HAWKINS, Presiding Justice for the Court:
The original decision affirming this case is withdrawn. The petition for rehearing of the employer Bechtel Corporation (Bechtel) and carrier Industrial Indemnity Company, the appellants herein, is granted and the cause is reversed and judgment rendered for the appellants.
FACTS
Junior W. Phillips on September 29, 1987, filed a motion to controvert with the Mississippi Workers' Compensation Commission (Commission), claiming he suffered a back injury in the early morning of October 2, 1986, while employed with Bechtel. There is no conflict but that Phillips either sustained a back injury or an acute manifestation of a back problem on that date. Rather, the question is whether he sustained any injury on the job that day, as he claimed before the Commission.
Phillips' family physician is Robert A. Dale, M.D., in general practice in Hazlehurst, who Phillips started seeing in 1980.
On October 2, 1986, Phillips went to Dr. Dale complaining of low back pain. Following an examination, Dr. Dale referred Phillips to Walter Shelton, M.D., an orthopedic surgeon in Jackson. Dr. Dale's notes did not reflect any history being given by Phillips of receiving an injury on the job. He testified that he tried to get a history of work-related injuries, but on some days because he was alone seeing 40 to 60 patients, he did not get a history.
Dr. Dale was never asked, and never gave a medical opinion that Phillips' back problem was work related.
Dr. Shelton testified that he saw Phillips on October 15. He testified from his office notes:
At the time he was having back and left leg pain. Stated that he worked as a pipe fitter at Grand Gulf, and he bent over two weeks prior to this getting out of the bathtub and had sudden severe onset of back pain radiating to the left foot.
Asked if Phillips had ever related a history of having injured his back while working as a pipe fitter at Bechtel, Dr. Shelton replied: "Let me see. (Reviews file). No, he did not." The only history of an injury Dr. Shelton obtained was that Phillips hurt his back getting out of the bathtub.
Because Dr. Shelton concluded Phillips had a neurological deficit, he referred him to Glen C. Warren, M.D., engaged in neurological surgery in Jackson.
Dr. Warren saw Phillips on November 10, 1986. He testified:
I saw him initially on the 10th day of November, and he related that on the 2nd of October the same year, he had bent forward at home, felt a pop in his leg and then began to experience left hip and leg pain that extended down into his calf, describing some numbness on the outside of his left foot.
. . . . .
Denied ever having had that type of problem before.
This history was given Dr. Warren at the River Oaks Hospital on November 10. He was further asked:
Q. Yes, sir. From the history that you just stated, if I caught it correctly, I believe the injury derived from something that happened at his home; is that correct?
A. That was the history he gave me, yes, sir.
. . . . .
Q. Doctor, could you tell me whether or not your diagnosis was consistent with the history of the injury as related to you by the claimant and by his prior doctors?
A. Yes, that's a very common history, that is, bending and feeling popping in your back. And that occurs with or without lifting. You don't necessarily have to do any lifting in order to have this occur. So this is probably the most common story that we have in someone who ruptures a disc in his back.
A myelogram was performed, and surgery performed on a herniated disc in the degenerative stage at the L5, S1 level on November 12.
None of the doctors filed claims for medical services with the Commission, although all were familiar with the procedure for making claims for such services.
Louie F. Wilkins, Jr., M.D., engaged in general medicine and surgery in Hazlehurst, saw Phillips on November 25, 1986, for the purpose of making a social security disability evaluation. He took a detailed history and made a detailed examination. The report begins:
Mr. Phillips comes in complaining of back problems. He states that he was doing well until sometime in early October, when after taking a shower, he stepped out of the shower, bent over, and his back popped. The pain started immediately in his back and radiated down the left leg. He was in severe pain and was taken to a local doctor in Hazlehurst, who treated him and had him stay in bed for about ten days.
Under diagnosis, the report states: "This patient is status post surgery for herniated lumbar disc on the left."
None of these treating and examining physicians ever testified that in his opinion Phillips had sustained a work-related injury of any kind. As noted, if they testified at all as to its etiology, the onset began with Phillips getting out of the tub at his home.
Phillips, who was born August 8, 1929, had other physical problems as well. He was a heavy smoker and was overweight. He had both pulmonary and some heart problems. He also had a chronic skin rash.
Phillips filed a motion to controvert in September 29, 1987. The administrative law judge conducted a hearing on August 24, 1988.
Phillips went through the seventh grade in school. He spent several months in the Air Force in 1951 and was discharged because of a suspected residual tubercular problem. He went through several years as an apprentice plumber and engaged in the pipe fitter trade. He began work for Bechtel at the Grand Gulf plant August 28, 1986, commuting 75 miles to work each day.
On the late night shift, around 4:30 a.m. on October 2, 1986, he testified:
Now my back kind of popped. I was lifting some pipe and tool stuff up on the scaffold. And the way I had to hold the stuff, pull it up, swing it over a rail, when I did my back kind of popped and there was a burning went down this left hip.
