Hundley v. Matthews Hinsman Co.

• Decision Date: 03 June 1963
• Docket Number: No. 23782,23782
• Citation: 368 S.W.2d 528
• Parties: Rozanne HUNDLEY (Employee), Appellant, v. The MATTHEWS HINSMAN COMPANY (Employer), and American Insurance Company (Insurer), Respondents.
• Court: Missouri Court of Appeals

Page 528

368 S.W.2d 528

Rozanne HUNDLEY (Employee), Appellant, v. The MATTHEWS HINSMAN COMPANY (Employer), and American Insurance Company (Insurer), Respondents.

No. 23782.

Kansas City Court of Appeals, Missouri.

June 3, 1963.

Claude L. Schenck, R. A. Kelpe, Kansas City, Walter Klamm, Kansas City, Kan., for appellant.

David H. Clark, Kansas City, for respondent.

HUNTER, Judge.

This is an appeal by Rozanne Hundley, employee, from a judgment of the Circuit Court of Jackson County in favor of The Matthews Hinsman Co., employer, affirming the decision of the Industrial Commission of Missouri denying recovery to her for her disability resulting from two herniated discs suffered in a fall on the employer's premises.

It is conceded that the parties are subject to the Workmen's Compensation Law, and that the injury arose out of and in the course of her employment. The defense upon which the claim was ruled is the special statute of limitations set out in Section 287.430 RSMo 1959, V.A.M.S., 'No proceedings for compensation under this chapter shall be maintained unless a claim therefor be filed with the commission within one year after the injury or death, or in case payments have been made on account of the injury or death, within one year from the date of the last payment. * * *'

The essential facts are undisputed. On January 23, 1959, as she entered her place of employment Mrs. Hundley unexpectedly slipped on some ice and fell hard to the vestibule floor striking and injuring her back. The fall caused immediate severe pain throughout the lower part of her back. She was eventually assisted to her feet and sent by her employer to Research Hospital. There she was admitted, x-rayed, otherwise examined and treated by Dr. G. L. Williamson, an orthopedic physician employed on behalf of the employer-insurer, who paid his bill amounting to $43.00. On January 26, 1959, the employer filed with the Division of Workmen's Compensation a report of injury describing Mrs. Hundley's injury as a 'sprain'.

While in Research Hospital heat and other therapy treatments were administered to Mrs. Hundley's low back area. She was dismissed from Research Hospital on January 30, 1959, and went to Dr. Williamson who prescribed a corset type brace for her to wear over her low back until such time as she wished to discard it. This brace cost $8.36 which sum was paid by the employer-insurer. On February 5, 1959, she returned to her employment.

During the time she was in the hospital Mrs. Hundley's low back area continued to pain her. This pain lessened during her hospital confinement and practically disappeared by the time she completed follow-up checks at the office of Dr. Williamson who last saw her and discharged her on February 23, 1959, subject to the mentioned wearing of the brace. When she quit wearing the brace about three months after the accident her back was apparently getting along real well, 'it wasn't bothering' her and she was experiencing no pain.

Sometime in January, 1960, she first felt a 'catch' in her back. In a matter of days she experienced additional intermittent 'catches' to the extent that in March, 1960, when she went to see a chiropractor for a stiff neck condition (unrelated to her accident) she consulted him about the 'back catches' which were occurring more frequently. Awhile after this visit the catching sensations were accompanied by by pain in her right hip and upper right leg with a tingling sensation as though her foot were asleep.

On July 24, 1960, her back bothered her quite a bit. The following morning she had excruciating pain and could hardly get out of bed or move. She tried to contact Dr. Williamson and when she learned he couldn't see her, she called her family physician, Dr. Berger, who immediately diagnosed her condition as 'a surgical back, it appears to be a disc.'

