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Atlas General Industries Inc. v. Phippin

Decided: July 24, 1964.


Appeal from the Circuit Court for Somerset County (DUER, J.).

The cause was argued before Brune, C.J., and Hammond, Prescott and Horney, JJ., and Rutledge, J., Associate Judge of the Fourth Judicial Circuit, specially assigned.


BRUNE, C.J., delivered the opinion of the Court.

This is an appeal by the employer and insurer from a judgment of the Circuit Court for Somerset County confirming the findings and order of the Workmen's Compensation Commission awarding the claimant, Phippin, compensation for permanent total disability, without apportionment of disability to any pre-existing disease or infirmity.

There is no dispute about the fact that on February 8, 1961, the claimant, while engaged in the performance of his duties as a night watchman for the employer, slipped on some ice, fell and broke his left leg. Some of the injuries upon which the appellee bases his claim of permanent total disability were to his leg and are admittedly due to the accident, but are said by the appellants to amount to less than total disability. Others, which involve the claimant's neck, left shoulder and arm, the appellants

contend are not causally connected with the accident, and they contend that they were entitled to a directed verdict as to this matter. They also contend that the first issue submitted to the jury was improperly phrased, that the issue of causal connection should have been submitted to the jury before that of permanent total disability, and that the issue of apportionment of disability between that attributable to the accidental injury in February, 1961, and that attributable to pre-existing disease or infirmity should have been submitted to the jury for determination in accordance with ยง 36(7) of Article 101 of the Code (1957 Ed.).

Immediately after his fall on February 8, 1961, the claimant crawled to a place where he could get help and he was then taken to the Peninsula General Hospital in Salisbury. There his fractured leg was set and a pin was put in it to hold the broken pieces together. While at the hospital he was under medication for pain, and was completely immobilized for some time. He was sent home by ambulance on February 22nd, but had to have a hospital bed and a wheel chair. He used the chair for about two weeks, but found that he had numbness in the fingers of his left hand and could not turn the wheel of the chair with that hand. He testified that his left arm and shoulder began to bother him when he went home, but that at first he said nothing about it, thinking that the pain would go away. Possibly his immobilization at the hospital may have delayed his noticing the arm and shoulder pains.

The claimant did testify that about March 1st he telephoned to Dr. Fisher, who was in charge of his case, complaining of pain in his shoulder and that a prescription for a pain reliever given him on March 1st (as shown by the records of a pharmacy) was for the pain in the shoulder. When he tried to use crutches when he gave up the wheel chair, he had to have the handle of one of them wrapped in foam rubber so that he could grip it with his left hand. During the month of March the claimant received several injections for his shoulder pains, but the pains continued and atrophy of his left arm muscles became apparent. He first saw Dr. Briele, who was associated with Dr. Fisher, on March 22, 1961. (Dr Fisher died before the trial.)

When Dr. Briele First saw Phippin, he made a note that Phippin had arthritis in his left shoulder.

Phippin continued to have pain in his neck, shoulder and arm. In May, 1961, Dr. Fisher referred him to a neurosurgeon from Baltimore, Dr. Arnold, who the examined Phippin at a clinic in Salisbury. About a month later Phippin was sent to the University Hospital in Baltimore where Dr. Arnold performed an operation on his cervical spine and decompressed a nerve root. The patient appeared to improve for a few days, but an almost complete paralysis of the deltoid muscle ensued. The operation had not been performed at the point where the nerve controlling the deltoid entered the spine. The surgeon suspected that a tumor above the collar bone might have affected "the plexus which would involve all these roots." However, no such tumor was shown to exist. Dr. Arnold, relying to a large extent upon the lapse of time between the accident and the time of Phippin's first complaint about his arm and shoulder, stated that he did not see any causal relationship between the accident and the trouble with Phippin's arm. He also testified that he did not know what was wrong with the arm.

When the claimant was discharged from the Baltimore hospital he returned to his home and went under the care of his physician, Dr. Schlesinger, who is an internist of extensive experience, but is not a surgeon. He first examined Phippin in January, 1962, and found atrophy of the left shoulder girdle, left arm and also a marked wasting of the left buttock. Phippin was suffering a good deal of pain and had difficulty in sleeping, according to the history which he gave to Dr. Schlesinger. He thought that arthritis was not a factor in Phippin's condition. He was of the opinion that Phippin was a hundred per cent disabled.

Phippin testified that he did not know just how he fell, but that he fell on his left arm and side. The breaking of his leg seems to have been the only injury of which he was then aware. Dr. Schlesinger stated that it was his opinion that "when Mr. Phippin fell, there was either a downward force applied to the shoulder, or else a twisting force ...

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