Douglas v. St. Joseph Lead Co.

• Decision Date: 20 June 1950
• Docket Number: No. 27862,27862
• Citation: Douglas v. St. Joseph Lead Co., 231 S.W.2d 258 (Mo. App. 1950)
• Parties: DOUGLAS v. ST. JOSEPH LEAD CO.
• Court: Missouri Court of Appeals

Page 258

231 S.W.2d 258

DOUGLAS v.ST. JOSEPH LEAD CO.

No. 27862.

St. Louis Court of Appeals, Missouri.

June 20, 1950.

Motion for Rehearing or to Transfer to Supreme Court Denied

July 18, 1950.

W. Oliver Rasch, Bonne Terre, for appellant.

J. W. Thurman, Hillsboro, for respondent.

McCULLEN, Judge.

Orvil C. Douglas, hereinafter referred to as employee, filed his claim for compensation before the Division of Workmen's Compensation on April 7, 1947, based on an injury alleged to have been sustained by him on September 29, 1945, while he was an employee of St. Joseph Lead Company, hereinafter referred to as employer.At a hearing before a Referee of said Division evidence on behalf of the employee and on behalf of the employer was presented and thereafter the Referee made a finding that the employee had sustained a permanent injury to the extent of 40% permanent partial disability of the left foot at the ankle, and awarded him $20 per week for 62 weeks as compensation.The employee thereafter applied for and was granted a review by the Industrial Commission which tribunal found that the employee had sustained 60% permanent partial disability of the left foot at the ankle and awarded him compensation for 93 weeks at $20 per week, amounting to $1,860, subject to a credit of $631.43 for compensation theretofore paid by employer.The employer then appealed to the Circuit Court of St. Francois County where a judgment was rendered affirming the award of the Industrial Commission.From said judgment of the Circuit Court the employer duly appealed to this court.

It is admitted that employer was a major employer and that both employee and employer were operating under the provisions of the Missouri Workmen's Compensation law; that the employer's liability under said law was fully insured; that on or about September 29, 1945, employee sustained an accident arising out of and in the course of his employment; that employer had due notice of the accident and injury and that employee's claim was filed within the time prescribed by law; that the average weekly wage of employee was in excess of $30; that compensation in the sum of $631.43 had been paid to employee and that medical aid had been furnished to him in the amount of $1,621.85.

Counsel for the parties are in agreement in stating in their respective briefs that 'The only issue in the case was the nature and extent of the disability sustained by employee as a result of the accident.'

It appears from the evidence that on September 29, 1945, while employee was engaged in his work for employer at Desloge, Missouri, his heel was caught between a trolley motor and an empty ore car; that the injury he sustained was to the soft tissue of the bottom pad or plantar surface of the left heel; that there was no injury to the bone or any other part of the foot.A skin grafting operation was performed on employee's left heel by Dr. Frank McDowell a short time after the accident.

Employee testified that his left heel is tender; that if he stands on his feet three or four hours a day his arch gives him considerable trouble; that he is wearing a special shoe and has worn it since the injury; that most of his weight is borne on the instep; that he cannot stand any weight on the heel when he is barefooted but is required to walk on the ball or front part of his foot.During the hearing the Referee examined employee's foot and shoe.

Dr. John F. Rutledge testified on behalf of employee that on May 8, 1948, he examined employee at his office and found that his left heel was covered by skin graft, about two inches by four inches in size, which covered the weight bearing portion of the heel; that the skin was a thin covering of the heel bone unsuited to stand the strain of weight bearing even though the skin graft had been successful; that employee was wearing at the time a special shoe which threw the weight on his arch and caused a painful arch; that for the purpose of weight bearing employee had lost the use of his left heel; that the condition was probably even worse that if he had an artificial foot so far as weight bearing was concerned; that the special shoe the worn by employee was built up in the instep so that the weight normally thrown on the heel bone would be thrown on the instep; that he could feel the bone irregularities of employee's heel through his skin and that subcutaneous fat is not a substitute for the normal, tough heel pad; that employee could not wear a normal shoe and be on his feet; that employee has a total disability for a working man whose weight bearing is the essential function of the heel bone; that from the standpoint of the man's ability to work he would be better off if the foot were removed at the ankle joint.

