Johnson v. Reed

• Decision Date: 03 November 1930
• Citation: 32 S.W.2d 107,224 Mo.App. 1120
• Parties: HOMER JOHNSON, CLAIMANT, RESPONDENT, v. WILMONT REED ET AL., EMPLOYERS, GLOBE INDEMNITY COMPANY, INSURER, APPELLANT
• Court: Kansas Court of Appeals

32 S.W.2d 107

224 Mo.App. 1120

HOMER JOHNSON, CLAIMANT, RESPONDENT, v. WILMONT REED ET AL., EMPLOYERS, GLOBE INDEMNITY COMPANY, INSURER, APPELLANT

Court of Appeals of Missouri, Kansas City

November 3, 1930

Appeal from the Circuit Court of Adair County.--Hon. Paul Higbee Judge.

AFFIRMED.

Judgment affirmed.

Reiger & Reiger for respondent.

Jones Hocker, Sullivan & Angert for appellants.

ARNOLD J. Bland, J., concurs. Trimble, P. J., absent.

OPINION

ARNOLD, J.

--This is an appeal from a finding and judgment of the circuit court of Adair county, Missouri, on appeal from an award by the Workmen's Compensation Commission of Missouri. The claimant was a farmer who with his family was living and working on a farm of 666 acres near Kirksville, Missouri, owned by Wilmont Reed and James L. Reed, his employers.

On January 23, 1928, while in the course of his employment, in the act of vaccinating some cattle, claimant was kicked in the back by a two-year-old heifer. The blow resulted in a bilateral fracture of the fourth lumbar vertebra. Claimant was taken to a hospital in Kirksville, where he was confined for a period of eight weeks, after which he continued to be treated by physicians up to and including the time of his final hearing before the Missouri Workmen's Compensation Commission.

Claimant duly filed his claim with the commission on April 16, 1928, to which an answer was filed on April 23, 1928. The cause came on for hearing before Commissioner Alroy A. Phillips on June 12, 1928, and a temporary award in favor of claimant was made in the sum of $ 20 per week, for a period not to exceed 400 weeks. At that time the extent of claimant's disability could not be definitely determined; and for this reason the temporary award was made.

The Globe Indemnity Company, insurer of the employers, complied with this temporary award and made the weekly payments to January 14, 1929, in the total sum of $ 1020. The insurer refused to pay further and claimant was ordered to report at the city of St. Louis for examination by insurer's doctor, one Dr. Vosburgh, the examination to be conducted on two consecutive days, to-wit, July 30 and 31, 1928. The record shows that Dr. Vosburgh finally examined claimant on March 13, 1929. The cause again came on for hearing for final award on July 11, 1929, before commissioner Jay J. James. After evidence was introduced at that hearing, an award was made in favor of claimant of $ 20 per week for a total period of seventy weeks.

Claimant filed application for review before the full commission and thereupon the final award was affirmed, all members of the commission concurring. An appeal was perfected by claimant to the Adair county circuit court, which said court reversed the final award of the commission and remanded the cause "for further procedure as required by law." The reasons assigned by the court for such finding and reversal of judgment were as follows:

"In this connection I call attention to the award of the commission. Claimant was injured January 23, 1928. The final award was for seventy weeks, which would extend the compensation to about June 1, 1929. The final hearing was held July 11, 1929. Dr. Vosburgh's evidence was based upon an examination made March 13, 1929. If the commission based its findings that the claimant was recovered upon the testimony of Dr. Vosburgh, then compensation should have ceased March 13, 1929, rather than June 1, 1929. There was no evidence on behalf of the insurer as to his condition on June 1st, or July 11, 1929. As above stated the testimony of claimant and the physicians who had been treating and caring for him was to the effect that he was permanently and totally disabled at the date of the hearings on July 11th. I am unable to find any evidence in the record upon which to base the finding of the commission that claimant should be paid until June 1, 1929, for permanent total disability and that he should not be paid for permanent total disability thereafter, or that he should not be paid for temporary partial disability. at least. Under the testimony of Dr. Vosburgh, I am of the opinion it was mandatory for the commission to allow at least temporary partial disability for a period of time to be ascertained by the commission on a rehearing of this matter."

In his findings of fact filed with the commission on June 12, 1928, Commissioner Phillips formally found the necessary elements upon which to base his recommendation, as above stated; and, as to the nature and character of the injury, the report states;

"The X-rays indicate a longitudinal fracture on both sides of the body of the fourth lumbar vertebra, as though the transverse processes were broken off and had carried with them large-sized fragments of the sides of the body. The spinuous process is also out of line both vertically and horizontally, as though the whole vertebra were somewhat rotated and twisted. There are also signs of an affection of the right great sciatic nerve, one branch of which (the fourth lumbar) comes through the intervertebral foreman of the fourth lumbar vertebra near the site of the fracture on the right side, which is the most severe injury. This employee is in need of immediate medical attention and X-rays should be taken at once to show the present...