Opinion
No. 27777.
February 21, 1950. Motion for Rehearing or to Transfer to Supreme Court Denied March 24, 1950.
APPEAL FROM THE ST. LOUIS CIRCUIT COURT, CHARLES B. WILLIAMS, J.
Paul H. Koenig, St. Louis, Thomas L. Sullivan, St. Louis, for appellant.
Albert I. Graff, St. Louis, Courtney S. Goodman, St. Louis, Malcolm I. Frank, St. Louis, for respondents.
This is an appeal by Ardee Williams, employee, from a judgment of the Circuit Court of the City of St. Louis, affirming a finding and award of the Industrial Commission of Missouri. Prior to the finding and award of the whole Commission, a Referee of the Commission had made a finding that the condition complained of by the employee was not the result of an accident arising out of and in the course of his employment and denied compensation. The employee then appealed the whole Commission which found that said employee had sustained an accidental injury arising out of and in the course of his employment with Laclede-Christy Clay Products Company, employer herein, but made an award allowing the employee, 2 3/7 weeks compensation for temporary total disability only. The employee then appealed to the Circuit Court without success after which he appealed to this court.
The employee urges that the judgment be reversed and the cause remanded to the Industrial Commission with instructions to enter an award as a matter of law allowing compensation to him for from 20 to 25% of disability of the right major hand at the wrist. It is beyond the power of this court to give any such instructions to the Industrial Commission. State ex rel. Melbourne Hotel Co. et al. v. Hostetter et al., 344 Mo. 472, 126 S.W.2d 1189. However, it is our duty on appeal to examine the record to determine whether or not the findings and award of the Commission are supported by competent and substantial evidence upon the whole record, and to affirm the judgment of the Circuit Court which affirmed the Commission's award, unless we find that the award of the Commission is clearly contrary to the overwhelming weight of the evidence. Wood v. Wagner Electric Corp., 355 Mo. 670, 197 S.W.2d 647; Henderson v. Laclede Christy Clay Products Co., Mo.App., 206 S.W.2d 673.
In the employee's claim for compensation appears the following:
"Exact Nature of any permanent injury
"To right wrist, arm, and hand.
"How accident happened, cause, and work employee was doing for employer at the time.
"While working as a press operator, I was handling a brick which weighed about 25 pounds. It toppled over suddenly, and I tried to stop it. This caused the said injuries."
The record shows that employee had worked for the employer on a prior occasion and had been reemployed for about two months prior to April 15, 1947, the date on which he claimed he sustained an accidental injury, which he contended resulted in a temporary loss of time from work and a permanent injury to his right hand, wrist and arm. He testified that upon his return he worked first as a floor man and later became a pressman; that his work consisted of removing tile bricks (also referred to as brick tiles) from a press and placing them on a truck; that the tile bricks were each about a foot long, 4 to 5 inches thick, but that one end of the brick was smaller than the other, which made it taper; that the procedure he was engaged in at the time of his injury was to take one brick in each hand from the press and place them on the truck, reversing one of the two bricks to stack them properly because of their being tapered; that the bricks were made of clay and were damp because they had not been baked or finished; that on April 15, 1947, while doing this work in his usual manner one of the bricks became unbalanced in his right hand and twisted his wrist; that this occurred about 9:30 p. m.; that he reported the matter to his foreman; that when the brick became unbalanced and injured his hand and wrist it fell to the ground; that before the brick became unbalanced and twisted his wrist, his wrist had not been sore and that he had never had any previous injury to his right wrist; that his guess was that the brick weighed about twenty-five pounds; that on the night he was injured he finished the night's work but did not use the injured wrist; that the wrist started to swell immediately after the injury.
