Groce v. Pyle

Decision Date02 June 1958
Docket NumberNo. 22780,22780
Citation315 S.W.2d 482
CourtMissouri Court of Appeals
PartiesSidney GROCE (Claimant), Respondent, v. J. E. PYLE (Employer) and Massachusetts Bonding & Insurance Company (Insurer), Appellants.

James K. Moran, Courtney S. Goodman, St. Louis, for appellants.

N. R. Fischer, Leo T. Schwartz, Kansas City, for respondent.

HUNTER, Judge.

This is an appeal in a workmen's compensation proceeding by appellants, J. E. Pyle, employer, and Massachusetts Bonding & Insurance Company, insurer, from the judgment of the Circuit Court of Saline County in favor of claimant, Sidney Groce, respondent, herein.

Respondent's claim for compensation stated in substance that while he was working on a high school project in Marshall, Missouri, and in the course of his employment he fell (from a partition) some nine feet to the concrete floor below causing him to sustain 'back, spine, extremities and internal injuries' for which he asked compensation 'as provided by law'. The employer and insurer filed a general denial. However, at the hearing of the case before the referee they admitted that claimant had sustained an accident arising out of and in the course of his employment; that his average weekly wage was in excess of $52.50 and that the compensation rate was $35 per week. At the termination of the hearing the referee found claimant to have permanent total disability, and among other things, awarded claimant compensation in the sum of $35 per week for 300 weeks and thereafter $18 per week for the remainder of his life; found that claimant needed and would in the future need nursing, and awarded $40 per week, to be paid to claimant's wife, for nursing service as long as employee's invalid condition exists.

On reviewing the case, the Industrial Commission entered, generally, the same findings of fact and award. An appeal was taken to the circuit court, which after reducing the $18 per week portion of the allowance to $16 per week, entered its findings in accordance with those of the Industrial Commission and affirmed that award.

On this appeal appellant states the issues to be (1) whether there is proper pleading and substantial proof to support the award of the Industrial Commission for permanent and total disability (appellants concede that claimant has suffered substantial permanent partial disability), and (2) whether there is sufficient evidence to support an award for nursing services to claimant's wife.

Under the facts of this case this court has jurisdiction of the appeal. Mo.Const. Art. V, Sections 3, 13, V.A.M.S.; Scannell v. Fulton Iron Works Company, 365 Mo. 889, 289 S.W.2d 122, and cases cited therein.

We first consider appellant's contention that the award of the Industrial Commission finding that claimant was totally and permanently disabled was not supported by competent and substantial evidence upon the whole record and was contrary to the overwhelming weight of the evidence.

On review of questions of fact decided by the Industrial Commission, our inquiry, as that of the circuit court, is limited to whether or not the findings of the Commission are supported by competent and substantial evidence upon the whole record. Const. Art. V, Sec. 22. As stated by our Supreme Court, en Banc, in Kansas City v. Rooney, 363 Mo. 902, 254 S.W.2d 626, loc. cit. 628: 'This 'does not mean that the reviewing court may substitute its own judgment on the evidence for that of the administrative tribunal. But it does authorize it to decide whether such tribunal could have reasonably made its findings, and reached its result, upon consideration of all of the evidence before it; and to set aside decisions clearly contrary to the overwhelming weight of the evidence.'' With these established principles in mind, we proceed to examine the evidence before the Commission.

Claimant testified he was 64 years old, has approximately an eighth grade education, and all of his life prior to the instant injury performed heavy manual labor. He has followed the trade of carpenter since 1911, except for one year when he farmed. At the time of the accident on July 15, 1955, he was standing on a partition 9 or 10 feet above the concrete floor of the high school building. A stud to which he was holding came loose causing him to fall. He lit on his feet and fell sideways. His heels were broken and he occasioned other injury. Dr. Ralph Jones, a physician, was called. Dr. Jones examined his feet and had him taken to his office. There Dr. Jones X-rayed his feet and ordered him to be immediately transported to the hospital where he was confined until about October 6, 1955.

