Kinyon v. Kinyon and Eckstein, 22864.

• Decision Date: 08 May 1934
• Docket Number: No. 22864.,22864.
• Court: Missouri Court of Appeals
• Parties: HAROLD KINYON (EMPLOYEE), RESPONDENT, v. FRED J. KINYON AND R.E. ECKSTEIN, PARTNERS, DOING BUSINESS AS FRED J. KINYON ICE & FUEL COMPANY (EMPLOYER) AND UNITED STATES FIDELITY & GUARANTY COMPANY (INSURER), APPELLANTS.

71 S.W.2d 78

HAROLD KINYON (EMPLOYEE), RESPONDENT, v. FRED J. KINYON AND R.E. ECKSTEIN, PARTNERS, DOING BUSINESS AS FRED J. KINYON ICE & FUEL COMPANY (EMPLOYER) AND UNITED STATES FIDELITY & GUARANTY COMPANY (INSURER), APPELLANTS.

No. 22864.

St. Louis Court of Appeals. Missouri.

Opinion filed May 8, 1934.

Appeal from the Circuit Court of St. Louis County. — Hon. Jerry Mulloy, Judge.

AFFIRMED.

Carter & Jones and Richard S. Bull for appellants.

(1) Under the terms of the Missouri Workmen's Compensation Act the commission "may make an award ending, diminishing or increasing the compensation previously awarded," and in so doing the findings of fact made by the commission are conclusive on appeal if sustained by sufficient competent evidence. Secs. 3340, 3341, 3342, R.S. Mo. 1929; Waterman v. Chicago Bridge & Iron Works (Mo. Sup.), 41 S.W. (2d) 575; Smith v. International Shoe Co., 49 S.W. (2d) 233; De Moss v. Fire Brick Co., 37 S.W. (2d) 961. (2) There was sufficient competent evidence warranting the finding by the commission, at the hearing on change of condition, that the employee had suffered permanent partial disability rather than permanent total disability, in that the employee was shown to have become enabled to return to remunerative employment. "Total disability" does not exist where claimant is capable of performing and is performing such employment. Sec. 3305 (e), R.S. Mo. 1929; 2 Schneider, Workmen's Compensation (2 Ed.), pp. 1435, 1977, 1979; Valentine v. General Paper Stock Co., 37 S.W. (2d) 457; Vollet v. Federal Sign Co., 49 S.W. (2d) 201; Congoleum Nairn Co. v. Brown (Md.), 148 Atl. 220; Connelly's Case (Me.), 119 Atl. 664, 665; Pine v. Nowlin (Okla.), 5 Pac. (2d) 118; White Oak Ref. Co. v. Whitehead (Okla.), 298 Pac. 611, 616.

McCULLEN, J.

This is an appeal by the employer and insurer from a judgment of the Circuit Court of St. Louis County, reversing an award made by the Workmen's Compensation Commission, based on an application for a rehearing alleging a change of condition.

The respondent, employee, a truck driver, was injured while unloading coal on November 7, 1927, when he slipped and fell, striking the back of his head. The original award by the commission was made on April 4, 1928, after a hearing. That award included $509.90 for medical aid, compensation of $20 per week for 300 weeks, and $8.25 per week thereafter for life, for permanent total disability. The findings of fact upon which the original award was based included a finding of injury to the right side of the brain, resulting in left hemiplegia, and a finding that hemiplegia is a permanent total disability.

No appeal from the original award was taken by any of the parties.

On August 27, 1931, the employer and insurer filed with the commission an application for rehearing and review on the ground of a change in condition, the application stating that the "employee is now able to work and is no longer permanently and totally disabled."

A rehearing before a referee was held on October 19, 1931, on said application. The employee testified at the rehearing that he was working for the City of Kirkwood, in the Police Department and Light and Water Department, having entered that employment on January 5, 1931. He stated that this employment had been continuous from January 5, 1931, and that he was working six nights a week and on Sunday. His duties were to answer the telephones. He said he was paid $90 per month for such services; that such work did not require him to stand; that prior to taking the job mentioned he had done a little work checking and counting cement sacks, and that he "would sit down to do that too."

