Opinion
No. 6908.
April 19, 1950.
Norman, Foulke Warten, Joplin, for appellant.
Seiler, Blanchard Van Fleet, Joplin, for respondent.
This is a proceeding under the Workmen's Compensation Law. Mo.R.S.A. § 3689 et seq. The appeal is from a judgment of the Circuit Court of Jasper County, Missouri, Division No. 2, affirming award of the Industrial Commission. The cause reached this court on transfer from the Supreme Court.
Plaintiff's claim for compensation grew out of an accident occurring September 16, 1947, caused by a fall sustained while pushing a bed in the course of her employment in the Connor Hotel at Joplin, Missouri.
Joplin Corporation was the employer and Liberty Mutual Insurance Company was the insurer.
Plaintiff's claim states she started to push a bed and her feet slipped from under her, causing her to fall and hit the left side of her back on the bed in a twisting position, injuring her left side and lower back and spine, with permanent injuries to the back, spine and ribs, left arm and internal organs, especially to the kidneys, aggravating a previous accident in March. Claimant claims $10,000 compensation.
The answer of the defendants was a general denial.
The cause was heard before a referee, February 18, 1948, who made an award in favor of claimant on April 12, 1948, for temporary total disability in the sum of $14 per week for 19 weeks. The referee overruled an application of claimant for permission to offer additional testimony, which application was made on the day after both sides had rested their case.
Application for review by the full Commission was filed and a request was made to offer additional evidence, which request was, by the Commission, denied.
Final award was made by the full Commission on the 7th day of July, 1948, affirming award dated April 12, 1948.
Claimant appealed to the Circuit Court of Jasper County, Missouri, where the award of the Industrial Commission was affirmed, on April 4, 1949. From the judgment of the Circuit Court, affirming the award, claimant appeals to this court.
Appellant, plaintiff below, relies upon two assignments of error for reversal in this case:
I. "The finding and decision of the Commission that claimant suffered a temporary total disability for a total period of 19 weeks and awarding claimant the sum of $14 per week is clearly contrary to the overwhelming weight of the evidence and inconsistent with the findings of the referee and full Commission on which such award was presumably based.
II. "The referee and full Commission erred in refusing claimant the opportunity to present further testimony in support of her claim.
"The refusal of the referee and full Commission to hear evidence offered by claimant on the purely technical ground as to time at which offered, is in violation of the Workmen's Compensation Act and judicial interpretations thereof."
We here set out such part of the evidence as will be necessary to determine the issues raised.
There is no dispute that appellant was employed by Joplin Corporation as a maid in the Connor Hotel, and that the employer was insured by Liberty Mutual Insurance Company; that appellant sustained an injury in an accident September 16, 1947. There is no dispute about the amount of wages appellant was receiving and the weekly allowance of $14 per week.
Appellant testified that, while she was cleaning room No. 321, in the Connor Hotel, September 16, 1947, about 9:00 o'clock in the morning, she started to push a bed and her foot went out from under her, causing her to fall and hit her ribs on the foot of the bed and that she went over backwards, falling in a heap on the floor. She stated the fall nearly knocked her out and broke her in two; that she went to the locker, got dressed and then went to the housekeeper on the fourth floor, who wasn't in, and there reported to a lady that she had hurt herself and had to go home. She stated that her back hurt her just below the waist line, from the very start. She stated the accident happened on Tuesday and she went back to work on Friday and reported the accident to the housekeeper, who called Dr. Jeans and sent her to him; that the doctor was not in on Friday and she did not report to him until Monday.
Appellant testified that she told the doctor about the injury to her back, as well as her other injuries but that, at first, he refused to pay any attention to her back; that the doctor gave her heat treatments and massage about three times a week. Appellant testified that her back still hurts her in the lower part and that the pains run down in her legs; that when she is on her feet too long the hurting starts and she either has to go to bed or sit down. She testified that she has been unable to do any work since the injury. She testified that she had fallen in March, prior to this injury, and bumped herself on the side of a bathtub but that that injury had cleared up and she had gotten perfectly well before this fall. She testified that she had always been strong and worked every day prior to the accident.
