Opinion
No. 21389.
October 2, 1950.
APPEAL FROM THE CIRCUIT COURT, CARROLL COUNTY, JAMES S. ROONEY, J.
Stubbs, McKenzie Williams, Kansas City, for appellants.
Jack C. Jones, D. D. Thomas, Jr., Carrollton, Mo., for respondent.
This is an appeal by the employer and insurer from a judgment of the circuit court of Carroll County affirming a final award of the Industrial Commission of Missouri, Division of Workmen's Compensation, upon a hearing on change in condition brought pursuant to section 3730, R.S.Mo. 1939, Mo.R.S.A.
The respondent-employee sustained a fracture of the spine, a fracture of the left clavicle and other injuries when he was knocked down and run over by a truck on August 16, 1939. It is conceded that the accident occurred in the course of and arose out of respondent's employment by appellant Glenn T. Bramhall, doing business as Bramhall Construction Company. On August 5, 1942, the respondent filed a claim with the Workmen's Compensation Commission and was given a hearing before a single commissioner on October 27, 1942, which resulted in an award in favor of respondent "for temporary total disability the sum of $7.69 per week from August 16, 1939 * * * to October 27, 1942 * * and thereafter until May 1, 1943, at which time the claim will be reset for further hearing." On July 7, 1944, after a hearing before a referee of the commission on March 2, 1944, followed by a review by the full commission, a final award was entered in favor of respondent "for permanent partial disability the sum of $7.69 per week for 400 weeks, * * * said payments to begin as of August 17, 1939," subject, however, to a credit of $1,630.28 for compensation previously paid, and subject also to an attorney's fee for legal services rendered respondent. The Commission made these specific findings: "12. Parts of body injured by accident: Back, chest and head. 13. Exact nature of any permanent injury: Fractured spine." The evidence upon the 1944 hearing was as follows:
Immediately after the accident on August 16, 1939, respondent was taken to a hospital at Carrollton, Missouri. In October or November 1939, he entered Menorah Hospital at Kansas City, Missouri. X-ray pictures revealed a compression fracture of the first lumbar vertebra, and on December 16, 1939, a stabilization operation was performed on respondent's spine by Dr. Ralph Mueller. In March 1940, respondent returned to Carroll County. He had been fitted with a steel brace which he wore until May 1943. He was in St. Luke's Hospital at Kansas City, Missouri from May 1943 to July 21, 1943, during which time he received physical therapy under the direction of Dr. Frank D. Dickson. In July 1943, respondent returned to Carroll County where he was treated by several local doctors, including Dr. R. H. Staton.
Dr. Staton, a witness for respondent, testified that respondent's complaints had been a pain in the back and vomiting; that on one occasion he saw respondent vomit; that X-ray pictures taken about a month before the hearing showed that respondent's left clavicle had been broken and "healed by just lapping over instead of being healed end on end"; that this condition caused the left shoulder to drop forward and as a result respondent's left side "would be weaker"; and that "there is a permanent condition of deformity in the left shoulder." He stated that the X-ray pictures also showed a compression fracture of the first lumbar vertebra; that a fusion operation had been performed in that region; that the pictures revealed a curvature of the spine "at the next joint after the rigid part"; that in his opinion the back pains and vomiting were caused by the condition of respondent's spine; and that "nothing that amounts to anything" could be done to help respondent. He stated:
"Q. What is your opinion as to the continuation of these spells or attacks he is having * * * A. That is something I don't know. He may get better or he may get worse or he may go on about the same — he could easily get a little better or get worse or stay about the same." Dr. Staton further testified that in his opinion respondent would never be able to do hard manual labor; that "his general disability for all kinds of work would be total," and continued:
"Q. Do I understand you to say Mr. Adkins is totally and permanently disabled from performing any type of manual work as distinguished from mental work? A. In his class, yes.
"Q. Are you saying there is no type of work whatever the man can do? A. He could sell lead pencils — something in that class of work."
Respondent's evidence showed that prior to the accident on August 16, 1939, he was an able-bodied man, capable of doing hard manual labor such as breaking rock in a quarry, and farming. He testified that he had been living on a farm with Robert and Hugh Dickson since his discharge from St. Luke's Hospital; that he was unable to do any work "outside of a few little chores" on the farm such as feeding a few head of cattle; that he would "last about fifteen minutes" on a tractor; that he suffered constant pain in his back, and had attacks of vomiting, particularly when he exerted himself; that he tried to do the chores but "that was about all" he could do.
