87 So. 2d 895 | Miss. | 1956
This proceeding involves a claim of Jesse Neal, Jr., the appellee, under the Mississippi Workmen’s Compensation Act. Article 2, Title 25, Vol. 5A, Miss. Code 1942, Recompiled.
In the months of March and April 1953, Neal was in the employ of California Eastern Airways, Inc., one of the appellants, whom we shall call “Airways” in this
On August 11, 1954, he filed a claim against Airways and its insurer for compensation for such injury. Defendants denied liability on the grounds, First, that Neal had not, within thirty days, given notice to the employer of such injury, as required by Section 6998-18 of said Act, and, Second, that a cervical disc injury had not, in fact, resulted from his head coming into contact with the propeller. Extensive hearings were had before the attorney-referee. The wording of the opinion indicates the attorney-referee did find that Neal, as a fact, gave no actual notice to his employer before he filed his claim August 11, 1954, but he did not adjudicate whether the circumstances were such as to relieve him of the duty of so doing under said Section 6998-18, because he further found, on the merits, the claim was not compensable, which necessarily adjudicated that Neal had failed to prove that he had suffered the described injury, or, if so, that such injury resulted from his head coming into contact with the propeller. The full Commission, on appeal to it; affirmed the findings and conclusions of the attorney-referee. The circuit court, on appeal to it, reversed the findings of the attorney-referee and of the Commission and rendered judgment for Neal. This appeal is from that judgment.
We do not deal with the question of notice, except as the failure to give notice, as disclosed hereinafter, bears upon the fact vel non of a spinal injury, and, if there was such an injury, whether it resulted from the accident as claimed by Neal.
There was ample evidence to justify the finding by the attorney-referee and the Commission of the following state of facts, which presumably they did do in holding the claim noncompensable.
Neal did have an accident on or about the time he claims it occurred. He said he was working under an airplane “and when I backed out I raised up just normally and struck my head across the back on the propeller blade * * * ” He said it produced a knot on his head. He said he had a headache and the effect “like something tightening up around my heart.” However, he continued to work. He made no report of the accident to his employer. He testified “but I don’t see any use of reporting every little bump and scrape. ’ ’
On April 28, 1953, Neal went to Dr. Murphree, his family physician, who owned and operated a hospital at Aberdeen, Miss. Dr. Cresswell was associated with Dr. Murphree. Both doctors examined and treated Neal. Dr. Cresswell testified. Dr. Murphree did not testify but counsel stipulated that the testimony of Dr. Murphree, if given, would be, in substance, the same as that of Dr. Cresswell. Dr. Cresswell testified that he had treated Neal since 1950 for various physical troubles, such as, for’instance, an injured finger; that Neal came to the hospital on April 28, 1953; that he complained of shortness of breath, dizziness, faintness and pressure about his chest. He found no organic heart trouble but
On September 2, 1954, Neal went to Dr. T. H. Blake, an eminent orthopedic surgeon of Jackson, Mississippi. Neal gave him a case history. He told of the propeller incident. He said at various times since then he had experienced dizzy and fainting spells and headaches. These attacks came on when he was undergoing physical exertion, such as moving a piano and mowing the lawn. Dr. Blake said Neal’s general appearnce was good; that at the time Neal did not appear to be undergoing pain, except a slight soreness in the back of his neck; X-rays were made of Neal’s spine and other parts of his body. The doctor said some of the vertebrae had slight irregularities “but these weren’t considered unusual.” The doctor said “at the time of his examination he told me that he felt perfectly all right. * * * He appeared to be
Under these circumstances, the employer insisted that Neal bring to it a doctor’s certificate that he did not have a serious heart ailment. This Neal did not do, and he left the service of Airways May 17, 1954. It will be noted that his consultations with Drs. McClanahan, Sweeney and Blake took place after he had severed his connection as an employee of Airways. It will be noted also that he said his injury occurred the latter part of March 1953, and he did not file his claim herein until August 11, 1954, approximately a year and five months after the injury is supposed to have occurred.
We have not tried to detail all of the testimony, pro and con, bearing upon whether Neal, as a fact, incurred a cervical disc injury, and, if so, whether it was the result of his head-bump against the airplane propeller. But we have detailed sufficiently, we think, to demonstrate that the attorney-referee and Commission had ample testimony to find that Neal had not met the burden imposed upon him to show such facts, and that such findings are amply supported by the testimony in this case.
Reversed and judgment here for appellants.