Opinion
No. 21687.
April 7, 1952.
APPEAL FROM THE CIRCUIT COURT, JACKSON COUNTY, PAUL A. BUZARD, J.
John A. McGuire, Kansas City, for appellant.
Watson, Ess, Whittaker, Marshall Enggas and George Schwegler, Jr., all of Kansas City, for respondent.
This is an appeal from a judgment of the circuit court affirming a final award of the Industrial Commission in a proceeding under the workmen's compensation law. On July 21, 1949, the employee, Archie P. Koelmel, filed a claim against his employer, Montgomery Ward Company, Inc., alleging that on November 23, 1948, he sustained personal injuries while working in employer's place of business at 6200 St. John Avenue, Kansas City, Missouri. The claim states: "11. Parts of body injured: Double herniae and injury to back and spine, including aggravation of pre-existing architecturally unstable spine. * * * 14. Exact nature of any permanent injury: Protruded intervertebral disc lower spine necessitating surgery and probable fusion."
Hearings upon the claim were held before a referee on November 8, 1949 and February 14, 1950. It was admitted that on November 23, 1948, Montgomery Ward Company was a major employer and self-insurer operating under the provisions of the workmen's compensation law; that on said date the claimant was an employee of said company and was working under the provisions of the compensation law; that the average weekly wage of claimant was in excess of $37.50; that compensation in the sum of $200 had been paid to claimant by the employer; that "medical aid had been furnished in the amount of $203.30 for two hernia operations"; and that on October 27, 1949, Dr. Carmichael made a myelogram of claimant's lumbar spine which showed "a protruded intervertebral disc at the lumbosacral interspace on the left side."
The referee found that on November 23, 1948, the claimant sustained an accident arising out of and in the course of his employment resulting in "double herniae and injuries to the back and spine, and disability," the exact nature and extent of which could not be determined at the time of the hearing, and that claimant was in need of additional medical, surgical and hospital treatment. The referee entered a temporary award in favor of claimant which reads in part as follows: "For temporary total disability the sum of $25.00 per week" from December 12, 1948 to and including February 14, 1950, the last day of the hearings, "save and except the periods * * * during which * * * he worked full time and at full pay; and thereafter at the same rate per week, if such disability shall so long continue, until June 1, 1950, on or about which date this cause shall again be reset for hearing. In the meantime, the employer shall provide employee with such additional medical, surgical and hospital treatment as may reasonably be necessary to cure and relieve him from the effects of his injuries. This award is subject to a credit of $200.00 covering 8 weeks compensation heretofore paid the employee by the employer * *."
The Industrial Commission reviewed the case upon application of the employer, and found that on November 23, 1948, the claimant sustained an accident arising out of and in the course of his employment, resulting in bilateral inguinal hernias, but it also found that claimant failed to prove that he sustained any disability, in addition to the hernias, "which was either caused or aggravated by said accident; therefore, additional compensation to that awarded herein must be and the same is denied." The commission made a final award in favor of claimant "for temporary total disability the sum of $25.00 per week for 8 1/7 weeks, said payments to begin as of December 12, 1948," subject to a credit of $200.00 for compensation previously paid. Claimant appealed to the circuit court which rendered judgment affirming the final award, and the appeal to this court followed.
Claimant's sole contention on appeal is "that the final award herein, modifying the award of the referee by denying compensation for claimant's spine injury, is unsupported by sufficient competent evidence and is clearly contrary to the overwhelming weight of all the evidence." The defendant-employer's brief contains the following statement: "Neither is there any dispute that in October of 1949 plaintiff had and was suffering from a disc lesion. The question in this case was, did the accident of November 23, 1948, cause the disc condition which was found to be present by Dr. Carmichael in October of 1949?" As stated in Worley v. Swift Co., Mo. App., 231 S.W.2d 828, 831: "The law is now well settled that the reviewing court may not substitute its own judgment on the evidence for that of the commission; but the 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; and to set aside decisions only when they are clearly contrary to the overwhelming weight of the evidence. Wood v. Wagner Electric Co., 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; Johnson v. Great Lakes Pipe Line Co. [358] Mo. [445], 215 S.W.2d 460, 463."