On cross-examination, appellant stated that the strain of falling backward was what hurt her back. She specifically testified that on the first trip to Dr. Jeans he did not treat her back, although she complained of injury; that on the next visit her back became worse and he gave her some treatment. She stated she went to the doctor every day for a week; that the treatment the doctor gave her for her ribs was a heat treatment but that he did give her some shots and that on the second day the doctor treated her back and has continued treating her back, except the last two weeks because of bad weather. She testified she couldn't lay on her side all winter; that she had pain where her ribs were broken, her back pained her below the waistline, and it hurt her to breathe. She testified that her back did not hurt her continuously but took spells of hurting her; that when she is on her feet quite a bit it hurts her to stoop over, like sticking a knife in her back but that she has no pain when off her feet. She testified that at the request of her attorney, she went to Dr. Black for an examination on October 30, 1947.
Dr. Mervin H. Black testified that he saw appellant one time, October 30, 1947; that she complained of injury to her back. He gave this answer: "The findings were essentially negative except for muscle spasm and complaint of tenderness on testing for the extension of the sacro-iliac joint." He stated that X-ray showed minimal hypertrophic spurring on the margins of the vertebral bodies and the inferior margin of the right sacroiliac joint and that such condition could have been caused by the fall. He stated that the arthritis could have been the result of an aggravation of a pre-existing arthritis; that he could not state at this time that appellant was able to work.
On cross-examination the doctor stated that minimal spurring would indicate a small amount of arthritis. He testified that if appellant's condition were aggravated, the pain resulting from such fall would come within a matter of hours and not wait for a period of a week. He stated that he only examined appellant's back and that she made no complaint about her left side. The doctor also stated that a small jar might cause arthritis to flare up and that it frequently becomes symptomatic without any known trauma. He stated he did not know appellant's condition at this time.
The referee asked the doctor this question: "Q. Doctor you don't think there will be any permanent disability? A. I can't answer that, just to say that she will become free of pain or she won't become free of pain."
The doctor testified appellant was not disabled from doing all kinds of work but was disabled from doing manual work and her disability was about 50% at the time of his examination.
Dr. Virgil E. Jeans testified he first saw appellant September 22, 1947, and that she was last in his office September 26, 1948. He gave the following testimony:
"Q. When she came to your office on September 22, 1947, what, if anything, was her complaint? A. Her complaint at that time was that about a week prior to that, while pushing on a bed, her foot slipped out from under her and she struck her ribs on the left side.
"Q. What was her complaint of pain? A. Pain in the left chest.
"Q. Did she say anything about her back at that time? A. No, there was no history of injury to her back at that time.
"Q. Did she complain of her back at that time? A. No."
The doctor testified he examined appellant, found a contusion of the left chest in the region of the sixth and seventh ribs below the left breast. There was no evidence of bruise, no swelling, no deformity, the lung sounds were clear and no evidence of pleurisy; that he thought the injury was a contusion of her chest with the possibility of fractured ribs. He stated he did not X-ray or strap her chest and that he started treatments of heat to the side and light massage. He stated he saw her every day from the 22d to the 27th, again on the 29th of September, October 2d, 3d and 6th, and that he continued the heat and massage treatments during this time. He stated appellant did not complain of her back on the 23d; that she complained on October 3d of pain in her back, which was the first complaint of pain in her back. The doctor stated that he started treating her at that time for her back with heat and massage.
Dr. Jeans testified that on October 17, 1947, he made an X-ray of appellant's back and ribs, which showed a minimal fracture of the sixth rib, anterior, with no evidence of injury involving the lower back or pelvis. The sacroiliac joint was clear. The doctor testified he saw appellant three times a week for the next two months; that she would not admit that she was any better. He stated he had a note that appellant said her chest was about healed and gave her very little discomfort on November 28th. The doctor stated that he felt from the beginning that appellant had a contusion to her chest with possible rib fracture which would disable her from four to six or seven weeks and that the X-ray on the 17th revealed no injury to the back and that appellant ought to be completely well from the fractured rib in another two or three weeks and that if she had a sprain to her back that would heal in from six to eight weeks. He testified that if appellant had an injury to her back, as a result of the fall, pain would be evident at the time and, since appellant did not complain of her back when she first came to him, it was doubtful in his mind whether or not the fall had anything to do with her back injury.
The doctor testified he thought appellant's disability ended on November 28th and that she was able to resume work at that time. He testified that arthritis generally becomes symptomatic without any trauma of any kind; that you could have it following a cold, a respiratory infection, infection of the teeth, or anything of that sort.
