Davis v. Brezner
| Decision Date | 28 May 1964 |
| Docket Number | No. 8302,8302 |
| Citation | 380 S.W.2d 523 |
| Parties | William R. DAVIS, Claimant-Employee, Respondent, v. Barnet BREZNER, Employer, Appellant. Fireman's Fund Insurance Company, Insurer. |
| Court | Missouri Court of Appeals |
Orville C. Winchell, Lebanon, for appellant.
Claude T. Wood, Richland, Jay White, Rolla, for respondent.
This is an appeal by the employer in a workmen's compensation case involving a shoulder injury. Claimant Davis was bent over in the bottom of a ditch astraddle of an eight-inch pipe which he was fitting. The ditch was thirteen and one-half feet deep. Along the top of the ditch was a pile or row of loose dirt four feet high. Atop the dirt was a rock, described as 'about the size of a steering wheel' and estimated to weigh seventy-five to one hundred pounds. A workman dislodged the rock. It went down the dirt, into the ditch, and struck claimant in the upper part of the back between the shoulder blades and the left shoulder. Claimant rejected an offer to take him to a physician because he preferred to go to Dr. Cottingham, his family physician. Dr. Cottingham testified that he found an abrasion and some discoloration indicating a bruising of muscle fibers.
Chronologically:
June 30, 1960, the accident occurred. There is no serious dispute as to this.
July 1 to July 11, 1960, claimant was treated by Dr. Cottingham, D. O. of Rolla, Missouri, the physician of his choice.
July 11, 1960, Dr. Cottingham discharged claimant as able to go back to work.
August 16 through September 20, 1960, Dr. Cottingham again treated claimant. Claimant told him he had aggravated his shoulder by using a jackhammer on August 12.
September 23, 1960, claimant told Dr. Cottingham he was going to the V. A. Hospital in St. Louis.
October 10, 1960, claimant returned to Dr. Cottingham and asked him for a statement that he was physically able to work. The doctor gave the statement.
March 21, 1961, claim for compensation was filed.
October 25, 1961, claimant went back to his family physician for a re-examination. Dr. Cottingham, as will appear more fully hereafter, felt that claimant was not suffering from any disability.
March 20, 1962, he was examined by claimant's witness Dr. Ward of Richland, Missouri, who classified himself as a semi-retired ex-army surgeon engaged in general practice.
July 18, 1962, he was examined by employer's witness, Dr. Francis, an orthopedic surgeon of Springfield, Missouri.
January 15, 1963, hearing was had before the referee who found claimant had sustained permanent partial disability to the body as a whole to the extent that he was entitled to forty weeks compensation with no healing period. The commission adopted and made its award upon the findings of the referee. This was sustained by the circuit court and the employer appeals.
Claimant continued as an employee after the accident and was paid wages until sometime in September or October, 1960; but he says that during this period he did light work or no actual work at all, although he was on the payroll. Then he drew unemployment compensation. He says he drew 'approximately around four hundred dollars' unemployment. Thereafter he says he worked for 'one or two days' for an electric company, and then (time not clear) he started on a construction job as union steward and foreman. His pay scale on this work is higher than the wages he was drawing at the time of the accident. He testified that on this job he is not required to do any heavy work or lifting. His work consists largely of walking around telling the men what to do. Apparently (although the evidence is not very clear) he was still holding this job at the time of the hearing before the referee.
