Kiser v. J. W. O'Connell Painting Co.

• Decision Date: 31 May 1933
• Docket Number: No. 22552.,22552.
• Parties: KISER v. J. W. O'CONNELL PAINTING CO. et al.
• Court: Missouri Court of Appeals

60 S.W.2d 636

KISER v. J. W. O'CONNELL PAINTING CO. et al.

No. 22552.

St. Louis Court of Appeals. Missouri.

May 31, 1933.

Appeal from St. Louis Circuit Court; Charles W. Rutledge, Judge.

"Not to be published in State Reports."

Proceedings under the Workmen's Compensation Act by E. L. Kiser, employee, against the J. W. O'Connell Painting Company, employer, and the Globe Indemnity Company, insurer. From a judgment of the circuit court reversing an award of the Workmen's Compensation Commission denying additional compensation, and remanding the cause to the Commission, with direction to make a proper allowance, the employer and the insurer appeal.

Judgment of the circuit court reversed, and cause remanded, with directions.

Jones, Hocker, Sullivan & Gladney and Willard A. McCaleb, all of St. Louis, for appellants.

Anderson & Whittington, of St. Louis, for respondent.

SUTTON, Commissioner.

This is a proceeding under the Workmen's Compensation Act, to recover additional compensation, on the ground of a change in condition, instituted before the Workmen's Compensation Commission, on April 8, 1932, by application for a rehearing and review of the original award made by the commission on March 4, 1931.

Plaintiff, on July 16, 1930, was in the employ of defendant J. W. O'Connell Painting Company as a painter. While engaged in his work, he fell from a scaffold, a distance of about fifteen to twenty feet, to the sidewalk, whereby he was injured. The liability of J. W. O'Connell Painting Company was insured by the Globe Indemnity Company.

Upon the original hearing, the commission awarded plaintiff compensation for permanent partial disability of the right foot, and found that "the other complaints of the employee were not associated with the accident according to the proof offered." There was no appeal from this award.

In his application for a rehearing and review of this award, plaintiff alleges a change in condition as follows: "Stiffening of joints in legs and feet; increased pain in legs and feet, and loss of use thereof; stiffening of back, and complication of fracture of vertebrae."

Upon the hearing of this application, which was had on April 25, 1932, the commission made the following finding and award: "We find from the evidence that the employe has failed to prove that the accident of July 16, 1930, has caused a change in his condition for the worse since the award dated March 20, 1931. Therefore, additional compensation must be denied."

The circuit court on appeal reversed this award of the commission, denying plaintiff additional compensation, and remanded the cause to the commission, with directions to make a proper allowance for the injury to plaintiff's back.

Upon the original hearing, plaintiff claimed compensation for injuries to his knees, legs, feet, and back. He testified at that hearing as follows: "While working on this scaffold I started to turn around, lost my balance, and fell to the ground. I landed on my feet, and my right foot hit the hardest, and then fell over towards the building on my knees. As I fell towards the building I caught myself with my left hand. At the present time I am having trouble with both ankles, both knees, right hip, and a couple of joints in my back hurt. My feet and knees have bothered me steadily since the accident, and the right hip bothers me at times. My back right above the right hip bone has also bothered me continuously since the accident. I get kind of paralyzed when I stoop over for any length of time. I can't work as a painter, because my legs give out when I am on them any length of time. These pains in my hip and back and knees and ankles, disregarding the injury to the right foot, interfere with my getting around and exerting myself. I can hardly get around. I walk kind of like a duck. I can't go fast. When I try to go fast, I have to take short steps. When I try to take short steps it hurts me in my back. It hurts me all over in my back and knees, and ankles too. I have not noticed any improvement in my knees and back, and my right foot seems to get worse instead of better. I could not say whether or not my right foot is swollen now, but it has been swollen. Sometimes it just feels like it is real hot, like it had been in a pan of hot water. The left foot hurts some, but not like the right one. It never did hurt like the right one, but always did hurt some. I did not have any particular injury to my left foot. It hurts some, but it was never broke up like the other. It always hurt a little, but not like the right one. My knees have a cracking sound in both knees, and so does my ankle."

Dr. C. A. Poe testified that he examined plaintiff in January, 1931; that he found the plaintiff complaining of pains in both feet and both knees, and in his back; that he found quite a bit of crepitus upon motion of the right hip in the sacral region, and that there might be some crepitus in the right sacroiliac; that he found crepitus in the right knee and right foot; that he thought there was some arthritis and some injury probably to the cartilage of the left foot, and the left knee also; that he thought there was a sacroiliac sprain of the right sacrum; that in his opinion trauma could have caused the crepitus he found in the right foot, right knee, and right hip; that there was some injury to the right foot; that there was an arthritic condition in the right foot; that the plaintiff complained of two joints in the lower portion of the back as bothering him; that he examined the back and found tenderness and soreness; that he had an X-ray picture taken which showed more injury to the back than he thought there was when he examined him; that in his opinion the arthritic condition of the right knee and right foot and the fifth lumbar vertebra was pretty much a permanent condition; that he found an arthritic condition in both knees and in both ankles, and a sacroiliac sprain; that he found an arthritic condition of the fifth lumbar vertebra; that the X-ray picture indicated an arthritic condition of the back; that, on his examination before the X-ray picture was taken, he did not think there was as much injury to the back as the X-ray picture shows; that arthritis is what laymen usually call rheumatism of the joints; that the great majority of cases of arthritis are due to chronic conditions and not to injury.

Dr. John A. Key testified that he examined the plaintiff on December 18, 1930; that he examined his knees, back, feet, and ankles; that he complained of severe pain in both feet, stiffness, pain, and instability in both knees and ankles, and pain in the lower back; that the movements of the back were normal and without pain; that he found no pathology of the back, and found nothing...