Opinion
No. 21702.
December 3, 1951.
APPEAL FROM THE CIRCUIT COURT, RANDOLPH COUNTY, LAWRENCE HOLMAN, J.
Lee, Fricke Lee, St. Louis, James T. Blair, Jr., Jefferson City, John V. Goodson, Macon, for appellant.
Albert I. Graff, Malcolm I. Frank, St. Louis, for respondents.
This is an appeal from a judgment of the circuit court of Randolph County affirming a final award of the Industrial Commission in a proceeding under the workman's compensation law to recover additional compensation on the ground that claimant's condition had changed since the original award was made. Johnnie M. Brammer is the claimant-appellant, and the defendants are the employer and insurer.
The claimant sustained injuries on May 31, 1945, when a truck in which he was riding collided with another truck in Randolph County, Missouri. The original claim was filed March 16, 1948. Defendants admitted that the accident arose out of and in the course of claimant's employment, and that his average weekly wage was $68.40. On July 1, 1948, a hearing was had before a referee, and on September 1, 1948, he made the following award: "For permanent partial disability, the sum of $20.00 per week for 200 weeks, said payments to begin June 1, 1945," subject, however, to a credit of 2,748.57 for compensation previously paid by the employer, and subject also to an attorney's fee for legal services rendered the claimant. The referee found that claimant's back was injured by the accident, resulting in a "50 per cent permanent partial disability to the body as a whole"; and that he was "not entitled to an allowance of 15 per cent penalty for violation of subsection B, Section 8385," R.S. 1939, RSMo 1949, § 304.020(2).
In due time claimant filed his application for review by the full commission; and thereafter, on November 25, 1948, he filed with the Commission a medical report of Dr. Robert Bingham of Riverside, California, together with a motion requesting that the said report "be admitted and considered as a part of the claimant's case." On January 31, 1949, the full commission entered its final award, affirming in all respects the previous award of the referee. The commission's finding of fact and rulings of law included the following: "Motion to admit additional medical report is hereby denied." On February 28, 1949, claimant filed his notice of appeal, and on April 25, 1949, the circuit court entered a judgment affirming the final award of the commission. No appeal was taken from that judgment.
On February 17, 1949, after the commission made the above-mentioned award but before the notice of appeal was filed, claimant filed with the commission an application for a rehearing and modification of said award on the ground of a change in his condition. The record shows that on June 18, 1949, and after the circuit court had affirmed the award, claimant "renewed his application for review on alleged change of condition," and on June 23, 1949, the commission "accepted the employee's application for rehearing." On August 17, 1950, after a hearing before a referee on March 7, 1949, followed by a review by the full commission, a final award was entered denying claimant's application for a modification of the previous award. The commission found that claimant "failed to prove that there had been a change in condition for the worse on account of said accidental injury of May 31, 1945." Upon appeal, the circuit court made the same findings and entered judgment affirming the final award of the commission. From such judgment claimant took his appeal to the Supreme Court and that court has transferred the cause to this court because the amount involved does not exceed $7500.
