Griggs v. A. B. Chance Co., KCD26320
| Decision Date | 03 December 1973 |
| Docket Number | No. KCD26320,KCD26320 |
| Citation | 503 S.W.2d 697 |
| Parties | Dorothy GRIGGS, Respondent, v. A. B. CHANCE COMPANY, Employer, and Hartford Accident and Indemnity Company, Insurer, Appellants. |
| Court | Missouri Court of Appeals |
Evans & Dixon, Robert M. Evans, St. Louis, for appellants.
William Brandecker, Ronald E. Smull, Columbia, for respondent.
Before SHANGLER, P.J., and SWOFFORD and WASSERSTROM, JJ.
The employer and insurer appeal from a judgment of the circuit court which affirmed the award of the Industrial Commission in favor of claimant for 25% permanent partial disability of the body as a whole and for medical expenses reasonably and necessarily incurred.
The employee claimed injury when, while seated on the edge of her chair at the assembly line, the chair slipped backwards as she bent over to pick up a pan and the unexpected movement caused her back to pop and the immediate onset of a severe low back pain radiating to the right leg. The referee had found claimant's account contrary to the physical facts and otherwise so thoroughly discredited by other witnesses as to be unworthy of belief. In reversing the referee's denial of compensation, the Industrial Commission found that, although the evidence of a fellow employee directly contradicted the account given by claimant, her testimony was the more credible and sufficient to discharge the burden of proof imposed by law. The Industrial Commission rested its award of permanent disability on the opinion of claimant's treating physician, Dr. Sosebee, that the accident described by claimant caused an acute aggravation of a degenerative condition in her back and resulted in a 25% disability of her body.
The injury for which the employee makes claim was incurred on the morning of December 30, 1968, but was not reported to her supervisor until later in the afternoon when she requested an aspirin because she had injured her back. That day, the first aid attendant at her place of employment took her to the office of Dr. Bradley where she made complaint of low back pain which radiated to her right leg. The next day Dr. Bradley referred claimant to Dr. Sosebee, an orthopedic physician whose clinical examination revealed marked muscle spasm in the low back, limitation of motion and pain on the right side with straight leg raising. X-ray examination revealed virtual loss of the disc space between the last lumbar and first sacral segment as well as partial sacralization of the fifth lumbar vertebra, diagnosed by Dr. Sosebee as a congenital developmental anomaly. Dr. Sosebee diagnosed claimant's injury as an acute aggravation of degenerative disc disease with irritation of the sciatic nerve. On December 31, 1968, claimant was hospitalized for conservative therapy and was discharged on January 16, 1969. Her symptoms abated sufficiently so that she returned to work a month later. Her symptoms of nerve root irritation persisted, however, so she was readmitted for surgery in May of 1969. A low back exploration of the suspected disc spaces and nerve roots disclosed no evidence of rupture of the disc spaces, herniation of nucleus material, or tension of the nerve roots. A fusion of the degenerated joints was performed to stabilize them and to relieve the radiculitis. Claimant was thereafter free of leg pain but her low back discomfort, although diminished, has persisted.
Dr. Sosebee had had no dealing with claimant before December 31, 1968, and his diagnosis was made on his examination findings and on the assumption, based on information from claimant, that she had suffered only one prior episode of back pain, in December of 1966 at her place of employment, which was treated by Dr. Bradley and lasted only for a few days. The medical history disclosed by claimant to Dr. Sosebee included, also, a tonsillectomy at the age of twelve, a hysterectomy in 1959, a diagnosis of diabetes milletus in 1962, hypertension, and a bilateral adrenalectomy.