Robert Dickson testified that respondent performed no work on the farm other than feeding a few calves; that he had lost about twenty-five pounds since his discharge from St. Luke's Hospital; and that he was very nervous and had attacks of vomiting. Respondent's brother said that he saw respondent about once a week, and that when respondent had an attack "he complains of his back and he vomits and gets so weak he has to go to bed."
Appellants' evidence consisted of written reports of appellants' physicians who had examined respondent, which reports were admitted without objection. Since it would unduly lengthen this opinion to attempt to summarize all of these reports, we set forth only the conclusions of appellants' doctors. The report of Dr. H. Lewis Hess, dated December 1, 1942, recites: "It is my opinion that Mr. Adkins at this time has a permanent disability in the neighborhood of fifty (50) per cent." The record contains six reports of Dr. Frank D. Dickson which tended to show a progressive improvement in respondent's condition. One report dated March 30, 1943, reads in part as follows: "So far as the left clavicle is concerned * * * this clavicle is sufficiently normal as to result in no disability. * * * To sum up the situation, Adkins does and will have a definite and permanent disability in the back, the result of his compression fracture and the stabilizing operation which the fracture necessitated. This disability, however, should not be such as to preclude his engaging in an occupation involving a reasonable amount of activity, lifting, and so forth." Dr. Dickson's last report dated September 16, 1943, stated: "Adkins is handling 25 pound weights satisfactorily and easily but is having some trouble lifting 50 pound weights. * * * There is unquestionably a certain amount of permanent partial disability in this case which I should estimate as around thirty-five per cent. I believe no further change in his condition will occur from medical treatment and feel that if he is returned to work continued improvement will take place and that he will be able to do, as stated, a reasonable amount of fairly heavy work."
The commission appointed Dr. George K. Campbell to examine respondent, and his report to the commission was made a part of the record by agreement of the parties. Dr. Campbell's report dated April 17, 1944, concludes: "From the history, physical examination (on April 13, 1944) and study of extensive X-rays in this case, it is my opinion that this man sustained a rather severe type of injury involving his left clavicle and lumbar spine. * * * The disability in this case at the present time is related to the patient's back, and is due to two factors: 1. the extent of the injury with the necessary fusion that has been performed, and 2, to the patient's failure to resume sufficient activity to have regained his maximum recovery. However, I feel that he has reached his maximum recovery at the present time, and I would rate his disability at 65 per cent permanent partial. This rating is made with the consideration that this patient may gain some future recovery in the future when he resumes more activity."
As stated, the full commission, after reviewing the above evidence, entered an award on July 7, 1944, in favor of respondent "for permanent partial disability." No appeal was taken from this award. On March 28, 1947, the respondent filed an application for a rehearing and review of the award with the Industrial Commission upon the ground of a change in his condition. On September 20, 1948, a hearing was had on respondent's application before a referee of the Division of Workmen's Compensation of the Industrial Commission. Respondent's evidence upon that hearing was as follows:
Hugh and Robert Dickson testified that respondent lived with them on their farm from 1942 to 1946, except when he was in the hospital; that he was unable to do any hard work during that period; that he complained of pain in his back and had attacks of vomiting, and that such attacks were more frequent, more severe and of longer duration in 1946 than in 1944. Robert Dickson said:
"Q. Now, then, before March 2, 1944, he would at times have vomiting spells? A. That's right.
"Q. And * * * that was after he tried to do some of the chores? A. After he tried to do something.
"Q. I want you to tell the Commission whether or not you observed any change in his ability to do any work out there at your place after March 2, 1944? A. Well, he tried to do other chores but just wasn't able; he just couldn't do it; every time he would take a vomiting spell and it would take him longer to get over it; * * * the things that would cause it, maybe he was trying to work, or just walking along and step off a sidewalk, just a little curb like that. * * *
"Q. And when he got a little jar after March 2, 1944, he would have these vomiting spells? A. Yes. * * *
"Q. Do you notice any difference in his weight from March 2, 1944, until you saw him here this afternoon? A. He is around twenty pounds lighter — twenty-five pounds."