Claimant contends, first, that the award of August 17, 1950, denying his application for modification of the original award of January 31, 1949, is not supported by substantial evidence but is, on the contrary, against the overwhelming weight of the evidence. The transcript filed here consists of two sizable volumes. Claimant's brief does not contain a clear and concise statement of the facts, and he has not undertaken to point out in what respect the evidence is insufficient to support the commission's finding that he failed to prove the alleged change in his condition. However, an adequate statement of the evidence relative to claimant's injury will be made. While claimant sustained several minor injuries when the accident occurred, the exact nature and extent of the disability resulting from the injury to his back has been the chief subject of inquiry in all the proceedings brought before the commission. As indicated, the first hearing was had before a referee on July 1, 1948. The evidence upon that hearing was in substance as follows:
On May 31, 1945, the day of the accident, claimant was employed by defendant mining company as a repairman. He was about 44 years of age and had been in good health prior to the accident. He testified that immediately after the accident he was taken to a hospital in Macon, Missouri, and placed under the care of Dr. Howard Miller, a physician furnished by defendant; that after his minor injuries were treated, he was taken to his home where he remained for several weeks; that he returned to work the latter part of July, 1945, but the pain in his back and legs became so intense that he was unable to carry on; that after receiving a series of diathermy treatments under the direction of Dr. Miller, he performed light work for defendant employer from the later part of August, 1945 until the following December; that he then attempted to perform heavier work but the pain in his back and legs increased and he was forced to quit on January 17, 1946; that Dr. Miller continued to treat him; that he had not been able to hold any kind of a job since January 17, 1946, because of the pain in his back and lower extremities, and continued: "Activity results in pain and misery in the back, and the result generally ends in some kind of a black-out or vomiting attacks. My eyes are really painful when I lie down, pain shoots up into my eyes. * * * When you're walking around and if you happen to turn around too quick and one of those hot pains hit you in the back and down your legs, it just — you just black-out. * * It's just like you threw a dagger in your back * * * and you lose your sense of direction." He said he could not sit or stand in one position for any length of time; that at various times prior to his employment by defendant mining company he had worked as a barber; that after the accident he was offered a job as a barber but did not accept the offer because "it takes a well man to barber"; and that he could not walk more than three-fourths of a mile without becoming completely exhausted. The testimony of his wife tended to corroborate his testimony.
Claimant further testified that he made several trips from his home in Randolph County to St. Louis, Missouri, where he was examined and treated by Dr. J. P. Murphy, and examined by Dr. H. R. McCarroll, both of whom were orthopedic surgeons furnished by the insurer. It appears that Dr. Murphy examined him a number of times between February 26, 1946 and June 17, 1948. Dr. McCarroll examined him on March 18, 1947, and again on December 23, 1947 in consultation with Dr. Murphy. These doctors submitted written reports to the insurer and a number of such reports were made available to claimant who introduced them in evidence without objection. On June 17, 1948, claimant was examined again by Doctors Murphy and McCarroll. On the same day the depositions of these doctors were taken by defendant, and their testimony in this form was introduced at the hearing by claimant.
The general tenor of the written reports and testimony of Doctors Murphy and McCarroll was that claimant complained of pain in the lumbar spine and lower extremities; that the symptoms of injury were largely subjective; that X-ray pictures recorded a degree of hypertrophic arthritis involving the lumbar vertebrae; that there was no evidence of disc lesion or narrowing of the intervertebral spaces; that the intervertebral discs were soft but not protruded; that at times there was slight muscle spasm in the lumbar region. In February, 1947, Dr. Murphy recommended an exploratory laminectomy because an examination disclosed some sensory changes over the lateral aspects of claimant's legs, but the latter stated that he "would like to go home for several weeks to think it over." Dr. Murphy testified that when a later examination, in consultation with Dr. McCarroll, disclosed no sensory changes he then concluded it would not be advisable to perform an exploratory operation, and continued: "I wouldn't operate on him now * * * because of complaints of some discomfort in his arms and neck, and the pain occupies the entire lumbar spine * * and I don't think anyone would be justified in doing an exploratory laminectomy without some sensory changes. * * * I have felt that his symptoms now because of the arm involvement and the pain up in his neck do not warrant surgery for fear it will make it worse." Dr. McCarroll agreed "that surgery is contra-indicated." Both doctors agreed that claimant was unable to perform manual labor, but said he could do light work. Dr. Murphy estimated claimant's disability to be "between a third and a half."
As stated, the full commission, after reviewing the evidence entered an award on January 31, 1949, in favor of claimant "for 50 per cent permanent partial disability to the whole body," and no appeal was taken from the judgment of the circuit court affirming that award. On March 7, 1950, a hearing was had before a referee on claimant's application for additional compensant's on the ground of a change in his condition. Prior to that hearing, and on December 14, 1949, the depositions of claimant and Dr. Robert Bingham were taken in Riverside, California. At the hearing on March 7, 1950, both depositions were offered in evidence by claimant.
