Opinion
Opinion filed March 8, 1932.
1. — Workmen's Compensation Act — Commission's Finding — Conclusiveness. The finding of the Workmen's Compensation Commission has the force and effect of the verdict of a jury.
2. — Same — Same — Based on Substantial Evidence — Conclusive. If there is substantial evidence to sustain the finding of the Workmen's Compensation Commission, neither the appellate court nor the circuit court has any right or authority to interfere.
3. — Same — Same — Same — Injury — Rheumatic Arthritis — Not Arising Out of and in Course of Employment — Compensation Denied — Conclusive. In a proceeding under the Workmen's Compensation Act, where there was substantial evidence to support the finding of the Compensation Commission, disallowing compensation, that claimant's condition was rheumatic arthritis, and not due to any injury arising out of and in the course of his employment, the courts are without authority to interfere with that finding.
Appeal from the Circuit Court of the City of St. Louis. — Hon. M. Hartmann, Judge.
REVERSED AND REMANDED ( with directions).
Durham Sparling, David Lynn, and John J. McNulty for appellants.
(1) (a) Respondent, claiming under a statute, to recover had to establish facts necessary to a finding in his favor. Spencer v. Barlow, 319 Mo. 835; Ramsey v. Lewis, 182 Mo. App. 58; Stofer v. Dunham, 208 S.W. 641. The burden of proof being on respondent it could not be said that there was no evidence to support a finding against him by the triers of the facts. It might be against the weight of the evidence, but not against the evidence. The triers of the facts had a right to disbelieve his testimony. "The rule is that when the allegations of a petition are denied and evidence is submitted to sustain the issues the defendant is entitled to have the jury pass upon the evidence though the defendant offered no evidence." Milliken v. Com. Co., 202 Mo. 655; Wolff v. Campbell, 110 Mo. 126; Reynolds v. Hood, 209 Mo. 618; Land v. Ross, 135 Mo. 101. (b) There was no evidence of "accidental" injury as used in the statute. "The word `accident' . . . means an unexpected . . . event . . . producing at the time objective symptoms of an injury." The term "injury" and "personal injury" shall mean only violence to the physical structure of the body and such disease or infection as naturally results therefrom. Sec. 3305b, Rev. Stat. 1929. The claimant offered no proof that the condition he was suffering from resulted from the bump on his arm. The bump, if any, produced no objective symptoms. Expert testimony was necessary to connect the inflammatory conditions with the bump on the arm. The expert testimony was the other way. There was therefore, a failure of proof. O'Leary v. Scullin, 303 Mo. 363. (2) The circuit court had no power to make a finding of fact contrary to the finding of the Commission and make an award. Hammach v. West Plains Lbr. Co. (Mo. Sup.), 30 S.W.2d 651; Brewers v. Ash Grove Lime Portland Cement Co., 25 S.W.2d 1086; Wadley v. Employers Ins. Co. (Mo. Sup.), 37 S.W.2d 665; Hager v. Pulitzer Pub. Co., 17 S.W.2d 578; Harbour v. Gardner, 38 S.W.2d 295; Beecham v. Greenlease Mtr. Co., 38 S.W.2d 535. The court cannot set aside a finding as against the weight of the evidence. Hammach v. Lbr. Co., supra; Ex rel. v. Haid, 38 S.W.2d 44.
W.J. Blesse and William Kohn for respondent.
(1) A finding of fact of the Commission is not binding upon the courts if not supported by substantial competent evidence. In the case at bar there was not sufficient competent evidence in the record to warrant the making of the final award of the Commission. The record, stripped of the legal conclusions of the witnesses, their incompetent opinions, their guesses and their inferences not based upon fact, does not contain sufficient evidence to support the award. The circuit court, therefore, properly reversed the same, as specifically authorized by subdivision 4 of section 3342, R.S. 1929. (2) The referee's award in favor of the employee was fully warranted by the evidence. His finding had the same force and effect as though it had been rendered by the commission (sec. 3357, R.S. 1929). The commission therefore erred in reversing and setting the same aside and the circuit court properly reversed the latter's and reinstated the former's award. (3) The effect of the circuit court's judgment holding the commission's award void, was to reinstate the award of the referee, since the reversal of the latter by the former was thereby nullified. The court, therefore, properly incorporated in its judgment of reversal the award of the referee which it had the effect of reinstating. The award in the order of the circuit court is not its award. It is the award of the referee, which the court merely reinstates. Beandry v. Burroughs Adding Mach. Co. (Mich.), 214 N.W. 401. (4) In testing the sufficiency of the evidence to warrant the award in favor of the employer and insurer, incompetent evidence should be disregarded. The purported hospital report should be ignored because not properly identified or certified. The opinion of the doctors, given in answer to improper hypothetical questions, as well as those not based upon fact, should be ignored. Berkemeier v. Reller, 317 Mo. 614, 296 S.W. 739. (5) The fact that the physical condition of the employee is such as to predispose him to injury, does not render an accident not an accident. The fact that at the time of the accident claimant was suffering from a dormant rheumatic condition, which did not disable him from work, does not preclude him from recovering for an injury accidentally sustained in the course of his employment when such injury, combined with the rheumatic condition, results in disability. Nor does the fact, if it is a fact, that an arthritic condition developed at the place of injury which aggravated it, preclude recovery for the resultant disability. In re Bowers (Ind. App.), 116 N.E. 842. Corpus Juris, Workmen's Compensation Acts, p. 69, sec. 58. (6) The burden of proof rule has no application in cases arising under the Compensation Law, because sec. 3342, R.S. 1929, authorizes the setting aside of all awards when not supported by substantial evidence, whether the award be in favor of the employee or in favor of the employer. This necessitates a determination, from the whole record, of whether or not the award is supported by substantial evidence, without regard to the burden of proof.