Claimant testified that following his fall he experienced severe pain in his heels, legs, back, arm, neck, right shoulder, and 'practically all over'. His right heel was operated on and placed in a cast. Commencing sometime during the first period of his hospitalization he experienced shortness of breath and pains in his chest. (According to the hospital records complaint of this was made on the might of August 10, 1956.) Prior to the accident he had had no shortness of breath and no pain in his heart or left side. Although he reported the chest pains to the nurse and to Dr. Jones he received no treatment for them. Dr. Jones would say, 'Yes, I know' and leave him. Within the first two weeks that he was in the hospital he began developing blackouts during which time he would become numb and be unable to see or to control himself and had to have help. He reported these blackouts to Dr. Jones. They occurred sometimes about once a week and sometimes two or three would be close together--the same day or within two days.

When he was discharged from the hospital he was directed to use a wheel chair, and was unable to walk. Dr. Jones visited him at his home and endeavored to get him to walk but claimant was unable to do so. Dr. Jones told him he had no heart trouble. Since Dr. Jones did not endeavor to treat his chest pains and shortness of breath claimant consulted Dr. R. C. Haynes, in Marshall, Missouri, relative to his heart condition. He told Dr. Jones of this and Dr. Jones told him he could not have another doctor. Nonetheless, he continued with Dr. Haynes.

At the time of his first hearing before the referee, which claimant attended in a wheel chair, he stated that his neck, back, and legs since the accident were no better. He was never free from pain. His right shoulder is numb and hurts. He can raise his right arm but it causes pain. With the use of a cane he can walk only about 20 feet without stopping to rest. Even that short distance causes him to 'give out * * * all down through (his) body--heels get hot--just feel like they're burning.' He has not performed, and has been unable to perform, any work of any kind or character since the accident and is 'not able to do anything'. His wife quit her job where she was earning $40 a week to take care of him and provide nursing for him. He has driven a car both with the cast on his foot and after its removal. He would be helped into and out of the car. His driving included going from Fayette to Marshall to see Dr. Haynes and back home. He still drives though he recognizes the danger of a blackout. On three occasions he walked up the steps to Dr. Jones' office. This climb took a good half-hour or more and caused pain.

At the second hearing on November 8, 1956, claimant testified that so far as being able to get around, walk or move his legs, his condition is worse than it was at the first hearing. His legs are weaker. He is unsteady on his feet. His legs are numb, cause him pain and make him sick. His chest condition and pain are no better. The pain is more frequent. He has blackouts oftener. Because of his condition, he has to have constant help, and it is necessary for his wife to wait on him and care for him more than ever. She is with him constantly.

Claimant's wife testified that she quit her dollar an hour, 40-hour week poultry house job 'because her health wasn't too well, and claimant's condition was such that she was afraid to leave him by himself.' She is with him constantly and has observed his blackouts. They are getting more frequent and she is almost afraid to go to sleep at night. As often as two or three times a week she has to get up at night to tend him. They are financially unable to employ a nurse, and she acts as his nurse. When he has a blackout he would fall over if he were sitting up. She has to give him a kind of artificial respiration; rub his arms and the back of his neck, and bathe his face with cold cloths. He doesn't get around as well now as at the time of the July 5, 1956, hearing, and the pain seems worse.

Dr. Jones testified by deposition that he examined claimant at the scene of the accident, at his office, and at the hospital. Claimant's heels were X-rayed and found to be fractured. Surgery was performed on claimant's feet by placing pins in them. During his stay at the hospital claimant also complained of his right arm and shoulder but did not complain of his back and he made no examination of the back until December 24, 1955, when at his office claimant first complained of it. His complaint of shoulder pain was made about one month after claimant was in the hospital and witness could find no organic basis for the complaint. Claimant had no disuse of his right arm, and there was no visible evidence there was any weakness in it. He acknowledged claimant had a shoulder separation but could not say what caused it. He testified that when claimant on December 24, came in complaining of low back pain radiating into both legs he had examined and X-rayed his back but could find nothing wrong with it. The only evidence of injury was to claimant's feet. When he saw claimant again the following March or April, claimant then had marked limitation of motion and marked soreness in the lower portion of his back and even had numbness to pin pricking. He was unable to explain what...

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