Jockel v. Robinson, 56535
| Decision Date | 11 September 1972 |
| Docket Number | No. 1,No. 56535,56535,1 |
| Citation | 484 S.W.2d 227 |
| Parties | William JOCKEL, Respondent, v. William ROBINSON, Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Appellant |
| Court | Missouri Supreme Court |
Glennon T. Moran, St. Louis, for respondent for respondent.
John C. Danforth, Atty. Gen., Jefferson City, Gene R. Spengel, Jr., St. Louis, for appellant.
This is an appeal by the State Treasurer of Missouri, Custodian of the 'Second Injury Fund', from an award in a Workmen's Compensation claim against that fund. The award of the referee and affirmance thereof by the Industrial Commission was upheld by the Circuit Court.
The claimant, William Jockel, 64 years of age at the time of his accident on September 22, 1962, was employed as a sheet metal worker by the Gallagher-Kaiser Corporation. He had an 8th grade education acquired in the old country. On September 11, 1967, he filed an amended claim joining the State Treasurer as custodian of the Second Injury Fund claiming in substance to have permanent and partial disability existing prior to the accident.
The Referee entered an award on September 11, 1968, wherein he found that claimant sustained fifty per cent permanent partial disability to the right leg at the level of the hip for which he allowed 103.5 weeks of compensation and a twenty-week healing period to be paid by the employer-insurer. The referee further found that the employee had pre-existing disability of the back and left hip which combined with the injury of September 22, 1962, to render the employee permamently and totally disabled. For this the referee awarded claimant 176.5 weeks of compensation to be paid by the Second Injury Fund along with a life pension payable at the end of the first three hundred weeks of disability as provided by the Compensation Act. Appellant State Treasurer as custodian of Second Injury Fund filed an application for review of this award by the Industrial Commission. The Industrial Commission issued an order on February 28, 1969, directing the referee to take further evidence on the issue as to whether or not claimant was suffering with an industrial disability or disabilities and the nature and extent thereof prior to and at the time of the occurences of the last accident on September 22, 1962. Thereafter, on October 29, 1969, the referee heard additional evidence. On March 18, 1970, the Industrial Commission issued its final award affirming the award of the referee and making additional findings of fact. The circuit court upheld the final award.
On September 22, 1962, while working as a sheet metal worker for the Gallagher-Kaiser Corporation on a job at the Ford plant in St. Louis County, claimant William Jockel slipped and fell about six feet from a ladder, landing on the floor on both feet and broke his right ankle. He was taken to Firmin Desloge Hospital where he remained for about five and one-half weeks. A cast was applied to his ankle extending up to his knee which he wore for about two months. While in the hospital claimant's left hip started to bother him. During his stay in the hospital he developed chest pain, hemoptysis and generalized weakness. This was felt to be pulmonary emboli or pulmonary infarction. After claimant was released from the hospital he had to use a metal walker for about two months in order to get around. He then used crutches about six weeks and since then has used a cane for assistance in getting about. Claimant has not worked since the accident because he is unable to stand on his leg and when he tries to walk his ankle gives out. He also has pain in the left hip and the leg gives out.
Claimant testified that he was injured at work on May 21, 1956, and as a result of these injuries he received a settlement on May 5, 1957, for a disability of 25 per cent of the body as a whole. He further stated that he went back to work within nine months to one year later assuming his full duties as a sheet metal worker. Claimant testified that after he went back to work following the 1956 accident he carried out the full duties of a sheet metal worker and at times worked as much as fourteen to sixteen hours per day for seven days a week just prior to his 1962 accident.
Dr. Robert Mueller testified at the original hearing that he examined claimant on May 17, 1968, and found that the condition of his right leg and ankle permanently and totally disabled claimant and that claimant had been unable to work since his 1962 accident because of the condition of his right ankle and left hip. He also stated that claimant was suffering the effects of an embolism of the right lung which was secondary to the fracture of his right leg in 1962. Dr. Mueller further testified that he had examined claimant on August 27, 1956 (after his accident on March 21, 1956), and found that claimant had a moderate degree of hypertrophic arthritis of his entire back, probably more advanced than the X-rays show; that he undoubtedly aggravated a pre-existing hypertrophic arthritis; that he had some 25 to 30 per cent permanent partial disability of the man as a whole due to aggravation of a pre-existing hypertrophic arthritis.
