Crites v. Missouri Dry Dock & Repair Co.

• Citation: 348 S.W.2d 621
• Decision Date: 18 July 1961
• Docket Number: 30777,Nos. 30763,s. 30763
• Parties: Lale CRITES, (Claimant) Respondent-Appellant, v. MISSOURI DRY DOCK AND REPAIR COMPANY, Inc., Employer, and United States Fidelity and Guaranty Company, Insurer, (Defendants) Appellants-Respondents.
• Court: Missouri Court of Appeals

Page 621

348 S.W.2d 621

Lale CRITES, (Claimant) Respondent-Appellant, v. MISSOURI DRY DOCK AND REPAIR COMPANY, Inc., Employer, and United States Fidelity and Guaranty Company, Insurer, (Defendants) Appellants-Respondents.

Nos. 30763, 30777.

St. Louis Court of Appeals, Missouri.

July 18, 1961.

Raymond H. Vogel, Vogel & Frye, Cape Girardeau, for respondent-appellant Lale Crites.

Jack Randall, St. Louis, Jack O. Knehans, Finch, Finch & Knehans, Cape Girardeau, for appellants-respondents, employer-insurer.

WOLFE, Judge.

This deals with cross-appeals from a judgment of the Circuit Court affirming an award of the Division of Workmen's Compensation, Department of Labor and Industrial Relations of Missouri. Upon a hearing before a Referee of the Industrial Commission, the Referee denied compensation on the ground that the claimant had not filed his claim within a year after it became reasonably ascertainable that the claimant had suffered a compensable injury. The claimant appealed to the Commission, which reversed the finding of the Referee and awarded claimant compensation for 17 1/2 percent permanent partial disability. From this award the employer and the insurer appealed to the Circuit Court. In the Circuit Court the claimant filed a motion to increase the amount of the award. This motion was overruled. The Circuit Court affirmed the award of the Commission, and both the employer and the claimant appealed.

The only witnesses in the case were the claimant and his physician. The facts are that claimant Crites was employed by the Missouri Dry Dock and Repair Company, Inc. At the time of the accident, out of which this claim arises, he was 44 years of age and regularly engaged in doing electric welding. On August 15, 1956 he was working on a derrick boat. With three other men he was carrying a tool called a line-borer. This was made of a shaft of solid steel four or five inches in diameter and six feet in length. The weight of it was about five or six hundred pounds. It was used to true up the hole through which the propeller shaft was to run. Two men were on each end of the tool, and they were carrying it through the door of the boat's galley when the other man on Crites' end tripped and fell. This put the full weight of that end on Crites, who held the tool to keep it from falling on his helper's leg. He said that the weight of it 'jerked' him down, and he felt a pain in his back. He was blinded by the pain for a few seconds and had to sit down and rest for about ten minutes.

He continued to work for the rest of the day, but there was a slight pain in his back when he went home that night. He had never been troubled by his back before, but from then on he had intermittent pain. He thought he had strained a muscle or ligament and that the matter would correct itself in time. There were weeks and sometimes a month when he would suffer no discomfort from his back, and then again it would hurt three or four days at a time. None of this interfered with his ability to work. His regular job was welding, and he was not required to do any lifting. At times stooping or lifting would cause pain. He thought that the discomfort that he at times experienced was attributable to the accident, and he worked through 1956 and 1957 without loss of time. But in the latter part of 1957 the pain started getting worse and he went to a chiropractor. He lost some time from work because of his back in the early part of 1958. At that time he asked his employer for medical aid, but it was refused. In May of that year he went to a Dr. Seabaugh for treatment.

Dr. Seabaugh sent him to a hospital for examination in September of 1958, and a myelogram indicated a ruptured disc between the fourth and fifth lumbar vertebrae. After this the claimant wore a lumbar brace and took medicine, but there was no improvement, and so Dr. Seabaugh performed an excision of the disc on October 6, 1958. The doctor released the patient for work about January 6, 1959, and at that time he was considered by the doctor to be capable of performing moderately heavy duties.

Dr. Seabaugh rated claimant's disability as 35 percent permanent disability to the body as a whole. He stated that the claimant's history of a back injury on August 15, 1956 was consistent with his finding that the rupture of the disc appeared to be an old rupture. He testified that since there was no history of any other back injury, in his opinion it was caused by the accident of August 15, 1956. He stated that usually at the time of a rupture to a disc, the patient is disabled for a period of a few days, but that in a few cases one can suffer such an injury and still be up and about and then have a gradually increasing pain.

It was admitted that Crites was an employee under the provisions of the Workmen's Compensation Act, and that his weekly wage was $76. It was also admitted that the employer had notice of the accident.

Crites' claim for compensation was filed October 4, 1958. This was two days before the operation upon his spine and five months after he first consulted Dr. Seabaugh, and a month after the myelogram was performed. It was eleven months after he consulted the chiropractor. As stated at the outset, the Referee found, 'that the employee did not file his claim for compensation within the time prescribed by law as said claim was filed more than one year after it became reasonably ascertainable that the employee had suffered a compensable injury; therefore, compensation must be and the same is hereby denied.'

From the above finding the claimant applied for a review by the full Commission. The Commission made the following finding:

'We find from all of the evidence that the employee, Lale Crites, sustained an accident on August 15, 1956, arising out of and in the course of his employment with the Missouri Dry Dock and Repair Company, Inc., and that as a result of said accident he sustained 17 1/2 percent permanent partial disability of the body as a whole referable to a herniated disc at the level of lumbar 4-5, for which he is entitled to 70 weeks of compensation at the rate of $35.00 per week.

'The employer and insurer contend that the claim is barred by the statute of limitations. At the time of the accident, and intermittently thereafter, the employee felt pain...