Chambers v. Bigelow-Liptak

Jim Johnson, Associate Justice,

(Dissenting). I do not agree with the majority view.

The two doctors who had actually treated J. C. Chambers testified, without equivocation, that there was a causal connection between the injury Chambers received in 1959 (See Chambers v. Bigelow-Liptak Corporation, 233 Ark. 330, 244 S. W. 2d 588) and his terminal illness and death. Even the insurance company doctor conceded on cross-examination that there might have been a slight causal connection between the original injury and the death. An autopsy had been performed upon the deceased which disclosed beyond doubt the existence on an old permanent injury in Chambers ’ right lung, and after introduction of the autopsy report, this same doctor admitted that he discovered permanent disability to Chambers’ lung in the one and only examination he ever did of him (which was prior to the first appeal to this court) and that he (the insurance company doctor) knew all along that Chambers bad this permanent disability, bnt tbat since be did not know to what to ascribe tbe permanent disability, he simply wrote on bis report tbat there was no permanent disability I1

Additional testimony was given by lay witnesses who were intimately associated with Chambers np to tbe time of bis death. Their testimony is undisputed tbat from tbe time of bis first injury until bis death tbe deceased continued to have recurrent cough and fever, spitting up blood, loss of weight and other symptoms of continuing disability to bis lung.

Tbe overwhelming evidence supports an award of compensation. In my view, tbe slight evidence of tbe insurance company’s doctor, upon which tbe Workmen’s Compensation Commission chose to bang its opinion, was far from substantial. See Missouri-Pacific Rd. Co. v. Davis, 208 Ark. 86, 186 S. W. 2d 20. To say tbe least, tbe rule restated in Pekin Wood Products Company v. Graham, 207 Ark. 564, 181 S. W. 2d 811 should control here.

For the reasons stated above, I respectfully dissent.

On the first appeal this doctor had reported that the deceased suffered no permanent disability to his lungs as a result of his injury. It was upon this report that the Workmen’s Compensation Commission denied the claimant payment for permanent partial disability, and on appeal this same report was declared to be the substantial evidence upon which this court affirmed the Commission’s findings as to permanent partial disability.