Summary
In Druey v. Ingalls Shipbuilding Corporation, 237 Miss. 277, 114 So.2d 772 (1959), this Court at pages 282-3 said: "The appellants seriously contend that the commission erred in not sustaining their motion to reopen the case for the hearing of further evidence.
Summary of this case from Crump v. FieldsOpinion
No. 41210.
October 12, 1959.
1. Workmen's compensation — reopening case for introduction of further evidence — within discretion of commission.
Reopening workmen's compensation case for the introduction of further evidence was a matter within the discretion of Workmen's Compensation Commission under its procedural rule. Sec. 6998-01 et seq., Code 1942.
2. Workmen's compensation — denial of claimant's motion to reopen case for introduction of further medical evidence — not an abuse of discretion.
Where no medical testimony was introduced in evidence, except written reports of attending physicians, one of whom diagnosed cause of death as rupture of intracranial aneurysm, probably of a congenital nature, and claim for death benefits was denied on ground that evidence was insufficient to show that death was in any way causally related to activities of employment, denial of claimants' motion to reopen case for the hearing of further evidence was not abuse of discretion, particularly where motion was not made in writing at least five days prior to date of hearing as required by procedural rule of Workmen's Compensation Commission. Sec. 6998.01 et seq., Code 1942.
3. Workmen's compensation — evidence — insufficient to show death was in any way causally related to activities of decedent's employment.
In proceeding on claim for benefits under Workmen's Compensation Act on account of death of one employed by shipbuilder as a chipper seven days after he became ill while engaged in work of cutting burrs off steel wherein the only medical evidence as to cause of death was statement of attending physician in a letter that death was due to rupture of intracranial aneurysm, probably of a congenital nature, and not to the type of work which decedent was doing, finding that the evidence was insufficient to show that death was in any way causally related to activities of decedent's employment was not against the overwhelming weight of the evidence or without substantial proof to support it. Sec. 6998.01 et seq., Code 1942.
4. Workmen's compensation — causal connection — claimant has burden of proof.
Claimants had the burden of proving causal connection between decedent's work and his death. Sec. 6998.01 et seq., Code 1942.
5. Workmen's compensation — causal connection — evidence wholly insufficient to meet claimant's burden.
Evidence was wholly insufficient to meet claimants' burden of proving causal connection between decedent's work and his death. Sec. 6998.01 et seq., Code 1942.
Headnotes as revised by Holmes, J.
APPEAL from the Circuit Court of Jackson County; LESLIE B. GRANT, Judge.
Carl E. Berry, Jr., Hattiesburg; William S. Murphy, Lucedale, for appellants.
I. The burden of proof in this case was on the appellants to prove their case in all its parts. It was incumbent on them to prove that their decedent was an employee and that he suffered "an accidental injury or accidental death arising out of and in the course of his employment". Under all of the facts and circumstances set forth above we respectfully submit the burden was met and the decision of the Commission should be rejected and judgment entered for appellants. Central Electric Power Assn. v. Hicks, 236 Miss. 378, 110 So.2d 351; Goodnite v. Farm Equipment Co., 234 Miss. 342, 103 So.2d 391; Insurance Department of Mississippi v. Dinsmore, 233 Miss. 569, 102 So.2d 691; Lewis v. Trackside Gasoline Station Pacific Indemnity Co., 233 Miss. 663, 103 So.2d 868; Majure v. William H. Alsup Associates, 216 Miss. 607, 63 So.2d 113; Poole v. R.F. Learned Son, 234 Miss. 362, 103 So.2d 396; Russell v. Sohio Southern Pip Lines, Inc., 236 Miss. 722, 112 So.2d 357; 58 Am. Jur., Sec. 255 p. 756; 100 C.J.S., Sec. 513(b) p. 462; 1 Larson's Workmen's Compensation Law, Sec. 38.20 p. 519.