The evidence shows that the employee was interviewed by a representative of the insurer on May 9, 1947, and that he signed a statement which was prepared by said representative. This statement was introduced in evidence as employer's Exhibit 1. It shows that the employee stated therein that on April 15, 1947, he was piling tiles which were not square; that one end was larger than the other; that when he piled them on the truck he had to turn every other one in order to keep them in line; that about 9 p. m. when he was piling the tile on the truck his right wrist "seemed to give way." The statement then continues: "When I felt my wrist give way I was holding a tile and turning it. Nothing unusual happened and I was doing my ordinary work. I couldn't handle the tile and told tile. I told him my wrist started to hurt but didn't tell him why because I didn't know myself what had caused it to hurt. He put me on a job sweeping up. I finished that night until 11:45. The next day was my off day. My wrist hurt and became swollen." The employee testified at the hearing that he did tell the insurer's representative "that day when I was piling the tile on the truck my right wrist seemed to give way." He denied, however, that he told the insurer's representative "nothing unusual happened." The employee also denied that he had made that part of the above statement wherein, referring to his foreman, he is quoted as having said, "I told him my wrist started to hurt but didn't tell him why because I didn't know myself what caused it to hurt."
The employee further testified that after going to Dr. Will's office at the plant on the day following the injury, he continued to go to Dr. Will for a period of about three weeks at the doctor's downtown office.
Employee further testified that he left the employer at the end of May 1947; that he once had his back hurt while working for the Funsten Nut Company, and that he received compensation for that injury; that after he left the employer, Laclede-Christy Clay Products Company, he worked for the Jackes-Evans Manufacturing Company, beginning on September 2, 1947, and worked for nine months; that his work at the last named place was putting metal in a degreaser and taking it out; that thereafter he worked for himself doing tailoring work; that he was a tailor by trade; that from May to September, 1947, he didn't work for anybody but did regular tailoring work at home, and also attended a G. I. tailoring school.
Dr. James C. Shy testified as a witness for the employee that he was a physician and when asked if he had done any work to qualify him as a specialist, answered: "Served as chief resident physician at City Hospital, also resident physician in orthopedics and now doing some orthopedics in connection with the Frisco Railroad." The doctor testified that he examined the employee on February 2, 1948, and found that he had a 25% loss of the use of the right hand at the wrist; that there was a partial ankylosis of the right wrist with tenderness over the distal end of the radius, and a slight bony deformity in this area; that the employee's disability was based chiefly upon the partial ankylosis of the bone which was due to trauma and which could not be the result of constant work; that he found no evidence in the wrist of tenosynovitis. The doctor explained that tenosynovitis was "An inflammation of the sheath of the tendons."
The doctor testified that he examined the employee only one time, namely, February 2, 1948, and that he complained at that time of pain in his right wrist when he does heavy work and that he had the employee demonstrate the use of his wrist movement in carrying a weight to determine the rate of disability; that he, the doctor, used a protractor in making his measurements and stated that in his opinion the employee had "a severe sprain of the wrist, probably a tear of the radial collateral ligament, possibly a chip fracture of the end of the radius"; that he did not take any x-rays.
The doctor further testified that in his opinion the disability of 25% of employee's wrist was permanent; that the employee had bone deformity at the distal end of the radius and probably a callus formation and that callus formation presumes a fracture; that the bone is just under the skin and the callus formation could easily be felt; that the callus was definitely there; that on a strictly functional basis of the employee's hand the permanent loss of use was from 22 to 23% and that 2 or 3% would be based upon the employee's ability to get a job.
The doctor further testified that continued use of the wrist in picking up and moving a heavy object from one place to another could be a trauma and that the employee's complaint of the wrist hurting him doing heavy work is one of the symptoms of tenosynovitis; that even though the employee had been working with his hand all year, in the doctor's opinion the employee's disability was still no less. On cross-examination the doctor testified that he did not limit his practice to orthopedics but was a general practitioner.
Arthur Everett Page testified as a witness for the employer that he was night foreman at the plant and knew the employee, but the employee had made no complaint to him about his hand or that he had injured himself by a tile becoming unbalanced; that the employee did not tell him about his hand and that the witness did not put the employee to sweeping; that he turned in the employee's eight hours as worked on the press.