Claimant testified by deposition that he and his family went to Riverside, California in July, 1948; that they left Missouri on July 21, which was three weeks after the original hearing; that they made the trip in an automobile and his brother-in-law did all the driving; and that he lived with his family in Riverside until July, 1949. Other testimony of claimant will be referred to later.
Dr. Robert Bingham of Riverside, California, testified by deposition that he was an orthopedic surgeon; that he first saw claimant on September 22, 1948; that he examined him, got a history of his case, and had X-rays made; that claimant complained of pain in the back and lower extremities. The doctor found that claimant's general health was good; that he had muscle spasms in the lower lumbar region, tenderness over the lumbosacral joint and "a partial sensory paralysis of both legs — that is, to pin-prick and light touch." The X-rays disclosed some osteoarthritic changes and some narrowing of the intervertebral discs between the lower three lumbar vertebrae. He concluded that claimant had sustained a lower back injury "which aggravated or increased the amount of osteoarthritis, the traumatic arthritis in the lumbosacral region, and that this low back injury was causing compression of the sciatic nerve roots bilaterally * * *; and that at the time of my examination the patient was totally and permanently disabled. * * * Q. You mean by that, from doing any sort — any of the ordinary work or activities that he had previously been able to do? A. That is correct."
Dr. Bingham further testified that claimant was admitted to a hospital in Riverside on December 17, 1948; that on December 20, 1948, an exploratory laminectomy was performed by the witness, and "the lamina of the fifth lumbar vertebra was found to be causing a considerable amount of compression and narrowing of the fifth lumbar nerve roots, bilaterally"; that a spine fusion was done between the 4th and 5th lumbar vertebrae with internal fixation by means of stainless steel screws; that the patient was discharged from the hospital on December 30, 1948 in good condition; that his last thorough examination of claimant was in September, 1949, at which time X-rays disclosed that the operation had been successful and that claimant had made a good recovery. After examining X-ray pictures which were taken in St. Louis on June 11, 1947 and December 23, 1947, he stated: "They are similar to our films and show the same condition for which we operated."
Dr. Bingham further testified: "I would say that at the present time he is able to do the very lightest type work for perhaps four to six hours a day. * * * I have not gone into precentage disability evaluation, up to the present time. * * * The limitation of motion in the area of fusion in the lower lumbar spine would give him at least 30 per cent permanent partial disability. But in addition to limitation of motion, he still has pain on bending and turning. He has aching in his back, when he is on his feet for a long period. * * * When you have these other factors which caused the patient to have pain and fatigue and this stiffness, due to the spine fusion, why, you have considerably more than just a 30 per cent disability. It would be at least double that per cent of disability — perhaps more. * * * But, as I say, this question of his present disability — I have not made a complete study of it for grading purposes. * * * My last examination of this patient was in September, (1949). * * * When I first saw him, the patient was complaining of severe pain, and sensory paralysis, and gradually, to a certain extent, motor or muscle paralysis in the legs. At the present time his symptoms are practically entirely confined to the lumbar spine; and I have no record of his complaining of these shooting pains in his legs, or weakness, or paralysis in his legs, since before the operation. Q. Would you say, then, his condition it definitely better than it was before the operation? A. Yes, sir."
