Summary
In Clark v. Frazier-Davis Constr. Co., 258 S.W.2d 934 (Mo.App. 1953), the Commission denied employee's motion to present additional evidence.
Summary of this case from Hartley v. Spring River Christian VillageOpinion
No. 28610.
June 16, 1953. Rehearing Denied July 10, 1953.
APPEAL FROM THE CIRCUIT COURT, CITY OF ST. LOUIS, WALDO C. MAYFIELD, J.
Peter Cosmas, and Thomas L. Sullivan, St. Louis, for appellant.
John S. Marsalek, and Moser, Marsalek, Carpenter, Cleary Carter, 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 appeal is by the employee, Sanford C. Clark, from the judgment of the circuit court affirming an award of the industrial commission denying his claim for compensation except as to payments previously made. The Frazier-Davis Construction Company is the employer, and the Hartford Accident and Indemnity Company the insurer.
At the original hearing the referee found that while the employee had sustained an injury to his right shoulder by accident arising out of and in the course of his employment, he had suffered no temporary total or permanent partial disability, and had been fully compensated under the act by virtue of the voluntary payment by the employer and insurer of the sum of $79.85 as necessary medical aid to cure and relieve from the effects of the injury.
Upon the referee's denial of any further compensation, the employee made application for review by the commission, and specifically requested that the case be set down for oral argument; that he be permitted to produce additional evidence as to his permanent disability; and that he be examined by an impartial medical examiner for the purpose of determining his permanent disability.
The case was set down for oral argument, and after hearing the parties, and after reviewing the evidence and considering the whole record, the commission entered an award to the same effect as that which had been entered by the referee.
The accident occurred on July 20, 1950, during the course of the installation of a gas main south of Forest Park in the City of St. Louis. At points where it was necessary for pedestrians to cross over the excavation the employer laid steel foot bridges some eight to ten feet in length and each weighing about one hundred pounds. At the time of his injury the employee was standing in the bed of a truck in which two of such bridges were being transported to a place where they were to be put into use during the progress of the work. In some manner the driver permitted the left rear wheel of the truck to drop off a curb, causing the bridges to topple over against the tip of the employee's right shoulder and pin him against the side of the bed.
After the employee had been released by a fellow worker, he got out of the truck and stayed around the job without undertaking to perform any further labor for the thirty minutes remaining until quitting time. The only outward evidence of injury consisted of "some little skinned places" on his shoulder where the falling metal had grazed the skin. However he complained of pain in the region where he had been struck, and the next morning the employer had him taken to St. Mary's Hospital, where he was kept for less than an hour and was then taken to the office of Dr. E.C. Funsch, who was put in charge of his case for about a month. At the end of that period he was transferred to the care of Dr. O. O. White, who treated him until October 30, 1950, when he was laid off by the employer for reasons which the record does not disclose. Dr. White sent him for examination to Dr. O.P. Hampton, an orthopedist, who saw him on three occasions and referred him to Dr. Wendell G. Scott, a roentgenologist, for X-ray pictures of the cervical region of his spine. Finally the employee, on his own account, consulted Dr. H. L. Thieme, who treated him three or four times over the period from December 13, 1950, to May 23, 1951, and also took pictures of the injured area.
The whole question arising on the claim for compensation was the nature of the injury and the extent of the disability resulting from it.
Even though the employee had lost no time on the job as a result of the accident, he testified that his ability to work had nevertheless been impaired due to numbness in his right arm extending down into the fingers; inability to lift with his right arm or to move it about in a normal manner; pain in his neck, back, and shoulder; and a considerable degree of rigidity of his neck.
In all this the employee was corroborated by Dr. Thieme, who was shown (by way of establishing his qualification) to have made frequent prior examinations and ratings in workmen's compensation cases.
In describing the employee's injuries as he had found them to be, Dr. Thieme testified to an injury to the attachment of the tendon of the supraspinatus muscle at the right shoulder with some degree of atrophy over both the supraspinatus and deltoid muscles, and also to a substantial limitation of the internal rotation of the right shoulder. He also noted a "winging" of the scapula, which indicated an injury to the long thoracic nerve on the right side of the neck affecting the serratus muscle which holds the scapula. There was a very slight amount of atrophy in the webbing between the thumb and index finger of the right hand, and some limitation in the adduction or spreading of the little finger. X-ray pictures taken by Dr. Thieme were interpreted by him as showing a fracture of the spinous process of the cervical vertebra, which controls the stability of the neck, and also a marked irregularity and decrease in bone density at the point of attachment of the supraspinatus tendon to the right shoulder, which would produce a certain amount of restriction in the motion of the upper end of the humerus. It was Dr. Thieme's opinion that all such conditions were not only attributable to the accident but were also permanent in their nature, and that they had resulted in disability between 25% and 30% to the man as a whole.
The testimony of Dr. Funsch, Dr. Scott, and Dr. Hampton was in direct contradiction of that of Dr. Thieme as to the existence of any disability for which the employee might have been entitled to compensation other than that which had been voluntarily paid by the employer and insurer for necessary medical aid.
