BEFORE WALKER, P.J., HAWKINS and ROBERTSON, JJ.
HAWKINS, JUSTICE, FOR THE COURT:
This is a workmen's compensation case. Six years have passed since the claimant suffered his injury. The claim was initially before the administrative judge for almost two years before resulting in a grant of temporary total disability for a period of three and one-half months. The full commission affirmed this determination but amended to allow a right to re-open for a new compensation order because, "no evidence has been developed to indicate that the claimant has sustained any permanent disability or wage earning loss as a result of his compensable injury."
For over four years the administrative judge and full commission have been: reviewing the testimony of the original hearing, where examining physicians appeared by way of depositions; hearing testimony of subsequent examining physicians, psychiatrists and psychologists; listening to the claimant and to his family. They continue to fail to see the merits of Roosevelt Myles' claim and therefore, we reverse and render.
The facts are clear. Myles was injured on the job at Rockwell International when a grinding rock fly wheel, with which he was sanding table tops, flew apart. The pieces of stone struck his face and chest. He was knocked unconscious. The blow broke his jaw, several teeth, caused a concussion and severe lacerations to his face, chest, arms and shoulders. These injuries required surgery and a week of hospitalization.
Myles had a good work history up to the time of this injury. He had grown up on his father's farm and helped
run it; served his country honorably for three years during World War II; returned to marry, move to Chicago, and raise and support a family by holding four steady jobs over a seventeen-year period. Myles has never been a recipient of welfare, unemployment, or Social Security. He always maintained a job, changing employment only when it bettered his position and pay. He worked for the railroad, a paint store, a hardware company, and Rockwell during his career.
All of the witnesses testified that since Myles was injured, he had been unable to perform any labor because of his condition. He attempted to return to his old job at Rockwell but was not allowed to operate the machine.
The physicians who treated Myles' physical complaints shortly after the accident revealed their findings by way of deposition.
Dr. Tutor examined Myles in the emergency room of the hospital shortly after the injury. He found: lacerations in the temple region and upper lip; that Myles had been rendered unconscious and suffered a cerebral concussion; there was no sign of intra-cranial bleeding; that he had a facial fracture which Dr. Robertson was consulted for; and he gives credit for Myles' subsequent discharge to Dr. Robertson. Examining Myles two months later, Dr. Tutor found no residual abnormality.
Dr. Brown Robertson, a doctor of the ear, nose and throat, practices a specialty of treating traumatic injury to the face and facial bones. He saw Myles at the request of Dr. Tutor. Dr. Robertson treated Myles for his broken jaw and "through and through" cheek laceration. Although x-rays showed a fracture, treatment was primarily supportive. There was evidence of blood in the sinus. He saw Myles daily until his discharge from the hospital by Dr. McDuffie a week later. He continued to see Myles in his office for four months. He found on these subsequent visits that Myles had suffered broken teeth in the accident; had "only about 70 per cent capacity to open" his mouth; and that the fractures continued to be evident but that he "expected" them to heal completely. The doctor noted that Myles lumped the facial pain and headache together; that "the pain at the site of the injury is compatible with the type injury that he had" ; that a post-traumatic headache would be compatible with the concussion suffered; and "felt like from the injury he was doing well." Realizing the possibility of dizziness and headaches, Dr. Robertson felt Myles should not work equipment because he could injure himself. [Emphasis added]
Surprisingly this doctor, in his own words, "did not get around" to administering an audiogram despite having noted
that Myles complained of not hearing well and the fact that his specialty includes the ear. The doctor stated, "a severe blow in the region that he received could cause damage to the hearing; it certainly could."
Dr. Bowlin treated Myles for a pulmonary emboli, upon the request of a Dr. McDuffie, three months after the work-related injury. He corroborated the head injury, concussion and jaw fracture. He found a possible connection between the chest pains and head injury and x-rays did not exclude the possibility of leg and chest blood clots. Dr. McDuffie discharged Myles from the hospital.
Dr. Hawkes, a Memphis neurosurgeon, examined Myles five months after the injury at the request of Dr. McDuffie. He hospitalized Myles for nine days during which time observations were made and tests were run to observe his general condition, condition of skull and spine, eyes and nerves about the head, his motor functions, sensations, coordination and reflexes. An electroencephalogram and computerized brain scan were done. The results were a finding of reduced hearing and weakness of muscles in the lip; degenerative changes in the fifth and sixth vertebrae; a limitation of the neck and weakness of facial muscles due to the blow received. These were the only objective neurological findings made by Dr. Hawkes. Unfortunately, one will never know more about his findings than this. The deposition was taken at the request of Rockwell and no attorney was present to represent claimant Myles. It is difficult to comprehend how nine days of observation and testing could reveal so very little about Myles' condition.
Also, unfortunate, is the fact that Dr. McDuffie, one of Myles' treating physicians, was not deposed, submitted no report, nor did he appear to testify about Myles' condition at any of the numerous hearings.
A two-page report by psychiatrist Jan Goff, submitted on behalf of Myles at the second phase of the first administrative hearing, shows findings one year after the injury. They include psychiatric symptoms of "discouragement of not being able to work, and some fearfulness of reoccurrence of injuries. . . ." Myles exhibited average cognitive functions for remembering dates and events. He walked with a limp. There was no family psychiatric illness, no evidence of malingering or of exaggeration of illness, no reason to doubt that he had pain. Based on this medical testimony, the administrative judge awarded Myles temporary total disability which the commission affirmed with an amendment insuring the right to re-open. They also granted Myles' attorney compensation.
