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Fiorucci v. C.F. Braun & Co.

Superior Court of Delaware, New Castle County

August 22, 1961

William E. FIORUCCI, Appellant,
C. F. BRAUN & CO., a corporation, Appellee.

Page 636

[54 Del. 79] Garry G. Greenstein (of Wahl, Greenstein & Berkowitz), Wilmington, for appellant.

William Prickett, Jr. (of Prickett, Prickett & Tybout), Wilmington, for appellee.

[54 Del. 80] LYNCH, Judge.

The Industrial Accident Board was called upon to determine several factual issues in these proceedings, including these:

1. Had appellant physically recovered from the necessary operation for repair of the hernia he sustained while at work, so that he was, from a physical point of view, able to return to work and perform the duties incident to his employment?

2. Was appellant suffering from a psychological or psychosomatic condition arising from the injury and the resulting surgery, which was sufficient to disable him and so as to make him unable to return to work, and thus to have a claim for compensation because of this condition? Some other issues, factual as well as legal, were raised; they will be referred to hereafter, as necessary to the opinion.

A rather full discussion of the testimony the Board heard is necessary because of the amount of the award, the findings of fact, as well as the absence of other findings of fact, and the language in the award. The Board's failure to make findings on all of the issues presented to the Board for its determination is particularly important, as will appear hereafter.

The post-operative psychosis or neurosis or psychological or surgical overlay, or psychosomatic condition--call it what you may--which appellant contends limits his ability to return to work has long been recognized by medical authors. In 1916 a monograph was published by a German psychiatrist, Dr. K. Kleist, which discussed the condition [54 Del. 81] and referred to it as a psychosis. A Dr. Milton M. Abeles refers to this article in a paper he wrote which is published in the American Journal of Psychiatry, March, 1938, Vol. 94, pages 1187-1203, entitled 'Post-Operative Psychosis'. Dr. Abeles observes at page 1188 that Dr. Kleist named the condition 'Interval Psychosis' as he noted it frequently takes several days before 'the onset of the psychosis' is recognized. Many medical works, such as Modern Clinical Psychiatry, Noyes and Kalk, (1958), pages 235-236 and American Handbook of Psychiatry, Chapter 60, by Ebaugh & Tiffany, pages 1230-1240, discuss the condition.

Courts have long recognized such psychological or psychiatric conditions as compensable, particularly if the condition follows a compensable injury and as a direct and natural result thereof. Eaves v. Blaenclydach Colliery Co., [1909] 2 K.B. 73, 75(C.A.). The Master of the Rolls in deciding the appeal under the English Workmen's Compensation Act, after alluding to the findings made by the Arbitrator that the injured man had had a complete physical recovery; that 'the man honestly believes he is not able to do the work, and * * * he is not shamming or malingering' held, in reversing the award, that it is not sufficient

Page 637

to show that the physical mischief is at an end. It was stated on the appeal:

'* * *. The effects of an accident are at least twofold: they may be merely muscular effects * * * and there may also be, and frequently are, effects which you may call mental, or nervous, or hysterical, whichever is the proper word to use in respect to them. The effects of this second class, as a rule, arise directly from the accident from which the man suffered just as much as the muscular effects do, and it seems to me entirely a fallacy to say that a man's right to compensation ceases when the muscular mischief is ended, though the nervous or hysterical effects still remain. * * *'

See also Larson, Workmen's Compensation Law, § 42.22, including cases cited in 1960 supplement, 5 Schneider, Workmen's[54 Del. 82] Compensation, pages 241 et seq., § 1411; see also discussion in 99 C.J.S. Workmen's Compensation § 168b, pp. 553 et seq., and 58 Am.Jur. Workmen's Compensation § 250, p. 752.

The evidence considered by the Board tends clearly to demonstrate that appellant was suffering such a psychological condition, psychosis or neurosis and that it would appear the Board failed to consider and make a finding respecting such issue. The Board might have ruled it would not recognize appellant's condition as compensable, although it did not, as will be discussed later. Appellant was at least entitled to have his condition considered and determined, factually and as a matter of law.

The Testimony Reviewed

Appellant, a journeyman pipefitter with 16 years experience, was working for C.F. Braun & Company, the employer, on January 28, 1957 at the Tidewater Refinery. His work included preparing and installing steel and iron pipe; the job entails a good deal of climbing and heavy lifting. A pipefitter must work with and bend the pipe, as well as install it; he must also load and unload it. It is physically strenuous work and requires that the pipefitter be in excellent physical condition (Tr. 10, 12, 22, 23) [1] . Appellant earned about $136 per week (Tr. 6). Appellant was putting a 90 degree bend in a one-half inch steel pipe, by placing the pipe in a vise and bending it manually with what is called a 'hickey'. As he was doing this he felt a severe pain in the lower left side of his groin. Because of this pain he did not bend any more pipe the rest of the day (Tr. 8). That evening, when taking a shower at home, he noticed a swelling below his groin. The pain persisted through the night. The next morning he notified his foreman of the pain and then went to first [54 Del. 83] aid. He was examined by doctors; his condition was diagnosed as a bilateral hernia (Tr. 12 & 13).