II. There was an arbitrary abuse of discretion by the Commission in refusing to reopen the case, and the abuse of this discretion was contrary to the intent and purpose of the Workmen's Compensation Act. Ainsworth v. Long-Bell Lumber Co., 233 Miss. 38, 101 So.2d 100; Central Electric Power Assn. v. Hicks, supra; Ingalls Shipbuilding Corp. v. King, 229 Miss. 871, 92 So.2d 196; Lucedale Veneer Co. v. Rogers, 211 Miss. 613, 53 So.2d 69; Reyer v. Pearl River Tung Co., 219 Miss. 211, 68 So.2d 442; Russell v. Sohio Southern Pipe Lines, Inc., supra; Shivers v. Biloxi-Gulfport Daily Herald, 236 Miss. , 110 So.2d 359; Southern Engineering Electric Co. v. Chester, 226 Miss. 136, 83 So.2d 811; Webster Construction Co. v. Bates, 227 Miss. 207, 85 So.2d 795; West Estate v. Southern Bell Tel. Tel. Co., 228 Miss. 890, 90 So.2d 1; Williams v. Vicksburg Wholesale Poultry Co., 233 Miss. 384, 102 So.2d 378; Secs. 6998-24, 6998-27, 6998-28 Code 1942; 32 C.J.S., Sec. 1038 p. 1089.
White White, Gulfport, for appellees.
I. The Commission was correct in overruling the motion of appellants to vacate the award and reopen this case for the purpose of hearing newly discovered evidence. Ainsworth v. Long-Bell Lumber Co., 233 Miss. 38, 101 So.2d 100; Copeland v. Robertson, 236 Miss. 95, 109 So.2d 528; Hutto v. Kremer, 222 Miss. 374, 76 So.2d 204; Lang v. State, 230 Miss. 147, 92 So.2d 670; Roberts v. International Harvester Co., 181 Miss. 440, 179 So. 745; Southern Engineering Electric Co. v. Chester, 226 Miss. 136, 83 So.2d 811; West Estate v. Southern Bell Tel. Tel. Co., 228 Miss. 890, 90 So.2d 1; McElroy's Mississippi Evidence, Secs. 179, 180; Procedural Rule 7, Workmen's Comp. Comm.
II. The Circuit Court committed no error in affirming the order of the Workmen's Compensation Commission for the reason that there was no evidence in the record upon which an award could have been made. Cole v Superior Coach Corp., 234 Miss. 287, 106 So.2d 71; Ingalls Shipbuilding Corp. v. Howell, 221 Miss. 324, 72 So.2d 863; Rushing v. Water Valley Cola Bottling Co., 232 Miss. 338, 98 So.2d 870; Smith v. St. Catherine Gravel Co., 220 Miss. 462, 71 So.2d 221; 100 C.J.S., Workmen's Compensation, Sec. 513(b); Dunn, Mississippi Workmen's Compensation, Sec. 166.
III. Reply to appellant's brief. Central Electric Power Assn. v. Hicks, 236 Miss. 378, 110 So.2d 351; Goodnite v. Farm Equipment Co., 234 Miss. 342, 103 So.2d 391; Insurance Department of Mississippi v. Dinsmore, 233 Miss. 569, 102 So.2d 69, 104 So.2d 296; Lewis v. Trackside Gasoline Station, 233 Miss. 663, 103 So.2d 868; Poole v. R.F. Learned Son, 234 Miss. 362, 103 So.2d 396; Russell v. Sohio Southern Pipe Lines, Inc., 236 Miss. 722, 112 So.2d 357; W.G. Avery Body Co. v. Hall, 224 Miss. 51, 79 So.2d 453; Dunn, Mississippi Workmen's Compensation, Sec. 94.
The widow, two children and a grandchild of Milton Thomas Druey, deceased, claiming as dependents of the said deceased, brought this action against Ingalls Shipbuilding Corporation and its insurance carrier, American Mutual Liability Insurance Company, for benefits under the Mississippi Workmen's Compensation Law, claiming that at the time of the death of the said deceased he was an employee of the Ingalls Shipbuilding Corporation in Pascagoula, Mississippi, and that his death arose out of and in the course of his employment.
Druey had previously worked for Ingalls, and in 1952 he suffered an eye injury during the course of his employment for which he was paid compensation benefits. His wife testified that as a result of this eye injury he was addicted to severe headaches. On the evening of June 10, 1957, while in the employment of Ingalls, the deceased was engaged in chipping. This entailed using an airgun, weighing from twelve to fifteen pounds, having an air hose connected with it, and applying it to steel for the purpose of cutting burrs off the steel. The operation causes vibration in the chipper. On the evening in question, while engaged in such type of work, he experienced a ringing or roaring in his head and he fell out or blacked out. He was immediately taken to Dr. T.N. Lockard, the company doctor in Pascagoula, and shortly thereafter taken to the hospital. Dr. Lockard did not testify but he filed a written report of the incident to the insurance carrier on June 13, 1957. The report was introduced in evidence. The report set forth the name of the deceased, his age (47 years), the date of the accident (June 10, 1957), and the patient's statement to him, namely: "Felt faint — pain in both shoulders, dizzy." The report further showed that the patient was nauseated and vomiting. The report contained no statement or opinion with reference to the question of causal connection between the deceased's work and his death. Dr. Lockard transferred the deceased to Mobile, Alabama, where he came under the care and treatment of Dr. H.S. Cowley. During the course of the deceased's treatment by Dr. Cowley, he underwent two or three operations, and on June 17, 1957, he died. Dr. Cowley diagnosed the cause of his death as "a rupture of an intracranial aneurysm which most probably was of a congenital nature." Dr. Cowley was not called as a witness by either side, but a letter from Dr. Cowley was introduced in evidence wherein he gave his opinion as follows:
"It is our opinion that although he was working as a chipper for the Ingalls Shipbuilding Corporation, his death was not due to the type of work which he was doing. Rather, he died due to rupture of an intracranial aneurysm which most probably was of a congenital nature."