This is an appeal from a judgment of the circuit court of the City of St. Louis, reversing the finding and judgment of the Workmen's Compensation Commission. The Workmen's Compensation Commission denied compensation to plaintiff, and the circuit court reversed this judgment, and remanded the cause to the commission, with directions to enter a judgment for plaintiff. Plaintiff was an employee of the R.C. Can Company. Southern Surety Company was the insurance carrier for the employer.
The claim filed by the plaintiff alleged that on March 10, 1930, at the place of business of his employer, while taking a case of can bottoms off of a pile, the weight of the case caused him to strike his right elbow against another box, injuring his right arm, for which he claims compensation based on a weekly wage of $19.80.
The employer and insurer filed their answer to the claim, denying any injuries to plaintiff, and charging that if he was suffering any physical disability, such condition had no connection with any injuries he is alleged to have received while in the employ of R.C. Can Company, and alleging also that the ailment of plaintiff, if any, did not arise out of or in the course of his employment.
There was a hearing before the referee, and the referee sustained plaintiff's claim.
The case was then tried before the commission, and the claim disallowed, the commission finding that plaintiff's condition was not due to any injury.
Plaintiff testified that he was a laborer for the R.C. Can Company, and that on or about March 10, 1930, while in the course of his employment he was attempting to remove a box of can bottoms from a pile and struck his right elbow on the side of another pile of boxes. He was alone at the time, and he rubbed his elbow until it got a little better. He could not close his fingers, and his hand and arm were numb. Around eight o'clock that night his arm got sore. The next day he went to his employer's place of business with his arm inside his coat. He informed his foreman of the situation, and he was sent to a Dr. Coffee. He there informed the doctor as to how and when he had hurt himself. He testified that he visited Dr. Coffee several times, who bandaged his arm and put an electric light over it. When he did not improve, he asked for another doctor, and they sent for Dr. Bennett, who also treated him.
The foreman for the can company testified that the plaintiff came to work and said he hurt his elbow the day before, and had his arm under his coat. He gave him an order for a doctor on the same day.
Dr. Coffee testified that he received the plaintiff as a patient from the can company; that the claimant said his elbow was hurting as a result of having bumped it, but he found no external evidence of any injury, and bandaged his arm with a dry bandage and treated it with an electric light.
The report of Dr. Coffee to the Workmen's Compensation Commission regarding the accident stated that the claimant had sustained a severe contusion of the right elbow; that an X-ray revealed no recent bone pathology; that medical aid would probably be required for two weeks, and that disability would probably last ten days. His report to the can company also diagnosed the injury as a severe contusion of the right elbow. Dr. Coffee, however, in explaining this matter in his testimony before the referee, said that the arm was badly swollen eventually, and there was some redness of the soft tissues, but this was not in the location that the plaintiff was complaining of; that there was quite a little swelling of the forearm, and that from the description of the injury the plaintiff gave him, he would say that it was not of sufficient violence to produce so profound a result as plaintiff shows. The doctor expressed the opinion that the plaintiff's condition was due to rheumatic involvement, and had no connection with any injury; that the pain plaintiff complained of was out of proportion with the amount that would be expected from a small bump on the arm without having a fracture; that he found no evidence of a bump on the arm; that in his opinion, the condition found could not be the result of a blow on the arm; that a blow on the arm might aggravate a rheumatic condition; that in making his report, wherein he stated that claimant was suffering from a contusion of the right elbow, he was simply making a report of what claimant had told him, because he usually wanted to give the claimant the break, and resolve all doubts in his favor, and he was simply stating what the claimant or plaintiff told him at the time which was in fact not a correct diagnosis.
Dr. Bennett also stated that in his opinion, it was a rheumatic condition: that a bump would not cause all the conditions that the plaintiff had: that he thought plaintiff's condition was due to rheumatic arthritis, and that an injury might hasten it and set up a condition.
Counsel for respondent seeks to sustain the judgment of the trial court, upon the theory that there was no substantial evidence to sustain the award of the commission, dismissing plaintiff's claim. It is useless to restate the law here that the finding of the commission has the force and effect of the verdict of a jury, and if there is substantial evidence to sustain such finding, neither this court nor the circuit court has any right or authority to interfere. Where the facts are practically conceded or admitted and the commission erroneously misapplies the law to such facts, a different rule prevails. From the facts, as above stated, it appears there was sufficient evidence from which the commission might have found that plaintiff received an injury arising out of and in the course of his employment, which would entitle him to compensation. There is substantial evidence, however, to the contrary. There is evidence that plaintiff's condition was rheumatic arthritis, and that the injury he received on his elbow had nothing to do with the condition from which he was suffering. The commission so found, and the court was without authority to interfere with that finding.
The judgment of the circuit court is, accordingly, reversed, and the cause remanded with directions to enter judgment affirming the award of the commission. Haid, P.J., and Becker, J., concur.