Respondent testified that in 1947 he tried to cut some wood, but the exertion made him so sick he was confined in a hospital for about three weeks. On one occasion in the spring of 1948, he plowed four or five acres with a tractor attached to a plow. He started plowing about 8 o'clock in the morning and worked until 4:00 or 5 o'clock in the afternoon, with time off for lunch. That night he had a "spell" and was taken to a hospital where he remained for three weeks under the care of a doctor. As to this "spell" he said: "My back hurt me and was sore. I was pretty near crazy, and I vomited." Respondent testified that his condition at the time of the hearing (September 20, 1948) was such that he was unable to do any kind of work, whereas in 1944 he was able to do a few chores; that the slightest exertion caused severe pains in his back and vomiting; that such attacks were more frequent, more severe and of longer duration than they were in 1944. He said: "I have those spells every time I try to do anything; they just throw me — and they are a whole lot worse; I had one one night and fell off the porch. * * * My back hurts me worse than it did then. * * It is worse; it is all worse. * * *
"Q. Are you able to do any work now of any nature? A. No, sir." Respondent further testified that he had not sustained any injuries as the result of an accident except the injuries caused by the accident on August 16, 1939; and that in his opinion his condition at the time of the 1948 hearing was caused by the injuries sustained in 1939. The testimony of Alvin L. Yuille, a farmer with whom respondent had been living since September 1946, tended to corroborate respondent's testimony concerning his condition in 1947 and at the time of the 1948 hearing.
Jewel Haney, a registered nurse, testified that she and her husband lived on a farm near Carrollton; that respondent came to visit the family from time to time; that on one occasion in the spring of 1948, respondent went to the barn with her husband to help feed the livestock and after respondent returned to the house he had "one of those spells." She stated: "First he lay down quite a little bit, and then, he didn't tell me at first what was the matter — he began vomiting violently; he would lay down awhile and get up and go out and vomit awhile and lay down, * * * he did that most of the day. He looked quite bad; looked like he was in pain. * * * He doesn't look as good to me as he did in the past."
Appellants offered no evidence at the 1948 hearing. On December 21, 1948, after a review of the above testimony by the commission, a final award was entered in favor of respondent "for permanent total disability the sum of $7.69 per week for 300 weeks and thereafter the sum of $6.00 per week for life," subject to a credit for compensation previously paid and a lien in favor of an attorney for legal services rendered respondent. This award was based upon a specific finding "that said employee suffered a change in condition of the same injuries which were previously held compensable under an award of the Missouri Workmen's Compensation Commission dated July 7, 1944, and that said change in condition has resulted in the permanent total disability of the employee." From such award the employer and insurer appealed to the circuit court which affirmed the award, and the appeal to this court followed in the usual course.
Appellants contend that there was not sufficient competent evidence in the record to support a finding of a change in condition of the same injuries which were previously held compensable under the 1944 award; and that there was no evidence to support a finding that any change in condition resulted in permanent total disability. In ruling upon these questions, we must determine whether the commission could reasonably have made its findings upon consideration of all of the competent evidence before it; and we should set aside the award if it is clearly contrary to the overwhelming weight of the evidence. Wood v. Wagner Electric Corp., 355 Mo. 670, 197 S.W.2d 647, 649; Seabaugh's Dependents v. Garver Lumber Mfg. Co., 355 Mo. 1153, 200 S.W.2d 55, 62; Mershon v. Missouri Public Service Corp., 359 Mo. 257, 263, 221 S.W.2d 165, 169; Sanderson v. Producers Commission Ass'n, Mo.Sup., 229 S.W.2d 563, 566.
Section 3730, R.S.Mo. 1939, Mo.R.S.A., 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 State ex rel. Sei v. Haid, supra, the Supreme Court said, 61 S.W.2d loc. cit. 954: " * * * an injured employee cannot come before the commission and have another award by saying `my condition is the same as it was when you made me an award for a definite period of disability, but my disability has lasted or will last longer than that. I can prove now that you were mistaken about how long I was or would be disabled.' If that were true, the commission would never finish a case until it had given the maximum allowed by the act. What an injured employee must show to get a further award is a condition that since the award has become substantially worse (developed into a more serious injury compensable in a different manner as said in the Wheeler Case [Wheeler v. Missouri Pac. R. Co., 328 Mo. 888, 42 S.W.2d 579]); not that his condition was always worse than the commission found it to be. He must show that since the original award something, not contemplated, has happened that either made his condition grow gradually and progressively worse, or that has resulted in an occurrence in the nature of a relapse, so that, after making a partial recovery before the award, he has since again become worse." See also Winschel v. Stix, Baer Fuller Dry Goods Co., Mo.App., 77 S.W.2d 488, and cases cited.
