Opinion
No. 27859.
April 18, 1950. Rehearing Denied May 19, 1950.
APPEAL FROM THE CITY OF ST. LOUIS CIRCUIT COURT, MICHAEL J. SCOTT, J.
Dubail Judge, St. Louis, Robert S. Kilker, St. Louis, for appellant.
Jesse L. Renderer, St. Louis, John H. Nolde, St. Louis, Ralph C. Kleinschmidt, St. Louis, for respondent.
This claim of Stella Moore, employee, against R. C. Can Company, employer and self-insurer, was heard before a referee of the Division of Workmen's Compensation on March 17, 1948. The alleged accidental injury occurred on September 12, 1945.
The employee had worked for this employer since April, 1945, and was engaged in placing lids or caps on pasteboard cans and then running them through a machine. She worked at a bin from which she would take the cans to place the lids or caps on them. When all the cans had been removed from this bin a crate filled with uncapped cans was brought to a position next to the bin. This crate when full of such cans weighed about 69 1/2 pounds. This employee and another employee, one at each end of the crate, would lift the crate of uncapped cans and empty the cans into the bin which was about 33" high. The crate was 32" high and was made of upright wooden pickets surrounded by a horizontal wood strip all around the crate and about in the center of same. Ordinarily the strip that ran horizontally across the ends of the crate would be taken hold of by the employees in order to raise it up to the top of the bin.
The employee's testimony was that on September 12, 1945, about 3:15 in the afternoon and about fifteen minutes before her day's work was over, she and another employee whose name she did not remember were in the act of lifting a crate of cans to empty in the bin, and while doing so she caught her right forearm between the bin and the crate thereby causing the injuries complained of.
Digressing for the moment from the employee's testimony, the undisputed fact is that in 1927 claimant suffered a comminuted fracture of both the bones of her right forearm, which in the process of healing resulted in a non-union of the bones and left them connected by fibrous adhesions forming a false union called pseudo-arthrosis, which would not give the arm rigidity but would give it some stability.
Claimant further testifying said that immediately after the accident she suffered pain and shortly thereafter there was swelling in her arm; that the foreman had quit work for the day and she did not report the accident at that time; that she was accompanied to her home by her daughter who also worked for this employer, and the next morning her daughter called Dr. Creane, who looked at her arm and told her he was no bone specialist and advised her to take pain tablets. She then directed her daughter to tell the employer that she got her arm hurt and was not able to come back to work and didn't know when she would be. She said that she was sent to Dr. Lyttle by the company about two weeks after the accident. She further said that she had done no work since the date of the accident; that her arm pains her so that she can just do nothing; that her arm is a whole lot weaker; that she "couldn't even pick up a teacup, nothing like that; can't pick up nothing;" that before the accident of September 12, 1945, she was kind of handicapped in the arm but it never did bother her any; that after her injury in 1927 and until the accident in question she was able to do manual labor such as work in the fields, chopping cotton or plowing.
Geraldine Pruett, a daughter of claimant, testified that she worked on the same floor as her mother and that Harry Tremmel was the foreman or superintendent for that particular floor. She said that on September 12, 1945, she went to her mother after quitting time, as they always met to go home together, and that her mother was holding her arm and said she hurt it and that it was paining her. On the next morning witness returned to her work, and told Mr. Tremmel that her mother wouldn't be in that day because she got her arm hurt, but she did not remember whether she told him how her mother got her arm hurt; that Mr. Tremmel asked why her mother did not report it, and she told him it was so close to quitting time, "I thought she didn't think it would be much use." She further said that after she got home she saw that her mother's arm was swollen; she saw no marks on her mother's arm but that the next morning it was swollen quite a bit.
