Opinion
No. 28703.
October 20, 1953. Rehearing Denied November 13, 1953.
APPEAL FROM THE CIRCUIT COURT FOR THE CITY OF ST. LOUIS, WILLIAM K. KOERNER, J.
Peter Cosmas and Thomas L. Sullivan, both of St. Louis, for appellant.
James E. Garstang and C. Lawrence Mueller, both of St. Louis, for respondents.
This is a proceeding under the workmen's compensation law, Sections 287.010- 287.800 RSMo 1949, V.A.M.S.
The claim is by Earl B. Rexroad for compensation for an injury allegedly sustained by accident occurring on July 31, 1951, while he was engaged as an employee of Schultz Folding Box Company at its plant at 1101 Pestalozzi Street in the City of St. Louis. The Liberty Mutual Insurance Company is the insurer.
The referee found that the injury was not the result of an accident arising out of and in the course of the employment. The industrial commission affirmed the referee; and on the employee's appeal to the circuit court, a judgment was entered affirming the award of the commission. Upon such judgment becoming final, the employee gave notice of appeal to this court, and by proper successive steps has caused the case to be transferred here for our review.
The employee's work was that of a printing press feeder. The employer manufactures cartons and paper boxes of the sort that are used for packaging the many types of commodities that are commonly sold in such containers, and the employee's job was to feed cardboard sheets into a press where the desired legend would be imprinted upon them. The sheets vary in size depending upon the nature of the carton or box that is to be made out of them; and they are brought up to the presses on skids or platforms resting on trucks which move on four wheels, the front two of which are placed so closely together as to give the appearance of a three-wheel truck. There is a steel tongue about three and one-half feet in length at the front end of each truck by which the truck is pulled or pushed across the floor, which is made of concrete, and is somewhat rough.
When the stacks of cardboard sheets are bundled together, the corners of the bundles are protected by corrugated pieces which are held in place by wire bands. These must of course be removed before the bundles of stock are fed into the presses; and when the bands are cut, the cardboard pieces are permitted to fall to the floor, where they litter up the premises and impede and hamper the movement of the trucks.
The employee testified that on the occasion in question he was pushing one of the trucks which was loaded with a bundle of paper stock weighing about a ton. One of the front wheels of the truck caught against a piece of the corrugated paper lying on the floor, causing the tongue, which the employee was holding, to jerk violently back and forth in his hands. He expressly repudiated any idea that the tongue struck against his body, but nevertheless insisted that immediately upon the occurrence of the jerk, he felt a sharp, stabbing pain in the right lower quadrant of his abdomen.
He finished out his day's work with the assistance of one of his fellow employees, and the next day made a report to his foreman, one Kimerly. He informed Kimerly of the pain in his side, but could not recall what, if anything, he had told him about the jerking he had experienced when the wheel of his truck had been caught upon the piece of corrugated paper the previous day. Kimerly recalled the report of the injury, and admitted that he had run his hand over the lump that had formed in the region where the pain was located, but had no recollection of any claim of an accident, although he did not rule out such a possibility. At any rate, Kimerly gave the employee a slip to go to Dr. Weinsberg, the company doctor, who would have had the duty to treat the case at the employer's expense in the event it was connected with the employment.
According to Dr. Weinsberg, the employee said that he had been injured while pushing a truck, but gave no history of having been jerked, or of anything else in the way of an accident. Dr. Weinsberg made a preliminary diagnosis of acute appendicitis, and sent the employee at once to Alexian Brothers Hospital, where he operated upon him for the removal of his appendix, which he found to be small and bound down to the intestine with adhesions which were the result of previous inflammation. After seeing a pathological report showing a complete obliteration of the lumen or inside channel of the appendix by reason of the formation of fibrous tissue over a period of time, Dr. Weinsberg made a final diagnosis of chronic appendicitis, recurrent, which signifies a type of appendicitis where the patient has had previous attacks producing an inflammatory process of a chronic nature.
Notwithstanding the fact that the employee had been referred to him by the employer, Dr. Weinsberg concluded that the case was not one for which the employer was responsible, and consequently arranged with the employee that it should be treated as a private case. Dr. Weinsberg did not recall precisely when it was that such arrangement was made, but it was admitted that both his fee and the hospital bill were paid by the Blue Cross, with which the employee was insured, except for a small item for laboratory tests not covered by the insurance, which the employee paid himself.