We return to claimant's testimony. As stated, he testified that he went to California in July, 1948. He further testified that on July 16, 1949, and about seven months after the operation, he went to Three Rivers, California, where he obtained a job at a guest ranch; that he did "light work around there" and received $100 a month, and room and board for himself and family; that after working a month he motored to Macon, Missouri with his family; that he did not do any driving on the trip east; that he left Missouri about the first of September, 1949, and drove back to Riverside, California with his wife and son; that he "drove all the way" and made the trip in five days, not including a three-day stop in Albuquerque, New Mexico. He stopped in that city to have his car repaired. He stated he had lived in Riverside since September, 1949; that he had worked as a barber — "A G.I. Barber" at March Field since October 20, 1949; that the air base was about six miles from his home in Riverside and he rode back and forth on a bus; that he had a permanent job and worked eight hours a day, five days a week, and four hours on Saturdays — "I ask for a few days off; and * * * I can go in and get a cup of coffee and get 15 or 20 minutes rest," and continued: "Q. When you have worked every day, what do you notice with respect to any change in your physical condition? A. Well, I am awful sore in the lower lumbar spine, and the legs are weak; have short pain in and around the ankles. * * * The 30th of every month, pay day out there" is "a heavy day"; after such a day "my back increases in pain, and my muscles and nerves quiver a lot. It requires a lot of rest."
Claimant further testified:
"Q. And when you came out here before you were operated on by Dr. Bingham, was your condition about the same as it was back there? A. It was.
"Q. Since that operation, what has been the condition you have noticed? A. Well, I can enjoy being around home, without suffering constantly pain and misery. * *
"Q. Do you notice any gradual improvement in the way you feel? A. When I take care of myself, I feel I am better since the operation. * * * But when I am forced to work, it puts you back down to a certain degree."
He said his general health had been "pretty good"; he weighed 174 pounds as compared with 186 pounds before the accident; his appetite was good, but he had "some headaches."
On August 17, 1950, the commission entered the final award denying claimant's application for a modification of the original award. As stated above, that award was affirmed by the circuit court and claimant has appealed. "In cases of this kind a reviewing court is authorized to decide whether the Commission could have reasonably made its findings and reached its result, upon consideration of all of the evidence before it. An award can only be set aside by court decision when it is clearly contrary to the overwhelming weight of the evidence. Wood v. Wagner Electric Corporation, 355 Mo. 670, 197 S.W.2d 647, 649. The court cannot substitute its own judgment for that of the Commission. Seabaugh's Dependents v. Garver Lumber Mfg. Co., 355 Mo. 1153, 200 S.W.2d 55, 62." Clevenger v. Standard Steel Works, Mo.App., 230 S.W.2d 113, 114, 115.
Section 3730, R.S. 1939, now sec. 287.470, R.S. 1949, authorizes the commission to review any award and to make another "award ending, diminishing or increasing the compensation previously awarded" when there has been "a change in condition". The change in condition contemplated by the statute, which will warrant the entry of a new award increasing the compensation previously awarded, was fully discussed by the St. Louis Court of Appeals in the case of Sei v. A. Guthrie Co., Mo.App., 50 S.W.2d 664, approved on certiorari in State ex rel. Sei v. Haid, 332 Mo. 1061, 61 S.W.2d 950. The Court of Appeals said, 50 S.W.2d loc. cit. 666: "It is evident that a continued incapacity of the same kind and character and for the same injury for which an award has been made is not a change of condition within the meaning of the statute above referred to. This statute was not intended to afford a method of correcting errors made in fixing the amount of the original award, but it was for the purpose of enabling the employer or the employee to end, terminate, or increase the compensation previously awarded, provided there was a change in condition subsequent to the entry of the original award." In Winschel v. Stix, Baer Fuller Dry Goods Co., Mo.App., 77 S.W.2d 488, 491, it was said that "to obtain an award upon the ground of a change in condition, the injured employee must show that since the time of the rendition of the original award his condition has become substantially worse, and not that it has in fact always been worse than the commission happened to have found it to be."
