Johnson v. Fogertey Bldg. Co.

• Decision Date: 21 May 1946
• Docket Number: No. 26948.,26948.
• Citation: Johnson v. Fogertey Bldg. Co., 194 S.W.2d 924 (Mo. App. 1946)
• Parties: JOHNSON v. FOGERTEY BLDG. CO. et al.
• Court: Missouri Court of Appeals

194 S.W.2d 924

JOHNSON v.FOGERTEY BLDG. CO. et al.

No. 26948.

St. Louis Court of Appeals. Missouri.

May 21, 1946.

Rehearing Denied June 18, 1946.

Appeal from Circuit Court, St. Louis County; John A. Witthaus, Judge.

"Not to be published in State Reports."

Proceeding under the Workmen's Compensation Act by Ernie Johnson, employee, opposed by the Fogertey Building Company, employer, and the Consolidated Underwriters, insurer, to recover compensation for permanent partial disability.The Workmen's Compensation Commission awarded the employee compensation for permanent partial disability of 10 per cent., and the employee appealed to the circuit court, claiming that the award should have been for at least 25 per cent. disability.From a judgment of the circuit court affirming the commission's award, the employee appeals.

Circuit court's judgment affirmed.

Louis L. Hicks, of Clayton, for appellant.

Fordyce, White, Mayne, Williams & Hartman and G. Carroll Stribling, all of St. Louis, for respondent.

McCULLEN, Judge.

This is an appeal by Ernie Johnson, employee, from a judgment of the Circuit Court of St. Louis County affirming an award of the Missouri Workmen's Compensation Commission which allowed said employee as compensation for permanent partial disability the sum of $20 per week for forty weeks, or a total amount of $800, figured on a basis of injury causing permanent partial disability of ten per cent to the employee's body as a whole.Appellant, hereinafter referred to as employee, contends that under the evidence the award should have been for at least twenty-five per cent disability, amounting to the total sum of $2000.

At the hearing, which was held on September 26, 1944, it was admitted that on March 22, 1943, the Fogertey Building Company was a major employer operating under the provisions of the Missouri Workmen's Compensation Law, Mo.R.S.A. § 3689 et seq.; that the employer's liability thereunder was fully insured by Consolidated Underwriters; that on said date Ernie Johnson was an employee of said employer; that he sustained an accident on that date of which the employer had notice; that the employee's claim for compensation was filed within the time prescribed by law; that the employee's average weekly wage was in excess of $30; and that compensation for a total of $337.14 had been paid, beginning March 23, 1943, to July 23, 1943.

The employee testified that he was a brick mason's attendant and that on March 22, 1943, while he was working for the employer in Overland, Missouri, he stepped on a wide board, which board was a temporary step, and fell across a piece of two by four lumber which had been cut off with an angle on it that jabbed him in the side; that he fell four feet on his shoulder and hand onto the ground.The employee's testimony as to the manner of the accident was as follows:

"From the way I slipped I must have hit the two by four upright because I slipped back.The point of the two by four hit me on the left side right below the rib line."

He testified that the employer was building a residence and he(the employee) was carrying hod; that when the accident occurred he did not have a hod as he was quitting for lunch; that at the time he fell he suffered pain in his left side down to the hip and back; that he was first taken to the Homer Phillips Hospital and then to Dr. W. E. Hill for treatment; that Dr. Hill treated him on March 22nd and 23rd, 1943, and that he left town on the 24th on his way to Hawthorne, Nevada, where he had a government job, but that he didn't get there; that he stopped at Earle, Arkansas, and visited friends, and after three days returned to St. Louis because he was getting too sore to ride and required medical treatment; that at the suggestion of the employer's doctors he tried to work, and worked seventy-eight to ninety days between March 22, 1943, the date of the accident, and April 14, 1944; that eighty-five per cent of his work consisted in carrying a loaded hod up the ladder, but that since the accident he could not do this work at which he had been engaged since 1938; that he feels severe pains while working; that he worked from time to time a full eight hour day, but not at his regular work.