Dr. E. H. Bowdern, who testified for the claimant, states that he first saw the claimant on November 6, 1945, and again on January 5, 1948. She gave a history of a fracture of both bones of her right forearm in 1927. Examination showed a comminuted fracture of both the ulna and radius, with a resultant non-union. She complained of pain at the site of the old fracture but complained of no other pain in the arm. That there had never been any union of the bones from the accident of 1927; this nonunion had formed a false joint which is called a pseudo-arthrosis. When there is nonunion of bones nature "frequently permits" a stabilization of fibrous adhesions and while such adhesions would not give the arm the rigidity they might give it some stability. In answer to a hypothetical question the doctor stated that the type of injury that could be sustained by the accident described by the claimant would be injury to fibrous adhesions around the false joint, but there was no way to tell whether or not there had been injury to the fibrous tissue without knowing the conditions prior to September 12, 1945, which he didn't know. No further treatment would be advisable; no treatment was given except medical advice on November 6, 1945.
On cross-examination Dr. Bowdern stated that after his examination on November 6, 1945, he made a report and in the conclusion stated that the employee had a pseudo-arthrosis of the right forearm that had been present since 1927, and had not been affected by the accident of September 12, 1945, and that any permanent disability suffered by the employee was the result of the accident of 1927. Upon being asked on redirect examination to explain what he meant in that conclusion, he said "It was the statement of the patient."
Evidence produced by the employer was as follows:
Harry Tremmel, a foreman employed by the respondent, testified on behalf of the respondent that Stella Moore worked under him; that when she was hired the lady who hired her brought the girl up to him and he saw her hand. The only thing then was to put her on capping cans; that he looked at her hand and noticed it was on an angle, a small angle the way it looked to him, in a crippled condition. The witness was asked: "Q. I will ask you to assume that a person stooped over and put their fingers into one of these slats and put their hands on the slats on the inside of this box, one person on this side and then raised that crate and dumped it on the table. Would it be physically possible to get her arm injured in that kind of a process? A. No, sir."
And on cross-examination the witness was asked: "Mr. Kilker: Mr. Tremmel, you cannot, as a matter of fact, state that Mrs. Moore was not injured on September 12 while working on that shift, can you? A. I cannot state it, no."
Dr. G. C. Lyttle, who testified for the employer, stated that he examined the employee on October 5, 1945. He found that her right arm was swollen and generally enlarged; there was no crepitus although the arm could be bent easily; there was a pseudo-arthrosis about the middle of the forearm. The examination revealed an old complete fracture of both bones of the right forearm about the middle third. The fractured ends of the bones were covered with callus, and indicated non-union. The fractures were of long standing and there was no evidence of recent fracture. There was no other objective evidence of any injury to the injured arm at that time.
Dr. Lyttle further said "In this type of joint you usually find swelling; you naturally get interference with the circulation, especially where the veins have been sutured, and that interferes with the circulation, which leads to swelling, and with a pseudo-arthrosis and this interference with the circulation you have swelling."
Dr. Harry L. Thieme examined the claimant for the employer on February 14, 1946, and made a report of his findings on that date. By agreement this report was admitted in evidence. The conclusions of Dr. Thieme were as follows: "According to the past history obtained, in 1927 this woman sustained fractures of both the ulna and radius of the right forearm through the middle third which resulted in non-union and false motion at this site and she states that the false motion has been no worse since her accident of September 12, 1945. However, she states that now she has a pain in this area. This is an old non-union of the ulna and radius through the middle third of the right forearm which has existed since 1927. Her only complaint at this time is that of pain. In my opinion her present condition is about the same as it was following the accident in 1927, and in my opinion no permanent impairment has resulted from her accident of September 12, 1945."
From an award by the referee in favor of the employee "for temporary total disability" the employer made application for a review by the full commission, and upon such review the full commission reversed the award of the referee and made a final award in favor of the employer, stating therein as follows: "We find from the evidence that the condition complained of by the employee is not the result of an alleged accident arising out of and in the course of her employment. Compensation, therefore, must be, and the same is hereby denied."
From this final award the employee appealed to the circuit court which affirmed the final award of the commission. From such judgment of the circuit court the employee has perfected an appeal to this court.
