Faries v. ACF Industries, Inc.

• Decision Date: 09 December 1975
• Docket Number: No. 36644,36644
• Citation: 531 S.W.2d 93
• Parties: Fred R. FARIES, Employee-Respondent, v. ACF INDUSTRIES, INCORPORATED, a corporation, Employer-Appellant. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 93

531 S.W.2d 93

Fred R. FARIES, Employee-Respondent, v. ACF INDUSTRIES, INCORPORATED, a corporation, Employer-Appellant.

No. 36644.

Missouri Court of Appeals, St. Louis District, Division Three.

Dec. 9, 1975.

Gentry, Bryant & Hereford, Herbert E. Bryant, Stephen M. Hereford, St. Louis, for employer-appellant.

Mogab, Hughes & Green, Inc., Charles A. Mogab, Richard L. Hughes, St. Louis, for employee-respondent.

McMILLIAN, Judge.

Employer, ACF Industries, Inc., (ACF, Inc.) appeals from a judgment of the Circuit Court of the City of St. Louis, affirming the decision and award of the Industrial Commission of Missouri, Chapter 287, RSMo 1969. ¹

On 4 June 1971, respondent, Fred R. Faries, sustained an injury by accident, arising out of and in the course of his employment with ACF, Inc. On 6 September 1972, Faries filed a claim for compensation with the Division of Workmen's Compensation, however, the referee denied compensation on the ground that recovery was barred by the one-year statute of limitation, § 287.430.

On appeal to the Commission, the decision of the referee was reversed. The Commission found, one member dissenting, that the statute of limitation had been tolled by a 17 August 1972 visit to the company doctor and that Faries suffered a 20% permanent partial disability of the left foot at the ankle. Based upon its findings, the Commission mission awarded Faries $1968.50 less a credit of $54.12 for compensation previously paid.

From the transcript these facts are evident: On 4 June 1971, Faries, while working on an upside down flat car and attempting to swing a hoist, stepped on a metal pin about 2 1/2 in diameter. The pin rolled causing Faries to fall and injure his left foot and left leg. He was taken to Lutheran Hospital for x-rays and then returned to the office of Dr. Robert E. Thomasson, the company physician. Dr. Thomasson wrapped the ankle, gave Faries pain medication and crutches, and advised him to use warm soaks. Faries returned to Dr. Thomasson's office on 8 June and 10 June 1971. On 10 June 1971, the doctor advised Faries to return to work on 14 June 1971. The doctor's record indicates that Faries also came for treatment on 15 June and 25 June 1971, but on each of these dates after waiting for a period of time left the office without seeing him.

Then on 17 August 1972, Faries returned to Dr. Thomasson's office. The employee testified that during this visit he was advised by Dr. Thomasson to again use warm soaks for his ankle. Dr. Thomasson unequivocally maintained in his testimony that he neither prescribed medication for Faries on 17 August 1972 nor advised Faries to continue warm soaks. On cross-examination, the doctor admitted, however, that warm soaks would not be an unreasonable treatment if a problem with the ankle persisted. The clinic record entry for this 17 August 1972 visit reads simply:

'There is normal contour and shape of left ankle. Motion of the ankle joint is normal and the employee says there is no pain. There is no partial permanent disability of the left ankle.'

Faries maintains that he still has trouble with this ankle. He testified that he cannot stand on his toes on his left foot, that he has to wear support socks and has trouble wearing low cut shoes, and that if he is on his feet for any length of time or does any lifting, the ankle swells.

In February, 1973, at the request of the employee's attorney, Dr. Jerome F. Levy examined Faries. Dr. Levy found that there was a normal range of motion of the ankle but there was a weakness of 50% in dorsiflexion and plantaflexion of the left ankle. The doctor also testified that an injury such as Faries experienced could exhibit verying levels of tenderness, swelling and weakness from day to day. Dr. Levy rated the disability to Faries' ankle as a 20% permanent partial disability.

ACF, Inc., raises three contentions: (1) the overwhelming weight of the evidence on the record demonstrates, as a matter of fact, that the employee-respondent was not advised to soak his ankle on the 17 August 1972 office visit; (2) even if such advice was given it did not constitute medical treatment so as to toll the statute of limitation; and (3) even if the referee's finding as to the statute of limitation was erroneous, the Commission was without jurisdiction to award disability compensation when the referee had denied all compensation.

We are unable to adopt the ACF, Inc.'s argument at any stage of its logical progression. Consequently, we affirm the judgment of the Circuit Court.

Section 287.430 provides, in part, that:

'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 jury 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. . . .'