On cross-examination, the doctor admitted he had treated appellant ten times since November, 1947, when, he testified, she was able to return to her normal duties at the hotel on November 28th. He testified that since November 28th he had been unable to find any objective symptoms of injury in those regions. He said he kept up treatments to satisfy the patient. The doctor claimed that he at no time found any objective symptoms of appellant's back.
Mrs. Oletha McGriff testified that she was housekeeper at the Connor Hotel on and prior to September 16, 1947, and in charge of the maids. She testified she kept a record of the time each maid worked and that appellant rang the clock on the morning of September 16, 1947, at 8:00 o'clock and checked out at 4:30 in the evening; that she came on the morning of the 17th and worked two hours; that she came back on the 20th, which was pay-day and stated that the reason she had not been to work was that she slipped and hurt her ribs; that she made no complaint of her back. She stated that appellant did not report the accident until the 20th, the day she came for her check.
The record shows that on February 19th, at the close of all the testimony and after the parties had closed the case, appellant filed an application for permission to offer additional testimony. In this application appellant desired to have an examination by Dr. Black and additional examination made by other orthopedists and desired to offer this testimony in support of her claim showing aggravation of pre-existing arthritic condition. Appellant wanted to offer this evidence to show her present condition and wanted a reasonable length of time to present same to the referee. This application was opposed by the respondents because the claim for compensation did not allege any aggravation of preexisting arthritic condition.
Respondents state that notice was issued in this case December 15, 1947, a pre-hearing conference set on January 9, 1948, and case was set for hearing January 28, 1948, and Commission issued notice of hearing at 9:00 o'clock A.M. on February 18, 1948, and that, although Dr. Black had not examined appellant since October, 1947, she was seen by Dr. Jeans as late as January 24, 1948.
Appellant then asked permission to amend the claim and add to it injuries sustained because of aggravation of pre-existing arthritic condition, which was, by the Commissioner, overruled. The Commissioner stated in his ruling that there wasn't anything in the testimony that showed the aggravation of an arthritic condition. The Commissioner denied the motion.
Appellant first complained that the finding and decision of the Commission that claimant suffered a total temporary disability for a total period of 19 weeks and awarding claimant the sum of $14 per week is clearly contrary to the overwhelming weight of the evidence and inconsistent with the findings of the referee and full Commission on which such award was presumably based. To support this contention appellant cites Brown v. Weber Implement Auto Co., Mo.Sup. 1947, 206 S.W.2d 350, 352. In this case the court states the law thus: "The contradictions and discrepancies upon which the employer relies fall within this phase of the rule. The finding here was one of fact and we are to determine whether the Commission `could have reasonably made its findings, and reached its result, upon consideration of all the evidence before it; and to set aside decisions clearly contrary to the overwhelming weight of the evidence.' Wood v. Wagner Electric Corporation, supra [355 Mo. 670, 197 S.W.2d (647), 649]; Seabaugh's Dependents v. Garver Lumber Mfg. Co., supra [355 Mo. 1153, 200 S.W.2d 55]. Consequently, the meritorious question upon this appeal is whether, upon a consideration of the whole record, there is competent and substantial evidence in support of the commission's finding of fact that Nash Brown died as the result of injuries arising out of and in the course of his employment."
This unquestionably is now the law followed in this state. Under the old rule the findings of fact by the Commission had the same binding effect upon the appellate courts as the verdict of the jury but, under Section 22, Article V of the new Constitution of Missouri, Mo.R.S.A., decisions and findings of administrative bodies affecting private rights are subject to direct review by appellate courts as provided by law and this review shall include determination whether the same are authorized by law or whether the same are supported by competent and substantial evidence upon the whole record.
In Williams v. International Shoe Co., Mo.App., 213 S.W.2d 657, 662, the court stated the law thus: "The enlarged scope of review which the new Constitution affords in the case of the decisions of administrative tribunals does not mean that the reviewing court may substitute its own judgment on the evidence for that of the administrative tribunal, though it does authorize it to decide whether an administrative tribunal could have reasonably made its findings and reached its result upon a consideration of all the evidence before it. If a particular decision is clearly contrary to the overwhelming weight of the evidence, the reviewing court may set the same aside, but in determining where the weight of the evidence lies, it must adhere to the rule of due deference to findings involving the credibility of witnesses, which have been made by those before whom the witnesses gave oral testimony."