Claimant testified that he entered the service of defendant in November, 1947; that for the first six months he worked in the receiving and shipping department where he loaded heavy packages onto trucks; that in May, 1948, he was transferred to defendant's cafeteria and was working there as a cook's helper at the time of the accident. Claimant was the only witness to the accident. He stated that on November 23, 1948, he slipped and fell while carrying a basket of potatoes from a steamer to a potato masher; that he fell in "a split position" with his right leg "out in front" and his left leg "behind," and his "buttocks hit the floor"; that he got up, put the potatoes in the masher and then told Chester Dauel, the chief, what had happened; that the chief told him to go to the first aid room; that he went to the room and told a nurse he fell on the floor and asked to see Dr. Morris S. Harless, the defendant's doctor, but the nurse informed him the doctor would not be there until the following morning; that he returned to the kitchen but did very little work the rest of the day. On November 26, 1948, Dr. Harless examined him and found that he had bilateral inguinal hernias. He continued on the job, doing light work, until December 12, 1948, when he was sent to St. Mary's Hospital in Kansas City, Missouri, where Dr. Harless performed two operations on him for the inguinal hernias. The evidence shows that claimant was discharged from the hospital on December 30, 1948; that he returned to work on February 7, 1949 and continued to work for defendant until June 22, 1949, when his employment was terminated because of a reduction in personnel. No one was employed to take his place.
Claimant testified that when he slipped and fell he felt pain in his back and groins; that immediately thereafter he told Chester Dauel, the chef, that his back and groins were about to kill him; that when he saw Dr. Harless on November 26, 1948, he said: "Doctor, something is wrong with me in the lower part of my groins. * * * My back is bothering me. * * * I fell on the floor of the cafeteria." Claimant said that while he was in St. Mary's Hospital he told the nurses "practically every day" that he was suffering from pain in his back and groins; that after he left the hospital Dr. Harless examined him "every two weeks" until he was "laid off on June 22, 1949"; that every time he was examined he told the doctor about the pain in his back and groins and that his "left leg was numb and dead like"; that he worked eight hours a day from February 7, 1949 to June 22, 1949; that during this period he did "restricted work" in defendant's cafeteria, such as peeling potatoes, washing pots and pans, and mopping the floor; that at times he worked as a messenger and as a "clean-up man" in other departments. Defendant's evidence tended to show that claimant was transferred from "restricted work" to "regular work" on April 22, 1949. Other testimony of claimant will be referred to later.
Chester Dauel was called as a witness for defendant and testified that he was then employed as a chef in defendant's cafeteria; that he was so employed during the time claimant worked there, and that claimant did not tell him on November 23, 1948, that he sustained an injury while working; that claimant did light work "for a number of weeks after his operation," but never said anything to him about suffering from pain in his back and legs.
Defendant's Exhibit 2 is a copy of a record made in defendant's medical department and marked "Case Notes — Archie Koelmel." Eighteen entries were made in this record between November 23, 1948 and June 6, 1949, only two of which show complaints of pain in the back. The entry dated December 3, 1948, reads in part: "Complains of pain and knot in left inguinal region — backache. * * * Advised to return to medical dept. for rest and heat at periods of pain until he enters hospital." This entry was made by Dr. Roy Morrow, a company doctor. Another entry made by a nurse on May 31, 1949, reads: "Jaws ache — backache — feels dizzy. * * * Sent home."
As indicated, claimant was in St. Mary's Hospital from December 12, 1948 until December 30, 1948. A copy of his hospital record for this period (Exhibit 4) was introduced in evidence by defendant. One entry made at the time of claimant's admission reads in part: "H.P.I. (history of present illness.) Patient states hernia in groin appeared about 23rd of September. Has aching pain in back. Very tired, when quit working." (Claimant said he told the hospital clerk that the hernias appeared on November 23, 1948.) The detailed "Nurse's Record" covers eleven pages and lists various complaints of the patient, but does not show any complaints of the pain in the back.
Harold Hazen, manager of the cafeteria, testified as a witness for defendant that claimant worked "under difficulties following his operation for hernia" and complained "about his hernia hurting from time to time," but did not mention "any other ailment except the hernia"; that on April 1, 1949, claimant did not report for work; that when he came to the office on the following Monday he said "he hadn't been able to get out of bed over the week-end; that his hernia had given him a good deal of trouble." Hazen testified on cross-examination:
"Q. Did he say anything about it (the pain) being in the back and down his legs? A. No. * * *
"Q. Where did he say he was suffering pain? A. I would say he never used the words, `suffering pain'; that he just complained of pain in his abdomen * * *
"Q. What did he say? A. I can't remember; that is too long ago."
