Gordon v. Chevrolet-Shell Division of General Motors Corp.
| Decision Date | 18 May 1954 |
| Docket Number | No. 28876,CHEVROLET-SHELL,28876 |
| Parties | GORDON v.DIVISION OF GENERAL MOTORS CORP. |
| Court | Missouri Court of Appeals |
Harlan & Harlan, John L. Harlan, Sr., Clayton, for appellant.
Milton R. Fox, Julius H. Berg, St. Louis, for respondent.
This is a proceeding under the Workmen's Compensation Law, Sections 287.010-287.800 RSMo 1949, V.A.M.S. The appeal is by the employer, Chevrolet-Shell Division of General Motors Corporation, from the judgment of the Circuit Court of the City of St. Louis affirming an award in favor of the employee, Bennie W. Gordon.
The claim for compensation alleged injuries to claimant's back, left leg, and ankle, sustained December 20, 1951, as a result of a fall. The employer, a self-insurer, in its answer, denied each and every allegation in said claim.
There was a hearing before a referee of said commission which resulted in an award in favor of the employee for permanent partial disability in the sum of $30 per week for eighty weeks, said payments to begin as of December 21, 1951. The award was based upon a finding that the employee had suffered a twenty per cent. permanent partial disability. Upon application for review, the Industrial Commission affirmed the award of the referee, and entered a final award in favor of claimant. The final award, as heretofore stated, was affirmed by the Circuit Court.
It was admitted at the hearing before the referee that Bennie W. Gordon was, on December 20, 1951, an employee of Chevrolet-Shell Division of General Motors; that both parties were subject to the provisions of the Missouri Workmen's Compensation Law; that the employer had notice of the employee's injury; that the claim was filed within the time prescribed by law; and that the average weekly wage of the employee was in excess of $42.50. The disputed fact issues were: (1) whether the employee sustained a compensable injury on December 20, 1951; and (2) if such injury was sustained, the nature and extent of disability resulting therefrom.
Claimant at the time of the hearing was twenty-nine years old, and was at the time of the alleged accident and injury employed as a 'nicker' operator in appellant's plant. The duties of such an operator were to make cuts or nicks in bars of steel by the use of an electric torch. The bars of steel, four inches wide, are moved on a conveyor, past the nicking machine. The operator of said machine stands on a platform located at the side of the conveyor and, in making the operation, moves a lever which causes the steel bar to stop and a torch to burn a cut into the steel. The lever is then moved, a button pressed, and the steel bar again moved forward until a point is reached where another cut is desired. The steel bars come into the shop on a cross-conveyor and are delivered to the conveyor which carries them past the nicking machine. During the operation a steel bar will occasionally get stuck or caught, making it necessary for someone to straighten it so that the bars will move forward on the conveyor. This is usually done by a material handler.
On Thursday, December 20, 1951, at about 9:30 a. m., while claimant was engaged in operating his machine, several of the steel bars became stuck. There was no material handler present at the time, whereupon claimant himself attempted to remedy the situation. He testified that he jumped off the platform on which he was standing, took a crowbar, got up on the main conveyor and attempted to pry the bars apart. He stated that as he was doing this he lost his balance and fell to the floor, a distance of approximately six feet, striking his back and left leg against a part of the machinery as he fell. Mr. Huber, the general foreman, immediately came up to claimant and inquired if he was hurt. According to claimant, Mr. Huber, just prior to the fall, was standing in front of claimant's machine talking to him and calling his attention to the bars that were stuck. By the time Huber arrived claimant had arisen from the floor and, in reply to Huber's inquiry, stated that he did not think he was hurt. Claimant did not tell Huber he had fallen, but had assumed that Huber had seen him fall.
Claimant further testified that, thereafter, he continued working, but after a few moments felt pain in the lower part of his back, a little below the belt line, and pain in his left leg. He told Huber about this and the latter sent someone to relieve him. Claimant then reported at the dispensary.
Huber testified that he was standing at the time about six feet northeast of the machine claimant was operating, and that the actual distance from the floor to the top of the main conveyor was forty-four and one-half inches. With steel on the conveyor, the distance from the floor was forty-eight inches.
