Opinion
No. 27708.
February 21, 1950. Rehearing Denied March 24, 1950.
APPEAL FROM THE ST. LOUIS CIRCUIT COURT, EDWARD M. RUDDY, J.
Francis M. O'Brien, St. Louis, Edward C. Friedewald, St. Louis, Chas. E. Thompson, St. Louis, Louis Gilden, St. Louis, for appellant.
Luke, Cunliff Wilson, St. Louis, for respondents.
This is an appeal from a judgment of the circuit court affirming an award of the Industrial Commission of Missouri. The referee of the Division of Workmen's Compensation who heard the case found that the injury to the employee resulted in a temporary total disability and that the full extent of the injury could not be determined. He made an award of $20 a week for 146 weeks and directed that weekly payments beyond that time be continued. There was a further order that the employer and insurer furnish additional medical attention.
Upon review the commission found that the employee suffered a permanent partial disability and awarded $20 a week for 92.8 weeks. This was the award affirmed by the circuit court in the judgment appealed from.
Necessary jurisdictional facts were admitted before the referee. It was also admitted that the employee sustained an accidental injury arising out of his employment and that his wages were $30 a week. The issues tried were the extent of the injury and the disability arising from it.
Plaintiff testified that while working for the Schulenburg Barrel and Drum Company, on February 26, 1945, he was struck by a ninety-pound barrel which was being rolled down a chute. He said that his right arm and shoulder were hurt and that he had a bump on his head. He was directed by his employer to go to a Dr. Demko who in turn sent him to a hospital for an X-ray. Later the doctor put the arm in a sling and treated the patient until some time in March. Plaintiff then returned to work and started steaming out barrels but he said that he had only worked about twenty minutes when his arm and shoulder started paining him and that his arm was shaking and swollen.
He reported to the company office and was sent to Dr. Graeser under whose care he remained until April or May when according to the plaintiff the doctor told him "This is a condition that won't get well; there is nothing that can be done for it."
In June, at the request of the insurer, he next went to a Dr. Diehr who administered heat treatments twice a week until August 9. On August 30, he was sent to Dr. Unterberg by the insurer and Dr. Unterberg treated him until February, 1946.
Plaintiff stated that the occupations that he ordinarily followed were painting, wall papering, and tree trimming, and that he could no longer do such work. He further stated that he was unable to secure work because of the injury which still bothered him. He complained of pain in the arm, shoulder, chest, legs and back.
On cross-examination plaintiff testified to having been employed prior to the accident as a night watchman at one time and for a while as a vegetable huckster. He also testified to other work that he had engaged in which was in no way related to the occupations he claimed to have usually followed. He had stated in depositions taken that he had never been in the state of Illinois and on cross-examination he admitted that he had served a term in a penitentiary in Illinois for larceny. He was asked how many claims he had made for personal injuries prior to the present one and he stated that he did not know but it was perhaps three or four. In his deposition in answer to the same question he had said, "I don't think I had over two at the most." After he had been shown several prior releases bearing his signature his lawyer agreed that claimant had had ten prior claims for personal injuries.
Dr. James F. McFadden, testifying on behalf of the claimant, stated that he had made an examination in February of 1946 and that claimant complained of pain in the arm and shoulder and of a sensation over the arm "like things crawling." The doctor stated that the tendon reflexes were absent and that there was pain upon pressure in the upper arm and right side of the neck. His conclusion was that claimant had an inflammation of the nerves coming from the spinal cord and that this resulted from the accident. It was his opinion that the condition was permanent and that claimant was totally disabled. The doctor stated that his findings were subjective and that the only way that he could tell that plaintiff suffered pain was by taking his word for it.
Dr. Richard Graeser, called by the claimant, stated that claimant was sent to him on March 19, 1945, by the insurer, and that he appeared to have a subdeltoid bursitis which the doctor explained was a condition causing pain when the arm is raised sideways. He was asked by plaintiff's counsel to examine the claimant before the referee and after so doing he stated: "* * * what impresses me here is the lack of atrophy in the face of as many complaints as this man has; in other words, he hasn't been working for two years, as I understand; usually if you have some nerve involvement of any sort, you should have some trophic disturbance; usually you have flattening of the muscles, particularly in the back and the shoulder blade area; when compared to deltoid muscle with the left one, there is hardly any shrinkage or muscle atrophy noticeable; there are certain bizarre contrary symptoms there I couldn't account for any nerve lesion there or any nerve involvement to that extent and he shouldn't have any muscle atrophy, that's contradictory." The doctor stated that the claimant was apparently "worse off" than he was at the time he had previously examined him. He stated at the time he was treating the claimant he made no complaint of the back or chest pains and that the sole disability suffered was to the arm at the shoulder. He placed the disability at 40 per cent of the right arm.
Dr. A. H. Diehr stated that his examination revealed no nerve impairment and that the claimant needed no further treatment. He stated that in his opinion there was a 30 per cent impairment of the right arm and no other impairment of any kind.
Dr. Unterberg testified that his examination of the claimant was strictly neurological and that he found some mild sensory weakness in the right arm and some motor weakness at the shoulder. He felt that the claimant suffered from brachial neuritis. An examination of the claimant was made by Dr. Unterberg at the hearing and he concluded that claimant still had some "relic" of brachial neuritis. He did not commit himself as to the existence of bursitis because it was out of "his field". He said that claimant had a good chance of recovering from the neuritis and that he should be kept away from "emotional things that would tend to aggravate the disturbance."
As to further medical treatment his testimony was as follows:
"Q. Do you feel as though that if he were to take up treatment under your observation he would show some improvement? A. Not under these circumstances. I wouldn't care to treat him under these circumstances."