Dr. Berger called in Dr. Drisko, an orthopedic surgeon, and ordered Mrs. Hundley to St. Mary's Hospital. There a myelographic study was made confirming two herniated discs between L4 and 5 and L5-S1. On July 28, 1960, Dr. Drisko operated, found the two mentioned herniated discs and fused the back bone at that place. Mrs. Hundley experienced a normal recovery from the surgery, and Dr. Drisko rated her disability at 30 per cent permanent and partial of the body as a whole. Dr. Harold Zuber, who examined her on behalf of the employer-insurer, rated her as having a permanent partial disability of 15 to 20 per cent of the body as a whole.

The referee's finding read: '* * * the claim for compensation filed by the employee was not filed within one year after the date of the injury, nor was said claim for compensation filed within one year after the furnishing of medical treatment or the payment thereof.

'I further find that the claim for compensation was not filed by said employee within one year after the date when it became reasonably discoverable and apparent that a compensable injury had been sustained by said employee.

'Compensation therefore must be and the same is hereby denied.' (Italics ours.)

On review, the Industrial Commission found the award of the referee to be correct in all respects, adopted his findings of facts, his rulings and conclusions of law and awarded 'no compensation', saying, 'In affirming said award of referee, we find controlling the cases of Crites v. Missouri Dry Dock Company, Mo.App., 348 S.W.2d 621, 1. c. 623; and Conn v. Chestnut Street Realty Co., 235 Mo.App. 309, 133 S.W.2d 1056, 1. c. 1058.'

The single question presented on this appeal is essentially one of law; namely, on the record before it did the Industrial Commission misinterpret and misapply the one year special statute of limitations by holding that it commenced to run from the time it became reasonably discoverable and apparent that appellant had suffered a compensable injury rather than from the time it became reasonably discoverable and apparent that she had suffered the discs injury.

It is claimant's contention that the discs injury was latent and did not become reasonably discoverable or apparent until on or about July 25, 1960, when she experienced excruciating pain and was unable to continue her employment. It was then that her injury was first disgnosed as probably a disc injury by Dr. Berger. Claimant reasons that symptoms indicative of a disc injury did not appear until after January, 1960, when she commenced to have catches in her back, followed by paid radiating into the right hip and leg with a feeling the leg was asleep, which symptoms gradually grew in severity until July 25, 1960, when they became disabling. Claimant notes that Dr. Williamson, the company's doctor, apparently felt her injury was only a strain and did not diagnose or even suspect a disc injury or he would not have discharged her on February 23, 1959, but would have made further tests, such as myelogram. She insists her claim should not be barred when a qualified physician is unable to diagnose or discover her latent injury within the period of limitations as interpreted and applied by the commission.

It is the employer-insurer's contention that claimant sustained an accident causing a compensable injury on January 23, 1959, to her low back area, and that her claim for compensation was not filed until more than one year after company provided treatment; more than one year after payment of all bills therefor by the company and more than one year after she had voluntarily quit wearing the back brace provided by the company's doctor.

In the Crites case, supra, relied upon by the commission, claimant on August 15, 1956, unexpectedly was subjected to the full weight of a 500 lb. steel shaft, jerking him down and injuring his back. He suffered immediate pain but continued to work. He thought he had suffered a strained muscle or ligament and that the matter would correct itself in time. There were weeks, and sometimes a month, when he would suffer no discomfort from his back. In the latter part of 1957 the intermittent pain started getting worse. In 1958 it caused him to miss some time from work. At that time he asked his employer for medical aid and was refused. In May 1958, he consulted a doctor who examined him obtained a myelogram and diagnosed a ruptured disc between the 4th and 5th lumbar. The Industrial Commission found a compensable injury (which it defined as one which disables an employee either totally or partially from the performance of his work) became reasonably discoverable in November, 1957, when he first sought medical aid by consulting a chiropractor because his back symptoms had worsened so much, and ruled the claim filed on October 4, 1958, was timely filed. The circuit court and the St. Louis Court of Appeals affirmed.

Apparently of persuasive force and applicability to the Industrial Commission is that part of the Crites case opi...