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Shell Oil Co. v. Industrial Com.





WRIT OF ERROR to the Circuit Court of Alexander County; the Hon. LOYD M. BRADLEY, Judge, presiding.


Rehearing denied November 17, 1950.

Writ of error was granted to review the judgment of the circuit court of Alexander County which confirmed the decision of the Industrial Commission allowing compensation to Paul W. Smothers, hereinafter referred to as claimant, against Shell Oil Company, Incorporated, hereinafter referred to as Shell.

Claimant was working for Shell as a pipe fitter's helper when on February 28, 1945, he received an injury occasioned by his sliding down a vertical thirty-foot pole with great rapidity, landing on his feet, the impact causing a temporary paralysis from his waist down and rendering him momentarily unconscious. Sliding down this pole from one floor to another was practiced by employees to save time and was done with the knowledge and consent of the employer. Severe pain followed the injury, especially in the legs and feet. Several days thereafter pain was also felt and found to be localized in the back. It was testified by a doctor that pain originating in the back might manifest itself elsewhere, such as in the legs or hips. Prior to this injury claimant was a well man and his legs and back had never bothered him.

The employer had immediate notice of the injury. Claimant received first-aid treatment at the plant and was then on the same day sent by Shell to the hospital. His feet and legs were X-rayed but no fracture was found. Heat was applied first to the feet and legs and several days later to the back. He was requested by Shell to return to work the day following the injury in order to keep down their insurance. He did report the following day but was unable to work because of pain, and in about an hour and a half was taken home. He returned to the plant on subsequent days but was never able to really work but just sat around, having been told to take it easy. There is no denial of these facts in the record.

On May 11 following the injury, claimant was inducted into the army from which he was honorably discharged July 31, 1946. While in the army he was unable to perform any considerable service. He testified that during his fifteen months of military service he did not work as much as forty-five hours. At the time of his induction the fighting in Europe had ceased and he, with others, was sent there to replace soldiers who were being relieved and sent home. He complained to the army officers constantly of pain in his back and was told at a number of camps that they were not prepared to examine and treat him but that he would get treatment a little later at some other camp. He was finally examined, and from time to time thereafter, upon further examination of his back, the army doctors prescribed applications of heat and sometimes medicine.

Claimant tried on several occasions, while in the service, to operate a crane but this was done with difficulty owing to the weakened condition of his legs and back, with the accompanying pain. On one occasion after he had operated a crane for a few hours he had to quit, and in climbing down his legs gave way causing him to fall about two feet upon his hands and knees. This seemed to aggravate the leg and back condition and put him in the hospital for several days. Another time he tried to help in lowering the top of a piece of machinery in the nature of a concrete mixer but found he was too weak for that purpose. His efforts, however, in that connection again sent him to the hospital where he remained for seven weeks.

A short time after his discharge from the army, claimant, in an attempt to earn a livelihood, rented certain farming machinery and equipment and endeavored to farm. He soon found that he was unable physically to carry on the work of farming and had to give it up. His brother then took over the farming operations in his place.

Claimant's physical examination before induction into the army, according to his testimony, was superficial in nature. When he gave the history of his back and legs hurting he was told that he was able to peel potatoes. This examination showed no physical defects but indicated that he had been formerly sent to the armed forces for examination and inspection on March 23, 1944, and was reclassified 1-A on March 27, 1945. The report of physical examination in connection with his discharge shows a spine injury and leg and pelvis trouble and nervous trouble in 1946; that he was treated at 387th Station Hospital in Germany; that such condition was not incurred and did not exist prior to entrance in military service and was not aggravated by but incurred while in military service.

Claimant made claim against the government for service incurred disability which was disallowed. We are asked to deny him compensation because it is said he made claim against Shell and also against the government for the same injury. This he should not have done. Should he, however, be entitled to compensation because of the original injury received while working for the employer, his subsequent erroneous claim against the government would not bar his recovery. If a misstatement of facts were made we are inclined to believe it applied to the government claim rather than to the one before us. Yet his application for compensation to the government was not entirely misleading because it contained these words: "Former injury to both legs and pelvis prior to service (from fall Feb. 28, 1945, weakened the legs and basic training and service aggravated this condition." The doctor's affidavit accompanying said application, after stating that Smothers was apparently in good condition until he sustained an injury when he jumped from a vehicle while on duty in Germany, made this further statement: "In my opinion, this man should be examined and evaluated with reference to his Service aggravation of an EPTS injury." The letters EPTS are shown to mean "existing prior to service."

It is contended by Shell that the injury did not arise out of and in the course of the employment. We are of the opinion the arbitrator and commission properly found that it did. We certainly cannot say that the finding is against the manifest weight of the evidence, and unless that be true we will not reverse. Crepps v. Industrial Com. 402 Ill. 606; Landon v. Industrial Com. 341 Ill. 51.

Two doctors testified for claimant. One of these, Dr. Fay S. Comer, of Cairo, Illinois, where claimant resides, testified he examined him in September after his discharge from service and has treated him ever since, the last time being the day before the testimony was given. He said that on September 23, 1946, he found extensive spastic lumbar muscles through the entire lumbar region and that claimant complained of tenderness over left sacroiliac, lumbosacral and coccyx. The doctor was sufficiently concerned after this examination to refer the patient to another orthopedic surgeon, Dr. H.R. McCarroll of St. Louis.

Dr. McCarroll examined the patient October 30, 1946, and found a very definite muscle spasm in the lumbar region and tenderness limited to the lumbosacral joint and to the area of the left sacroiliac joint. He found the patient well developed, able to stand erect without evidence of list in his spine to either side. The motion of the back was satisfactory in all directions and the lower extremities showed no changing. Straight leg raising was normal on the two sides and motion in each hip satisfactory. Deep reflexes were present and equal on two sides. The sensory examination, however, revealed some diminished sensations throughout most of the lower extremities. X rays were taken of the back in various positions. Some of these revealed an irregular line through the lower portion of the sacrum but the doctor could not tell definitely by looking at it whether it was the result of an old injury or a developmental defect. This irregular or wavy line showed in a number of the X rays and was either traumatic or congenital in origin. The doctor gave as his opinion that it was possible it could be an old fracture, the result of an old fracture sustained from injury, and he based his opinion on the fact that the lines of that type in congenital cases were usually smoother and straighter than the type shown by the X ray. He also gave as his opinion, based upon reasonable certainty and from a medical and surgical standpoint, that there could be a causal connection between the injury complained of and the condition found by him upon examination of the patient. He gave as his further opinion, based upon a reasonable certainty from a medical and surgical standpoint, that the condition of the patient as found by him is permanent although the symptoms resulting from it might vary from time to time. He testified that if there was a fracture as indicated by the X rays it would have required considerable force to produce it and it would have caused immediate pain.

Shell called Drs. Weir and Murphy, neither of whom had ever seen claimant. Their testimony was largely based upon the X rays. Both of them gave as their opinion that the wavy or irregular line referred to was a congenital defect and that, if there were a fracture, immediate pain would have resulted therefrom and the patient would have been disabled. Dr. Murphy testified, however, that in soft tissue injuries it is not unusual for pain to appear some time after the accident and that muscle spasm is an objective symptom of a back injury. He further testified that "Muscle spasm would indicate a disabling injury. If the petitioner had muscle spasm at the time these X rays were taken I would say that such would not be due to a fracture but could be due to a soft tissue injury." He also said that muscle spasm is objective, something you can feel, but it ...

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