He told a fellow worker he had hurt his back. He nursed it for the rest of the shift, then took Anacin and drove home. He was not feeling well, and did not eat any breakfast, but went to bed. That afternoon he got out of bed, went to the shower, and while drying off was hurting so bad he called his wife to help him back to bed. She called for an appointment with Dr. Dale who saw him around 5:00 o'clock that afternoon.
Mrs. Phillips telephoned the time keeper at the plant, notifying him that her husband would be unable to go to work.
Phillips testified that he believed he told Dr. Dale that he hurt his back while working. He did not recall giving Dr. Shelton any history, only that Dr. Dale and Dr. Shelton conversed about his condition.
On cross-examination he testified:
Q. Do you recall relating — now you testified about taking a shower on the afternoon of October the 2d 1986. Do you recall relating anything to Dr. Shelton when you went to see him the first time about the shower and getting out of the shower?
A. I don't know if I did. They've got it confused as to the way I said it because the pain and all, when I bent over and the popping, it was at Bechtel. But now I did get in the shower. I got out of the tub and was drying off. And I found that I couldn't go any further. And that's when I called my wife to assist me to get around and get back to the bed and get some medical help.
He testified that he thought he had told both Drs. Dale and Shelton that he got hurt bending over, and there was a pop and burning sensation, but it was at the job. It was not in the tub. He testified that the physicians' recollection of what he told them "and the true story is not the same."
Mrs. Joy Phillips testified that when her husband came home from work the morning of October 2, he told her that he had hurt his back. She got him two Anacins and he went to bed. That afternoon following his taking a shower, Mrs. Phillips, from the kitchen, heard him "hollering." She ran to him, saw him with one hand on his hip and holding the wall with the other. He was in obvious physical distress and she had to help him back to bed. She thereafter took him to Dr. Dale.
Following his surgery Phillips applied for and received unemployment compensation benefits. He never reported any work-related injury to his employer. The first notice to the employer of any work-related injury was the motion to controvert filed with the Commission.
The administrative law judge found that Phillips had received a back injury while on the job, and awarded benefits. This was affirmed by the full Commission and thereafter by the circuit court of Claiborne County which affirmed the award.
The employer and carrier appealed.
LAW
On appeal, this cause was initially affirmed per curiam. On Bechtel's and Industrial Indemnity's petition for rehearing, we find we erred.
This case is made difficult because there is no question but that Phillips has indeed suffered from a ruptured disc in his lower back.
The diagnosis in this case of Phillips manifestly requires medical testimony as to its existence and ordinarily would require expert medical testimony as to its etiology. "Cases involving the issue of causal connection from the physical standpoint usually turn upon medical opinion and proof." Dunn, § 273 (3rd ed. 1982), and cases cited.
No doctor testified that in his professional opinion Phillips received this injury on the job. Medical proof abounds as to Phillips's condition, but it was also incumbent upon him as claimant to prove by expert medical evidence that this condition was in some way work related.
Not only did no doctor testify that in his professional opinion Phillips's condition was work related, his counsel did not even ask this vital, yet elementary question. "The claimant has the burden of showing causal connections between the accident or work activity and the disability claimed as a result." Dunn, § 268, and cases cited.
Factual findings of the Commission are binding upon this Court, of course, provided they are based upon substantial evidence. Dunn, § 272, and cases cited. We simply cannot hold as credible or substantial, in context of this case, Phillips's testimony that he was injured on the job. No fellow worker corroborated it, no doctor corroborated it.
We find incredible and unbelievable that the doctors who took notes of Phillips's history got "confused," as he testified, when they gave as the precipitating factor of his back trouble his getting out of the tub or shower in his home.
If Phillips's back problem began on the job as he testified, with a sharp excruciating pain, why did he not go see his family doctor that morning? When it hit him that afternoon getting out of the tub, he and his wife wasted no time getting to Dr. Dale's office.
There are two possibilities: either that Phillips's acute back problem arose on the job as he described or at home. To any person who has either suffered or been closely associated with someone who has suffered such a back spasm, if this attack had occurred on the job, it is extremely unlikely Phillips would have gotten out of bed that afternoon. And, if he had, the excruciating pain he described would have hit him long before he walked to the bathroom and completed a shower.
Phillips did not do one act consistent with a work-related injury from October 2, 1986, the day he claimed he was hurt, until almost one year later when he filed a motion to controvert.
He did not report a work related injury to his employer. He knew enough to seek vocational and social security disability benefits, but he sought no workers' compensation benefits during this period. The history each doctor reported supported vocational or social security disability benefits, but no workers' compensation benefits. The medical history a patient gives his doctor might not be binding upon other parties, but it most certainly should be binding upon him in the absence of unusual and compelling circumstances.
The elastic credulity which we must give factual findings of the Commission in this case has been stretched beyond its limit. Therefore, we reverse and render judgment for the employer and carrier.
THE PETITION FOR REHEARING IS GRANTED; REVERSED AND RENDERED.
ROY NOBLE LEE, C.J., DAN M. LEE, P.J., and PITTMAN and BANKS, JJ., concur.
PRATHER, J., dissents with written opinion joined by ROBERTSON, SULLIVAN and McRAE, JJ.