Opinion
No. 6941.
January 16, 1951.
APPEAL FROM THE BUTLER COUNTY CIRCUIT COURT, BUTLER COUNTY, RANDOLPH H. WEBER, J.
Albert I. Graff, Malcom I. Frank, of St. Louis, Robert C. Hyde, of Poplar Bluff, for appellants.
Cope Ponder, of Poplar Bluff, for respondent.
This is an appeal from a judgment of the Circuit Court of Butler County, approving the award of the Department of Labor and Industrial Relations of this State.
The case was heard by William Ragland, Referee, who found that respondent fell on the concrete floor of his employer, Appellant Tiffany Stand Company, December 5, 1947, and that he claimed injuries from such fall in that place.
The Referee made an award as follows:
"I find from all the evidence and personal observation that employee sustained an accidental injury on December 5, 1947, which arose out of and in the course of his employment with the Tiffany Stand Company and as a direct result thereof he sustained permanent partial disability to the body as a whole to the extent that he is entitled to 120 weeks of compensation at the agreed compensation rate of $20.00 per week.
"I further find that the employer and insurer had notice of the accident and that claim for compensation was filed within the time prescribed by law.
"I further find that this award is subject to a credit of $340.00 for compensation heretofore paid by employer and insurer.
"I further find that Cope and Ponder, attorneys, rendered necessary legal services to employee herein and are allowed an attorneys' fee in an amount equal to 25 per cent of the money award payable hereunder and said fee shall be a lien on such compensation."
On appeal to the Division of Workmen's Compensation, respondent was awarded 120 weeks of compensation, at $20 per week, or $2400, less the sum of $340 previously paid to respondent.
Appellants filed an application for review by the full Industrial Commission. That application for review was overruled, as follows:
"The above styled case is submitted to the Industrial Commission of Missouri on review from an award of a Referee. After fully considering the evidence, exhibits, and pleadings, the Commission finds in favor of the employee and against the employer and insurer and awards compensation for said accident as provided by the Missouri Workmen's Compensation Law, as follows:
"For permanent partial disability the sum of $20.00 per week for 120 weeks,
said payments to begin as of December 6, 1947, and to be payable and be subject to modification and review as provided by said Law.
"This award is subject to a credit of $340.00 for compensation heretofore paid employee by employer and insurer, and is also subject to a lien in favor of Cope and Ponder, attorneys, for necessary legal services rendered employee, in an amount equal to 25 per cent of the compensation payable under this award."
A majority of the Industrial Commission of Missouri concurred in such rule. An appeal from the award of the Industrial Commission was granted appellants, where the judge of the Circuit Court of Butler County made the following order and judgment: "Wherefore, it is ordered adjudged and decreed that the award and judgment of the Division of Workmen's Compensation of the Department of Labor and Industrial Relations, of Missouri, allowing claimant Robert Mabry one hundred and twenty weeks at twenty dollars per week, or twenty-four hundred dollars, subject to three hundred and forty dollars credit for compensation paid, and recognizing lien for attorney fees for claimant's attorney in the amount of twenty-five percent, be and the same is in all things affirmed."
From this order and judgment, the employer and the insurer appealed to this Court.
The real issue in this case is found in II (a) of appellants' brief in this Court, as follows: "An appellate court should set aside the findings and award of the Industrial Commission, when the award is not authorized by law, or is not supported by competent and substantial evidence on the whole record or against the overwhelming weight of the evidence."
This requires us to study the testimony given to the Referee and certified to the trial court, to determine whether or not the trial court was justified in affirming the award of the Industrial Commission.
There is no need for us to discuss the many cases cited by appellants. There is no doubt in our minds that it would be our duty to reverse the judgment of the trial court, if its judgment is not supported by competent and substantial evidence.
Before hearing any testimony, the following facts were agreed upon, to-wit:
Appellant Tiffany Stand Company, on December 5, 1947, was a major employer, operating under the Workmen's Compensation Law, and was insured by appellant Bituminous Casualty Corporation; that on said date respondent was an employee of appellant Tiffany Stand Company and sustained an injury on that date, and that appellant Tiffany Stand Company had notice of such injury and of respondent's claim for compensation, which was duly filed; that $340 had been paid to respondent and medical aid and hospital bills were furnished to respondent in the sum of $496; and it was further agreed that respondent had made arrangements as to his attorneys' fees.