This Court has a difficult time finding that Roosevelt Myles was adequately represented when his attorney, at the initial hearing, had no medical testimony to present to the administrative judge and that five months later did not appear, but sent his brother to represent the claimant. The brother admitted knowing nothing about the case. Myles' attorney also failed to appear for his claimant at the deposition of Dr. Bowlin, another attorney appearing for Myles; and in not showing up at all in Memphis at the deposition of Dr. Hawkes. Myles' attorney introduced a report by Dr. Goff to the commission rather than have the psychiatrist appear in person. Dr. Goff lives and practices in Tupelo where the hearings were held before the administrative judge. His attorney also failed to take the deposition or testimony of Dr. Love or Dr. McDuffie, both treating physicians for Myles, and failed to explain in the record why their testimony is unavailable. Regardless of these oversights on the part of his attorney, the commission felt that his job had been adequately performed and awarded him 25 per cent of all compensation.
Myles, with a new attorney, petitioned for further hearings and submitted additional testimony which included that of Dr. Goff, Myles' sister and daughter, and a report by clinical psychologist Barry Ritzler, Ph.D.
Dr. Goff, in testimony at a commission-ordered hearing to re-open before the administrative judge, reviewed his earlier report and substantially enlightened his earlier findings. He found that Myles complained of chest pains and back tenderness; his medical history showed a blood clot treated earlier by Dr. Bowlin. Myles walked with a limp, had pain in his legs, arms, and shoulders since the work injury.
Myles had significant symptoms that would impair his ability to function in a number of areas. He had a lot of difficulty concentrating, a slowing down - described as psycho-motor retardation - physical slowdown. Myles could probably do some uncomplicated type of work but could not say what his capacity would be, but it certainly would be impaired. He could not do again what he had done before; he would be limited to a menial-type job and would be slower than average. Based on a 0-to-100 scale, he could not work on dangerous machinery at all.
Dr. Goff stated that the cause of the disability was the injury and subsequent symptoms arising from the accident; the psychiatric problems set in within three to four months of the injury and it is difficult to separate the physical from the psychiatric problems. "The injury and accident was a precipitating cause . . . a precipitating force."
Again, Dr. Goff found no evidence of malingering, and stated that the difference in the initial report and his recent findings showed changes that had been gradual and for the worse. Dr. Goff found in his first report and exam that Myles was depressed and had psychosomatic complaints,
And even though it had been a year after the injury, which is longer than the usual time for traumatic neuroses or depressions to carry on, I still believed that he had a reasonable chance for recovery. Several reasons . . . seemed motivated to recover . . . not trying to exaggerate or prolong his symptoms . . . had a reasonably good work history . . . there was a statistical reason that relatively few cases of traumatic neuroses, when the trauma involved an accidental injury in one episode, carry on and become chronic illnesses. However, this appears to be the case. . . . that's the exception, . . . the case of Mr. Myles. . . . on 3-31-80, . . . he had a moderate degree of psycho-motor retardation . . . and . . . difficulty remembering recent events. . . . He had a rather poor ability to concentrate and, in general, his affect appeared to be more depressed than I had seen him before. . . . I found no evidence of psychotic type of disorganization and while the patient feels very apathetic, he denies any suicidal wishes. He describes having terminal insomnia, . . . This is typical of an endogenous type of depression. Endogenous referring to a more chronic type of depression. . . . The patient is able to eat, but he is not enjoying eating, nor does he enjoy any of the other minor or major pleasures he used to engage in. His content still centered on his multiple physical complaints and he tends to express his depression in terms of aches and pains. I believe that touches on the reason for my difference of
opinion. I thought that the patient was different. And it is based on the information that I have.
Dr. Goff states that his earlier prediction that Myles would get better was in error. He stated that the severity of Myles' problem was different on the second exam. He said that at the first exam he would not have estimated the same degree of disability as then Myles exhibited a fairly typical post-traumatic syndrome, but the more recent interview revealed that the disability had increased. His opinion was based on his history and comparing how he was doing at the time he saw him as compared to the history taken from Myles and some other informants as to how he had done before the accident. These "informants" were Myles' daughter and sister. The administrative judge delayed five months writing his opinion denying the petition to re-open and dismissing the cause, stating, "the opinion of Dr. Goff was based on hearsay . . ."
The full commission delayed eight months in rendering its order to re-open Myles' claim and they granted him the right to re-open because, in their opinion, "[the] claimant has not been afforded adequate opportunity to fully develop all pertinent and relevant proof related to his petition to re-open." At the commission-ordered hearing testimony was again given by Dr. Goff. Myles' sister and daughter also testified to clarify their statements referred to earlier as hearsay.
Myles' sister, Thelma Mabry, stated that Myles had no past depression or psychiatric problems. He had always held a steady job since leaving the farm and never left one job without having acquired another. Prior to the accident, Myles was a good worker, loved to go to church, had good friends, loved and played with the children and kept his home in good shape, doing all the work around the house and yard. After the accident Myles was not himself. He does not have a good memory, does not socialize, does not attend church, is not energetic, and does not do his housework. He sits around and sleeps during the day, she helps with his household chores. He has not improved. He has not worked since the accident. He is 100 per cent disabled. Myles tried to go back to work a part of a week but could not stay. He has worsened in the past six months. He "goes down in his knees" and must use a cane when walking.
Myles' daughter, Phyllis, stated that he has changed a lot since the accident. He is ill all the time, has no patience and is irritable. He was never like this
before. He has to lay down and rest, does not get much sleep, is restless, has constant headaches, and has no appetite. She must put food before him and make him eat. Her father has always worked and never has drawn unemployment. Since the accident he has not gotten better. Before the injury he took "us ...