Gavan v. H. D. Tousley Co.

Decision Date21 September 1965
Docket NumberNo. 32018,32018
Citation395 S.W.2d 266
PartiesNorman GAVAN, Employee, Respondent, v. H. D. TOUSLEY COMPANY, Inc., Employer, and Employers Mutual Liability Insurance Company, Insurer, Appellants.
CourtMissouri Court of Appeals

Edward C. Friedewald, St. Louis, for employer and insurer, appellants.

John J. Relles and Ralph Schnebelen, Clayton, for employee, respondent.

DOUGLAS W. GREENE, Special Judge.

This is an appeal by the employer and insurer, hereinafter called appellants, from a judgment of the Circuit Court of St. Louis County reversing an award of the Industrial Commission of Missouri, denying compensation to claimant-respondent, who had filed for additional compensation, alleging a change in condition, pursuant to Section 287.470 RSMo 1959, V.A.M.S.

Respondent's initial claim was based on an injury to his back arising out of an accident that occurred October 16, 1958, in the course and scope of his employment. Shortly thereafter, he came under the care of Dr. Harold Walters for treatment of his back. Respondent stated that he felt severe pain in the low back towards the left leg at the time of the accident. He continued working, but could not straighten up because of pain for two weeks following the occurrence. He told Dr. Walters that he had pain in the left hip, buttock, and groin. Dr. Walters found tenderness over the left sacroiliac joint, and mid-left buttock area. In 1959, he found straight leg raising caused pain at 75~ of horizontal. His diagnosis was strain of the left sacroiliac with possible tearing of ligaments. Dr. Hampton examined respondent for employer in January, 1959, and reported tenderness in the L 4-5 region, but gave no disability rating. As a result of a hearing, the referee, on November 30, 1959, entered an award, finding that respondent sustained an accidental injury on October 16, 1958, arising out of and in the course of his employment, resulting in 5% permanent partial disability of his body as a whole, referable to his left sacroiliac region. This award was affirmed by the Commission, and on appeal by the Circuit Court. In 1961, the respondent filed a motion for additional compensation based upon a change in condition under Section 287.470 RSMo 1959, V.A.M.S. A hearing was held before the Commission on July 29, 1963, at which time the following evidence was introduced.

After the original award, the pain in respondent's back increased. In 1960, he lost about 30 days work because of increased pain in his back. This was the same area that had previously bothered him. In 1961, prior to June 17 of that year, he only worked slightly over one hundred hours. This loss of work was due to increased pain in his back and hip. The pain was in the same area, but it increased in severity. He finally went to Dr. Walters who had examined and treated him in 1958 and 1959. He was examined by Dr. Walters on June 17, 1961. Dr. Walters found tenderness in the soft tissue in the lower part of his back at the region of the first sacral vertebra. The motion of his back was limited to thirty degrees of flexion, and about five degrees of lateral bending and extension. The left ankle jerk was found to be more sluggish than the right. Respondent complained that he was having recurring severe low back pain. The sluggish left ankle jerk and limitation of motion had not existed on previous examinations.

At that time, June 17, 1961, Dr. Walters referred respondent to Dr. Jacques Schaerer, a neurosurgeon. Dr. Schaerer performed a myelogram on respondent on July 3, 1961. His examination of respondent revealed that he walked with a slight limp, with a list to the left; that his ability to bend forward was limited; there was pain going into his left buttock on pressure, and diminished sensation in his left leg. The myelogram findings were compatible with a herniated disc between the fourth and fifth lumbar spaces. Surgery was performed on July 5, 1961. His recovery from surgery for removal of the disc was uneventful and, after discharge, he was seen again by Dr. Shaerer on February 19, 1963. Respondent was walking without limping, could touch his ankles with his fingertips where he could previously touch his knees, his reflexes were normal and he had no areas of diminished sensation. He did have discomfort when he stood up straight, and was unable to do heavy work like shoveling or pulling cement with a straight edge. Dr. Schaerer was of the opinion that respondent's permanent partial disability after the accident was twenty-five percent of the man as a whole. The charges for the operation, including myelogram, were $900.00, and such charges were reasonable. Dr. Walters saw respondent again in 1963. He had a well-healed scar in the middle of his back along his spine. X-rays revealed that a disc had been removed between the fourth and fifth lumbar space. There was no muscle spasm, and the motion of his back was within normal limits. Dr. Walters rated respondent's permanent partial disability at that time as twenty percent of the man as a whole. In Dr. Walters' opinion, respondent was permanently unable to do heavy work, or to engage in twisting or turning activities. Respondent had no injuries to his back between the time of the original accident, October 16, 1958, and the date of the hearing on change in condition, which was held July 29, 1963. None of the foregoing testimony was disputed.

In addition, in answer to a hypothetical question, assuming the relevant facts in evidence as heretofore stated as true, Dr. Walters was of the opinion that respondent's disability immediately before the operation was a result of the accidental injury of October 16, 1958, and that there was a direct causal relationship between his disability at the time of the hearing on change of condition and the 1958 accident. Dr. Walters found no objective findings of disc involvement in 1958 or 1959, but did in 1961. He testified the left sacroiliac region was approximately two inches from the spot where the operation took place. Dr. Schaerer, in answer to a hypothetical question assuming the relevant facts previously stated, was of the opinion that the condition for which he operated on respondent was the direct result of the October 1958 injury; that pain in the left sacroiliac area, and over the left hip, was directly connected with the disc, and the proof of the matter was when the disc was removed, the pain in the sacroiliac area disappeared. He further stated that the degeneration of the disc was progressive, which was compatible with respondent's history of complaints of pain that grew steadily worse. Appellants' witnesses were two doctors, neither of whom had ever seen the respondent. Dr. A. H. Diehr testified,...

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9 cases
  • Odum v. Cejas
    • United States
    • Missouri Court of Appeals
    • May 17, 1974
    ...281 S.W.2d 863, 870(9) (Mo.1955); Hunter v. St. Louis Southwestern R. Co., 315 S.W.2d 689, 696(6) (Mo.1958); Gavan v. H. D. Tousley Co., 395 S.W.2d 266, 270(7) (Mo.App.1965). In the situation under consideration, maintenance of adequate urinary drainage was the very essence of postoperative......
  • De Victoria v. H and K Contractors, 5594
    • United States
    • Hawaii Supreme Court
    • January 22, 1976
    ...Board, other than that relating to claimant's knees, having prejudiced his substantial rights, must be set aside. Gavan v. H. D. Tousley Company, 395 S.W.2d 266 (Mo.App.1965). Reversed in part and remanded for further proceedings not inconsistent with this KOBAYASHI, Justice (concurring and......
  • Barr v. Vickers, Inc.
    • United States
    • Missouri Court of Appeals
    • February 18, 1983 so that an answer is of assistance to the trier of fact. Odum v. Cejas, 510 S.W.2d 218, 222 (Mo.App.1974); Gavan v. H.D. Tousley Company, 395 S.W.2d 266, 270 (Mo.App.1965). It appears to us that the question sufficiently set forth the relevant facts of claimant's Defendant also contend......
  • Haynes v. Emerson Elec. Co.
    • United States
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    ...job because the driver constantly faces traffic did not disqualify Dr. Davidson's answer as substantial evidence. Gavan v. H.D. Tousley Co., 395 S.W.2d 266, 270 (Mo.App.1965). Sub-point A is without Sub-point B argues Dr. Davidson's testimony was not substantial evidence because he complete......
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