Reviewing the whole record, these questions are before us, first, did the employee suffer an accident which arose out of and in the course of her employment, and, second, if she did suffer such an accident was there a resulting injury or disability?
The scope of review by the courts in workmen's compensation cases has been defined and set out in two cases by the Supreme Court en Banc. Wood v. Wagner Electric Corporation, 355 Mo. 670, 197 S.W.2d 647; Seabaugh's Dependents v. Garver Lumber Mfg. Co., 355 Mo. 1153, 200 S.W.2d 55. It was said in the Wood case and adhered to in the Seabaugh case, with reference to the effect of Section 22, Article V, 1945 Constitution, Mo.R.S.A., as follows, 197 S.W.2d 649: "The provision in Section 22 that administrative decisions `shall be subject to direct review by the courts as provided by law' refers to the method of review to be provided (certiorari, appeal, etc.) and not to the scope of the review `in cases in which a hearing is required by law.' For the latter, this stated minimum standard (`supported by competent and substantial evidence upon the whole record') is mandatory and requires no legislation to put it into effect. 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."
Applying the law as thus stated, and having in mind the first question, i. e., did the employee suffer an accident which arose out of and in the course of her employment. What does the record show? It is admitted that on September 12, 1945, Stella Moore was an employee of the R. C. Can Company, and had been since the previous April. Stella Moore testifies that in the course of her employment and while in the act of lifting a crate of cans to empty in the bin she caught her right forearm between the bin and the crate thereby causing the injuries complained of. The only attempt by the employer to disprove her testimony was the feeble contention that it was physically impossible for the employee's arm to be between the crate and the bin, and in order to prove that contention the employer called as a witness the foreman or superintendent of the work which the employee was performing, Mr. Tremmel. Tremmel failed entirely to sustain the employer's contention. He did say that if a person put their hands on the slats on the inside of this box it would be impossible to get her arm injured in that kind of a process. But the claimant had not said she had her hand on the inside of the crate; she said that in order to lift the crate or box she caught her fingers in one of those horizontal slats on the side of the box, which would place her arm next to the bin. Not only so, but Tremmel was asked on cross-examination the question, "Mr. Tremmel, you cannot, as a matter of fact, state that Mrs. Moore was not injured on September 12 while working on that shift; can you?", to which he answered, "I cannot state it, no." This was all of the evidence as to how the alleged accident occurred.
The final award of the commission contained a finding that, "We find from the evidence that the condition complained of by the employee is not the result of an alleged accident arising out of and in the course of her employment." As well said in respondent's brief and argument, several constructions may be placed on these findings. The commission may have meant that it found that the employee did not sustain an accident. If that was the finding it would totally lack the support of any competent substantial evidence.
That not being the finding of the commission, then what did it find? Was it that the "condition complained of by the employee" before September 12, 1945, was not the result of that accident? Surely not, because that was conceded. Did the commission mean that the accident of September 12, 1945, did not further disable the employee at all? If that was the finding it was wholly without evidential support, because the employee's own testimony showed total disability as a result of that accident, and all the doctors found was that such disability, if any, was not permanent.
It is incumbent upon a claimant to produce competent substantial evidence that an accident occurred, and that it resulted in injury. The employee's own testimony in this case which was unimpeached and uncontradicted made a prima facie showing of an accident and disability resulting therefrom, unless upon a consideration of the evidence as a whole her testimony is not to be credited. Claimant did not seek recovery on the theory that the "condition" of her arm, that is a pseudo-arthrosis, was caused by the accident in question. That "condition" had admittedly existed since 1927, or for about eighteen years. She did seek recovery because of an aggravation of that "condition" caused by the accident. The theory of both employee and employer was that the employee had a permanent partial disability as the result of an accident in 1927. The finding by the full commission was not responsive to the issue involved. The commission should have determined whether the "condition" had been aggravated by the accident, and whether such aggravated condition was permanent or temporary. The theory is borne out by the claim and the employer's answer. The claim was filed on September 25, 1945, and the answer the employer was filed a year later, to wit, September 25, 1946, and in the answer the employer denied that there was an accidental injury, and further denied that there was any permanent injury. The evidence showed that there was a pre-existing permanent partial disability, and the employee's evidence showed that there was an increased or aggravated disability as a result of the accident in question, and there was no substantial competent evidence to the contrary.