The first witness before the Referee was Dr. Frank E. Dinelli. He did not witness the claimed accident to respondent; but saw him the next day. Respondent was then complaining of pain in his left hip, and respondent told witness how he claimed the accident occurred.
Dr. Dinelli found that respondent had an injury and had a sub-capital fracture of his leg. The doctor treated him for about six weeks and had his leg in a cast all of that time. After being released from the cast, respondent came to see Dr. Dinelli several times for further examination. Dr. Dinelli knew that respondent had been sent to St. Louis and that he was sent there by appellants.
Dr. Dinelli examined respondent's leg afterward, and found definite proof of injury and fixed his disability at 50%. He further identified a picture of respondent's leg, which had been taken by him. He identified several pictures and they were placed in evidence and such pictures fully described the physical condition of respondent. Dr. Dinelli said he did not think respondent's condition was produced by natural causes, although he said he may have had injuries which possibly were arthritis, caused by the condition he found. He said that he saw evidence of injury and that even an injured person can walk some.
Dr. Lester Harwell was the second witness before the Reference. He had had much experience with people with broken bones. He had known respondent for several years. He first examined him after the cast was removed, and detailed elaborately his condition at that time. Respondent then complained of pain to the left of the sacrum, and Dr. Harwell got the history of respondent's claimed injury at that time. Respondent complained of pain after removal of the cast. Dr. Harwell got a complete history and said the thought respondent's condition resulted from traumatis, caused by injury. He saw no evidence of broken bones. He described respondent's injuries at length and told how respondent described the circumstances. He made an examination and found one leg shorter than the other. He testified that an impacting or jamming injury was indicated. He fixed disability at three-quarters, which we understand is 75%. He noted some improvement, but he found that X-ray evidence of Mabry's condition was worse than when he first examined his leg. He saw respondent the day before he testified. He said respondent's condition was partly due to disease and partly due to injury.
On a question from respondent, Dr. Harwell attributed the condition of respondent to injury. He took X-ray pictures of respondent's pelvis and finally gave it as his opinion that most of the condition of respondent was due to trauma. By old injury, Dr. Harwell said he did not mean to say that respondent sustained an injury before the one complained of by him.
On cross-examination, Dr. Harwell said that he had made no claims of injury at first. He said respondent's condition, which he found, might have been due to arthritis or disease, rather than entirely due to accident.
The respondent was then called as a witness. He described his duties for appellant Tiffany Stand Company. He said he was inspecting metal parts when injured. He was pulling a crate. The crate was 2 1/2 feet wide and 4 1/2 or 5 feet long and 2 feet deep. It may have been longer than that. It contained finished metal parts. He was moving the crate for his employer at the time by a hook over the end of the crate. The hook had been furnished by his employer.
Respondent was dragging the crate over the concrete floor when he fell. He suffered pain at the time in his left hip. He reported his injury to his employer, as soon as his superior came around. It was about 8:15 that evening. His quitting time was 9:00 P.M., and he worked possibly 45 minutes after he fell. Respondent did not go home. A fellow employee brought him within a block of his home. He suffered continuous pain in his left hip. The next morning he could scarcely get out of bed and he had his employer called and advised of his condition.
He testified that his employer took him to Poplar Bluff Hospital, where he was placed in a cast and remained in the cast for six weeks, under the doctor's advice. He was on crutches when he left the hospital.
There can be no question but that the evidence tended to show that respondent suffered substantial physical injury. In his brief, respondent makes the following statement: "The Commission's findings based on substantial competent evidence in the record is conclusive and binding on the appellate court."
Respondent cites four Missouri cases in support of this proposition, to-wit: Murphy v. W.J. Lynch Co., Mo.App., 57 S.W.2d 685; Zickefoose v. Walker Williams, 229 Mo.App. 362, 79 S.W.2d 511; Wills v. Berberich's Delivery Co., 345 Mo. 616, 134 S.W.2d 125; Shroyer v. Missouri Livestock Commission Co., 332 Mo. 1219, 61 S.W.2d 713.
