Harbour v. Gardner, 21372.
| Decision Date | 28 April 1931 |
| Docket Number | No. 21372.,21372. |
| Parties | HARBOUR v. GARDNER et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, St. Charles County; Edgar B. Woolfolk, Judge.
"Not to be officially published."
Proceeding under the Workmen's Compensation Act by Dero Harbour, opposed by Zay Gardner, employer, and the Southern Surety Company, insurance carrier. An award of the Workmen's Compensation Commission was modified by the circuit court, by reducing the period for which compensation was to be allowed, and claimant appeals.
Reversed and remanded, with directions.
Bass & Bass, Vivia A. Marks, and John Grossman, all of St. Louis, for appellant.
Leahy, Saunders & Walther, of St. Louis, for respondents.
This is an appeal by the claimant from the judgment of the circuit court of St. Charles County, which set aside and modified an award made by the Workmen's Compensation Commission. The commission allowed claimant compensation at $12.83 per week for 81.72 weeks. The circuit court, on appeal, set aside this allowance, and allowed claimant compensation at $12.83 per week for 33.125 weeks. The trial court proceeded upon the theory that the allowance of the commission was made without authority, or that there was no substantial competent evidence authorizing the making of the award. The award of the commission was for permanent partial disability.
The claimant received his injuries on the 1st day of July, 1927, when he suffered a fracture of the left femur at the juncture of the middle and lower third, about six inches above the knee. He was in the hospital about two months. When he left the hospital it was discovered that, while there was a fairly good union, there was a slight shortening of the leg. There is evidence that his injury affected his left hip, and that these injuries are permanent.
The commission in its statement of facts made the following finding:
Permanent partial disability as per Bulletin No. 4
Left hip and thigh—
Shortening, 3/8 inches ..... .025
Bowing, 5% N. O. C. ............. .01
5% loss of strength ............. .01
____
.045—.216×200—43.20 weeks
Left knee and leg—
Loss 10% strength, flexion, extension
and N. O. C.—.099—.321×120 ....... 38.52
_____
Total ..................................... 81.72 weeks
—and awarded claimant compensation for 43.20 weeks, and in addition it found that there was a loss of 10 per cent. strength, flexion, and extension, for which it awarded compensation for 38.52 weeks, making a total of 81.72 weeks. It is from this award that defendants appealed to the circuit court, with the result above stated.
The record discloses that the plaintiff, or the claimant, was present in person, and was examined in the presence of the commissioner, who heard the testimony, at great length, and he was required to make certain physical demonstrations in order that the commissioner might see and know for himself as to the nature and extent of his injuries. There was the additional testimony of a number of doctors and surgeons who had either treated plaintiff or examined him.
Dr. Miller, a surgeon of St. Louis, who examined claimant on the 19th day of December, 1927, testified that claimant did not have the normal ability to co-ordinate his motions, and was also lacking in normal mentality; that the examination showed the fractured bones were solidly united, and that the claimant's disability comes from the fact that his weight-bearing line is not as perfect as it was before; that the distal end of the fracture was displaced outward about three-quarters of the thickness of the bone and displaced forward about one-half of the thickness of the bone; that there was no involvement of the knee joint, and no displacement of the pieces of bone; that there was a slight impairment of the muscular motions, which affected him from the hip down.
Dr. Levy, an X-ray specialist, who took pictures of claimant's leg on January 9, 1928, testified as to the displacement of the upper fragment of almost an inch from normal position, with a callus formation uniting the lower end of the upper fragment to the internal side of the lower fragment; that there was a fairly good bone union; that the leg bowed backward in the lower portion and forward in the upper portion of the bone; that the crookedness of the bone was permanent, and that there was some shortening and a change in the weight-bearing line of about ten or twelve degrees; that the use of the leg had been lessened about 25 per cent.; that as time goes on he will not change the condition of the leg, but will get better use of it.
Dr. Wolter testified that he examined claimant on the 15th day of September, 1927, and took X-ray pictures; that the picture showed about a quarter of an inch shortening. This testimony was given on the second hearing, and claimant was again re-examined at considerable length by the commissioner hearing the case. Dr. Wolter testified that he found no limitation of motion in the hip on account of adhesions; that there was a loss of strength and about 5 per cent. limitation in flexion; that he had lost about 10 per...
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