Lee Burnet, business agent for Local Union 454, under which the employee worked, testified that he put the men working under the union on the jobs to work and if they were not satisfactory they were taken off; that the contractors hire the men and he furnishes them; that if a contractor complains that a man is not holding up his work, he(the witness) gets another man and takes him there; that he knew the employee since 1940 when he worked with him; that when the employee came back after having started away on his trip the witness sent for him but the employee wasn't able to work.In this connection the witness testified:

"I have had jobs where they called me at 9:30 and 10:00, he couldn't make it, and I have had jobs where he had seven or eight hours sitting in a tank, but when he had to put it on his shoulder, he couldn't make it.The work requiring putting on shoulder is 80% of the job under my control in hodcarrying trade.* * * If you can't carry hod you can't work in my local.* * * Before the accident Johnson was a first class man.Now I hate to get him a job because every job he gets on I get complaints."

Dr. Edward N. Snyder testified on behalf of the employee that he examined him on March 9, 1944, and that he also saw him one day during the week before the hearing; that he took an X-ray picture of the employee which indicated that there was a fracture of the tenth rib on the left side in approximately the posterior scapular line.The witness stated that when he examined the employee on March 9, 1944, he complained of pain in the left side over and about an area covered by the ninth, tenth and eleventh ribs, and in the lower dorsal and upper lumbar region of his back and spine.Answering a hypothetical question which embodied facts descriptive of the accident and the employee's complaints, as well as the condition of the employee found by the witness, he testified that in his opinion the employee's injuries were of a permanent nature.The witness further testified that there was no difference in his findings on his examination of March 9, 1944, and his examination during the week preceding the hearing.As to disability, the witness testified:

"Q.Now, doctor, assuming that the man had the injuries which you found on examining Mr. Ernie Johnson, have you an opinion at this time as to what his functional disability is, as a man, for carrying on any occupation?

"The Referee: You mean the occupation as a laborer?

"Mr. Hicks: Yes.

"The witness: I would judge around say 35; about 35%.

"Q.And, in your opinion, the condition you found, that disability is of a permanent nature; is that right?A.Yes, sir."

On cross-examination the witness testified in relation to the fracture of the tenth rib on the left side that the pieces were in good alignment; that the union was so good that he could not say definitely that there had ever been a fracture, but taking the history of the case into consideration he naturally deduced that there had been; that his opinion of thirty-five per cent disability was based upon the employee's complaints of pain, the doctor stating that the employee would not voluntarily completely flex the lower back and spine.

Dr. William E. Hill testified on behalf of the employee that the employee had been a patient of his off and on and that about March 22, 1943, the employee came to him stating that he had been hurt on the job where he worked; that he proceeded to treat the employee and diagnosed his injury as a severe contusion on his left side in the region of the lower ribs; that when the employee continued to complain of his side, after the doctor thought the contusion should have cleared up, the doctor advised him to have X-rays made, which he did.The doctor stated that his diagnosis was contusion, fracture of the tenth rib, and internal injuries; that his estimate of the employee's functional disability "of a man as a whole, in his employment as a laborer is from thirty to thirty-five per cent," and that his disability was of a permanent nature.The doctor admitted that he furnished a bill to the insurance company in which he made an error concerning three days when Johnson, the employee, was in Arkansas.He stated that when the insurance company called his attention to the error he tried to correct it.On cross-examination the witness admitted that on April 22, 1944, he gave the employee's counsel a report stating the functional disability of the employee was about twenty-five per cent.

The evidence shows that after several treatments by Dr. Hill the employee was sent to Dr. Ralph E. Niedringhaus by the employer and insurer; that Dr. Niedringhaus taped the employee's chest and treated him until shortly after May 12, 1943, and released him; that the employee continued to complain of pain and discomfort and was then sent by the employer to Dr. Alvin Diehr on May 29, 1943.

Dr. Diehr testified on behalf of the employer and insurer that the employee complained of discomfort of the tenth rib posteriorly on the left side, extending over the spine, but that he was able to get up from a lying down position without restriction of movement, and could get into a squatting position, bend forward, and get into an upright position without restriction of movements, but that he complained of discomfort in the left side of his lower back; that X-ray pictures were taken of the employee by Dr. Diehr which showed a healed fracture of the tenth rib on the left side with a good union; that he gave the employee heat treatments and suggested exercise to work the soreness out of the muscles.It was Dr. Diehr's opinion that the employee's complaint of pain on bending or lifting was at that time still justified.On May 31, July 14, and July...