Dr. Bowdern did not see the employee until November 6, 1945, nearly two months after the alleged accident, and his conclusion was that she had a pseudo-arthrosis which had not been affected by the accident of September 12, 1945. But the doctor continuing with his conclusion said that any permanent disability suffered by the employee was the result of the accident of 1927.
Dr. Lyttle saw the employee on October 5, 1945, about three weeks after the alleged injury. At that time he found no objective evidence of any recent injury to the injured arm. He found swelling and thickness of the employee's arm. His testimony verbatim was as follows:
"Q. Did you conclude that that swelling and thickening was not the result of any recent injury? A. No, I felt that was, in all likelihood, due to the original injury in 1927.
"Q. Could you state definitely that was not the result of a recent injury? A. I couldn't state that it was. It is very natural that this swelling and thickening did result from the original injury of 1927.
"Q. Could you state it was not the result of any recent injury? A. I could positively state yes.
"Q. How do you reach that conclusion? A. Because I feel that any pseudo-arthrosis would naturally lead to any swelling or thickening of that part.
"Q. Would not a subsequent injury increase the swelling? A. Yes, it might.
"Q. Could you tell whether that arm swelled after the original injury? A. Not having seen it before I couldn't state.
"Q. Might not that swelling be the result of a recent injury? A. No, not that way. I feel that she could not have that pseudo-arthrosis at this point without having swelling or thickening.
"Q. You wouldn't know how much swelling or thickening? A. No, sir.
"Q. In that event, there is a possibility that some of this or all of this swelling or thickening was the result of a recent injury? A. No, not all of it. I don't think that possibly all of it could have been due to that."
This doctor's testimony cast little or no light on the question at issue of whether the preexisting condition was aggravated by an injury of September 12, 1945.
Dr. Thieme saw the employee on February 14, 1946, and his testimony is that his final conclusion was: "In my opinion her present condition is about the same as it was following the accident in 1927, and in my opinion no permanent impairment has resulted from her accident of September 12, 1945." (Emphasis ours.) And so he restricted his opinion as to permanent impairment without regard to whether there was temporary impairment as a result of the accident of September 12, 1945.
If these doctors meant to say that there was no disability, either temporary or permanent, and either total or partial, as a result of the alleged accident of September 12, 1945, they should have said so. If they had, that would have furnished a basis for the finding of the commission, but absent such testimony we can find nothing in the record to support the finding as made. The case should be remanded to the commission for a definite finding on the record as it now stands, or for further evidence if the commission so determines.
The finding by the commission gives no indication whatever that it was based on the employee's testimony being incredible. The commission did not have the witnesses before it. The referee did have the advantage of hearing the oral testimony and he gave credit to the employee's testimony and found in her favor for "temporary total disability" after the accident of September 12, 1945. The commission not having heard the oral testimony was in no better position than this court to judge of the credibility of the employee's testimony. And in fact, as stated above, its finding is not based on a lack of credibility of the employee's testimony. In the case of Scott v. Wheelock Bros., 209 S.W.2d 149, 151 a case before the Supreme Court en Banc, the Court in an enlightening opinion by Barrett, C., says, "We have been unable to find a case in which an administrative agency's award was based upon a finding of lack of credibility of the claimant's undisputed * * * testimony." And in that case the Court cited the case of Palm v. Southwest Missouri Wholesale Liquor Co., Mo.App., 176 S.W.2d 528, 529, by the Springfield Court of Appeals, and quoted therefrom as follows, 209 S.W.2d 151: "It is true that the Commission, in a compensation case, is the judge of the credibility of witnesses, but the rule does not authorize the Commission to arbitrarily disregard and ignore `competent, substantial, and undisputed testimony of witnesses who are not shown by the record to have been impeached, and to base their findings upon conjecture or their own mere opinion unsupported by sufficient competent evidence.' * * * It is therefore our conclusion, and we so hold, that the compensation commission was not authorized to reject and disregard any and all the parol testimony merely because it was denied by deceased's employer in its answer to the claim filed."