Appellant was operated on in the Providence Hospital, Washington, D. C. by Dr. Philip A. Caulfield on February 18, 1957. The operation revealed a small direct and indirect hernia on the right side, and a large direct hernia on the left side (Tr. 64).

Appellant's recovery from the operation was seemingly uneventful; he apparently had a complete physical recovery (Tr. 43, 45, 48, 51, 64, 65, 88 and 91) [2] . He made three routine post-operative visits to Dr. Caulfield, i. e. on March 1, March 8 and April 12 (Tr. 64), and a final visit was scheduled for May 6, 1957. Before that date, i. e. on May 1, 1957, appellant wrote (Tr. 65) Dr. Caulfield as follows:

Page 638

'I am writing you this letter instead of making a trip to your office as per my appointment, May 6, as I have no means of transportation.

'You informed me in our telephone conversation of April 22 that you were turning in my papers for me to return to work. Dr., I want to explain how my injury happened. I had been working as a Steam Tracer for three months. A Steam Tracer's material requires 1/2"', 3/4"' & 1"' black pipes schedule 80 for steam pressure from 40 to 160 lbs. I asked my foreman if the Company had any pipe bending machines and the foreman informed me the C. F. Braun & Co. at Delaware City, Delaware, was furnishing only 'Hickeys' to bend the 1/2"', 3/4"' & 1"' black schedule 80 pipes. By bending the pipes as directed caused a strain on my entire system and on January 28, 1957, at 2:00 o'clock in the afternoon I suffered Bilateral Hernias and a [54 Del. 84] severe shock to my entire system. I still have pains, am weak & nervous and I am positive I cannot return to work & perform duties as I am required to do.

'Regardless of the outcome, I am not returning to work until I'm 100% physically fit.

'Would you kindly inform me by mail or telephone your final decision in this matter. My telephone number is Appleton 7-4077.'

Appellant had (Tr. 65) in the course of his three previous visits to Dr. Caulfield, advised him that he, appellant, was not returning to work, as Dr. Caulfield had directed, because appellant felt 'he was not able to return to work'. Dr. Caulfield nonetheless insisted appellant should return to work. Appellant stated to the doctor 'he wasn't going back to work for a year' because 'he didn't feel capable of going back to work * * *.'

On receipt of the above quoted letter (Tr. 66) Dr. Caulifield telephone appellant and----

'* * * I told him that I felt he ought to go back to work. And he asked me if I was familiar with the work as a steamfitter and I said I had a good general idea of what a steamfitter did and I felt that he was capable of going back to work [3] and I expected him to go back to work.'

After the operation appellant walked with a cane for three months (Tr. 15); he testified he was unable to climb, run or go up and down stairs. These complaints might well be considered in the evaluation of appellant's condition.

[54 Del. 85] Dr. Caulfield testified he found no physical complications and that he saw no reason why appellant should not go back to work (Tr. 66). When asked why appellant did not want to go back to work, Dr. Caulfield merely stated 'I don't know. I didn't have any term for it. He just didn't want to go back to work.' (Tr. 75).

Dr. Caulfield showed (Tr. 68) an awareness of the psychological consequences of surgery (Tr. 68); he recognized a psychiatric problem could have been involved. Dr. Caulfield testified he has never in his 31 years of practice referred a patient to a psychiatrist because of a psychological overlay (Tr. 76). Dr. Caulfield's method of handling problems involving a patient's unconscious psychological reactions to injuries and surgery is to advise the patient to go

Page 639

back to work (Tr. 75) [4] . A consideration of what is to be found in the medical books cited above would have shown that appellant was demonstrating the usual symptoms associated with a post-operative neurosis or psychosis.

Dr. Caulfield conceded (Tr. 78) that he considered the May 6th visit as routine. He gave no testimony that he had a plan to examine appellant or for treating him for any psychological problem; he did not think appellant's problem was serious. Dr. Caulfield was unable to state whether appellant's reluctance to return to work was beyond conscious reasoning (Tr. 79), saying no more than----

[54 Del. 86] 'In my opinion he has made up his mind that he is not capable of going back to work. Now that is all I can say about it.' (Tr. 79.)

Appellant left Hyattsville, Maryland in June, 1957 to go to live with his parents in Mulberry, Kansas.

Appellant testified at the hearing that he continued to have pain in the groin, and the pain sometimes radiates down into the legs (Tr. 19). If he attempts any labor, the pain grows worse (Tr. 19); this ...

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