At the hearing on the claim the employer and insurer made no point of denying the happening of the occurrence upon which the employee relied, but instead confined their defense to the proposition that his appendicitis was in any event not attributable to it. In like manner it would appear that neither the referee nor the commission intended to find that there had been no such occurrence as the employee had related, but only that his appendicitis had been neither caused nor aggravated by it. In this situation the question for our determination is whether such finding is supported by competent and substantial evidence upon the whole record, Const. of 1945, Art. V, § 22, V.A.M.S.; and if it is, then the lower court had no recourse but to affirm the commission in denying compensation.
The employee had no medical evidence, but relied wholly upon his own testimony that he had felt well when he reported for work on the morning in question; that prior to such date he had never suffered from pain in his abdomen; and that on this occasion the pain struck him immediately when he was jerked about by the tongue of the truck.
As opposed to this the employer and insurer offered the testimony of two medical experts, Dr. Weinsberg, who had performed the operation, and Dr. Bernard L. Sinner, a specialist in general surgery, who testified to his conclusions from the hospital record.
Dr. Weinsberg gave it as his opinion that the employee's recurrent flare-up in his appendix had had no relation to the alleged accident, and could have had no relation in the absence of a direct, external blow to the abdominal wall of sufficient force to cause injury at the site of the appendix. It will be recalled, however, that the employee had made it clear that the tongue of the truck had only jerked him, and had not struck against his body. Dr. Weinsberg expressed the further opinion that a mere jerk, even though severe, could not cause an irritation or aggravation of the appendix.
Dr. Sinner's testimony fully corroborated that of Dr. Weinsberg. Dr. Sinner stated it to be his opinion that assuming that the tongue jerked while the employee had hold of it, his appendicitis was neither caused nor aggravated by such sudden, violent, muscular strain; that inasmuch as the appendix was bound to the anterior portion of the intestine, and was not in contact with the muscular wall, anything that might have happened to the abdominal muscles would have had no effect on the appendix, regardless of whether it was normal or diseased; that the character of the jerk described by the employee could have had no relation to his appendix; that the pain the employee felt was due to a strain of the muscles of the abdomen itself, or else to a strain of the muscles of the back which supply that part of the abdominal wall; and that the lump which formed was almost certainly due to a spasm of the abdominal wall.
While in resolving the question of causal connection between the jerking of the truck and the attack of appendicitis, the employee's own testimony was in no sense to be disregarded, the fact still remains that the question was peculiarly one for expert medical testimony, and that the testimony respecting the opinions of Dr. Weinsberg and Dr. Sinner was competent and substantial evidence. Coleman v. Brown Strauss Corporation, Mo.App., 210 S.W.2d 537; Aldridge v. American Car Foundry Co., Mo.App., 132 S.W.2d 1023. Even though the lower court expressed some dissatisfaction with the result, it properly recognized that it had no authority to disturb the award so long as the commission could have reasonably made its finding and reached its result upon consideration of all the evidence before it. Wood v. Wagner Electric Corporation, 355 Mo. 670, 197 S.W.2d 647; Williams v. International Shoe Co., Mo.App., 213 S.W.2d 657.
In the course of his brief the employee quotes from cases which announce the rule that an employee's rights against his employer under the act embrace compensation for the aggravation of an otherwise compensable primary injury through the malpractice of a physician selected by the employer. What the employee is apparently attempting to do is to charge error in Dr. Weinsberg's diagnosis. The record affords no foundation for a claim of malpractice on the part of Dr. Weinsberg. There is not the slightest suggestion of anything wrong in the manner in which he operated upon the employee; nor is it of any consequence that after the operation, and after he had the benefit of the pathological report, he changed his diagnosis from "acute appendicitis" to "chronic appendicitis, recurrent".
The award of the commission is supported by competent and substantial evidence upon the whole record; and the judgment of the circuit court affirming the award is in turn to be affirmed by this court. It is so ordered.
ANDERSON, J., and ADAMS, Special Judge, concur.