The Court further states that this rule was applied in the case of Stepaneck v. Mark Twain Hotel, Mo.App., 104 S.W.2d 761, 766, and Holliday v. Walls, Mo.App., 64 S.W.2d 318, and was recognized in McCoy v. Simpson, 346 Mo. 72, 139 S.W.2d 950, 952. In view of the whole record in this case, and the law as stated in these authorities, the finding of the commission cannot be sustained upon a theory that the commission did not credit the employee's testimony, and we can find no other theory whereby the commission could have reasonably made the finding and award it did make.
That this employee's disability prior to the alleged accident of September 12, 1945, was permanent partial disability is clearly proven by the fact that she was able to and did work for this employer, though handicapped by partial disability, from April until September. The compensation act contemplates concurrent or second injuries, and liability is created if the injury aggravates an already weakened condition. Wills v. Berberich's Delivery Co., 339 Mo. 856, 98 S.W.2d 569; Moore v. International Shoe Co., Mo.App., 213 S.W.2d 215; Cheek v. Durasteel Co., Mo.App., 209 S.W.2d 548. It was on such theory that this claim was made, and this theory was totally ignored by the finding and award of the commission.
Ordered that the judgment of the circuit court be reversed and the cause remanded with directions to reverse the final award and remand the case to the Industrial Commission of Missouri, Workmen's Compensation Division, for further proceedings.
ANDERSON, P. J., and McCULLEN, J., concur.
On Respondent's Motion for Rehearing.
Respondent says that we have misinterpreted the testimony of claimant as to the position her arm was in when she caught her forearm between the bin and the crate she was lifting in order to spill the empty cans into the bin. The contention being that if she took hold of the crate at the end next to her, as respondent assumes, and lifted it upwards and emptied the cans into the bin, her right forearm would not have been between the crate and the bin, and it would, therefore, have been physically impossible for an accident to have occurred as claimant described.
Such reasoning is untenable for two reasons, first, when the crate was lifted and tilted in order to empty its contents into the bin, with her arm holding to the end of the crate, it could naturally telescope the right-hand side and end of the crate into the bin and could very reasonably have caught her right arm between the outside end of the crate and the inside end of the bin. We do not say that is how the injury did occur, but merely illustrate how it might or could have occurred even on respondent's theory of what the evidence showed, and not have been physically impossible.
Secondly, we have again read the testimony of the claimant, which is the only testimony adduced as to how the accident occurred. In describing the crate claimant was asked, "Did it have handles on it," to which she answered, "No. Just caught your hand in the sides." She was then asked, "You mean that your right arm was next to the bin," to which she answered, "Yes, sir." These questions and answers require no interpretation. They are clear, unambiguous and easily understood. The referee understood her testimony as not showing an impossibility, and allowed the claim. The commission must have been impressed that the accident occurred as claimant testified, because its disallowance of the claim was for an entirely different reason, to wit, that the "condition complained of was not the result of an alleged accident," etc. As pointed out in the opinion, there was no question as to the "condition" of her arm, that is, a pseudo-arthrosis, having existed since 1927. The question was whether or not there was an aggravation of that condition by reason of an accident on September 12, 1945, and that question was not passed on by the commission.
Upon a further hearing or consideration by the commission, it has authority to hear additional testimony on any question involved in the claim, if it sees proper.
The court can only take the testimony as presented, and would have no right to assume, as respondent does, that by the testimony as given claimant meant something else.
Other matters mentioned in the motion are fully covered in the opinion, and the motion for rehearing should be overruled. It is so ordered.
ANDERSON, P. J., and McCULLEN, J., concur.