Dr. Rutledge further testified that employee's foot as it is is of no use to him for weight bearing; that employee could drive a car and operate machinery that would require the use of the fore part of his foot, but that he could not walk very much or very far without pain because the arch of the foot is not constructed for weight bearing; that the arch may be all right now but will be weakened by weight bearing which is not a normal function for the arch; that employee would probably be better off in walking with an artificial foot than with the foot he now has; that in running, the heel bears no weight but in standing it bears practically all of the weight; that in walking, the heel bears no weight but in a standing position the heel would bear at least 90% of the weight.

Dr. Harry M. Roebber testified on behalf of the employer that he examined employee on June 29, 1948, and found that graft pad had been substituted for the injured heel pad; that the grafted skin and tissue under the skin appeared to be healthy; that there was tenderness present in the heel pad on pressure; that there was no restriction of motion in the foot and ankle and there was no bone injury; that the skin graft covered at least 2/3 of the medial surface of the heel and uninjured normal skin on the lateral portion of the heel.The witness gave it as his opinion that the heel would hurt if the employee walked in a normal shoe.

Dr. Roebber further testified that 1/3 or less of the total weight borne by the foot is borne by the heel.He gave it as his estimate that employee had lost 30% of the use of the foot from the ankle joint down; that most of the weight bearing facilities which employee had prior to his injury are gone.

In a deposition introduced by employer, Dr. Frank McDowell of St. Louis testified that he specialized in plastic surgery; that he treated employee and replaced his left heel pad with a flap of skin and fat taken from the top of his thigh in November 1945, and that the skin grafting was done in a series of three operations over a period of 21 days; that he saw employee in November 1946, at which time he was completely healed and was walking; that he recommended the employee should be able to work at any job which did not require him to be on his feet most or all of the time; that employee's condition was the same in June 1948; that employee should wear an arch support to keep his weight off his heel or else keep a rubber cushion under the heel in the shoe; that employee could walk as much as a mile a day without the arch support; that there will be no change in his condition; that it is stationary; that employee is better off with his foot than with an artificial foot; that with an artificial foot the weight would be borne on the ankle; that in the opinion of the witness employee is disabled 30 to 40% at the ankle.

We agree with employer's counsel that this court is authorized to determine upon the whole record whether the Industrial Commission could reasonably have made its findings and reached its result from the evidence, and that we have authority to set aside decisions clearly contrary to the overwhelming weight of the evidence.Constitution of Missouri, Article V, Section 22, Mo.R.S.A.;Wood v. Wagner Electric Corporation, 355 Mo. 670, 197 S.W.2d 647;Seabaugh's Dependents v. Garver Lumber Mfg. Co., 355 Mo. 1153, 200 S.W.2d 55;Evans v. Farmers Mut. Hail Ins. Co. of Mo., Mo.App., 217 S.W.2d 705.

We are unable to agree, however, with employer's contention that 'The evidence shows, without any substantial dispute, that respondent's disability does not exceed 40% of the foot at the ankle, as found by the Referee.'Employer strongly urges that the Circuit Court erred in affirming the final award of the Industrial Commission because the Commission passed on the credibility of the witnesses without deference to the findings, involving the credibility of the witnesses, made by the Referee before whom most of the witnesses gave their testimony.Employer argues that the credibility of the witnesses is a matter to be passed on solely by the Referee before whom they appeared and testified.We are of the opinion that employer's contentions cannot be sustained upon any reasonable view of the statutes governing Workmen's Compensation claims.

If we were to hold that the findings of a Referee must be deferred to, it would be equivalent to holding that the Referee is the supreme authority and that his findings are binding upon the Commission and on the Circuit Court as well as upon this court merely because the witnesses in such a case as this appear before the Referee but do not appear before said reviewing tribunals.A mere reading of the statutes governing Workmen's Compensation shows that the duties and scope of authority of Referees are positively defined and clearly limited.They are merely the servants and agents of of the Commission.To adopt employer's view would make referees the masters of and superior to the Commission.Neither the statutes nor the decisions of our courts warrant such a view.

In Section 3747 R.S.Mo. 1939, Mo.R.S.A. Section 3747, which authorizes the appointment of referees and gives them jurisdiction to hear and...