Dees v. Mississippi River Fuel Corporation

• Decision Date: 19 February 1946
• Docket Number: No. 26921.,26921.
• Citation: 192 S.W.2d 635
• Parties: DEES v. MISSISSIPPI RIVER FUEL CORPORATION et al.
• Court: Missouri Court of Appeals

192 S.W.2d 635

DEES v. MISSISSIPPI RIVER FUEL CORPORATION et al.

No. 26921.

St. Louis Court of Appeals. Missouri.

February 19, 1946.

Appeal from Circuit Court, Madison County; Norwin D. Houser, Judge.

"Not to be reported in State Reports."

Proceeding under the Workmen's Compensation Act by Willard H. Dees, employee, opposed by Mississippi River Fuel Corporation, employer, and the Fidelity & Casualty Company of New York, insurer. From a judgment reversing a final award of the Workmen's Compensation Commission denying compensation, the employer and insurance carrier appeal.

Judgment reversed and cause remanded with directions.

Robert I. Meagher, of Fredericktown, and George A. Hodgman, of St. Louis, for appellants.

Melvin Englehart, of Fredericktown, and Rush H. Limbaugh, of Cape Girardeau, for respondent.

HUGHES, Presiding Judge.

The appeal is from a judgment of the Circuit Court of Madison County reversing a final award of the Workmen's Compensation Commission denying compensation on a claim filed by the respondent. The claim, filed May 11, 1943, alleged that the employee was injured on April 17, 1942, when engaged in lifting machinery while employed by the Mississippi River Fuel Corporation, and consisted of strain of the short and long posterior sacroiliac ligaments, the ilio lumbar ligament, and the lumbosacral ligament.

After hearings were held by referees for the commission, one of the referees made an award finding that the alleged accident occurred on April 17, 1942; that no compensation was paid the employee and no medical treatment furnished him by the employer and insurer after May 4, 1942; that the claim was filed May 11, 1943, more than one year after the date of the last medical treatment furnished the employee, and was, therefore, barred under the provisions of Section 3727, R.S.Mo.1939, Mo.R. S.A.; and that the commission was without jurisdiction, and compensation was accordingly denied. Upon a review of the referee's award the commission made the same findings as the referee, and denied the employee compensation.

On appeal the circuit court rendered judgment reversing the commission, such judgment containing the following finding:

"* * * and the Court being fully advised, doth find as a matter of law from undisputed evidence on the question whether the alleged injury to claimant was reasonably discoverable within one year before the claim was filed, that said alleged injury was not reasonably discoverable until within said period of one year, and that the Workmen's Compensation Commission acted without or in excess of its power in holding that the Commission is without jurisdiction and that the claim is barred * * *."

Section 3727, R.S.1939, as amended by Laws Missouri 1941, p. 718, Mo.R.S.A. § 3727, provides:

"No proceedings for compensation under this chapter shall be maintained unless a claim therefor be filed with the commission within one year after the injury or death, or in case payments have been made on account of the injury or death, within one year from the date of the last payment. * * *"

It is respondent's contention that the undisputed evidence before the referees shows that, notwithstanding the accident occurred more than one year before the filing of the claim, the resulting injury was not reasonably discoverable until a time within one year preceding the filing of the claim. A determination of the question must be based upon a consideration of what was shown by the evidence, hence a full statement of the facts is called for. Respondent's able counsel have so fairly briefed the facts that we shall follow their statement with slight variation. Claimant-respondent will be referred to as "employee."

The employee was injured while removing a piston from the top of some boxes in the plant where he was working preparatory to installing it in a motor he was engaged in overhauling. It was a large piston, weighing 450 or 500 pounds. It was lying on top of some boxes, about six feet from the floor. Two men working with employee went on top of the boxes and put pipes under the piston on which to roll it down from the boxes, while employee remained on the floor alongside the boxes to help direct the piston on a wagon on which they would haul it to the place where it was to be used. As the piston started to roll off the boxes, employee thought it was going to fall on the floor, and he caught hold of it with his left hand and held it back as it rolled down on the wagon. The weight of it was too much for him. He could not get hold of it with his right hand and it threw him on his left side and he went down with the piston. On other occasions they had moved pistons like that with a crane.