We think there was sufficient competent evidence in this case to warrant a finding that claimant failed to prove a change in condition within the meaning of the statute. If it be conceded that Dr. Bingham's testimony tended to show that there was a change for the worse in claimant's condition after he went to California and prior to the operation, nevertheless there was evidence tending to show that even during that period his incapacity was of "the same kind and character" for which the original award was made. Claimant testified: "Q. * * * you were hurt back east in this accident, and you suffered considerable pain in your legs and back all the time after the accident, didn't you? A. Yes, sir. Q. And when you came out here before you were operated on by Dr. Bingham, was your condition about the same as it was back there? A. It was." In fact, Dr. Bingham testified that the X-ray pictures taken in St. Louis "show the same condition for which we operated." When we turn to the evidence relating to claimant's condition at the time of the hearing on change in condition held March 7, 1950, and about twenty months after the first hearing, it appears from claimant's own testimony that he drove a car from Missouri to California in September, 1949, and that he had been working as a barber since October 20, 1949. He did say that he "took a few days off"; that he was allowed certain rest periods; that when he worked every day he had pain in his ankles and back; and that he required "a lot of rest." He stated, however, that he no longer suffered constant pain. At the previous hearing on July 1, 1948, he complained of constant pain in his back and legs; he said that the pain increased with activity and he often had "black-outs" and lost his sense of direction; that he could not sit or stand in one position for any length of time; that he could not work as a barber and had not been able to hold any kind of a job since January, 1946. Claimant's testimony cannot be ignored in deciding whether the commission found contrary to the overwhelming weight of the evidence. It is true that Dr. Bingham estimated claimant's disability to be at least sixty per cent — "perhaps more" — but he added: "This question of his present disability — I have not made a complete study of it for grading purposes. * * * My last examination of this patient was in September," 1949. It will be remembered that Dr. Bingham's deposition was taken on December 14, 1949, and his testimony indicates that he was not familiar with some of claimant's activities since September 1, 1949. He stated, however, that claimant's condition was "definitely better than it was before the operation." After carefully reading the record, we are unwilling to say that the commission could not reasonably make the finding under discussion. In other words, its decision was not clearly contrary to the overwhelming weight of the evidence.
Claimant also contends that "the Commission erred in refusing to give consideration to the report of Dr. Bingham filed November 25, 1948"; and that "the Commission erred in failing to assess a 15% penalty for violation of Section 8385, RSMo 1939." It is obvious that this court cannot consider the alleged errors, for the record shows that the rulings complained of were made in the original proceeding for compensation and no appeal was taken from the judgment of the circuit court affirming the final award in that proceeding. See second and third paragraphs of this opinion. As stated in Winschel v. Stix, Baer Fuller Dry Goods Co., supra, 77 S.W.2d loc. cit 491, a "final award, when once made, partakes of the nature of a judgment, so that, when the claimant, dissatisfied therewith, neglects to avail himself of the right of appeal provided for by the Compensation Act * * *, or when, upon an appeal, the award is affirmed, it becomes final and conclusive as to all matters adjudicated thereby, and the issues covered by the award may not thereafter be relitigated between the parties under the guise of a proceeding for a review of the award upon the ground of a change in condition."
In the proceeding to recover additional compensation on the ground of a change in his condition, claimant also sought to charge defendants with medical expenses incurred by him in California. As stated in the first part of this opinion, the commission found that "the employer and insurer are not liable for medical expenses incurred by the employee while in the State of California." Under claimant's points and authorities we find the following: "Claimant entitled to expenses for cost of operation and hospital bills," citing section 3701, R.S. 1939, RSMo 1949, § 287, 140; O'Malley v. Mack International Motor Truck Corp., 225 Mo.App. 1, 31 S.W.2d 554; Beatty v. Chandeysson Electric Company, 238 Mo.App. 868, 190 S.W.2d 648. This abstract statement does not constitute a compliance with Rule 1.08 governing briefs. The point is not directly argued in the brief and no attempt has been made to point out the facts upon which claimant bases his claim. We have, however, in reading the transcript, carefully considered all of the evidence relative to the question. Since claimant has not developed the point in his brief, we need not discuss such evidence. It is sufficient to say that in our opinion there was sufficient competent evidence to support the finding of the commission.
For the reasons stated, the judgment should be affirmed.
SPERRY, C., concurs.
The foregoing opinion of BOUR, C., is adopted as the opinion of the court. The judgment is affirmed.
All concur.