Malone & Hyde of Tupelo, Inc. v. Hall

183 So. 2d 626, 1966 Miss. LEXIS 1429
CourtMississippi Supreme Court
DecidedMarch 7, 1966
DocketNo. 43835
StatusPublished
Cited by5 cases

This text of 183 So. 2d 626 (Malone & Hyde of Tupelo, Inc. v. Hall) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Malone & Hyde of Tupelo, Inc. v. Hall, 183 So. 2d 626, 1966 Miss. LEXIS 1429 (Mich. 1966).

Opinion

BRADY, Justice.

This is an appeal from an order of the Circuit Court of Lee County, Mississippi, reversing a decision of the Mississippi Workmen’s Compensation Commission and awarding compensation benefits to the appellee, as a consequence of an injury claimed to have been sustained by appellee.

The record discloses the following relevant facts. Appellee worked for Malone & Hyde of Tupelo, Inc., as a truck driver, and had been so employed for approximately five years prior to the incident involved. On the morning of September 30, 1963, appellee, driving a truck owned by appellant, left Tupelo on his designated route from appellant’s warehouse to Water Valley, Mississippi. After he had driven the truck a short distance and was approaching a store near Bissel, Mississippi, the appellee coughed or sneezed, and immediately thereafter he experienced severe pain in his lower back and legs. He was forced to pull his truck to the side of the road and stop. He was unable to get out of the truck for some time because of the pain, but finally descended to the ground.

An ambulance was called and appellee was transported to the North Community Hospital in Tupelo, where he was seen by Dr. R. H. Pegram, Jr. He was hospitalized in the Tupelo hospital under the care of Dr. Pegram until October 12, 1963. Dr. Pegram referred appellee to Dr. William S. Ogle of Memphis, Tennessee, who first saw appellee on November 5, 1963. Appellee was treated by Dr. Ogle four times, from November S until November 23, with intensive conservative measurements, which failed to provide the desired result. On December 4 he was discharged, anticipating improvement with the passing of time.

Dr. Ogle examined him again on December 18, and on December 29 appellee reentered the hospital for a recommended operation, which was performed by Dr. Ogle on December 31, 1963. The operation revealed a ruptured lumbar disk, which was removed at the L5-S1 level. The results of the operation were very gratifying, but the record discloses that, at the time of the hearing before the Workmen’s Compensation Commission, Dr. Ogle had not released appellee to return to work.

Appellee submits in his brief that the issue presented to the Commission was whether or not there was a causal connection between appellee’s employment and his injury of September 30, 1963. Ap-pellee does not contend that anything connected with his employment caused him to cough at the time of his injury. He does contend, however, that “the injury arose out of the employment in that the [628]*628position that appellee was required to be in in driving the truck made it more likely for the injury to occur in that it put more strain on his hack or more pressure on his spine and precipitated or combined with the cough to precipitate the injury.”

The attorney referee found that there was a causal connection between appellee’s employment and his injury of September 30, 1963, and that, at the time of the hearing appellee was temporarily totally disabled. The majority of the Commission reversed the decision of the attorney referee, holding that the record was totally silent as to the reason for Mr. Hall’s coughing or sneezing; that “there is no allegation that sun suddenly got in his eyes, that he inhaled any noxious fumes or any other thing that would ordinarily cause one to sneeze. Certainly there is no showing that any part of his employment caused him to sneeze. * * * ”

The Commission further held: “It appears beyond dispute that the claimant had a physical mechanism within the physical structure of his back that was ready to be triggered and that the sneezing triggered the mechanism, thereby causing the disability.”

The Commission found in its order that “Dr. Ogle was of the opinion that the position in which claimant was sitting, while driving the truck, at the time he coughed was an ideal situation for the production of a ruptured disc; however, he did not, in the opinion of the Majority Commission, believe that a normal man would ever suffer a ruptured disc merely because he happened to sneeze.”

Due to a typographical error, or to inadvertence, the Commission’s order credits Dr. Ogle with advancing the opinion, when, in fact, it was Dr. Schultz’s opinion which led the Commission to find: “It appears to the Majority Commission that Dr. Ogle (Schultz) was of the opinion that the condition of the claimant was due primarily to a degenerative interver-tebral disc which had pre-existed the date of the alleged accidental injury and that the coughing or sneezing, which the Majority of the Commission believes is totally unrelated to the employment, was the straw that broke the camel’s back.”

The Commission’s order concludes that the overwhelming weight of the evidence does not show that the accident arose out of the employment. The mere fact that this Court on numerous occasions has held that an employee suffered a disability while engaged in the services of the employer did not make the case compensable.

The Commission, therefore, set aside the award of the attorney referee, denied compensation and dismissed the cause. The Circuit Court of Lee County, on appeal, without stating any reasons, reversed the Commission and reinstated the order of the attorney referee. Hence comes this appeal.

Appellant assigns as error the action of the circuit court in reversing the holding of the Commission that the claimant did not sustain an accidental injury which arose out of his employment. The dominant question presented here is whether or not the Commission’s holding that the accident did not arise out of the claimant’s employment is supported by substantial evidence. The record conclusively establishes the fact that the appellee, at the time of the incident, was suffering either from a ruptured disk which, up to that time, had not caused any pain or showed any symptoms, or a disk degenerated to such a degree that its rupture was imminent. Contrary to the contentions of the ap-pellee, the testimony as disclosed in the depositions of Dr. Ogle and Dr. Schultz is not corroborative, but is conflicting.

Dr. Ogle in substance testified that the position in which appellee was required to be when driving the truck was a cause or contributing factor toward the rupturing of the disk. This doctor thought that [629]*629the jack-knife position of the appellee’s body, with the attendant sneeze or cough “is an ideal situation for the production of ruptured discs in the low back.” Dr. Ogle stated that the sitting attitude primarily is the feature of importance and it did not make any difference whether a person was sitting in a chair or driving a truck.

In contrast to this, Dr. Schultz testified that, in his opinion, a person would not be more likely to rupture a disk by coughing or sneezing while in a sitting position than he would in any other position, except lying in bed. Dr. Schultz positively stated that in his opinion sitting in a truck, driving a truck, was not a contributing cause to the rupture of the disk. Dr. Schultz testified: “I certainly don’t feel that truck driving per se had anything more in the production of this man’s symptoms than carrying a bucket of water.” Dr. Schultz further testified that a person “is more likely to get in trouble when he has weight upon the spine, so in a standing position or sitting position, he is more vulnerable to trouble than if he were, say, lying in bed.” Dr.

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Bluebook (online)
183 So. 2d 626, 1966 Miss. LEXIS 1429, Counsel Stack Legal Research, https://law.counselstack.com/opinion/malone-hyde-of-tupelo-inc-v-hall-miss-1966.