Fogelsong v. Banquet Foods Corp.

• Decision Date: 04 August 1975
• Docket Number: No. KCD,KCD
• Citation: 526 S.W.2d 886
• Parties: J. Elwood FOGELSONG, Respondent, v. BANQUET FOODS CORPORATION, Appellant. 27458.
• Court: Missouri Court of Appeals

Page 886

526 S.W.2d 886

J. Elwood FOGELSONG, Respondent, v. BANQUET FOODS CORPORATION, Appellant.

No. KCD 27458.

Missouri Court of Appeals, Kansas City District.

Aug. 4, 1975.

Motion for Rehearing and/or Transfer Denied Sept. 2, 1975.

Charistian F. Stipp, Stipp & Ferguson, Carrollton, for appellant.

David P. Macoubrie, Cleaveland & Macoubrie, Chillicothe, for respondent.

Before SWOFFORD, P.J., and ROBERT R. WELBORN and ANDREW J. HIGGINS, Special Judges.

ANDREW J. HIGGINS, Special Judge.

Appeal by employer from that part of judgment affirming award of the Industrial Commission of Missouri to employee of $18,720 permanent partial disability of ninety per cent of his body as a whole (360 weeks at $52.00 per week). Appellant concedes employee's permanent partial disability to the extent of 50 per cent of the right arm at the elbow (105 weeks at $52.00 per week--$5,460), but contends the evidence is not sufficient for permanent partial disability of ninety per cent of the body as a whole.

Employee's claim for compensation alleged:

'11. Parts of body injured. Right hand, arm, elbow, shoulder, neck, low back, nerves, eyes bothersome since accident, possible brain injury.

'14. Exact nature of any permanent injury. Right hand, arm, elbow, right shoulder, cervical and lumbar area of spine, highly nervous, eye difficulty, possible brain injury.'

It was stipulated at the hearing on employee's claim: that on May 30, 1969, employee, while in the employ of employer, suffered an accident arising out of and in the course of his employment and sustained an injury as a result; that the compensation rate is $57.00/$52.00; that compensation had been paid employee by employer for temporary total disability for thirty-four weeks in sum $1,938.00, medical aid in sum $3,565.15, medical expenses in sum $668.00, and travel expenses in sum $1,324.20; that prior to May 30, 1969, employee had a 10 per cent permanent partial disability to the body as a whole as a result of a prior injury sustained by employee to his back while in the Armed Forces. ¹

Jesse Elwood Fogelsong, born August 10, 1933, went to work for Banquet Foods Corporation at its plant in Carrollton, Missouri, in March 1969. On May 30, 1969, he slipped on a piece of meat, fell to the floor and against a turning augur. The augur caught his right arm and continued to turn, jerking him during such turning. The augur was subsequently stopped, but about forty-five minutes passed before his arm could be freed. When he fell, Mr. Fogelsong grabbed the augur casing with his left hand, at which time he hit his head on the casing. He had a sore spot on the left side of his head the next day and had a severe headache the second day after the accident. He experienced speech problems shortly after the accident when he arrived at a Kansas City hospital later in the day. None of these conditions existed prior to the accident. Fellow employees at Banquet experienced difficulty in removing Mr. Fogelsong from the augur because it was straining him up rather than pulling off his arm. His body was placed inside the caising and a jackhammer was used in the course of his release. The jackhammer made a deafening noise, producing an unbearable situation.

From 1957 to March, 1969, Mr. Fogelsong worked for Thomas Houston Peanut Company as a salesman. He worked regularly and had no physical difficulties in performing his work. He was hospitalized in July and September, 1959, but since 1960, up to May 30, 1969, worked regularly, met the public, had no speech or physical difficulties, no seizures, blackouts or mental or emotional difficulties. He performed whatever work was required of him and was in no way hampered by the service-connected back injury. He was examined by the company doctor, Jack L. Vinyard, M.D., May 19, 1969. Dr. Vinyard's report noted that Mr. Fogelsong, while in service, had surgery to the right side of his head and that he sustained a low back sprain. Dr. Vinyard found him acceptable for unlimited employment and noted that he had no residual neurological or orthopedic disfunction.