With respect to his physical condition at the time of the rehearing, the employee testified that he was not much better than he was when the accident first happened; that his condition, "has not changed much;" that he could walk without the aid of a cane only on a level place; that before the accident he was driving a truck, but that he cannot drive a truck now. He testified that his left arm and left leg are both stiff; that he could not raise his arm above his head and could not bend his elbow; that he could not close the fingers of his left hand or move his left wrist. He said that his left leg was in a similar condition; that it was stiff and that he could "hardly use it." He was asked if he had received any medical treatment or attention since May 4, 1928, and answered: "I have been going to this Doctor all the time (indicating Dr. Barnett)." He further testified in this connection:

"Q. When was the last time you went to Dr. Barnett? A. I have gone there on and off all the time. I have terrible headaches."

He said he was taking treatments from a masseur to work out the "paralysis" in his left arm and left leg.

He also testified that his eyes were bothering him and that the bad condition of his eyes began after he had "a stroke" on November 7, 1928. He described the condition of his eyes by saying: "I can't see out of the inside of the right eye and the outside of the left eye." He said he could not see anything to the left of his left eye, or to the left of his right eye. When asked whether this condition had been better or worse since April 4, 1928, he said: "It hasn't got any worse and it hasn't got any better." Being asked:

"Q. Is there any other condition beside the eye condition, the headaches and the paralysis in the arm and leg that is affecting you at this time?" he answered: "Not as I know of." When asked if he was able to perform the service of telephone operator, he said: "Well, with the help of the boys, yes."

He further testified that he had been paid in compensation under the original award, $20 per week for 205 weeks, making a total of $4,100 paid to him up to the time of the rehearing.

Dr. C.E. Barnett testified that he had been treating the employee since the accident, and described his condition as, "Hemiplegia of the left side." He defined hemiplegia as, "Paralysis of the left side." He testified that the employee does not have the use of his left arm at all. With respect to the use by the employee of his left leg, the doctor said:

"The only use he has — its merely a stub — merely a body swing; he doesn't walk with it; he gives his body a swing and braces it for the next step, is all it is."

He testified that the employee suffered from headaches about once a week, "or something like that."

As to the condition of the employee's eyes, the doctor testified that the employee "has no vision on the left side;" that this condition was caused by "Paralysis of the optic nerve that controls the left side." The doctor was asked: "Do you know from your examination that there is defective vision in either eye?" and answered "Absolutely." The doctor also testified that the employee's mentality is below what it was before the accident.

With respect to the employee's ability to work, he testified:

"Q. Doctor, is Mr. Kinyon able to work? A. Well, I should say that he should not work, but I know he is spending so much money — the boy needs money to pay these doctor bills, and that's the only reason I told him I thought he could work, to help him to get money to pay those bills... .

"Q. You heard him describe the kind of work he is doing? A. Yes.

"Q. Is he able to do that work? A. He wouldn't be by himself. The police practically do half the work, to tell the truth about it.

"Q. He gets paid for that, doesn't he? A. Yes. His uncle happens to be the Mayor out there, and it is more of an honorary job than anything else."

The doctor further testified that in his opinion the condition of the employee's left arm and left leg, as described by him, is permanent.

After the rehearing, the full commission of three members, on November 6, 1931, made an award for permanent partial disability of $20 per week for 400 weeks, payments to begin as of November 7, 1927, subject to a credit of $4,100 previously paid the employee. The nature of the employee's injury was again found to be, "Left hemiplegia and partial loss of vision." The employee's average weekly wages were found by the commission to be $33, and the weekly compensation allowed, was $20.

In its "Statement of facts and rulings of law" which accompanied the award, the commission, after referring to the original award of April 4, 1928, stated that it found from the evidence adduced at the rehearing on October 19, 1931, that the employee had been working since January 5, 1931, in the employ of the Police and Light and Water Department of the City of Kirkwood, for which services he had been receiving $90 per month. The commission also stated that the evidence further shows that the employee's uncle is the Mayor of Kirkwood, "and it is pretty evident that this is the reason he is now employed." The commission further stated that due to the nature of the employee's injuries, "we doubt very seriously if he would be able to compete in the open labor market and receive any kind of a job." With respect to the employee's condition, the commission stated:

"Furthermore, the evidence does not show that his condition has changed since April, 1928. However, the fact remains that he is employed and has been so since January 5, 1931, and we cannot say therefore that he is now permanently and totally disabled. The evidence shows that the condition he is now in is permanent and he must be classed as a permanent partial disability."

In reversing the award made by the commission, the circuit court filed a memorandum stating there was not sufficient competent evidence in the record to warrant the making of such award.

The appellants contend that in making its award the commission conformed to the law, and that the circuit court erred in reversing such award.

It is conceded by appellants, with commendable fairness, that there is no evidence in the record indicating that the employee's physical condition was greatly changed or improved since the time of the...