The witness then identified employer's Exhibit No. 2, being a brick 9 inches long, 4 1/2 inches wide, 2 1/2 inches thick, weighing, the witness stated, exactly 8 pounds and 13 ounces. He stated that said brick was called "King's Square" brick, also, "a brown and toast square brick."
On cross-examination Mr. Page testified that he had heard the employee state the kind of brick he had handled and that the employer did not make that kind of brick on that particular day; that they have a record of what bricks are made on what press every day and what man handles them; that the report he made out concerning this matter was not for the Workmen's Compensation Commission; that he had nothing to do with accident reports for the Commission; that he had made out a report in connection with this matter after a report came to him stating what was wrong with the employee; that he had received a report that the employee had injured his wrist but that the employee had never said anything to him about it and that he knew nothing about it and that that was the report he made.
David L. Houghtlin testified on behalf of employer that he was an attorney employed by the insurer of the employer as an investigator but was no longer so employed; that he met the employee at the office of the employer's plant and talked to him and asked him questions about an accident on April 15, 1947. The witness was shown employer's Exhibit No. 1, being the signed statement made by the employee, and testified that he had written it as told to him by employee; that he had asked employee to read it; that employee read it; that he asked employee if it was true and the employee said it was; that he asked the employee if there were any corrections and that the employee said no, and that the employee signed the statement.
The witness further testified that the employee told him that when he went back to work he did not feel he could stack tile and told his foreman he had a sore wrist; that the witness asked him if he told the foreman why and what was wrong with the wrist and the employee replied "No," and when the witness asked him why he didn't do that, the employee answered, "I didn't know myself what had caused it."
The witness further testified that he told the employee that in his opinion he had not described an accident within the meaning of the Compensation Act and that he could not pay him compensation; that the employee answered saying he was sure his condition was due to his work and that he should receive compensation; that the witness saw the employee after that and the employee on one of those occasions told him that his wrist did not bother him any more.
O. E. Brooks on behalf of the employer testified that he was the day foreman for the employer; that he had the work sheets of the employee and the rest of the crew with him; that he had employee's number and what press he worked on and the time he put in; that the sheets covered the time from April 11 to May 12, 1947; that the April 11th sheet showed that employee had worked as a cleanup man for eight hours. On April 12th he had worked as an off-bearer on press No. 2 handling No. 1 and 2 arch suprezist bricks; that they are smaller on one end than on the other; that they weigh about 7 1/2 pounds.
The witness testified that the company was not making the kind of brick described by the employee. The witness was asked if his record sheets showed that the employee had handled a brick about 12 inches long, 12 inches wide, 4 to 5 inches thick, weighing about 25 pounds, and answered that the company was not making that kind of brick; that the last day that the employee was listed in the records was May 12, 1947, and he was then cleaning up in the factory.
The witness further testified that the employee had come to him on April 18, 1947, and said that his wrist hurt him; that the witness asked him why he was not working and the employee answered that he had strained his wrist handling brick on No. 2 press; that the witness asked him how he had done it and the employee answered that he was not used to that kind of work, so the witness sent him to first aid; that the employee had never said anything to the witness about a brick becoming unbalanced in his hand; that the only thing the employee had told him was that his wrist hurt.
