Gilden v. Dorsa Dresses, Inc.

• Decision Date: 07 April 1942
• Docket Number: No. 26046.,26046.
• Citation: 160 S.W.2d 484
• Parties: GILDEN v. DORSA DRESSES, Inc., et al.
• Court: Missouri Court of Appeals

160 S.W.2d 484

GILDEN v. DORSA DRESSES, Inc., et al.

No. 26046.

St. Louis Court of Appeals. Missouri.

April 7, 1942.

Appeal from St. Louis Circuit Court; Harry F. Russell, Judge.

"Not to be reported in State Reports."

Proceeding under the Workmen's Compensation Act by Joseph Gilden, employee, against Dorsa Dresses, Incorporated, employer, and the Hartford Accident & Indemnity Company, insurer. A referee made an award of compensation. The award was reversed on review by the full workmen's compensation commission and the employee appealed to the circuit court. From a judgment of the circuit court reversing the award of the commission and remanding the cause for further proceedings, the employer and insurer appeal.

Judgment reversed and cause remanded with directions to enter judgment affirming award of the commission.

A. B. Lansing, Moser, Marsalek & Dearing, and J. C. Jaeckel, all of St. Louis, for appellants.

Max M. Librach and Alexander M. Goodman, both of St. Louis, for respondent.

ANDERSON, Judge.

This is an appeal in a workmen's compensation case. Originally the claim was heard before a referee, who made an award of compensation. The award was reversed, upon review by the full commission, who found that the condition complained of by the employee was not caused by an accident arising out of and in the course of his employment. On appeal, the circuit court reversed the final award of the commission and remanded the cause to the commission for further proceedings, assigning in its judgment as reason for its action that "the uncontroverted evidence in the record shows that the claimant sustained an accidental injury arising out of and in the course of his employment, the duration of claimant's disability to be determined by the Missouri Workmen's Compensation Commission." From the judgment of the circuit court, the employer and insurer brought this appeal.

The appellant urges that the record contains competent evidence to justify and support the final award of the commission, and therefore the action of the circuit court in reversing the final award was error. After examining the record we are of the opinion that the point is well taken.

Claimant testified as follows: On September 1, 1940, he was employed as a porter by Sam Werber, president of Dorsa Dresses, Incorporated, who told him to begin work the day after Labor Day. Claimant was hired to sweep the premises and clean up from under sewing tables, at a salary of 35¢ an hour, working from 8 a.m. until 5 p.m., and on Saturday from 8 a.m. until 6 p.m., with a half hour off for lunch. The accident happened on Saturday, September 14th, about 2:30 p.m. In attempting to remove with a stick some scraps of material from under a sewing machine, he struck the right side of the front part of his head against the side of a machine, and he lost consciousness. After coming to, he sat down on a chest. "I was feeling terrible and I took my hand here and it was blood." About this time Sam Levitz, the floor manager, passed and asked him what had happened. When he told Levitz that he had hurt himself, and asked him to look at his head, Levitz said, "That is too bad. Go into the office, in Mr. Werber's office, and put iodine." He put iodine on his head and sat in a chair in the office. About a half hour later Mr. Werber came in. Claimant said nothing to Mr. Werber about the accident, as he was afraid Werber would fire him, claimant having been told by other employees that a man named John had been discharged when he reported being involved in an accident. After that he felt so terrible he could not work, and about 3:30 or 3:45 that afternoon Werber told him to come back to work at 10 a.m., the following Monday. In the meantime Werber had been talking to Levitz. "I felt so dizzy—I was on the second floor and took the elevator and came down. I met a man and asked him to please take me to the Hodiamont street car—because I could not go myself." Thereafter he walked in his house, and his wife asked, "What happened?" He replied that he had had an accident. He then lay down in bed, and his wife called Dr. Wennerman, his family doctor, who came to the house about 6 o'clock that evening. Dr. Wennerman examined him and gave him two different kinds of pills, one for dizziness, and the other to induce sleep. At that time he was feeling so terrible he could not stand. The doctor again called to see him the following Monday and Tuesday, and on Wednesday claimant went to the doctor's office where X-ray pictures were taken. Since then he received treatments from Dr. Wennerman two or three times a week. He was also examined by a Dr. Gitt, who was recommended by Dr. Wennerman, and by two doctors for the insurer.

