{ "id": 8717987, "name": "Employer's Casualty Company v. United States Fidelity & Guaranty Company", "name_abbreviation": "Employer's Casualty Co. v. United States Fidelity & Guaranty Co.", "decision_date": "1948-11-08", "docket_number": "4-8616", "first_page": "40", "last_page": "48", "citations": [ { "type": "official", "cite": "214 Ark. 40" }, { "type": "parallel", "cite": "214 S.W.2d 774" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "210 Ark. 311", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8720016 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/210/0311-01" ] }, { "cite": "211 Ark. 999", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1473236 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/211/0999-01" ] }, { "cite": "202 Ark. 94", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1449951 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/ark/202/0094-01" ] } ], "analysis": { "cardinality": 721, "char_count": 14574, "ocr_confidence": 0.505, "pagerank": { "raw": 2.140214773775391e-07, "percentile": 0.7669869942224431 }, "sha256": "7e0e371c350081dd3489eba80e4a88cc8e39c866f72137d76221866f76587a83", "simhash": "1:87e937796a7c6b01", "word_count": 2528 }, "last_updated": "2023-07-14T15:29:26.096089+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Employer\u2019s Casualty Company v. United States Fidelity & Guaranty Company." ], "opinions": [ { "text": "Holt, J.\nThis litigation presents a contest between two insurance carriers under the Workmen\u2019s Compensation Act 319 of 1939, as amended. No question is raised as to the right of the claimant to the award made by the Commission. The question for our determination is the respective liabilities of these two insurance carriers to pay the award, it being appellant\u2019s contention that the full liability should fall upon appellee, .and appellee on cross-appeal argues that the full liability should fall upon appellant.\nThe Commission found that the liability for payment of its award to the claimant should be borne equally by these two insurance carriers, and so ordered. On appeal by appellant only, the Circuit Court affirmed the action of the Commission. On direct appeal, appellant, as indicated, argues that the full liability for payment of the award should fall upon appellee, and on the contrary, by cross-appeal, appellee argues that the full liability should fall upon appellant, and in any event, appellant should be held liable for one-balf of tbe award as found by tbe Commission and affirmed by tbe Circuit Court.\nTbe question appears to be one of first impression before this court.\nAs we view tbe record, tbe primary and decisive question is one of fact. It is undisputed that appellee, U. S. F. & G. Co., was tbe compensation insurer from prior to December 1, 1946, until February 1, 1947; that on tbe latter date, appellant took over tbe risk, thus relieving appellee.\nOnly two witnesses testified before tbe Commission, Dr. Fred Krock and tbe claimant, Clyde Prescott.\nTbe summation of facts as made by tbe Commission appears fair and complete and we adopt it here.\n\u201cThe claimant, Clyde Prescott, entered tbe employ of this respondent in August, 1945. His average weekly wage was $39.15.\n\u201cHe testified on August 13, 1947, that on or about December 19,1946, be was pushing wheelbarrows of ore, weighing 7 or 8 hundred pounds, when be felt a strain, or catch, in \u00a3ds left hip and bis back felt numb and tbe pain went down bis leg to tbe end of bis toes. That be told bis yard foreman, Perry Kuykendall, that be bad \u2018 tbrowed a catch \u2019 in bis hip. He continued to work, however, until on December 24 tbe pain was such that be got an order to go to Dr. Krock.\n\u201cDr. Krock examined him and told him be bad arthritis and there was nothing be could do for him except to put a light on bis hip. He returned to work tbe day after Christmas and continued to work until February 14,1947. He testified that be was \u2018in misery\u2019 all tbe time be worked and went to Dr. Scott for treatment during this period. \"When be was forced to lay off on February 14, be asked for another order to go to tbe doctor, but this was not done because Dr. Krock bad reported that be bad arthritis. He then went to Oklahoma at bis mother\u2019s request, and saw Dr. Rutherford and was sent by him to the McBride Clinic in Oklahoma City, where lie was operated on for herniated disc in the low back by Dr. Margo on April 16, 1947. He is still disabled and unable to work. On cross-examination he testified that when he saw Dr. Krock on December 24, 1946, he does not remember whether he complained to Dr. Krock of his back but only of his hip; that after he had seen Dr. Krock the pain got progressively worse until he had to quit on February-14,1947; that during that period he kept wheeling heavy loads of ore.\n\u201cHe further testified that prior to the occurrence on about December 19, 1946, he had never had any trouble like that, that he considered himself a strong, healthy man and had done heavy work.