Garrison v. Campbell '66' Exp., Inc., 7584

• Decision Date: 11 December 1956
• Docket Number: No. 7584,7584
• Citation: 297 S.W.2d 22
• Parties: Lee Roy GARRISON, Plaintiff-Respondent, v. CAMPBELL '66' EXPRESS, Inc., Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 22

297 S.W.2d 22

Lee Roy GARRISON, Plaintiff-Respondent, v. CAMPBELL '66' EXPRESS, Inc., Defendant-Appellant.

No. 7584.

Springfield Court of Appeals, Missouri.

Dec. 11, 1956.

Stanley P. Clay, Joplin, for defendant-appellant.

Sylvan Bruner, Morris Matuska, Pittsburg, Kan., Watson, Richart & Titus, Joplin, for plaintiff-respondent.

STONE, Judge.

In this proceeding under the Missouri Workmen's Compensation Law, the referee in the first instance, and thereafter the Industrial Commission of Missouri on review, awarded to Lee Roy Garrison, the claimant, for permanent total disability $35 per week for 300 weeks and thereafter $18 per week for the remainder of his life, subject to a credit of $610 for compensation previously paid by Campbell '66' Express, Inc., the employer and self-insurer. Following affirmance by the circuit court, the employer again appeals. Our appellate jurisdiction rests on the theory that, since a contingency exists under which the employer's liability might be terminated before payments aggregating more than $7,500 accrue [Section 287.230(2), RSMo 1949, V.A.M.S.], it cannot be said with certainty that the amount in dispute, independent of all contingencies, exceeds that sum. Crow v. Missouri Implement Tractor Company, Mo., 292 S.W.2d 573; Hogue v. Wurdack, Mo., 292 S.W.2d 576.

The accident, out of which this claim arises (hereinafter referred to as the 1954 accident), occurred on February 18, 1954, when one of the employer's delivery trucks, then being driven by claimant on a 'narrow black-top' road in Newton County, Missouri, ran over an embankment and overturned, making 'one complete turn' and coming to rest on its wheels. In claimant's words, 'the steering wheel hit me in the chest, the top hit me in the head, and the seat hit me in the low part of my back.' According to claimant, 'I hurt in my chest and head and * * * low part of back' and 'the longer I stayed there (at the scene of accident) the more addled I got.' Taken by automobile to St. John's Hospital in Joplin, claimant was examined by Dr. W. W. Hurst, called by the employer, and x-rays, read as essentially negative, were made of the dorsal or thoracic spine. After a few hours in the hospital, claimant went home where, for 'a week or two,' he was in bed 'most of the time' with intermittently severe pain in his chest, neck and lower back, and down the backs of both legs but 'worse in the right leg.' Claimant was given 'intensive physiotherapy' at the office of Dr. Hurst; but, 'when it was time for him to return to work he began to complain of pain in the low back,' so x-rays were taken of the lumbo-sacral spine on March 24, 1954, which Dr. Hurst interpreted as reflecting 'an ancient injury' but 'no indication of recent fracture.' After further physiotherapy, claimant was discharged on April 23, 1954, as physically able to return to light work; but, Dr. Hurst reported to the employer three days later that 'he (claimant) is still not emotionally and mentally qualified to drive on the highways'--'he is able to do light work but on account of his congenitally deformed back, he will constitute an industrial hazard.' 'Dock work' was offered by the employer but claimant did not undertake it because, as he stated, 'I wasn't able'--'hurt in my back so bad and my neck.'

Claimant had no medical treatment or employment after his discharge by Dr. Hurst on April 23, 1954. At the hearing on February 7, 1955, claimant testified that he still had 'sharp, severe pain' in his back, radiating down both legs but 'the right one is worse,' and similar pain in the back of his neck, radiating into his left arm, with a burning sensation between his shoulders. He could not lie on a pillow at night. Two or three times each week, his right leg 'feels like it has needles in it,' while at other times his legs and feet became numb. When driving his own half-ton pickup on two occasions (on dates not fixed in the record but after the 1954 accident), claimant 'got a burning down my back' and a 'hurting' into both buttocks, and 'my right foot would get so I did not have no use of it, needles in it, like going to sleep, so I quit driving.' Claimant has a sixth-grade education and throughout his life has followed 'grade work, truck-driving.'