At the time the accident occurred employee was working on a shift beginning at 3:30 in the afternoon and ending at 5:00 the next morning. The accident occurred about 11:00 that night and employee stayed on the job from that time until 5:00 the next morning.

The employee testified that when the accident happened he noticed a pain in his back. It began hurting and he became somewhat sick. He said nothing about it to the foreman or anyone else that night, but he did not do much the rest of the night, although he stayed around with the crew with which he was working.

The pain he had in his back immediately after the accident was in the lower part of his back, somewhat between his hips. He had never had pain like that before. It bothered him the rest of the night. He did nothing the following day. The shift on which he was working was off for three days because it had worked longer than its regular time the night he was injured.

When the shift on which employee was working went back on the job employee reported his injury to his foreman. The foreman filled out an accident report and ordered employee to go to Dr. S. C. Slaughter, physician of Fredericktown, Missouri, hired by The Fidelity and Casualty Company of New York, insurer for the Mississippi River Fuel Corporation, to take care of the patients among its employees.

The evidence as to what occurred after employee consulted a physician is conflicting. Employee testified that after the foreman directed him to go to Dr. Slaughter employee went to Dr. Slaughter's office and was examined by him. He said Dr. Slaughter taped his back and told him to come back the next day. He returned to Dr. Slaughter's office the next day, but the doctor did nothing for him at that time and told him to go back to work if he wanted to. He reported to the foreman what Dr. Slaughter had said and went back to work. He said he thought he went back to work the following day.

Employee testified that Dr. Slaughter told him to come back after he started to work and to let him know how he got along and to let him take the tape off. He returned to Dr. Slaughter's office a day or two after he started back to work and told Dr. Slaughter that his pain continued. Dr. Slaughter took the tape off his back and put some more tape on in a different way. He asked employee to report back to him, and employee went back to his office six or eight times. Employee thought that he reported there the last time about May 17th. After what Dr. Slaughter did for him did no good, employee went to Dr. Keith Hull, an osteopathic physician in Fredericktown, who made X-rays of his back on May 11, 1942, and gave him some other treatments.

Dr. Slaughter testified that the employee came to his office on April 24, 1942, and told him that he had an injury at the plant and went to Dr. Barron; that Dr. Barron had taped his back and told him that Dr. Slaughter was the company surgeon and that he should go to him. Dr. Slaughter said that employee had two strips of adhesive across his back which Dr. Barron had put on. Dr. Slaughter testified that employee told him he wrenched his back on April 6th when he was carrying a bale of rags, and about eight days later a cylinder had started to roll off some boxes and he had caught the cylinder and laid it down to break the fall and keep the cylinder from breaking. Dr. Slaughter identified a surgeon's report that he made to The Fidelity and Casualty Company of New York. He testified that upon his examination of employee he found that he had had a strained or sore muscle, the main soreness being on the left side just below the floating ribs. He said he strapped the employee's back longitudinally and laterally and that he saw the employee on four other days after that, namely, April 27th, April 29th, May 2nd and May 4th. He said that on the last date he discharged the employee to resume his former occupation.

After Dr. Slaughter testified, the employee, when recalled, testified that he did not go to see Dr. Barron about his injury before he first called on Dr. Slaughter. He said he had not been injured before the time mentioned and that he did not remember about having tape on his back when he went to Dr. Slaughter, and if any tape was on his back when he went to Dr. Slaughter it had been put on at home.

Dr. Barron did not testify but, by agreement of the parties, he submitted a statement in writing in which he said that employee came to his office about a year and a half before the statement was made on February 3, 1944, and consulted him about some trouble in his back. Dr. Barron stated that he found symptoms of a muscular strain and taped the employee's back and gave him a little medicine for the pain, and told him that since he had been working for the Mississippi River Fuel Corporation to report to Dr. Slaughter who was the physician for the corporation.

Dr. Keith Hull testified that employee consulted him about May 10 or 11, 1942, complaining of pains in the lower back. Dr. Hull said he made an X-ray of employee on May 11th which showed that employee had a posterior dislocation of the ilium on the sacrum which may be caused by excessive lifting, or lifting on a twist, or a sudden strain. He said he had treated employee by manipulation over a period...