Huber is six feet tall, and from where he was standing he was able to see the floor on the opposite side. He stated that claimant stood on the steel on top of the conveyor and straightened the steel bar with a pinch bar. After doing so, claimant stepped down to his working position and, as he did so, slipped and started to fall, but caught himself. He stated that claimant did not fall to the floor.
On cross-examination, Huber testified that he could not see through claimant, and therefore could not know whether he struck anything in back of him, but was certain claimant did not strike the floor. He further testified that he immediately went up to claimant and told him he had better go to the dispensary, which he did. He stated that claimant worked the rest of the day, and full time the following day, Friday, according to the employer's records.
Claimant testified that after receiving treatment at the dispensary he returned to his job and worked the rest of the day. That evening claimant consulted Dr. Rusan. Dr. Rusan treated claimant's leg and bandaged his back. Claimant remained home the following day, but reported for work the following Monday. During the next two or three weeks claimant was given lighter work, but at the end of that period returned to his regular job. Two men were assigned to help him, one to keep the bars of steel moving freely, and the other to work with him on the bars so that he would not have to bend his back. This arrangement lasted about a week and a half. During that time the machine on which claimant worked was being changed so that an automatic device moved and lowered the steel. After that, the extra man was taken off and claimant continued to operate the machine in the same manner he had prior to the accident. After returning to his regular job, claimant worked continuously, putting in overtime of approximately eight hours per week during the period from December 30, 1951, to June 15, 1952.
Huber testified that two men worked at the machine both before and after the accident. He stated that claimant did the same kind of work after the accident that he did before being injured. He further testified that claimant worked the day following the accident, and that the 'absence' report prepared by claimant himself did not mention December 21, but did show that, because of illness, claimant was off work from December 22nd (Saturday) to 7:00 a. m. December 24th. Whether Sunday was a working day for claimant does not appear from the record. The record of the dispensary shows that claimant was treated there on the 22nd and 23rd of December.
On claimant's first visit to the dispensary his back was taped, and he was given heat treatment. The records of the dispensary show that claimant visited the dispensary on sixteen different days, through January 16, 1952. After that date his next visit was June 7, 1952. At the dispensary he was given heat treatments, aspirin, anesthesin and caffeine pills, also a vitamin B-1 preparation.
Dr. Thomas Rusan testified that he first examined claimant on the evening of December 20, 1951. At that time claimant was able to rise without assistance, but with difficulty, and seated himself in the consultation chair slowly, but with difficulty. Claimant undressed himself with difficulty. There was partial flexion of the hip. There was swelling and tenderness over the lumber and sacral regions, but no radiation of pain, and no muscular atrophy. Protective movements on bending were noted. The flexion with bending on the trunk was possibly 70 degrees, with associated pain and limitation. The pain was increased on hyper-extension. Rotation was painful, and there was restriction of movement. He stated that the leg raising test was negative. There was some Romberg on the right leg, and the left leg was positive and painful bilaterally.
The doctor further testified that on lying down there was a spasm of the sacrum, lumbar and sacroiliac muscles, and that pain increased on flexion above 90 degrees. There was pain on external rotation or abduction and straight leg-raising 80 degrees. The doctor's diagnosis at the time was that claimant suffered a lumber sacral sprain, and laceration of left leg. The indicated treatment was sodium salicylate iodine, colchiciene hypodermically, and heat to be given as necessary.
Claimant's next visit to Dr. Rusan was on December 22nd, at which time he told the doctor that his pain had diminished somewhat. He was given the same treatment as was administered on the first visit. Subsequent visits were made on the 24th, 27th and 29th of December, also on January 3rd, 5th, 11th, 15th, and 19th. On the latter visit the diathermy treatment was increased from fifteen minutes to thirty minutes. On each visit claimant received intravenously sodium salicylate iodine, and colchiciene. The next visit was on January 22, 1952, at which time claimant stated he was doing better, but complained of pain on stooping, and inability to lift. A physical examination at that time revealed that movements were less limited. The same...
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