We are also cited in appellant's brief to Cheek v. Durasteel Co., Mo.App., 209 S.W.2d 548, 553.
The same rule as set out above is followed in this case. We quote from the opinion: "It becomes the duty of this court to decide whether the Commission could have reasonably made its findings, and reached its result, upon consideration of all of the evidence before it, and to set aside the trial court's decision affirming the award if it was clearly contrary to the overwhelming weight of the evidence."
This case cites Section 22, Article V, of the Constitution of Missouri 1945, and some of the other cases referred to in this opinion.
Therefore, it becomes our duty in this case to determine whether the Commission could have reasonably made its finding and reached its result upon a consideration of all of the evidence before it and to set aside the award if it is clearly contrary to the overwhelming weight of the evidence.
There is no question as to the law nor is there a dispute as to our duty under the law. The question involved in this case is one of fact.
Appellant states in her brief that the only disputed question in the case was the nature and extent of disability arising out of the accident. Upon this issue the testimony of the doctors constituted the evidence upon which the case would have to be decided.
Under the award appellant was given a total of 19 weeks compensation. It is clear that the Commission allowed claimant compensation from the date of her injury to the last date Dr. Jeans saw her, to-wit: January 24, 1948.
The only medical testimony offered by appellant was Dr. Mervin H. Black, who saw appellant on October 30, 1947, and examined her only as to the condition of her back. The findings were essentially negative excepting for muscle spasm and complaint of tenderness on testing for the extension of the sacroiliac joint. The doctor made X-rays, which showed minimal hypertrophic spurring on the margins of the vertebral bodies and the inferior margin of the sacroiliac joint. The doctor testified that the accident appellant had could have caused the pain in her back. He testified that the condition he found could be the result of an aggravation of pre-existing arthritis. He stated that he could not say whether she was able to work at this time or not. The doctor testified that if appellant's condition were aggravated by the fall the pain would occur in a matter of hours and that, if it did not occur within a matter of hours, his answer might be different. The doctor testified that at the time he examined appellant, she made no complaint as to injury to her side or ribs.
Dr. Virgil E. Jeans testified in behalf of respondents that appellant was first examined by him October 22, 1947, and that he treated her until January 24, 1948. He stated appellant complained of pain in the left chest and that he found a contusion in the left chest, in the region of the sixth and seventh rib, below the left breast, no bruises, swellings or deformity, the lungs were clear and no evidence of pleurisy; that appellant first complained of back injury October 3d; that she thought she twisted her back in the fall. On October 3d he started treating appellant's back with heat treatments and massage. The doctor testified that he could never get appellant to admit any improvement and that on October 17th he made X-rays of appellant's back, which revealed a fracture line near the distal end of the sixth rib, no displacement of the fracture and no injury to the lungs. The doctor stated that an examination of the dorsal, lumbar, and sacral spine, including the pelvis and hip joint, failed to reveal any fracture, mal-alignment, inter-vertebral disc narrowing, compression of the vertebral bodies, or unusual curvature; the sacroiliac joints were clear. The doctor's conclusion was that there was a minimal fracture of the sixth rib, anterior, with no evidence of injury involving the lower back or pelvis. The doctor testified that, in his opinion, the appellant did not receive injury to her back in the accident. He stated if there was a back strain it would clear up in six to eight weeks. The doctor testified that, in his opinion, her actual disability from all causes ended in November, 1947, but that, because she would not admit improvement, he continued to see her until January 24, 1948, in the hope that he might get her to resume her employment. Thus the Commission gave appellant the benefit of the doubt under Dr. Jeans' testimony and allowed her compensation until January 24, 1948.
We hold that under all the testimony in this case there was substantial evidence to support the award of the Commission and that the Commission could have reasonably made its findings and reached the result that it did reach from the evidence before it; that the award is not contrary to the overwhelming weight of the evidence.
Appellant's second allegation of error is in the refusal of the Commission to hear additional testimony. In support of this contention appellant cites Sections 3739 and 3774, R.S.Mo. 1939, Mo.R.S.A.