Claimant further testified that 12 years before the hearing, he was a passenger on a street car which was involved in a collision with a truck. On that occasion he sustained injuries to his head and back and was confined in the Jewish Hospital for three or four days. A suit was filed to recover damages for those injuries, and the suit was later settled for $8,000. At the time of the prior accident he was engaged in the poultry and grocery business, and after the accident he operated a grocery store for 10 years, working from 5 in the morning until 10 at night.

Concerning his condition at the time of the hearing, claimant testified: "I feel terrible. I feel so dizzy—sometimes it happens—for the last couple of days I am going with my wife and all of a sudden, a spell, and she took me home back. * * * I tried two weeks ago to help carry bundles and all of a sudden on the street I have the dizziness and stopped and had to go home." He further testified that he still suffered from dizziness and was unable to sleep during the night or day, and that he had seen Dr. Wennerman the day before the hearing.

Dr. Joseph J. Gitt, a specialist in neurology and psychiatry, testifying for claimant, stated that he examined claimant on November 11, 1940, at which time he secured from claimant a history of his accident, and also a history of the previous accident and medical treatments. Claimant complained of constant headaches, accompanied by dizziness, which varied in intensity and occurred almost daily, and complained further of inability to sleep. Claimant stated to him that in addition to medicine prescribed by Dr. Wennerman, he took a half dozen aspirins a day to relieve him of the headaches, and that he was not able to work. Claimant complained to him of a headache during the entire time he was in his office.

Concerning his examination of claimant, Dr. Gitt testified that physically the patient was intact; he had a definite tenderness through the right frontal region of the skull; the skull was intact except for a definite weakness in the lower portion of the left side of the face upon voluntary motion, and just slightly so upon emotional expression. "Musculature, no change in tone, no clonus. Reflexes: the deep reflexes were active and present. Left abdominals were decreased. Bilateral Gordon present. No Babinski nor Oppenheim were present. The posterior column was intact to vibration and position sense. Cotton and pinprick were perceived. Special senses are intact. Romberg is negative and Gates negative. Blood pressure, 180/110."

The doctor further testified that his clinical diagnosis was that claimant had a cerebral concussion with sequela, post-concussional symptoms and subdural hematoma. In defining "cerebral concussion with sequela" he stated, "this man, due to trauma, he received an injury to a portion of the cerebral hemisphere, and as the result of that injury he has residual symptoms which are those he complains about so bitterly." "Sequela" he testified meant "complications as the result of some traumatic factor that took place at some previous time." By "sub-dural hematoma" he meant a blood clot under the lining of the brain. The blood clot was on the right side, and the effects of it would be manifested on the left side of the body because the cerebral hemisphere controls the function of the side of the body opposite to it.

He further stated that the weakness or sagging to the left side of the lower portion of the face upon voluntary motion was an objective finding which conclusively indicated that the patient had a sub-dural hematoma; the presence of the facial weakness in a lesser degree demonstrated by emotional expression was important because if the man was trying to simulate it, there would be no difference between the voluntary and emotional situation.

He further testified that claimant's blood pressure was 180/110, which was not normal, but indicated a definite increase in the pressure; that while blood pressure like that can cause bleeding in the brain, he did not think it was the cause of claimant's condition, because of the definite story of trauma, unconsciousness, dazed condition, being treated immediately by another doctor, and being under the doctor's care, and his complaints were typical and classical for the sequela to traumatic injuries to the brain. He further stated that in his opinion claimant was not able to work, and that he felt he would not improve in so far as there was a distinct objective evidence of destruction to the brain.

Dr. Samson Wennerman also testified in claimant's behalf. He stated that he saw claimant at the latter's home, on September 14, 1940, and again on September 16th, 17th, and 18th, and then at more or less regular intervals until the date of the hearing. He obtained from claimant a history of the facts regarding the accident, and also a history of the dizziness and sleeplessness since the accident. He made a physical examination and found two small lesions over the right frontal region of the head; the patient complained of tenderness over the entire parietal region; his eyes and mouth were normal. There was a slight asymmetry of the mouth with a tendency to drooping of the left angle of the mouth, and on...