Claimant testified that prior to the accident he had had no trouble with his back but that after the accident he had pain in his back between his shoulder blades which ran up into his neck; that, as to the left arm, 'get it in a twist and it would hurt, the leaders would swell up in my neck and knot up.' Prior to the injury he could use a jackhammer or pavement breaker or 'bust rocks,' but afterwards he couldn't do so without pain; that, although the past year prior to the hearing (on January 15, 1963) he had worked 'pretty steady,' he didn't do any heavy lifting or pick up anything which weighed more than three pounds. As to the condition existing at time of hearing: 'This arm here it--whenever I work it up and down it gets pretty sore in there and it becomes kinda weak * * * in the top of my shoulder and down back of my shoulder blade * * * left shoulder blade * * * over work or any kind of a twist or lift on my left side.' He said he had been able to abduct his arm (bring the arm out from the side of the body) for about a month,
Claimant's witness Dr. Ward (who first examined him on March 20, 1962) testified that he made abduction tests by having claimant raise his arm from the side of the body and by applying pressure to various points on his back and shoulder. He said that claimant indicated pain at an exact location which is the point where the suprascapular nerve comes out from under the scapula. The suprascapular nerve is a motor nerve which directs the activity of the supraspinatus muscle which in turn initiates abduction of the arm. He agreed that the symptoms were entirely subjective and that he had to take claimant's word that he suffered pain on pressure; but he felt that he had guarded against malingering by repeatedly applying pressure at various points and each time getting the same response at the same location. His conclusion was that claimant had suffered an injury to the suprascapular nerve and that this had resulted in a neuritis which was probably traumatic in origin. He agreed that claimant had full range of motion except for difficulty in getting started on abduction. He had no atrophy or loss of strength. He said that in September 1962 claimant wasn't getting any better and 'I put him on Vitamin B1 and Thiamine Chloride.' He felt that the neuritis was paroxysmal. As to permanency or continuance, he stated, 'Well, if they are going to recover, they usually recover and get--oh, in approximately--oh, we would dogmatically give them a year'; and 'If it's traumatic and it persists for two years, I'd say it is quite a likelihood it would persist indefinitely without some type of surgery.'
Dr. Cottingham, claimant's personal physician, testified as a witness for the employer. He stated that in his opinion the claimant had recovered from his injury when he examined him on October 10, 1960, and re-examined him on October 25, 1961; that he found no evidence, x-ray or otherwise, of any injury or disease which would affect the nerve or nerve supply, no limitation of motion, no atrophy or wasting of muscles. It was his opinion that claimant had fully recovered and was not suffering from disability.
Employer's witness, Dr. Francis, who examined claimant on July 18, 1962, testified that he found no evidence of orthopedic disability or anything else physically wrong, no loss in either supraspinatus or deltoid muscles, nothing unusual in shoulder contour or muscle size or atrophy. The claimant had full range of motion. He said that in connection with his tests and examination he observed claimant in movements of his arm. He was of the opinion that claimant had perfect movement of his arm and neck muscles, that the objective findings did not sustain claimant's complaints, and that claimant had no physical disability. He further stated that injuries to the area said to be involved are usually of short duration, and the nerve, if injured, would regenerate.
One assignment of error deals with a hypothetical question put to Dr. ward:
Doctor, assuming that this claimant was working in a ditch on June the 30th, 1960, assume further that the claimant was--that this ditch was approximately thirteen and a half feet deep, assuming there was dirt on top of the ground--on top of the surface of the ground, assuming there was a rock on top of that dirt, assuming that that rock fell a total of approximately sixteen feet and struck this--this large rock fell a distance of approximately sixteen feet and struck this claimant on the area which you have described, the left shoulder blade, I'll ask you if in your professional opinion the condition which you concluded that existed in the supraspinatus muscle on your examination of March 30, 1960, to [sic] arose out of this assumed accident?
Objection was made on the ground the question did not incorporate all the facts. The objection was overruled and the witness answered:
I'd say that in all probability trauma caused it. In the report I wrote to Counselor White it is my opinion this man has neuritis of the suprascapular nerve probably traumatic in origin.
The complaint here are that (a) the question improperly stated the date of the accident and the distance the rock fell, and (b) it did not incorporate the present physical condition of claimant nor did it include the work which claimant had done since the accident or the fact that the condition could have been the result of either injury or disease.
The date of the accident in stated correctly. As to the distance the rock fell, a witness stated 'it fell from the top of the bank, up in the dirt, running up and down the loose dirt, probably sixteen or seventeen feet.' We feel that under the circumstances the use of the words 'approximately sixteen feet' was not such a variation from the facts as to contaminate the answer.
Dr. Ward had already testified that neuritis could come either from a systemic infection or from trauma but that, since the claimant gave a history of having been struck by a falling stone, he...
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