In her testimony, claimant admitted that she had experienced back pains when the incision left by the adrenalectomy became infected, but that the site of the pain was not in the lumbar region, the area affected by the accident for which she makes claim. She also admitted that on January 16, 1968, more than a year after the employment injury of December, 1966, she consulted Dr. Bradley for intermittent back pain. This history was confirmed by the written report of Dr. Bradley given in evidence. On cross-examination, claimant admitted to having had prior lumbar back pain and tingling down the right leg, but not with the severity since the accident of December 30, 1968. The claimant acknowledged also that on May 16, 1966, she complained at the University of Missouri Medical Center Clinic that she weas experiencing pain over the sinus area of adrenalectomy wound, as the result of which corrective surgery was then performed. She did not recall then having complained also of severe pain over the lumbar area. The records of May 16, 1966 of the University of Missouri Medical Center Surgery Clinic contains this entry by the staff physician, Dr. J. H. Landor:
Pt. (claimant) called for appointment because of continuous draining from would sinus and because of severe back pain. Pain is in low lumbar area right over spine. Hurts to get up and has had occasional radiation down sciatic distribution. Worse in AM when she gets out of bed.
Sinus probed and no suture material found again. The tract goes laterally and I feel certain it has nothing to do (with) back pain.
Imp: ? disc or degenerative arthritis. Disp: bed board
The claimant acknowledged that when she entered the hospital in September of 1965 for the adrenalectomy, she had complained of swelling of the feet and legs.
In response to a hypothetical question by counsel for claimant which posited a preexisting degenerative disease, the accident, sudden severe pain in the low back radiating to the right leg, the prior episode of bilateral muscle spasm treated by Dr. Bradley in December of 1966 and the complaint of back pain to Dr. Bradley in January of 1968, the conditions of diabetes and hypertension, the tonsillectomy, hysterectomy, adrenalectomy associated with complaint of back ache, the history of claimant's complaint, the findings of examination and the treatment accorded, Dr. Sosebee testified to a reasonable medical certainty that the accident of December 30, 1968 caused the acute degenerative disc condition and irritation of the nerve roots in claimant's low back which he found, and estimated her permanent partial disability at 25% of the body as a whole. From the answer to the hypothetical question given by Dr. Sosebee and from the cross-examination which developed, it is plain that his opinion of causation and permanency between the accident and the condition of disability he found was given on the assumption that, except for the one episode of back pain in December of 1966 related to him by claimant, her degenerative disc condition had been asymptomatic until the accident of December 30, 1968. The response of Dr Sosebee to the hypothetical question posed on direct examination was:
I feel that the lady did have degenerative disc disease, with a past history of difficulty before. My record showed only one episode of previous back pain. The hypothetical question as asked here and as stated with the past history as the gentleman here stated, I feel Mrs. Griggs had a degenerative disc disease that she developed as a result of this incident described; an irritation to the nerve roots in her low back with radiation into her leg.
On cross-examination Dr. Sosebee acknowledged that he had made his diagnosis on the basis of the history of one prior back difficulty given him by claimant. He acknowledged also that claimant's congenital back anomaly had pre-existed the accident for a number of years and that, because surgery disclosed no frank herniation or other pathology, he had concluded that the degenerative disc disease was the cause of claimant's nerve root irritation and sciatic pain and, on the assumption that claimant had been asymptomatic except for the one instance she related to him, the accident of December 30, 1968 caused the aggravation of the degenerative back condition. The interrogation of Dr. Sosebee by counsel for the employer-insurer then took this course:
Q. Doctor, if she had some complaints, pain in her low back, to Dr. Bradley during the time period of December, 1966, through October of 1968, this would indicate that she is having periodic pain and trouble in her back, would it not?
A. I would assume so.
Q. Now, Doctor, at the University of Missouri Medical Center she was seen on March 9 to June 6, 1966. (Interruption) . . . She was in there generally, Sir, for the condition of adrenalectomy, high blood pressure, and everything else. I am referring to a clinical note of May 16, 1960, 'Patient called for appointment because of continuous draining pain at the wound site and . . .', I am quoting exactly,
Q. Doctor, those old symptoms are significant symptoms of, indicating root irritation, are they not.
A. Yes.
Q. . . . But you do know, Sir, that if you had X-rayed her back on that date, you would have seen evidence of this congenital anomaly which you did see on December 30, 1968.
A. Correct.
Q. And you would have evidence of degeneration in the disc space, would you not?
A. In '66?
Q. Yes.
A...
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