Hill v. Chevrolet Motor Co.

• Decision Date: 04 April 1938
• Docket Number: No. 19176.,19176.
• Citation: 115 S.W.2d 65
• Parties: HILL v. CHEVROLET MOTOR CO.
• Court: Missouri Court of Appeals

115 S.W.2d 65

HILL v. CHEVROLET MOTOR CO.

No. 19176.

Kansas City Court of Appeals. Missouri.

April 4, 1938.

Appeal from Circuit Court, Jackson County; Emory W. Wright, Judge.

"Not to be published in State Reports."

Proceeding under the Workmen's Compensation Act by Charlie Hill, claimant, opposed by the Chevrolet Motor Company, employer. From a judgment affirming an award of the Workmen's Compensation Commission, denying compensation, claimant appeals.

Affirmed.

Enos A. Axtell, of Kansas City, for appellant.

Miller, Gumbiner, Sheffrey & Van Valkenburgh, of Kansas City, for respondent.

BLAND, Judge.

This is an appeal by the claimant from an order of the circuit court affirming an award of the Workmen's Compensation Commission, denying him any recovery on account of alleged injuries received by him on February 5th, 1933, while he was working as an employee of the defendant, Chevrolet Motor Company.

The Commission found against the claimant on the ground that he did not file his claim for compensation within the time required by section 3337, R.S.1929, Mo.St.Ann. § 3337, p. 8269. This section, among other things, provides that such a claim shall be filed with the Commission within six months from the date of the last payment.

No claim was filed until April 29th, 1936, which was more than six months after the receipt of the alleged injury. However, the claimant contends that payments were made on account of the injury in the form of medical treatment furnished him by the employer and that he filed his claim within six months from the date of the last treatment.

The facts show that claimant had been employed by the Chevrolet Motor Company as a janitor at its Kansas City branch for a period of three years prior to the date of the alleged accident. He testified that he was injured while going up to the dressing room to change his clothes when a steel beam fell on the side of his right ankle, injuring it; that no one saw the accident but that one Paul Pearson bandaged his ankle and rubbed some salve on it. The record disclosed that Pearson was "first aid attendant" at the employer's plant. He was not a doctor but he is described in respondent's brief as a young student doctor.

Claimant further testified that when he arrived at his home from work on February 5th, 1933, the day of the accident, his foot was swollen so he could not get his shoe off; that he had to cut it off with a knife; that he went to bed and remained there about two weeks; that he then went back to his work and worked thereafter (except the days he was off on account of his injury) until he was discharged from the services of the employer on April 25th, 1936; that Pearson treated him every other day and kept a bandage on his ankle; that he was sent to Dr. Irwig by his employer; that he saw Dr. Irwig twice; that Dr. Irwig prescribed a rubber sock, which the employer furnished; that this was furnished about three weeks before he filed his claim.

Claimant further testified that when he walks a great deal his right ankle swells up, especially at night; that his right ankle is so swollen that it is a little larger than the left. He testified that he was foreman or superintendant of the janitors and he was not required to do hard work and, consequently, was able to be at work most of the time after his injury; that if he had been required to do hard work, such as pushing a truck, he would have been unable to do it. Claimant testified that he was treated by Pearson up to within three weeks from the time he was discharged.

Claimant further testified that he employed Dr. Miller to treat him. Dr. Miller, on behalf of the claimant, testified that he treated him for a swollen ankle beginning on February 21st, 1935; that he diagnosed claimant's trouble as a sprained ankle; that his right ankle was larger than his left.

Paul Pearson, on behalf of claimant, testified that he was first aid attendant for the employer and that he kept a record of all employees who received first aid in his department; that the records show that claimant went home on January 8th, 1935; that on February 25th, he reported for work, apparently well; that on May 9th, 1935, claimant claimed he had a weak ankle, which was strapped; that on September 13th, 1935, he complained of a sore right ankle and it was re-strapped; that on October 26th, 1935, the witness made a physical examination of claimant; that on January 14th, 1936, he re-strapped his right ankle; that on February 28th, 1936, he had a sore ankle; that on February 29th, 1936, he had a swollen large right ankle; that on March 5th, 1936, the witness re-strapped his ankle.

The witness further testified that the records he was testifying from were of a different kind than those kept in 1933; that he had some books covering 1933 but he did not bring them because "there is a whole pile of them;" that he did not recall giving any treatment to claimant in 1933. "I know we weren't bandaging his ankle. He might have been in there a time or two, but I know we weren't doing it as routine every week or two because I would remember it. I might have done it once or twice, but I didn't do it a good many times."

During the trial counsel for plaintiff stated that he was not contending that there had been any injury to the bones of claimant's ankle; that the injury was "to the tendons and the soft parts that were broken * * * but not the bone."

The hearing commenced on September 21st, 1936, and was adjourned for several days and after it was reconvened claimant put on the stand Dr. Glynn Carbaugh, who testified that he examined claimant on October 10th, 1936; that he took a X-ray picture of his right ankle and found evidence of an old fracture of the astragalus bone, which had evidently been caused by something hard hitting it "a very forceful blow"; that his ankle was swollen; that the condition of claimant's ankle was such that it would have been very painful for him to have done such work as even superintending or overseeing the janitors.

Claimant introduced another witness, Dr. Paul R. Clayton, who had examined the X-ray picture taken by Dr. Carbaugh and who testified similarly to Dr. Carbaugh. Dr. Clayton said that claimant's injury was a disabling one and one attendant with great pain; that it would be very unusual for a man to work and be constantly on his feet with a broken ankle of that kind.

As before stated, there was no claim filed until April 29th, 1936. In this claim claimant stated: "Claimant was walking along floor in plant alongside piled steel, when suddenly a steel beam fell on claimant's ankle crushing it severely and throwing claimant to the floor." Defendant introduced in evidence a report of the accident made by claimant to the Commission, which was signed on the 16th day of November, 1934, and, which stated that he "stepped on a piece of steel and turned my right ankle"; that he had stated in the report all that had occurred to him; that no one saw the accident.

Defendant introduced as a witness, Dr. Fred Irwig, who testified that he first saw and examined claimant on November 17th, 1934; that when claimant came to his office his foot was strapped; that he was complaining of a sprained ankle; that an X-ray picture was taken which was negative, that is, it showed no broken bones; that he supposed there...