Although, at the time of hearing, the employer sharply disputed not only the cause but also the nature, extent, and duration of claimant's disability, there is no contention on appeal that claimant is not permanently and totally disabled but the employer's sole complaint here, i. e., that the referee, Industrial. Commission and circuit court 'erred in failing and refusing to invoke or apply the second injury fund' [Section 287.220(1), as amended Laws of 1953, p. 524], ¹ goes to the cause of claimant's disability. In substance, the employer insists that 'the disabilities from which he (claimant) now suffers' were caused by injuries sustained (1) in an accident near Jennings, Louisiana, on October 14, 1937 (hereinafter referred to as the 1937 Louisiana accident), when a tractor driven by claimant slipped into a 3-foot ditch which was being filled and, with 'his left foot caught in the clutch lever,' claimant was thrown out of his seat (but not off the tractor) and his body was 'twisted,' (2) in an accident near Bristow, Oklahoma, on December 8, 1937 (hereinafter referred to as the 1937 Oklahoma accident), when, as claimant stepped between a rear wheel and the gasoline tank to straighten up pipe being loaded onto a truck, the driver started the truck without warning, threw claimant to the ground, and ran over him, and (3) in a vehicular accident during 1940 (hereinafter referred to as the 1940 accident) when claimant's head was thrown against the rear glass of the cab of the pickup he was driving.

Having found it apparent that the purpose of Section 287.220(1) is to prevent duplication of compensation for disabilities, our appellate courts have declared that compensation for the last injury should be limited to the extent that it enhances or adds to disability already existing. But, it is equally clear and wellsettled, as a necessary corollary, that the provisions of Section 287.220(1) may be invoked only in those cases where disability exists at the time of the last injury, and that this statute does not apply where a previously-injured employee has recovered completely prior to such last injury. Burgstrand v. Crowe Coal Co., 333 Mo. 43, 62 S.W.2d 406, 408-409(5-7); Komosa v. Monsanto Chemical Company, Mo.App., 287 S.W.2d 374, 377(5); Fuytinck v. Burton W. Duenke Building Company, Mo.App., 280 S.W.2d 449, 455-456. So whether, at the time of the 1954 accident, claimant had any pre-existing disability became the determinative issue in the instant case. On this issue, which was one of fact [cf. Special Indemnity Fund of State v. Dickinson, 208 Okl. 39, 253 P.2d 161, 162(1); Special Indemnity Fund of State v. Keel, 196 Okl. 315, 164 P.2d 996], the triers of the facts, i. e., the referee in the first instance and the Industrial Commission on review, found against the employer, the specific finding of the Commission being 'that the employee did not have any previous disability existing at the time of this accident on February 18, 1954.'

For the purpose of this opinion, we assume (without, however, determining) the evidentiary competency of an authenticated transcript of the proceeding before the State Industrial Commission of Oklahoma (hereinafter referred to as the Oklahoma transcript), in which claimant sought additional compensation on account of the 1937 Oklahoma accident. From the medical testimony at a hearing on May 11, 1938, as included in the Oklahoma transcript, it appears that claimant had sustained a fractured ankle, a compression fracture of L-4, and a fracture of the transverse process of L-5 on the left side, but that the Oklahoma physicians were in sharp and irreconcilable disagreement with respect to not only the nature, extent and duration of claimant's disability but also the cause of the back condition. Dr. J. O. Lowe of Tulsa, claimant's attending physician selected by the then employer and insurer, said that claimant had not complained of pain in his back for more than two months after the 1937 Oklahoma accident, expressed the definite opinion that claimant's back condition was due to the earlier 1937 Louisiana accident, and thought that, when he last examined claimant on April 14, 1938, 'he (claimant) was in pretty fair shape'--'he could move his back freely in all directions.' Claimant was reported to have said that 'he could return to work as far as his back was concerned.' On the other hand, Dr. J. E. Brogden of Tulsa, whose single examination of claimant was conducted on April 9, 1938, said that 'the healing period' as to the back had not ended, advised hyper-extension of the back for three to six months, and thought that, although 'there is a possibility of him getting all right like he is, there is still greater possibility and probability that he may have a permanent disability.' With respect to claimant's fractured ankle which, according to Dr. Lowe, was still swollen and had not attained its maximum degree of recovery, Dr. Lowe was 'rather inclined to think' that there would be some permanent partial disability which would 'probably run about ten to fifteen per cent,' while, in contrast, Dr. Brogden said that 'I don't think there will be any disability of the ankle.' Nothing in the record indicates what, if any, further medical treatment was given to claimant following the Oklahoma hearing on May 11, 1938, which, incidentally, was on claimant's application to change physicians.

Pursuant to 'joint petition' of claimant and his then employer and insurer filed on September 12, 1938, in which it was recited, among other things, that claimant had 'sustained an injury to his right foot,' the Oklahoma Commission entered an order on the same date approving payment of $2,162.04 under Section...