Applying the law as thus stated, we are of the opinion that the evidence at the 1948 hearing showed a substantial change for the worse in respondent's condition since the 1944 hearing, and not a mere continuation of incapacity of the "same kind and character" for which the former award was made. The record does not show, as appellants contend, that the purpose of the award now appealed from was to correct any errors committed by the commission in making the final award of 1944, for the conditions which prompted the commission to enter the 1948 award had not developed and were not contemplated at the time the prior award was made. Respondent's evidence at the 1944 hearing showed that he suffered constant pain in the back, and had attacks of vomiting, particularly when he exerted himself; and that he was unable to perform any work other than a few chores on the farm. The reports of appellants' doctors tended to show a progressive improvement in respondent's condition, and that his disability was "permanent partial" rather than "permanent total." The doctor appointed by the commission estimated respondent's disability to be "65% permanent partial" on April 17, 1944. Respondent's uncontradicted evidence at the 1948 hearing showed that he was then unable to perform work of "any nature"; that he suffered constant pain in his back; that the slightest exertion or jar caused intense pain in his back and vomiting; and that such "spells" were more frequent, more severe, and of longer duration than in 1944; and that he had lost about twenty-five pounds since 1944, all indicative of a change for the worse. Thus an incapacity greater than that previously found was shown to have developed. It is true that respondent testified in 1944 that he would "last about fifteen minutes" on a tractor, whereas he testified at the 1948 hearing that a few months before he had operated a tractor for seven or eight hours while plowing four or five acres. But the evidence also showed that immediately after respondent performed the work just mentioned, he had a "spell" and was taken to a hospital where he was under the care of a doctor for about three weeks. Even if it be conceded that respondent's condition had improved when he undertook to operate the tractor, the evidence showed that his condition did eventually become worse and that, at the time of the 1948 hearing, he was unable to do any work.
Appellants also contend that there was no evidence in the record to support a finding that any change in condition resulted in permanent total disability, citing Tabacchi v. Garavelli, Mo.App., 52 S.W.2d 567, 568, where the court said: "The burden was on the plaintiff to show, not only that his condition was changed, but also to show what compensation he was entitled to on account of such changed condition." Appellants' argument in support of this contention is contained in one sentence, which reads: "The record of the September 1948 hearing is completely silent with respect to the nature and extent of any disability then suffered by respondent." We do not agree. As regards the permanency of respondent's disability, the appellants' own evidence upon the 1944 hearing showed that injury to respondent's spine was permanent in nature, and the commission so found in making its final award "for permanent partial disability." As stated, no appeal was taken from that award. Consequently, the award became conclusive as to all matters adjudicated thereby, including the nature and extent of respondent's disability, subject, however, to the provisions of section 3730, supra, which authorizes the commission to review any award and to make another and different award when there has been a change in the employee's condition. Respondent's theory upon the 1948 hearing was that his condition had become substantially worse since 1944, and the decisive question was whether respondent was totally disabled or only partially disabled. So far as the question of permanency is concerned, the appellants admit that respondent was permanently disabled in 1948, for they earnestly insist that there was no substantial change in respondent's condition between the two hearings. Appellants say: "In the case at bar there is no evidence of material or substantial change in respondent's condition between the first and second hearings. * * * The record before the court presents a classic example of a `continued incapacity of the same kind and character and for the same injury for which an award has been made.'"
However, the question remains as to whether respondent was totally disabled in 1948. Section 3695(e), R.S.Mo. 1939, Mo. R.S.A., defines "total disability" as follows: "The term `total disability' as used in this chapter shall mean inability to return to any employment and not merely mean inability to return to the employment in which the employee was engaged at the time of the accident." Since respondent's undisputed evidence at the 1948 hearing showed that he was then unable to perform work of "any nature," it is quite clear that the commission was warranted in finding that he was totally disabled within the meaning of the statute. See Hodges v. Chevrolet Motor Co., Mo.App., 116 S.W.2d 170, 171; Maddux v. Kansas City Public Service Co., Mo.App., 111 S.W.2d 208, 212.
We hold, therefore, that the commission could reasonably have made its findings, and reached its result, upon consideration of all of the evidence before it. The judgment of the circuit court should be affirmed.
SPERRY, C., concurs.
The foregoing opinion of BOUR, C., is adopted as the opinion of the court. The judgment is affirmed.
DEW, P. J., and CAVE and BROADDUS, JJ., concur.