* * * * * *
"Q. Would you recommend at this time that he be put under competent medical treatment? A. I can't answer that yes or no without qualification."
The witness further stated that the only handicap suffered by the man was in the right arm except for some pain extending to the right shoulder.
There was medical testimony that there was some muscular wasting from lack of use of the arm and that there was a small rounded mass about five-eighths of an inch in diameter in an arm muscle. The X-rays taken showed no fracture or dislocation but a "slight irregularity of the bodies of several of the cervical vertebrae." All medical witnesses except Dr. McFadden stated that the claimant could work.
The contention presented here is whether or not the commission's award based on permanent partial disability as provided by Section 3705, R.S.Mo. 1939, Mo.R.S.A. Sec. 3705, was a proper award under the evidence. The appellant maintains that the award should follow that made by the referee under Section 3703, R.S.Mo. 1939, Mo. R.S.A. Sec. 3703, providing for temporary total disability.
It is properly asserted that in passing upon a decision of an administrative tribunal the court to which the appeal is directed must determine whether the findings of the tribunal could have been reasonably reached upon consideration of all of the evidence. In discussing Section 22, Article V, Constitution of Missouri, 1945, which provides for judicial review of the findings of administrative bodies, the Supreme Court of Missouri said in Wood v. Wagner Electric Corp., 355 Mo. 670, 197 S.W.2d 647, 649: "This does not mean that the reviewing court may substitute its own judgment on the evidence for that of the administrative tribunal. But it does authorize it to decide whether such tribunal could have reasonably made its findings, and reached its result, upon consideration of all of the evidence before it; and to set aside decisions clearly contrary to the overwhelming weight of the evidence. Of course, the reviewing court should adhere to the rule of deference to findings, involving credibility of witnesses, made by those before whom the witnesses gave oral testimony." Henderson v. Laclede Christy Clay Products Co., Mo.App., 206 S.W.2d 673; Karch v. Empire Dist. Electric Co., 358 Mo. 1062, 218 S.W.2d 765.
The evidence must therefore be considered to the extent and within the limitations stated in the above cases.
It is contended that under the evidence the final result of the injury could not be determined and that the award of the referee in finding temporary total disability was correct, and, conversely, that the commission's finding of permanent partial disability was not supported by the evidence.
Although stating that the disability was total the claimant's witness, Dr. McFadden, said that the condition he found was permanent and no further treatment was suggested by him. Dr. Diehr specifically stated that the impairment suffered was 30 per cent of the right arm and that no further treatment was necessary. Dr. Graeser, who found the employee's complaints were "bizarre and contrary symptoms", fixed the disability at 40 per cent of the right arm. And Dr. Unterberg was doubtful about the value of further treatment. This appears sufficient evidence upon which to state that the condition was permanent and that it called for no further treatment. Such a finding is certainly supported by the weight of the evidence.
Appellant relies upon the case of Caldwell v. Melbourne Hotel Co., Mo.App., 116 S.W.2d 232, 239, wherein this court held that the commission was "not in a position to determine whether the final result of the injury sustained by the employee would be only permanent partial disability." The facts in that case were at wide variance with those presented here. There the claimant suffered not only a broken leg but posture changes, titled pelvis and she walked on crutches. One medical witness stated, "I don't know if she's ever going to work."
The symptoms and injuries suffered by the claimant in that case were objective while here most of the medical opinions were based upon the aches and pains the claimant said he suffered.
If the employee is worthy of belief his testimony relating to his own injuries carries great weight. On that score, it is contended that deference should be accorded to the finding of the referee since he had the witnesses before him and was therefore in a better position to judge their credibility. The deference usually accorded the triers of facts is discussed in Green v. Wilks, Mo.Sup., 109 S.W.2d 859, loc. cit. 864. The court stated: "* * * in cases where there is irreconcilable directly conflicting verbal testimony, on fact issues, produced before the chancellor, it is our rule to defer to his findings thereon, because of his better opportunity to determine its credibility, at least, unless the overwhelming weight of the evidence appears to be against them." (Emphasis ours.) Scheer v. Gerleman, Mo.Sup., 221 S.W.2d 875; Zorensky v. Wellston Clothing Co., Mo.App., 223 S.W.2d 851.
The basis of the rule for deferring to the trier of the facts is that he has had the advantage of seeing the witnesses and noting their demeanor on the witness stand. By reason of this he is considered more competent to say which witness is telling the truth when there is "directly conflicting" testimony.
Here we have something more than conflicting verbal testimony for the claimant perjured himself regarding the number of personal injury claims that he had asserted; he lied when asked if he had ever been in Illinois and many of the symptoms he claimed appear to be exaggerations. When a reviewing tribunal has evidence before it disclosing the character of the witness such a tribunal is as competent to pass upon the weight to be given his testimony as the trier of the facts who heard him.
Citing Bumpus v. Massman Const. Co., Mo.App., 145 S.W.2d 458, which held that disability could not be limited to the arm where the shoulder was also involved, the appellant claims that the commission erred in holding that the disability was only to the arm. Two medical witnesses stated that there was some pain extending to the shoulder and two limited the disability to the arm. There was other evidence that the pains complained of in the chest and back could not be attributed to the injury. Since the commission's findings were reasonably reached from the evidence, it did not err in limiting the finding of disability to the right arm.
It is therefore the recommendation of the Commissioner that the judgment of the circuit court affirming the award of the commission be affirmed.
The foregoing opinion of WOLFE, C., is adopted as the opinion of the court.
The judgment of the circuit court is accordingly affirmed.
ANDERSON, P. J., and HUGHES and McCULLEN, JJ., concur.