We have read all of the above cases. In Zickefoose v. Walker, supra, this Court, speaking through Bailey, J., said; "It is well understood that on appeal from an award by the Workmen's Compensation Commission the courts cannot weigh the evidence." [229 Mo.App. 362, 79 S.W.2d 515.]
In Wills v. Berberich's Delivery Co., supra, the Supreme Court, speaking through Ellison, P.J., said: "Appellants concede, as they must, that we cannot overturn the award of the Workmen's Compensation Commission in favor of respondents if there was substantial competent evidence to support it."[345 Mo. 616, 134 S.W.2d 128.]
In Shroyer v. Missouri Livestock Commission Co., the Missouri Supreme Court en Banc, speaking through Atwood, J., said:
"The commission's finding of facts and award have the force and effect of the verdict of a jury. * * *
"Hence, in determining whether the evidence sustained the Commission's finding respondent is entitled to a consideration of the competent evidence most favorable to her together with all reasonable inferences to be drawn therefrom in support of the finding." [332 Mo. 1219, 61 S.W. 714.]
The rule contended for by respondent is too well settled to require the citation of any more cases.
We start out with the admission of appellants, before Referee Ragland, that on or about December 5, 1947, Robert Mabry (respondent) sustained an accident, arising out of and in the course of his employment by appellant Tiffany Stand Company.
Dr. Dinelli did not see respondent get any injury. He saw him next day and saw evidence of injury, and testified as follows:
"Q. Will you or can you fix a numerical figure on the percentage of disability involved in that left hip and leg compared with a normal one hundred per cent leg and hip? A. My opinion would be approximately fifty per cent disability in the leg.
"Q. Is that temporary or permanent, Doctor? A. At the time that I examined him; his disability may be — the percentage may go up and it may come down, I don't know, later on.
"Q. As compared with the first time you saw the claimant up to the time you ceased to see him up until yesterday, what was the condition of that leg and hip with reference to being worse or better than it was at that previous time? A. Well, Oh, I imagine naturally it was — he had a total disability.
"Q. Sir? A. He had a total disability."
Dr. Dinelli was followed by Dr. Lester Harwell. The latter did not see respondent until more than a month after the claimed accident, and again at later dates. He made subjective and objective examinations of respondent. While he found some evidence of disease, as the cause of respondent's claimed disability, he later said that an examination led him to believe that respondent had an injury, which he described as a jamming or impaction injury. He said there was definite disability in the hip of respondent. On examination the day preceding the hearing before the Referee, such examination caused the doctor to fix respondent's disability at three-fourths, or 75%.
On his cross-examination, Dr. Harwell described a physical condition which may have existed for years, but we gather from the cross-examination of Dr. Harwell, that he never receded from his original statement, that he found evidence of physical injury in respondent's hip.
In Point I of their brief, appellants say: "Where there is no evidence in the record of permanent partial disability except with reference to left leg, there is no basis for an award for permanent partial disability to the body as a whole," and cite four cases and authorities which they claimed support their contention that there is no basis for an award for permanent disability, where the evidence only discloses permanent disability to the left leg. Section 3705 (a) (33), R.S.Mo. 1939, Mo.R.S.A. is cited by appellants. Under paragraph 33, describing the nature of the injury, a complete severance of the leg at the hip joint is described. There is no contention that respondent suffered any amputation, or entire loss, of his leg. After detailing the loss where the leg joint is completely severed, the section cited proceeds as follows: "Loss of one leg at the hip joint or so near thereto as to preclude the use of artificial limb."
Appellants also cite under Point I of their Points and Authorities, Ludwig v. Columbia Brewing Company, Mo.App., 225 S.W.2d 489-491, 492; Johnson v. Kruckemeyer, 224 Mo.App. 351, 29 S.W.2d 730, 732; and Bumpus v. Massman Construction Company, Mo.App., 145 S.W.2d 458.
We have studied very carefully all of the cases cited. We do not believe they are in point, so far as the claimed permanent disability of respondent in his leg is concerned.
In view of the evidence, certified to the Circuit Court, plainly showing that respondent has suffered a permanent disability, as the result of employment by appellant Tiffany Stand Company, it becomes our duty to affirm the order of the Circuit Court approving the award to respondent by the Industrial Commission.
It is so ordered.
VANDEVENTER, P. J., and McDOWELL, J., concur.