Dr. Leo A. Will, a witness on behalf of the employer, testified that he was a physician and that his practice was limited to surgery; that he first saw the employee on April 18, 1947, at his office in the Humboldt Building in St. Louis; that the employee had a tenosynovitis in his right forearm; that the employee in giving him a history of the case told him that he had been handling tile and developed a swelling and impaired grip in his right hand; that the beginning of this trouble was April 15, 1947; that the employee told the witness that he had had no accident or injury of any kind; that the witness examined employee's forearm and made a diagnosis of the bones of the forearm particularly in the area at the wrist; that a tenosynovitis is an inflammation of the tendon sheath; that he found no condition other than tenosynovitis; that he put a bandage on the employee from the finger tips to the elbow and also put on a splint; that he saw the employee every few days until he discharged him and removed the splint so that employee could go back to work; that at the end of the second week employee had no residual disability either of a temporary or permanent nature; that tenosynovitis was quite common in men who do certain types of work as a tailor, sewing; that they frequently get it from moving the hand and wrist backward and forward, also other types of workers as core makers, bricklayers who do a certain thing with a certain motion for a protracted length of time by a pronation of the wrist for hours at a time; that through this constant pronation they develop a tenosynovitis.
The doctor further testified that he saw the employee on June 28, 1948, a month before the hearing in this case; that he examined the employee's hand, wrist, fingers and forearm and that in his opinion the employee had no disability of any kind; that he was able to perform ordinary manual labor; that on June 28, 1948, when the witness last examined the employee, the employee told him that his right wrist bothered him when he lifted anything heavy and that he loses his grip but that when he is doing ordinary work it does not bother him; that at the time of the last examination the doctor made tests to determine the range of motion of the forearm, hands and fingers of the employee and that the tests showed normal; that there was no swelling and no pathology involving the employee's wrist, hand or forearm at that time; that if he had suspected that the employee had a chip fracture in the wrist or forearm, the accepted practice would have been to make an x-ray.
It will be recalled that the Referee found that the condition complained of by the employee was not the result of an accident arising out of and in the course of his employment and denied compensation but that the whole Commission on review reversed the finding of the Referee and found that the employee did sustain accidental injuries arising out of and in the course of his employment but allowed him compensation for 2 3/7 weeks for temporary total disability only. The employer did not appeal from the finding and award of the Commission. Therefore, as the cause now stands before us there is no longer any dispute between the parties concerning the employee's having sustained accidental injuries arising out of and in the course of his employment. The only question in dispute between the parties on this record now involves the nature and extent of the employee's injuries and the compensation he is entitled to under the law.
On the question of the employee's injuries, we have the testimony of Dr. Shy on behalf of the employee to the effect that the employee suffered a 22 to 23% loss of the use of his right wrist and that such injury is permanent. The employer presented Dr. Will whose testimony, summarized, was that the employee had suffered a tenosynovitis in the right forearm caused by doing a certain kind of motion with his hand and wrist for a length of time, but the doctor's opinion was that the employee had no residual temporary or permanent disability. Said doctor stated that he found no condition other than tenosynovitis, for which he bandaged the employee's fingers, thumb and forearm and compressed them on a splint; that he saw the employee every few days after the time of the injury; that at the end of about the second week he removed the splint and discharged him and told him to go back to work. Dr. Will gave much testimony bearing on the question of whether or not the injuries were sustained as a result of an accident but since that question is no longer in the case, it is unnecessary to discuss said testimony.
Although there is a conflict in the testimony as to the nature and extent of the employee's injuries, we cannot say on this record that the finding and award of the Commission for 2 3/7 weeks compensation for temporary total disability is not sustained by competent substantial evidence on the whole record. Nor can we say that the finding and award of the Commission is clearly contrary to the overwhelming weight of the evidence which we must find before we are authorized to interfere with such finding and award. Wood v. Wagner Electric Corporation, supra.
It is to be noted that the period of time, 2 3/7 weeks, covered by the award is in accordance with the testimony given on behalf of the employer to the effect that the employee lost that amount of time between April 15, 1947, when he was injured, and the date he returned to work, namely, May 2, 1947, when he was discharged by Dr. Will as able to work. It was within the province of the Commission to determine these questions of fact as to the nature and extent of the employee's injury on all the evidence in the record and they were not bound to follow the percentage of disability stated by any medical expert. Johnson v. Fogertey Bldg. Co., Mo.App., 194 S.W.2d 924; Henderson v. Laclede Christy Clay Products Co., Mo.App., 206 S.W.2d 673.