Section 3739 provides that all proceedings before the Commission shall be simple, informal and a summary, and without regard to technical rules of evidence, and no defect or irregularity therein shall invalidate the same. It also provides that the proceeding shall be according to rules and regulations that may have been adopted by the Commission.
In Vogt v. Ford Motor Co., Mo.App., 138 S.W.2d 684, 686, the court makes the following statement of law: "Under the Workmen's Compensation Act all proceedings before the Commission shall be simple, informal and summary. Section 3349, R.S. 1929, Mo.St.Ann. § 3349, p. 8283 [Mo.R.S.A. § 3739]. And all provisions shall be liberally construed with a view to the public welfare and a substantial compliance therewith shall be sufficient to give effect to rules, regulations, requirements, awards, orders or decisions of the Commission, and they shall not be declared inoperative, illegal or void for any omission of a technical nature in respect thereto. * * * The very object and purpose of the entire act is that substantial rights are to be enforced at the sacrifice of procedural rights."
In Schrabauer v. Schneider Engraving Products, 224 Mo.App. 304, 25 S.W.2d 529, the court holds that substantive rights are to be enforced at sacrifice of procedural formality.
Graves v. O. F. Elliott, Inc., 238 Mo.App. 1148, 195 S.W.2d 750, was decided by this court. We held that the Workmen's Compensation Law should be liberally construed in favor of the employee.
Appellant in his argument quotes from Waring v. Metropolitan Life Ins. Co., 225 Mo.App. 600, 39 S.W.2d 418. This case makes a statement of law which we think is applicable to the one at bar. On page 423 of 39 S.W.2d the court states the law thus: "Under section 3341 [Mo.R.S.A. § 3731], the commission is vested with a discretion upon review as to whether it will review the evidence already received or reopen the case for additional evidence. It is not compelled to reopen a case, but, if it does, we are of opinion that the express words of this section require the full commission to hear the additional evidence * * * If plaintiff in this case had made a timely demand that the full commission hear additional testimony after the case was reopened, he would have been entitled to have his additional evidence so heard, and a denial of that right on the part of the commission clearly would have been in excess of its power."
Section 3731, R.S.Mo. 1939, Mo.R.S.A., is as follows: "If an application for review is made to the commission within ten days from the date of the award, the full commission, if the first hearing was not held before the full commission, shall review the evidence, or, if deemed advisable, as soon as practicable hear the parties at issue, their representatives and witnesses and shall make an award and file same in like manner as specified in the foregoing section."
Under this statute our courts held first in Waterman v. Chicago Bridge Iron Works, 328 Mo. 688, 41 S.W.2d 575, that on application for review, it is within the discretion of the full Compensation Commission to review only evidence already taken and make final award thereon or to hear further evidence. The court states the law thus, 41 S.W.2d loc. cit. 578: "* * * The plain meaning of this section, undoubtedly, is that it is within the discretion of the commission to review only the evidence already taken, and make the final award from that, or to hear further evidence. Except for arbitrary or unreasonable action, the exercise of discretionary powers by public officials will not be interfered with (18 C.J. 1134-1138); nor reviewed on appeal (3 C.J. 796); nor by certiorari (11 C.J. 106). It would certainly not be a fraudulent act on the part of the commission to merely act in a manner which the statute authorizes."
We agree with respondents when they state: "From the plain wording of this section it is apparent that it is within the discretion of the commission as to whether additional evidence may be heard."
In the case at bar appellant filed application before the referee, who heard the case, to permit him to introduce additional medical testimony as to the present physical condition of appellant. The application states that claimant cannot present her claim properly without additional medical testimony of her present condition, which consists of aggravation of pre-existing arthritic condition affecting her back and spine. This application was made the day after the close of the hearing before the referee. The application was denied because the referee held there was no evidence which showed aggravation of an arthritic condition. Application was then made before the full Commission to reopen the case and hear additional medical testimony and had attached thereto an examination by John M. Sartin, M.D., of Springfield, Missouri, and also attached to the application was the result of an examination of Dr. Mervin H. Black, M.D. This motion, together with the testimony of the doctors, was before the full Commission, which denied appellant's application for review.
We hold that the Commission acted within its discretionary power in refusing appellant's additional medical testimony and that there is nothing in the record to show that the Commission acted capriciously or arbitrarily or fraudulently in so acting.
Judgment affirmed.
VANDEVENTER, P. J., and BLAIR, J., concur.