prescott (after having reported the injury) continued to work until February 14, "but was in misery all the time," and while enduring great pain remained on duty "because I had to live."

Except where total disability, as expressed in a contract or statute, imperatively requires a construction placing the claimant on a stretcher, in a hospital or wheelchair, or immobilizing him in bed, Courts generally do not say that because a person of remarkable courage and fortitude remained at work while others similarly afflicted would yield, he must be classified as fit for service.