In the present case, the injury occurred on 4 June 1971--the claim was not filed until 6 September 1972. Faries' contention, however, is that the 17 August 1972 examination and the advice to continue warm soaks constituted 'medical treatment' amounting to 'payments' under the statute. It is well-established in Missouri that 'medical treatments' are payments under this section and have the effect of tolling the statute of limitation. Morgan v. Krey Packing Co., 403 S.W.2d 668 (Mo.App.1966) and Reichert v. Jerry Reece, Inc., 504 S.W.2d 182, 189 (Mo.App.1973). The treatment need not be within one year of the injury because the rendering of the treatment is deemed to revive the remedy, Welborn v. Southern Equipment Co., 395 S.W.2d 119 124 (Mo.Banc 1965); Silas v. ACF, Industries, Inc., 440 S.W.2d 189, 193 (Mo.App.1969) and Dupree v. Yorkshire Cleaners, Inc., 454 S.W.2d 607, 608 (Mo.App.1970). Therefore, if the employee was advised on 17 August 1972 to take warm soaks for the ankle injury and if such advice constitutes 'medical treatment,' the employee's action is not barred.

ACF, Inc., first mounts a challenge to the factual determination of the Commission that Faries was advised on 17 August 1972 to take warm soaks. As to determinations of fact, our appellate review is fairly limited, see § 287.490. Factual determinations are only to be reversed if clearly contrary to the overwhelming weight of the evidence, Deatherage v. Churchill Truck Lines, Inc., 469 S.W.2d 660, 661 (Mo.App.1971). ² The reviewing court is to apply all favorable inferences in support of the award of the Commission, Saale v. Alton Brick Co., 508 S.W.2d 243 (Mo.App.1974). ³ Applying this standard of review to the present case, we are unable to hold that the factual determination is unsupportable. The weight of the evidence suggested by the ACF, Inc., as militating against the Commission's factual finding consists of the denial by Dr. Thomasson that he gave such advice, the clinic record's lack of an entry reflecting such advice, and some claimed equivocation in Faries' description of the August visit. The evidence to support the finding of the Commission consists of the testimony of Faries that such advice was given, the admission by Dr. Thomasson that the offering of such advice would not be unreasonable for such a medical problem, and the results of an examination by Dr. Levy. It seems that an inference might be drawn from Dr. Levy's assessment of Faries' ankle injury that the injury could well have been bothersome enough to prompt a visit to the doctor in August of 1972.

In our opinion, the factual decision here basically involves an assessment of the credibility of the witnesses. It is part of the Commission's duty to make such credibility judgments, Brown v. Griesedieck Western Brewing Company of Missouri, 250 S.W.2d 803, 809 (Mo.App.1952); McAdams v. Seven-Up Bottling Works, 429 S.W.2d 284 (Mo.App.1968) and Deatherage v. Churchill Truck Lines, Inc., supra, 469 S.W.2d at 661. In the present case, there was no conflicting assessment of credibility by a referee. The referee's decision, which is three lines long, simply found the employee's claim barred by the statute of limitation. Such a finding is ambiguous since it could suggest that the advice to soak the ankle was not, in fact, given or that the advice even if given did not amount to medical treatment so as to toll the statute. Additionally, we note that a credibility determination by the referee is not binding on the Commission, Diebold v. Great Atlantic and Pacific Tea Co., 241 S.W.2d 31, 34 (Mo.App.1951) and Douglas v. St. Joseph Lead Co., 231 S.W.2d 258, 261 (Mo.App.1950).

Once again, we recognize that a reviewing court is not at liberty to substitute its own judgment for that of the Commission and may set aside an award only in the instance where there is not substantial competent evidence to support the award, Webb v. Norbert Markway Construction Co., 522 S.W.2d 611, 614 (Mo.App.1975); Smith v. Plaster, 518 S.W.2d 692, 696 (Mo.App.1975) and Freeman v. Callow, 525 S.W.2d 371, 372 (Mo.App.1975). In the present case, there is substantial competent evidence to support the award. We, therefore, adopt the factual finding of the Commission that the employee was advised in August, 1972, to take warm soaks for his ankle.

ACF, Inc., then argues that even if such advice was given it did not constitute 'medical treatment' so as to toll the statute of limitation. Initially the scope of appellate review of this finding of the Commission might be somewhat different than that previously discussed in connection with the purely factual determination that the advice was given. Under Missouri law:

'(A)wards of the Commission 'which are clearly the interpretation or application of the law, as distinguished from a determination of facts, are not binding upon us and fall within our province of review and correction. . . .''

Merriman v. Ben Gutman Truck Service, Inc., 392 S.W.2d 292, 297 (Mo.1965). See also Williams v. S. N. Long Warehouse Co., 426 S.W.2d 725, 733 (Mo.App.1968) and Williams v....