Claimant testified that after his employment was terminated on June 22, 1949, he "tried to get reinstated at Montgomery Ward's" and discussed the matter with defendant's personnel manager, two department managers, and one of defendant's attorney's; and that he told these men he wanted "light work" because he was suffering from pain in his back and leg. The personnel manager testified for defendant that "shortly after" June 22, 1949, claimant told him that he had been unable to get a job elsewhere because "he had not fully recovered from his hernia operation" and said "he would like to get back at the plant, * * * that he could do any job we had"; and that claimant never said anything to him about having trouble with his back. The department managers and the attorney gave substantially the same testimony as that of the personnel manager.
The evidence shows that during the spring and summer of 1949, a small house was being constructed on a lot belonging to claimant's parents. Claimant testified on cross-examination that he "supervised" the work of building the house; that in May, 1949, and while he was still employed by defendant, he "nailed down" part of the "sub-flooring" and in so doing handled boards eight to ten feet long; that this work was done on Saturdays; that he "nailed" a few shingles on the roof but "did not carry any shingles up onto the roof"; that he "did not take any part in laying the foundation" and did not help his parents move into the new house. Defendant produced two witnesses who lived near the house during the time it was under construction. One witness, Mrs. Laquet, testified that she saw claimant "place some cement blocks for the foundation," lay "the floor for the rooms" and help his parents move into the house. Mrs. Fumal said: "I saw him lay a cinder block foundation. * * * I saw him and a carpenter make the house. I saw him lay the sub-flooring, and he put the roof on, some of it. * * * He carried the roofing up on a ladder * * *." She further testified that on July 3, 1949, she saw claimant move some timbers in a wheelbarrow. Both of these witnesses were employees of defendant.
Claimant further testified that he had performed hard labor at various times before he was employed by defendant; that he had sustained no accidental injury to his back prior to or since November 23, 1948; that prior to the accident in question he had never had any trouble with his back. At the time of the hearings he complained of pain in his back and groins and "a great aching sensation" and numbness in his left leg; and he stated that the pain had been "fairly constant and steady" since the accident.
We turn now to the testimony of the doctors. The record shows that on July 12, 1949, twenty days after his employment with defendant was terminated, claimant went to Dr. Frank L. Feierabend, a physician of his own choosing, for an examination. The claim for compensation was filed July 21, 1949. As we have said, it was admitted at the hearing that on October 27, 1949, Dr. Carmichael made a myelogram which showed that claimant had "a protruded intervertebral disc at the lumbosacral interspace on the left side."
Dr. Feierabend was called as a witness for claimant at the first hearing before the referee on November 8, 1949. He stated that he examined claimant on July 12, 1949, and made X-rays; that claimant complained of pain in both groins, swelling in the left groin, pain in the low back which radiated to the left thigh, and paresthesia of all of the left lower extremity. Examination of the abdomen revealed scars "where recent operations were done; the hernias were corrected." The doctor found tenderness in the lumbosacral area and to the left of it, and muscle spasm in both sides of the lumbar area with more on the left. There was marked loss of normal lumbar mobility. Legs signs and nerve stretching signs were mildly positive on the left and negative on the right. There was diminished sensation in the distribution of lumbar four and five on the left. X-rays revealed congenital defects in the spine which the doctor described as "unstable facets between the last lumbar and the first sacral, failure of fusion of the first sacral segment and a so-called spina bifida." The X-rays also revealed "thinning of the disc between the last lumbar and first sacral, with some sclerosis in this area." Dr. Feierabend concluded that claimant had an "architecturally unstable spine, with possibly a protruded intervertebral disc," and he said: "I recommend a myelogram. If the myelogram is positive he should have surgery * * *." The witness evidently did not know that Dr. Carmichael had made a myelogram on October 27, 1949.
On direct examination, Dr. Feierabend was asked a hypothetical question which embodied plaintiff's version of the accident on November 23, 1948, and also assumed: that thereafter claimant was operated on for the hernias; that "he has had continuous pain in the region of the lower back and numbness down the left leg since his return from the hospital"; that on October 27, 1949, he had "a protruded intervertebral disc of the fifth lumbar." At the conclusion of the hypothetical statement the witness was asked: "Doctor, would such an accident as I have stated in that hypothetical question be sufficient in your medical opinion to produce this herniated intervertebral disc?" The witness answered "Yes," and continued:
"Q. Now, will you give us your reasons for that opinion? A. Most discs are due to minor trauma, and all it requires is sufficient pressure on the vertebra to push the nucleus posteriorily through a tear in the ligament and put pressure on the nerve roots."
