Barron v. Mississippi Lime Co. of Mo.
| Decision Date | 20 December 1955 |
| Docket Number | No. 29187,29187 |
| Citation | 285 S.W.2d 46 |
| Parties | John Charles BARRON, Employee (Plaintiff), Appellant, v. MISSISSIPPI LIME COMPANY OF MISSOURI, Employer, and Consolidated Underwriters, Insurer (Defendants), Respondents. |
| Court | Missouri Court of Appeals |
J. O'Connell Hough, Charles T. Herrmann, St. Louis, for appellant.
Luke, Cunliff & Wilson, Earl B. Simpson, St. Louis, for respondents.
HOUSER, Commissioner.
This is a claim under the Workmen's Compensation Act, Secs. 287.010 to 287.800 RSMo 1949, V.A.M.S. A referee of the Industrial Commission awarded John Charles Barron 160 weeks' compensation at $30 per week, based upon a finding that he sustained a 40% permanent partial disability of the body as a whole as the result of an accident sustained in the employ of Mississippi Lime Company of Missouri. On review the commission affirmed but modified the referee's award, finding from all the evidence that the injury resulted in a 10% permanent partial disability of claimant's body as a whole. The Circuit Court of Ste. Genevieve County, on appeal, affirmed the award of the commission. The employee has appealed from the judgment of the circuit court.
On this appeal it is urged that the court erred in affirming the award because the commission could not reasonably have made its finding from the evidence, and arbitrarily disregarded the unimpeached testimony of medical experts, improperly basing its award upon speculation and conjecture; that the decision of the commission is clearly contrary to the overwhelming weight of the evidence, and that the commission, in the absence of arbitrary or unreasonable action, cannot interfere with the discretionary powers of a referee.
At about 8 o'clock p. m. on April 15, 1952 claimant, an employee of the lime company at its plant in Ste. Genevieve County, was loading 50-pound sacks of lime in tiers. As one of the top sacks started to fall he jumped back catching his heel on a nearby cart. He was holding the bag with his left hand. As a result of this incident he sustained injuries to his neck and back. He finished his shift, but did not work the next day. He was treated by a local company doctor. After three visits to the local doctor and on April 25 employer sent claimant to Dr. Henry G. Schwartz in St. Louis who examined and X-rayed claimant, prescribed a Thomas collar and advised him not to 'sack' any more. After wearing the collar twenty-four hours claimant abandoned its use, having found he could not do his work because the collar held his head up. Claimant took his two weeks' vacation in order to get uninterrupted rest and sleep. Following his injury claimant no longer worked as a lime sacker but continued with employer in the capacity of a lime dust sweeper. Dr. Schwartz examined claimant three times. The company also took claimant to Dr. Quentin Drennan who treated him on three occasions. Further examinations were made and prescriptions given by a Dr. Grant and a Dr. Berg. Drs. Robert Mueller and Lloyd J. Hill examined claimant and testified in his favor. In their testimony they related the results of their several examinations, giving the various physical symptoms which they found in numerous tests given claimant. Dr. Mueller diagnosed the case as probable ruptured intervertebral disc in the first sacral area, and possibly a similar condition in the cervical spine. He rated claimant as 'probably about 50% permanently disabled' and testified that he should not engage in any type of work requiring use of arms and legs to any great extent. Dr. Hill diagnosed the case as a ruptured intervertebral disc of the fifth lumbar and the first sacral segment on the right, together with inflammation of the right wrist. It was his opinion that claimant has a permanent disability of 40% or 50% of a normal man; that it would not be advisable for him to engage in his work as a laborer; and that surgery, for the removal of the ruptured disc, should be offered claimant.
Claimant complained at the hearing that his right leg, the outside half of his right foot and his right arm were asleep, had a 'feeling of needles' or pins sticking in them--a tingling sensation and feeling of numbness; that his back was so sore and stiff between the shoulders that he could hardly stoop over; that he had pain in his back and down the leg; that he could hardly walk; and that if he worked a little too hard he could not sleep at night.
Company records from the time of his injury showed that claimant worked eight hours on the following days of April, 1952: April 15, 16, 18, 21, 22, 23, 26, 28, 29, 30. He did not work on the following working days in April: April 17, 19, 20, 24, 25, 27. In May, 1952 he worked on May 1, 2, 5, 6, 7, 8, 9, 12, 13, 15, 16, 17, 19, 20, 21, 22, 23. He did not work on the following working days in May: May 3, 4, 10, 11, 14, 18, 24, 25. Claimant was still working at the lime company as a sweeper at the time of the hearing in October, 1953.
For employer Dr. Henry G. Schwartz testified, relating the physical symptoms which he observed on three examinations over a seven months' period. He found contradictory and shifting sensory responses and in the later examinations could not demonstrate any consistent neurological signs. He found no objective evidence of any lesion, herniation of the discs of the spine, or organic disease of the central nervous system. It was his opinion that the occurrence of April 15, 1952 did not cause claimant's complaints; that his complaints have no organic basis, and are to be explained on the basis of a psychological disorder existing only in claimant's mind. He recommended that claimant see a neuropsychiatrist.
Appellant points to the consistent testimony of Drs. Hill and Mueller that appellant suffered a ruptured intervertebral disc with a resulting 40% disability, states that their testimony is competent and substantial, claims that Dr. Schwartz' testimony does not dispute that of Drs. Hill and Mueller, and notes that there is no evidence in the record by Dr. Schwartz or anyone indicating that claimant suffered a 10% disability. From this appellant argues that in finding only a 10% disability the commission arbitrarily disregarded competent, substantial and undisputed testimony given by witnesses not shown to have been impeached and based its findings upon conjecture or upon a mere opinion of the commission unsupported by sufficient competent evidence. Appellant takes the position that...
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