Dr. Robert Funsch testified that he treated claimant while he was confined in Firmin Desloge Hospital after his 1962 accident and later at his office. He treated claimant's right ankle and leg; that claimant never complained to him of any difficulty with his left hip. He was of the opinion that the 1962 accident produced 40 per cent disability to claimant's right ankle; that his other troubles and complaints were due to his age, arthritis, physique and circulatory status. Dr. Funsch stated that after the 1962 accident claimant was never able to compete on the active labor market but this wasn't all associated with his fractured ankle; that his inability to labor was due to a combination of factors of a man as a whole, his age, his arthritis, his cardiovascular status and also the fracture of the ankle in part. Dr. Funsch stated that he had no indication in any of his treatment or examination records in the hospital or office that claimant was suffering from any of these things prior to his accident in 1962, but did state without qualification that the circulatory conditions, the conditions of his arthritis, and other physical conditions were present prior to September 22, 1962.
On October 29, 1969, when the referee took additional evidence at the direction of the Industrial Commission, one Roy Taylor, business manager of Sheet Metal Workers Local 36, testified that he had known claimant about 15 years or more and saw him about 50 times between 1956 and 1962. He saw claimant about 20 times from 1960 to September 22, 1962, and during this period claimant's physical condition changed. He walked more slowly and with a limp and could not bend over. He got fired for not being able to physically do the work of a sheet metal worker on one occasion. He couldn't be sent out on just any job because of his physical limitations. There were things he could not do which prevented him from working on some jobs as a sheet metal worker. Several times he came to the union hall all stooped over. Taylor testified that it was possible for claimant to work 16 hours a day, seven days a week. It depends on what you are doing. Claimant was a fine mechanic. He had pride. He would say he could do things at times when it was observed that he could not do things physically. He is an honest man but has over confidence in his ability to work.
Dr. Robert Mueller gave additional testimony that, after examining Mr. Jockel in 1956, in his opinion he suffered a 25 to 30 per cent permanent partial disability of the man as a whole and he didn't believe that the man would be able to indulge in any work that would require strain on his back; that he still had a degree of disability in early ...
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...Tester et al., 273 S.W.2d 783 (Mo.App.1954), as holding that admissions of law are not competent evidence; he also cites Jockel v. Robinson, 484 S.W.2d 227 (Mo.1972) as holding that a mere conclusion of plaintiff, explained by other evidence, is not binding upon him. No one contends here th......
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...a hole on an incline. (We have already stressed in fulsome detail the fact that there were two inclines). As stated in Jockel v. Robinson, 484 S.W.2d 227, 231 (Mo.1972): '(I)f a party in full possession of his mental faculties testifies unequivocally and understandingly to a material fact p......
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Hawkins v. Foster
...statement is given, this principle only applies to positive statements of fact and not to mere estimates or opinions. Jockel v. Robinson, 484 S.W.2d 227, 231 (Mo.1972)." Heilman v. Heilman, 700 S.W.2d 843, 844 (Mo.banc Similarly, in Hecker v. Schwartz, 426 S.W.2d 22 (Mo.1968), the court sai......
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Shipp v. National Vendors, No. 62128
...was an industrial disability noting the amount of work missed as a result and the danger it posed to claimant. Jockel v. Robinson, 484 S.W.2d 227, 229, 230 (Mo.1972) also found that claimant's pre-existing condition was an industrial disability. Claimant was injured in 1956 and again in 196......
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Section 3.7 Judicial Admissions During Trial
...(Mo. App. E.D. 1911) Typically, statements of personal opinions do not constitute judicial admissions. See, e.g.: · Jockel v. Robinson, 484 S.W.2d 227, 231–32 (Mo. 1972) · Palmer v. Hobart Corp., 849 S.W.2d 135, 139–40 (Mo. App. E.D. 1993) · Rodgers v. City of St. Louis, 688 S.W.2d 42, 43 (......