Dr. Feierabend testified on cross-examination that the pain caused by a "disc lesion such as a protrusion at the lumbosacral interspace" is a severe pain that arises in the low back and runs down the back of the leg and usually down to the foot; that a person so afflicted also has numbness and diminished sensation in the leg; that the pain in the back would develop within a few hours after the protrusion occurred and this sciatic pain would develop later. The doctor said: "I don't think a person could overlook it (the pain) when the protrusion is there. * * * There are times when they have no pain and then they have severe pain. If the nucleus slips back in the vertebra and relieves the nerve pressure, they have no pain, and (when they) get up and cough or sneeze and push the nucleus out again, they have pain, but when pressure is on it, they know it." The doctor said he had not seen claimant since July 12, 1949.
It appears from the evidence that on September 2, 1948, and about twelve weeks before the accident in question, claimant swallowed a partial denture in his sleep and was admitted to Kansas City General Hospital for treatment. The denture was soon passed and he was discharged on September 4, 1948. When he was in the hospital X-rays were made which revealed his lower spine. At the second hearing before the referee on February 14, 1950, defendant called Dr. Feierabend as its witness and asked him to interpret those X-rays. He testified that the plates revealed "the congenital defects previously described as being present in the X-rays" which he made on July 12, 1949; that while the plates did show a "sick" or thin disc, they did not show whether claimant had a protruded disc. Only myelograms reveal a protruded disc. The doctor said a minor trauma could produce a protrusion of a thin disc; and continued:
"Q. Assuming, Doctor, that the claimant suffered the accident which he related to you in the history, and assuming that during the period from November, 1948 until July, 1949, when he was treated by Dr. Morris Harless * * * and seen by Dr. Harless on numerous occasions, and that on none of those occasions did he complain of any back pain or of any sciatic pain, would you have an opinion with respect to whether he could have had the disc protrusion from the time of the accident, or that he could have suffered the disc protrusion at that time? A. Assuming all of those facts, I would say that he probably didn't get his protrusion as a result of the trauma which occurred on November 23rd because I am of the opinion that when a person has a protruded intervertebral disc, that he gets symptoms almost immediately. * * * Now, some of the clinical findings develop at a later date, such as diminished sensation and sciatic pain and reflex changes, but certainly they should have pain in the back at the time of the injury." The witness stated that the protrusion "could have occurred after June 22, 1949," the day claimant's employment with defendant terminated. Dr. Feierabend testified on cross-examination:
"Q. And in the absence of any evidence of traumatic injury outside of the trauma that the man relates he received in this accident of November 23, 1948, in your opinion, then would this protruded disc be the result of this accident of November, 1948? A. Yes, assuming there was no other trauma, then I think it is probably due to the trauma he related to me."
Dr. Harless testified as a witness for defendant that when he examined claimant on November 26, 1948, three days after the accident, the latter said "he slipped and had a burning stinging pain in the left groin"; that he examined claimant again on November 29, 1948, and "made a diagnosis of bilateral inguinal hernias"; and that at the time of the second examination claimant said "he had a sensation of water running over his left groin. That was his only complaint." As stated, claimant entered St. Mary's Hospital for the hernia operations on December 12, 1948, and remained there until December 30, 1948. Dr. Harless testified that while claimant was hospitalized he saw him every day; that he also examined him on January 7 and 21, 1949, on February 4, 1949, and March 22, 1949; and on April 22, 1949, when claimant was "transferred to regular work." He saw claimant again on June 1, 1949, but "for another complaint entirely; that was with reference to his mouth." The doctor testified that claimant never complained to him of pain in the back; that he never "made any complaints of pain or numbness" in his legs; and continued.
"Q. * * * Assuming that he was found to have a disc lesion at the lumbosacral interspace in October, 1949, do you have an opinion with respect to whether that condition is related in any way to the trauma which he described in November, 1948? A. No, I wouldn't think so. I think if he was going to have a disc from the trauma he had at that time he would have symptoms in his back and symptoms referable to a disc, radiation and muscle spasm, and pain in the dermatome or segment corresponding to that, which I never found." He also stated that a disc lesion "can come with a minor trauma, or just bending, or lifting, or twisting."
