“The trouble with [control] tests is that commonly both employers have a measure of control and the business of both is being done.”
How later courts described this case
- “The trouble with [control] tests is that commonly both employers have a measure of control and the business of both is being done.”
- "I would hope that the possible changes discussed in this opinion [i.e. the adoption of a clear and convincing standard for punitive damages] might be brought before this court in an adversarial manner .... It is a matter which we have never addressed."
- discussing line between gross negligence and wanton/willful conduct in the context of automobile accidents
Written by the judges who cited it.
The opinion
Tom Glaze, Justice, concurring. I agree with the majority opinion as far as it goes, but other considerations not mentioned in the opinion also warrant the reversal of this case. No dispute exists over the fact that appellant experienced chest pains after appellee’s (McNeill Trucking Company, Inc.) semi-tractor struck appellant’s vehicle from behind. As mentioned in the lower court’s findings, the origin or cause of appellant’s chest pains was in question, and the court ultimately concluded those pains were unrelated to the accident. That finding, however, does not resolve the issue as to whether appellant is entitled to medical expenses that appellant incurred in order to insure the pains he experienced after the accident were not due to a cardiac contusion caused by his having hit the steering wheel as a result of the impact from McNeill’s semi-tractor.
Because of appellant’s complaint of chest paints, Dr. Austin Grimes, an orthopedic surgeon, refused to administer a TENS unit on him until he was checked by a cardiologist. A TENS unit could have aggravated a heart condition. Grimes was shown excerpts of the surveillance tape which the appellees took of appellant, but he still adhered to his belief that appellant had not exaggerated or faked the extent of his injuries.
Dr. Joe Bissett, a cardiologist, evaluated the appellant and stated that the appellant was justified in seeing a cardiologist regarding his chest pain and that a cardiac contusion could occur during an accident like the one in which appellant was involved where the steering wheel hit him in the chest. Dr. John Cone, a trauma specialist, related that the paramedics, who had taken appellant to the emergency room after the accident, noted the steering wheel of appellant’s vehicle had been damaged. Cone, after evaluating appellant, suggested appellant see Dr. Bissett to rule out any cardiac injury.
Whether appellant is or is not a hypochondriac, as appellees assert, is not determinative of appellant’s entitlement to medical expenses incurred as the result of advice given him by his treating doctors. Appellees offered no medical evidence to refute the doctors’ testimonies that indicated further evaluation was needed to assure appellant’s chest pains were not due to a heart condition. Appellees did present Dr. Winston Wilson, a clinical psychologist, who testified the appellant suffered from hypochondriasis. But Wilson further added that he could not testify as to appellant’s physical condition.
The appellees admitted liability in this case, and the court awarded appellant $5,558.61 for medical expenses, $5,335.20 for lost wages and $2,000.00 for pain and suffering. Clearly, by awarding these damages, the trial court acknowledged the appellant was injured as a result of appellees’ negligence even, though appellees attempted to show otherwise by the surveillance tapes taken of appellant after the accident.
Once the trial court decided the appellant’s injuries resulted from appellees’ negligence, the appellant was then entitled to all reasonable expenses for any necessary medical treatment. Here, appellees offered absolutely no evidence to show appellant’s cardiology treatment was unnecessary. To the contrary, all medical evidence showed such treatment was required.
While the trial court found appellant’s chest pains were unrelated to the accident, appellees, as tortfeasors, must take their victim as they find him. Clawson v. Rye, 281 Ark. 8 , 661 S.W.2d 354 (1983). The physical and medical evidence reflect appellant experienced chest pains both before and after the accident, and before Dr. Grimes dared treat appellant’s orthopedic needs, Grimes opined that he had to rule out any possible heart problems the appellant might have. Dr. Bissett related such evaluations were justified under these circumstances. None of these factors indicating a medical need for the evaluation of appellant’s heart is in any material way offset or negated by appellees’ surveillance tapes.
For the above reasons, I agree the case should be reversed and remanded.