\n\u201cOn January 7, 1947, the claimant gave a statement to a representative of the U. S. Fidelity & Guaranty Company who was the insurer of the respondent until February 1, 1947. Asked exactly when he first noticed his back condition the claimant said he could not tell exactly, that it gradually came on, that it was his left hip, it wasn\u2019t his back, that it got worse and he thought it was a sprain and asked them to send him to a doctor; that about December 1, 1946, he was unloading a car and caught his heel and his left leg doubled up under him; that he had a pain, in the calf of his leg for two or three days and then didn\u2019t bother him any more; that the pain wasn\u2019t like the pain following the occurrence on or about December 19,1946; that the pain in his hip had come on gradually; that he first noticed it a few days before they sent him to the doctor on December 24,1946, two or three days before he was unloading ore when it started to hurt. On January 7, 1947, he stated that his hip still hurt, no complaint was made of his back, he did state that pains radiated down his left leg. He had been told by Dr. Krock that it was arthritis and had not been informed otherwise. He complained at that time that unloading ore seemed to make his condition worse, caused it to pain more.\n\u201cDr. Fred Krock testified before the Commissioner on August 13, 1947, that he saw the claimant on December 24, 1946; that he was given the history of gradual onset of pain in the left hip on December 19 or 20; that the claimant thought he had sprained his left hip. He did not at that time complain of injury or numbness of his back. X-rays were made that showed no evidence of a traumatic bone injury, but did show a narrowing between the fourth and fifth lumbar interspaces. It was his opinion at the time that it was an arthritic condition. It was also his opinion that the narrowing between the fourth and fifth lumbar interspace had occurred a matter of months prior to December 19,1946. At the time of his examination the usual symptoms of a herniated disc were not present. He did not have the history of pain radiating down the leg along the sciatic nerve; there was a negative La Sage test, no atrophy or decrease in the knee or ankle jerks. For this reason he made a diagnosis of arthritis.\n\u201cA herniated disc may develop insiduously over a long period of time or may develop as a result of injury. The ligaments which hold the disc in place tear out and allow the gristle between the bones to protrude and press on the nerve roots, as the protrusion increases the pain spreads along the sciatic nerve, it can be progressive. This could have been caused by strain. If he had a strain on December 19, it must be admitted, in the light of later developments, that this was producing the symptoms. From the X-ray, it was protruding before December 19, as it takes months to take place. This strain of December 19 could have aggravated it by pushing more of the disc out. Continuing to work to February 14 could have caused the protrusion to become more pronounced. Heavy lifting over a long period of time will predispose a herniated disc. It could possibly become progressively worse if he had been at rest after the beginning of symptoms.\n\u201cThe report of Dr. Krock made December 24, 1946, was admitted in evidence. This report is in accordance with his testimony.\n\u201cThe report of the McBride Clinic, dated May 7, 1947, shows, that they saw the claimant first on April 9, 1947. At that time he was complaining of considerable pain in the lower part of Ms back, left' Mp and leg. He gave tbe bistory of baying bad this condition for a period of time with a probable bistory of an injury back to last November.\n\u201cExamination and X-ray revealed that be bad a herniated disc in tbe low part of tbe back. Surgery was recommended and this was carried out on April \u00cd6, 1947, at wbicb time there was found a herniated disc, left side lumbosacral area. A fusion was done to tbe lower spine. His recovery has been satisfactory, but it will be several months before be will be able to resume work.\u201d\nUpon tbe above statement, tbe Commission makes tbe following findings of fact:\n\u201c1. That prior to December 19, 1946, tbe claimant had a preexisting condition wMcb predisposed him to herniation of an intervertebral disc.\n\u201c2. That tbe claimant received an injury that arose out of and in tbe course of bis employment on December 19, 1946, aggravating this preexisting condition.\n\u201c3. That from December 19, 1946, to February 14, 1947, tbe claimant continued to receive successive injuries, that arose out of and in tbe course of bis employment, progressively aggravating bis preexisting condition into disability on February 14, 1947.