The initial hearing was had on August 20, 1957, before Hon. Frank Horton. At the outset of the hearing, counsel for the claimants announced that they desired to take the depositions of Drs. Lockard, Patton, Cowley, Mudd and a Dr. Earl Wert. After hearing the testimony of several witnesses, the hearing was recessed. It was not resumed until June 24, 1958, approximately ten months later, when a hearing was had before Hon. J.T. Hill, Attorney-Referee. Although counsel for claimants had announced at the outset of the initial hearing that he desired to take the depositions of several doctors, no depositions were offered and no doctor testified, and no medical testimony other than the written reports of Dr. Lockard and Dr. Cowley was offered and introduced in evidence. At the conclusion of the second hearing, the attorney-referee found that the evidence was insufficient to show that the death of the deceased was in any way causally related to the activities of his employment on the date in question, and he denied the claim. On appeal to the full commission, the action and findings of the attorney-referee were affirmed, and the circuit court affirmed the decision of the commission.
(Hn 1) The appellants seriously contend that the commission erred in not sustaining their motion to reopen the case for the hearing of further evidence. We think that the contention is not well founded. The motion in the first place was not made in writing at least five days prior to the date of the hearing as required by Procedural Rule 7 of the Workmen's Compensation Commission. (Hn 2) And in the second place, the matter of reopening the case for the introduction of further evidence was a matter within the discretion of the Commission under its said Procedural Rule 7. We think that the Commission did not abuse its discretion under the facts of this case in denying the motion. This conclusion is definitely supported by the cases of West Estate v. Southern Bell Telephone Company, 228 Miss. 890, 90 So.2d 1, and Ainsworth v. Long-Bell Lumber Company, et al., 100 So.2d 100.
(Hn 3) It is further contended by the appellants that the findings and decisions of the attorney-referee, the Commission and the circuit court are contrary to the overwhelming weight of the evidence, and that there is no substantial proof to support the action of the attorney-referee, the Commission and the circuit court. We find no merit in this contention. The record discloses that no medical testimony was introduced by either side other than Dr. Lockard's report and Dr. Cowley's letter. Dr. Lockard's report does not throw any light whatever on the question as to whether or not the deceased's injury was causally connected with his work. Dr. Cowley, on the contrary, definitely stated that in his opinion, after having treated this deceased for several days, the work of the deceased was not causally connected with his death, but that the deceased came to his death as a result of an intracranial aneurysm, and that the rupture which resulted in his death was not caused or contributed to by the deceased's work.
(Hn 4) Of course, the burden of proof in this case was upon the claimants to show that there was causal connection between his work and his injury or death. (Hn 5) The appellants offered no proof that such causal connection existed. The only proof in the record, as a matter of fact, as to whether or not such causal connection existed is the testimony of Dr. Cowley as set forth in his letter, and he stated definitely that in his opinion the death of the deceased was not due to the type of work which he was doing. It is manifest, therefore, that the proof wholly fails to meet the burden resting upon the claimants to establish causal connection between his work and his death. It is manifest to us that the attorney-referee, the commission and the circuit court should be affirmed. There are numerous decisions of this Court which might be cited in support of this conclusion, but we think it is sufficient to mention only the following: Smith, et al v. St. Catherine Gravel Company, et al., 220 Miss. 462, 71 So.2d 221; Ingalls Shipbuilding Corporation v. Howell, 221 Miss. 824, 74 So.2d 863.
It follows from the views hereinbefore expressed that the judgment of the court below should be and it is affirmed.
Affirmed.
Roberds, P.J., and Hall, Ethridge and Gillespie, JJ., concur.