Dr. Funsch specializes in the treatment of injuries sustained in connection with employment in industry. It will be recalled that he saw the employee the next day after the accident, and the only injury he found was to the soft tissues on the top of the shoulder. At the time of Dr. Hampton's first examination of the employee he found a slight limitation in the rotation of the shoulder, but by the time of his last examination the limitation had entirely disappeared. X-ray pictures taken by Dr. Funsch, Dr. Hampton, and Dr. Scott were negative; and all three doctors expressed the same opinion as to the pictures taken by Dr. Thieme upon which he had relied in making his findings. In short, the medical evidence for the employer and insurer was all to the effect that there had been nothing revealed in the employee's condition to support his complaint of permanent injury.
The sole contention on this appeal is that with the medical evidence in direct conflict as to the existence of any permanent disability, the employee was denied a fair and impartial trial by reason of the refusal of both the referee and the members of the commission to look for themselves at what he asserts were the visible signs of his disability, and also by reason of the refusal of the commission to permit him to offer further medical evidence in regard to his disability and to order that he be examined by an impartial physician.
The first matter of which the employee complains occurred during the direct examination of Dr. Thieme at the hearing before the referee. After the doctor had given his opinion of the permanency of the conditions to which he had testified, the employee's counsel asked permission to have the doctor demonstrate the "winging" of the scapula along with the limitation of the internal rotation of the right shoulder. This would have required that the employee strip to the waist, and that the demonstration be made upon his own person.
The referee inquired whether the doctor had himself made such an examination of the employee, and was assured by the doctor that he had made an examination that very day. The referee then asked what good was to be accomplished in having him see such an exhibition, to which the employee's counsel announced that the purpose was merely to demonstrate the disability that existed. The referee replied that he could determine the matter from the doctor's testimony, and that he "would not know anything about it" if he did see such a demonstration.
The employee's counsel apparently acquiesced in the referee's decision, and there was no intimation at the time that the refusal to permit such a demonstration was to be the subject of any later concern. Furthermore it is in any event to be borne in mind that it is the award of the commission that is now before us for review, and not the award of the referee, which, having been supplanted by that of the commission, serves no further purpose in the case except in so far as being a part of the record, it is a factor to be considered in determining whether the award of the commission was supported by competent and substantial evidence upon the record as a whole. Michler v. Krey Packing Co., Mo. Sup., 253 S.W.2d 136, 140.
Passing therefore to the proceeding before the commission itself, it was undoubtedly within the discretion of the commission whether to hear further evidence or to confine its review to the evidence already taken before the referee, and its action in choosing the latter alternative is not to be disturbed on this appeal unless it should appear that such action was unreasonable and arbitrary under the facts and circumstances of the case. Section 287.480 RSMo 1949, V.A.M.S.; Waterman v. Chicago Bridge Iron Works, 328 Mo. 688, 41 S.W.2d 575; Hohlstein v. St. Louis Roofing Co., Mo.App., 49 S.W.2d 226; Ross v. Joplin Corporation, Mo.App., 229 S.W.2d 303.
While it is true that in his application for review the employee did designate the issue — permanent disability — upon which he was asking permission to produce further evidence, he did not then state, nor does he state in his brief, what evidence he had available other than that which had been offered before the referee. With no suggestion of anything tangible which might have affected the result, there could be no basis for holding that the commission acted arbitrarily in denying leave to introduce additional evidence. Lewis v. Kansas Explorations, Inc., 238 Mo.App. 697, 187 S.W.2d 524; Muse v. E. A. Whitney Son, 227 Mo.App. 640, 56 S.W.2d 848.
Nor is the commission to be convicted of an abuse of discretion by reason of its failure to act upon the employee's request that it order what he chose to denominate an impartial medical examination. The same is also to be said of its refusal of his oral request that the members of the commission look at his shoulder, arm, and hand, and observe for themselves what he claimed was the visible evidence of his disability. This was of course a repetition of his request at the hearing before the referee, which the referee had denied for reasons already indicated.
The employee treats this point as something apart from his written request that he be permitted to produce additional evidence. But even so, the question of whether demonstrative evidence should have been permitted was itself a matter within the sound discretion of the commission. Nelson v. Wabash R. Co., Mo.App., 194 S.W.2d 726; Perringer v. Lynn Food Co., Mo.App., 148 S.W.2d 601.
The case was one of those which frequently arise where the ultimate result depends upon the acceptance by the commission of one or the other of two conflicting medical theories or opinions regarding the physical condition of the employee. The commission's function in resolving such an issue is no different from that which it performs in determining any other issue in the case. It weighs the evidence that has been adduced, and then proceeds to make its findings, which must be supported by competent and substantial evidence upon the whole record.
There is no doubt that in its discretion the commission may permit the exhibition of injuries in any case where a personal view of the injuries would contribute to a better understanding of the evidence, but it should carefully avoid any demonstration which might be calculated to serve any other purpose. Certainly in a case where the subject under inquiry is one for expert medical examiners and beyond the comprehension of ordinary laymen, the members of the commission should not disregard the judgment of the experts and undertake to make their own diagnosis. In the present instance the commission undoubtedly felt that for them to look at the employee's shoulder, arm, and hand would not materially aid them in drawing the correct conclusions from the evidence, and for that reason refused to become participants in such a demonstration. The review before the commission was conducted in the usual manner, and there is nothing in the record which would warrant us in holding that the employee was denied a fair and impartial trial.
It follows that the judgment of the circuit court affirming the award of the commission should in turn be affirmed by this court, and it is so ordered.
ANDERSON and HOLMAN, JJ., concur.