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HERCULES, INC. v. R. J. WALTERS

JULY 13, 1983

HERCULES, INC.
v.
R. J. WALTERS



BEFORE ROY NOBLE LEE, BOWLING AND PRATHER, JJ., AND SUGG, RETIRED JUSTICE

SUGG, RETIRED JUSTICE, FOR THE COURT: *fn1

The principal issue in this case is whether the report of a deceased physician is competent evidence in a Workmen's Compensation case. The Commission and the Administrative Judge held the report was admissible, but the Circuit Court of Forrest County reversed holding the report was inadmissible. We agree with the Commission, hold the report was properly admitted in evidence, and reverse and render.

Walters was employed by Hercules in 1945 and was injured on December 19, 1951, when he tripped and fell. His left hand struck the ground and turned backwards. He was treated by Dr. T. E. Ross, the company physician, at 10:30 a.m. at the Methodist Hospital Clinic in Hattiesburg. Dr. Ross filed a surgeon's preliminary report in duplicate with one copy being retained at the Hattiesburg Plant of Hercules and the other copy being filed at the home office. Dr. Ross

 described the injuries in his report as follows:

 " Sprain of left wrist. History of injury to wrist nine years ago. X-ray shows old fracture of navicular bone and a deformity of lunate bone. "

 The report also reveals that Dr. Ross immobilized the wrist on a short plaster splint and returned Walters to light duty. Dr. Ross died three or four years before the hearing.

 Dr. Ross' final report showed that he rendered first aid to Walters on December 19, 1951, with office visits on December 28, 1951, January 9 and 15, 1952. The report also showed that Walters was discharged with no disability.

 Mrs. Margaret Cargill testified for Hercules. She stated that she retired on January 1, 1966, after working for Hercules for a period of thirty-three years as a nurse. She also worked for Dr. Ross in the afternoons after she got off from work at Hercules. She was personally acquainted with Walters and described him as a good friend. She remembered carrying Walters from Hercules to the hopsital where he was examined by Dr. Ross and heard Walters tell Dr. Ross he had broken his wrist several years before he started working for Hercules.

 The assistant director at the Methodist Hospital testified that he searched the hospital records for an emergency room examination at the Methodist Hospital Clinic in December 1951 for a patient by the name of Robert J. Walters, but did not find the records, because no records of the hospital were available prior to the last half of 1958.

 Gerardus H. Hundscheid, safety inspector at Hercules in charge of workmen's compensation claims, stated that Walters came to see him in 1976 and told him he wanted to retire and desired to have his wrist checked before he retired. Hundscheid set up an appointment for Walters with Dr. William G. Giles, an orthopedic surgeon.

 Walters first saw Dr. Giles on March 30, 1976, at which time Dr. Giles discovered a mass on Walters' left wrist and diagnosed Walters as having severe degenerative arthritis. Dr. Giles next saw Walters on August 27, 1976, when Walters came to him complaining of pain and swelling in his left wrist and gave a history of an old fracture of the left wrist. Dr. Giles' x-rays on both occasions showed a previous fracture and he recommended that surgery might be of some benefit to him. Dr. Giles performed surgery, excised the radial styloid and the proximal fragment of the navicular. He also removed a portion

 of the distal radius and some arthritic spurs which were present in the area.

 Dr. Giles was shown the report of Dr. Ross and stated, if all the information contained in Dr. Ross' report was true, Walters' problem with his wrist was a result of a fracture of the wrist sustained nine years before December 1951 and not from a sprain. His opinion was that Walters' problems with his wrist resulted from a fracture, not a sprain.

 Walters testified that the initial injury to his wrist occurred in 1951 when he tripped and fell and he had not broken his arm before 1951. Walters also testified that he was receiving Social Security Disability, and that he claimed disability because of ...


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