Dr. Harless testified on cross-examination that in accordance with the practice of defendant company, he examined claimant before he was employed by defendant and found no hernias or symptoms of a herniated disc; that "backache is a symptom of a lot of things besides (herniated) discs"; that a person can have a herniated disc and "still not have any pain in the back, * * * it could be pushed out without giving nerve root pressure, and the pain comes when he gets the pressure"; that he operated on claimant for the hernias on December 17, 1948, and December 24, 1948; that claimant did "light work" until April 22, 1949, when he was transferred to "regular work"; that "from six to eight weeks would be the regular, normal time following a hernia operation for a man to go back to regular work; and continued:
"Q. * * * Do you recall anything about the man's condition that delayed his convalescence period * * *? A. Not other than just Archie."
In a hypothetical question based on plaintiff's version of the accident, Dr. Harless was asked: "Would such an accident as that, in your opinion, be one that could and might produce a herniated disc injury? The doctor replied: "It could and might be, but since I examined him, I don't think it did."
Claimant admits that before the accident in question he had an architecturally unstable spine and the congenital defects described by Dr. Feierabend. As stated in his brief, he "filed his claim herein on the theory that this accident aggravated that congenital weakness" thereby causing the protrusion of the intervertebral disc. But the commission found from all the evidence that the condition complained of was not the result of the accident on November 23, 1948. As we have said, claimant contends that this finding is not supported by competent and substantial evidence but is, on the contrary, against the overwhelming weight of the evidence. In support of this contention claimant argues that his evidence shows "that this accident of November 23, 1948, not only could but did cause the spine injury." We need not determine whether a finding favorable to claimant would have been supported by competent and substantial evidence. The question is whether the finding against claimant was so supported. Karch v. Empire Dist. Electric Co., 358 Mo. 1062, 218 S.W.2d 765, 770.
Dr. Harless was asked whether he thought there was any causal connection between the accident on November 23, 1948 and the protruded disc revealed by the myelogram made on October 27, 1949, and he answered, "No." He based his opinion on the fact that he found no "symptoms referable to a disc," such as "radiation and muscle spasm, and pain in the dermatome or segment corresponding to that * * *." He said that such an accident "could and might" produce a herniated disc but "since I examined him, I don't think it did." Claimant argues that the probative value of Dr. Harless' opinion was destroyed by claimant's testimony concerning the pain in his back and the numbness in his left leg, by the medical records mentioned above, and by other testimony of the same doctor. We think this argument is without merit.
Claimant's testimony concerning his complaints of pain in the back and numbness in the left leg was not undisputed. Chester Dauel, Dr. Harless, Harold Hazen, the personnel manager, and other witnesses mentioned above, all testified that claimant made no such complaints to them, although claimant's witness, Dr. Feierabend, testified that the pain caused by a protruded disc is a "severe pain." And there was testimony tending to show that during the spring and summer of 1949, claimant performed certain manual labor in connection with the construction of a house. The testimony of defendant's witnesses in regard to these matters cannot be ignored in passing on the credibility of claimant's testimony. In our view, the fact that the "Case Notes" (Exhibit 2) and the hospital records (Exhibit 4) show that claimant complained of "backache" on three occasions did not destroy the probative value of Dr. Harless' opinion.
Furthermore, Dr. Harless' opinion was not based solely upon the alleged failure of the patient to complain of pain in his back and numbness in his left leg. He examined claimant on the third day after the accident. He testified that while claimant was in St. Mary's Hospital he saw him every day; that he also examined him on five different occasions between January 7, 1949 and April 22, 1949; and that he found no symptoms of a herniated disc. On the other hand, Dr. Feierabend examined claimant on one occasion more than seven months after the accident in question. Each doctor testified to the conditions he found at the time of his examination. We think the testimony of Dr. Harless was sufficient, if believed, to support the finding of the commission. This is a case where expert testimony is peculiarly fitting. Such conflict as there was in the medical testimony made an issue for the commission. Driemeyer v. Anheuser-Busch, Inc., Mo. App., 153 S.W.2d 821.
Claimant relies upon Walker v. St. Louis Public Service Co., Mo.Sup., 243 S.W.2d 92 Kimmie v. Terminal Railroad Ass'n of St. Louis, 334 Mo. 596, 66 S.W.2d 561; Valdes v. Emerson Electric Mfg. Co., Mo. App., 216 S.W.2d 947; Cheek v. Durasteel Co., Mo.App., 209 S.W.2d 548; Franklin v. Kansas City Public Service Co., 239 Mo. App. 151, 186 S.W.2d 546, and several other cases. We have read all of these cases and find that they are not in point because ruled on entirely different factual situations.
After carefully studying the entire record, we cannot say that the finding in question is clearly contrary to the overwhelming weight of the evidence. It follows that 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.
All concur.