After the close of the employer's evidence the employee offered in evidence a document marked Claimant's Exhibit B, which was said to be the report of Dr. E. H. Bowdern of his examination of the employee. The employer objected to the exhibit on the ground that it had not been identified; that it was hearsay and that it was not proper rebuttal evidence. The objection was sustained. The employee then offered to prove by said Exhibit B. that Dr. Bowdern had found permanent disability to the employee's right wrist amounting to 20% of the use thereof. The offer of proof was objected to and the objection sustained on the same grounds above mentioned. Counsel for the employee then requested that the case be held open until he could bring in Dr. Bowdern to testify. This was objected to as not being proper evidence in rebuttal and the objection was sustained. The employee complains of said rulings of the Referee as errors warranting a reversal and remanding of the cause.
We do not believe we would be justified in interfering with the finding and award of the Commission on the grounds assigned. The Referee properly refused to permit the introduction of the report of said doctor because it had not been properly identified. The document was clearly hearsay and was, therefore, not admissible. See 20 Am.Jur., Evidence, Sec. 450, page 400. We must necessarily take the same position with respect to the request made upon the Referee to hold the case open until the employee could procure the attendance of Dr. Bowdern as a witness. It was the duty of each party to have present at the hearing any witness whose testimony was thought to be desirable. If, at any time before the evidence at the hearing was finally concluded, the employee desired to produce testimony or evidence that would constitute proper rebuttal of evidence or testimony introduced by the opposite party, it would be within the discretion of the Referee to make an allowance of time for such testimony or evidence to be produced. However, where, as here, the proposed testimony was, on the face of the offer of proof, not proper rebuttal evidence but on the contrary was clearly testimony which should have been presented in the employee's case in chief, we do not believe there was any abuse of discretion in the rulings which excluded the proffered testimony.
Furthermore, when the cause was appealed by the employee to the whole Commission for review he did not make any request for permission to introduce Dr. Bowdern as a witness before the Commission as he was privileged to do under Section 3731, R.S.Mo. 1939, Mo.R.S.A. Section 3731. Under said section the Commission has discretion to hear further evidence, if deemed proper. Hohlstein v. St. Louis Roofing Co., Mo.App., 49 S.W.2d 226. Section 3731 of the Statutes, supra, is the same today as it was when the above Hohlstein case was decided, except that it was then Section 3341, R.S.Mo. 1929. The employee in this case made no attempt to invoke the exercise of such discretionary power of the Commission. From the viewpoint most favorable to the employee the testimony of Dr. Bowdern would have been only corroborative of Dr. Shy's testimony in behalf of the employee and, therefore, merely cumulative. It was not such as to have compelled a different finding than the one that was made.
It is true, as the employee contends, that hearings on Workmen's Compensation claims should not become too technical, nevertheless, the governing rules must be observed, or procedure would be uncertain and, therefore, frequently unjust.
In the rules governing hearings before the Division of Workmen's Compensation of the Industrial Commission of Missouri, the rule which provides for the conduct of hearings in contested cases is as follows: "8. Conduct of hearings. — Hearings before the Division of Workmen's Compensation shall be simple, informal and summary with respect to the conduct thereof, but the rules of evidence as applied to civil cases in the State of Missouri shall apply. * * *" (Emphasis ours.) See page 72 of pamphlet entitled "Missouri Workmen's Compensation Law together with Rules, Regulations, Bulletins and Procedure, September 1948." The rulings of the Referee complained of were in accord with the rules of evidence and were, therefore, not erroneous.
On the whole record before us, we find no ground which would authorize us to interfere with the finding and award of the Commission. The judgment of the Circuit Court affirming such finding and award is, therefore, affirmed.
ANDERSON, P. J., and HUGHES, J., concur.