Williams v. Equitable Equipment Co.

SAMUEL, Judge, (concurring on application for rehearing). I agree with the majority’s action in refusing to grant a rehearing. However, because the application for rehearing primarily is concerned with a reversal on a question of fact, action which we cannot take except in the presence of manifest error, the following comment should be made. The factual question involved is whether or not plaintiff’s complaints of subjective pain or shocking sensation in the finger stump were both genuine and sufficient to result in inability to perform common labor work. Only two medical experts gave testimony on this question. Dr. Brown, an orthopedist who examined plaintiff prior to trial and was called as a plaintiff witness, was of the opinion the shocking sensation might be present; he could not say it was present, nor did he testify to what extent the sensation, if present, would interfere with plaintiff’s work. The other medical expert, Dr. Matta, the operating and treating orthopedist who was called by the defendants, doubted the existence of the shocking sensation and testified unequivocally that, even if the same was present, plaintiff would be able to perform the normal work of a common laborer. The burden of proof being on the plaintiff, reversal was proper in the light of this and the other facts contained in the opinion. I respectfully concur in the refusal to grant a rehearing.