\u201d\nWe quote tbe following testimony, of tbe claimant, Prescott, relating to events following bis return to work after Dr. Krock\u2019s examination. His condition \u201cgradually got worse, it hurt a little, but I could still work. It didn\u2019t get to where I couldn\u2019t work. ... I ruptured it worse. . . As I continued to work it got worse. It continued to gradually get worse because I was lifting these heavy loads. From tbe day I got hurt until I quit . . . it was a strain when I lifted tbe wheelbarrow. . . . Q. And you kept working until February? A. Yes, sir, I was in misery all tbe time, but I bad to live. \u2019 \u2019\n\u25a0 Appellant in tbe concluding paragraph of its brief sums up its position: \u201cIt is submitted that tbe third finding of fact of tbe Commission is wholly unsupported by any evidence in tbe record, as is likewise tbe portion of the award imposing one-half of the liability for compensation upon the appellant.\u201d\nIn determining the sufficiency of the evidence to support awards in Workmen Compensation cases, we have repeatedly held that \u201cthe findings of the Commission on factual questions are as binding on the courts as are the verdicts of juries. . . . The Circuit Court on appeal from the Commission, and this court, on appeal from the Circuit Court, must weigh the testimony in the strongest light in favor of the Commission\u2019s finding.\u201d Andrew v. Gross v. Janes Tie Co., 211 Ark. 999, 204 S. W. 2d 783.\n\u201cCircumstantial evidence is sufficient to support an award of the Commission, ... In determining the sufficiency of evidence, doubts should be resolved in favor of claimant, and the evidence should he reasonably and liberally construed in his favor.\u201d Simmons National Bank v. Brown, 210 Ark. 311, 195 S. W. 2d 539.\nGuided by these rules, we think there is substantial evidence to sustain the judgment of the Circuit Court affirming the Commission\u2019s finding that from December 19th to February 14th the claimant continued to receive successive injuries by traumatic strains, that arose out of and in the course of his employment, -which progressively aggravated his preexisting condition into the disability February 14th, when he ceased to work.\nThere is substantial evidence that the claimant, after he received the injury December 19th as above outlined, continued in the heavy lifting in which he was engaged at the time, on and after February 1st when appellant\u2019s insurance coverage began, and that this heavy lifting after the December injury up to February 14th, continuously aggravated his condition and that he received injury while appellant was the insurer leading up to his disability February 14th.\nIn the circumstances here, while this' court as above noted appears not to have specifically passed upon the question dividing liability, and while we think the evidence, when liberally construed, was sufficient to have fastened liability on either of these insurance carriers for the full amount, we are unable to say that an equal division of this liability, for a single disability, on the facts presented, was not within the Commission\u2019s power and we bold that the action of the trial court in affirming the Commission\u2019s order is supported by reason and authority.\nIn 71 C. J., \u00a7 1353, p. 1411, the rule is stated: \u2018 \u2018 Compensation for a single disability resulting from separate accidents occurring under different employers should be equally apportioned between the insurers for the different employers.\u201d\nHere, as indicated, there is substantial evidence that Prescott suffered a compensable injury growing out of a series of separate traumas by strain and heavy lifting from December 19, 1946, to February 14, 1947, all of which aggravated a preexisting condition into the disability which occurred February 14, 1947.\nAccordingly, on the whole case, finding no error, the judgment is affirmed.", "type": "majority", "author": "Holt, J." }, { "text": "GrieeiN Smith, Chief Justice,\ndissenting. If I could agree with the majority that \u201cthe primary and decisive question is one of fact, \u2019 \u2019 a dissent would not be required. The opinion expressly says it is \u201cundisputed\u201d that U. S. F. & Gr. \u201cwas the insurer from prior to December 1,1946, until February 1, 1947; that on the latter date (Employer\u2019s Casualty) took over the risk, thus relieving U. S. F. &G-.\u201d \u2022\nWhether 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.\nFrom 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.\nThe term \u201cdisability\u201d as used in tbe 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, \u201cin the usual and customary manner, all of the material duties of his profession.\u201d Pacific Mutual Life Insurance Company v. Riffle, 202 Ark. 94, 149 S. W. 2d 57.\nIn 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, \u201cbut was in misery all the time,\u201d and while enduring great pain remained on duty \u201cbecause I had to live.\u201d\nExcept 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.", "type": "dissent", "author": "GrieeiN Smith, Chief Justice," } ], "attorneys": [ "Daily & Woods, for appellant.", "Paul E. Gutensohn and Warner & Warner, for ap-pellee." ], "corrections": "", "head_matter": "Employer\u2019s Casualty Company v. United States Fidelity & Guaranty Company.\n4-8616\n214 S. W. 2d 774\nOpinion delivered November 8, 1948.\nDaily & Woods, for appellant.\nPaul E. Gutensohn and Warner & Warner, for ap-pellee." }, "file_name": "0040-01", "first_page_order": 78, "last_page_order": 86 }