Mr. Fogelsong has undergone five surgeries on his right art. He has jerking in his neck and left eye. He cannot remember well, cannot concentrate, has difficulty thinking and talking, and has experienced several seizures since his accident. None of these conditions existed between 1960 and May 30, 1969. He has tried to work on a tank truck in Chillicothe, but could not find his way around or think where to go. He cannot talk or work and he cries when he tries to talk. He had no emotional or mental difficulties between 1960 and May 30, 1969, but, since his accident, his mental and emotional condition has deteriorated. Neither of the service injuries to his back and head hindered him from performance of his work at Banquet. He was honorably discharged from the service.

Mr. Fogelsong experienced convulsions and blackout spells between 1953 and December, 1959. He also bit his tongue on two occasions and had smelled foul odors. In 1959 he was treated with Dilantin and underwent a right parietal craniotomy at the Veterans Hospital for possible progressive hemiparesis. No tumors were found and he was discharged from the hospital in December, 1959. He had no further treatment for any such condition up to and including May 30, 1969. Since his accident he has had to resume various medications and does have various muscle weaknesses.

Wilma P. Fogelsong has observed the changes in her husband's condition. Prior to May 30, 1969, he was of a happy disposition, met the public, and was active in school and church affairs. He had no speech difficulties prior to May 30, 1969, in his sales job with the Houston company. Also prior to May 30, 1969, he had a business involving three trucks and supervision of twenty people. On May 31, 1969, when she visited her husband at the hospital, he tried to tell her what happened. She could not understand him and she called Dr. Overesch who also noted the speech problem. His speech problem and nervous condition have worsened; he relieves the accident, has nightmares about it, and sleeps about two hours at a time. He is unable to work. He stays in the house, and when he has bad spells, he shuts himself away from the children. Mrs. Fogelsong was aware of the conditions treated and operated by the Veterans Hospital in 1959, after which her husband's condition improved as predicted by the Veterans Hospital doctor.

Reverend John Gooding knew Mr. Fogelsong between June, 1958, and 1965 when he was pastor of the Liberty Methodist Church in Chillicothe. He knew Mr. Fogelsong as an excellent church worker possessed of stable personality and emotions. He had no speech defect and was not introverted. Reverend Gooding visited with Mr. Fogelsong two or three times after the accident of May 30, 1969, and noted the quick deterioration in his friend's emotional and physical condition.

In addition to observation of the employee during his testimony, the referee, upon request, made specific observations for purpose of disfigurement, at which time the referee also received a picture of the extent of employee's disability.

Immediately following the accident, Mr. Fogelsong was examined and treated by Dr. Vinyard, who also referred and transferred him by ambulance to Research Hospital in Kansas City for treatment by Harry B. Overesch, M.D., a specialist in orthopedics. Dr. Vinyard described employee's injury as 'severe deep laceration involving the right wrist joint through the joint on the palmer surface, severing tendons, blood vessels and nerves * * * additional deep lacerations involving the forearms to the bone with deep lacerations involving the muscle bodies and at the elbow.' He administered shock therapy and tied off the bleeding arteries.

Dr. Overesch first saw Mr. Fogelsong in the emergency room at Research Hospital on May 30, 1969, where he was taken to surgery and the lacerations and wounds were scrubbed and irrigated and surgically repaired. He remained at Research until June 14, 1969, during which time he was placed on antibiotics and splints were made for his right upper extremity. The splints were changed along with dressings on two occasions. He was dismissed to the care of Dr. Vinyard. Dr. Overesch saw his patient again August 20, 1969, and March 1, 1972. In the interim, Mr. Fogelsong had been to Dr. Chandler, a plastic surgeon, for further surgery and rehabilitation of his right hand. On March 1, 1972, Dr. Overesch again noted Mr. Fogelsong to have a severe speech impediment as well as epileptic-type seizures for which he had seen two neurologists and had been taking Dilantin. He was also noted to show marked depression and deterioration since previous observation.

Upon hypothetical questions, it was the opinion of Dr. Overesch that the disability as a result of the injury May 30th to the arm 'would be in the neighborhood of approximately 50 percent of the right upper extremity at or above the elbow.' Dr. Overesch was also of the opinion that his patient's condition as noted March 1, 1972 and since, was 'aggravated by the accident of May 30th, 1969 * * * that he has a permanent disability, total disability.'

R. Allen Chandler, M.D., a specialist in plastic, reconstructive, and hand surgery, examined Mr. Fogelsong September 3, 1969, and subsequently performed recommended surgery. He was of the opinion that Mr. Fogelsong would have 'a considerable amount of permanent partial disability.' Specifically,...