Klopstein v. Schroll House Moving Co.

• Decision Date: 20 February 1968
• Docket Number: No. 32891,32891
• Citation: 425 S.W.2d 498
• Parties: Arthur KLOPSTEIN, Employee-Appellant, v. SCHROLL HOUSE MOVING CO., Employer, and Bituminous Casualty Corp., Insurer, Respondents.
• Court: Missouri Court of Appeals

Page 498

425 S.W.2d 498

Arthur KLOPSTEIN, Employee-Appellant, v. SCHROLL HOUSE MOVING CO., Employer, and Bituminous Casualty Corp., Insurer, Respondents.

No. 32891.

St. Louis Court of Appeals, Missouri.

Feb. 20, 1968.

Harry J. Nichols, St. Louis, for employee-appellant.

Graff & Lahey, Malcolm I. Frank, St. Louis, for respondents.

DOERNER, Commissioner.

In this proceeding under the Workmen's Compensation Law claimant Arthur Klopstein filed a claim on April 15, 1964, wherein he alleged that, 'On or about Sept. 4, 1963' he '* * * fell off a rack of timbers onto the floor causing, aggravating and/or exascerbating' his 'Lumbar sacral spine and associated nerves.' The employer and insurer answered, denying that the claimant had sustained an accident and also pleaded that the claimant had failed to give a notice to his employer of any accident or injury within the time prescribed by law. After a hearing the referee entered the following award:

'I find from all of the evidence that Arthur Klopstein, employee herein, sustained an accident on September 4, 1963, arising out of and in the course of his employment with the Schroll House Moving Company.

'I further find that the employee failed to give the employer notice of his injury as required by Section 287.420 Revised Statutes of Missouri, 1959.

'Compensation, therefore, is hereby denied.'

Neither side found that award entirely to its liking and both sought a review by the Industrial Commission, the claimant from that portion concerning the failure to give notice and the denial of compensation and the employer and insurer from the finding that the employee had sustained an accident arising out of and in the course of his employment. In its final award the Industrial Commission adopted the referee's findings of fact, his rulings and conclusions of law, and his decision, and denied compensation. On appeal by the claimant the Circuit Court of St. Louis County affirmed the final award, and he now seeks our review.

The evidence shows that for about one and a half years prior to September, 1963, the claimant, nineteen years of age at that time, had worked for the employer, who was engaged in the business of moving houses. Claimant testified that while he was classified as a carpenter he actually performed mostly manual labor. He related that, 'About the first part of the month' of September, 1963 (he could not give a specific date), while standing on a pile of timbers in the employer's storage yard, looking for a particular one to load on a truck, his right foot went through a space between two timbers, causing him to fall to the ground. He immediately experienced what he described as 'moderate' pain in his right arm, hip and back. Claimant stated that he had never had pain in his back before, and knew he was injured from the moment he got up. He admitted that he never told his foreman about the accident the day he fell or at any later time. Claimant said that he continued to work on the day he fell, and thereafter, although the pain became increasingly worse, and that he consulted his family physician, Dr. B. Todd Forsyth, on October 19, 1963. According to Dr. Forsyth, claimant was then complaining of a stiff neck, and of pain in his back which had developed about the first of September, but gave no history of an accident or fall.

Claimant continued under the care of Dr. Forsyth and was hospitalized in March, 1964, for treatment for what the doctor diagnosed as a herniated intervertebral disc between the fifth lumbar and first sacral vertebrae. He continued to work until Friday, November 1, 1963, when he quit because Dr. Forsyth told him to stop as the heavy lifting was aggravating his condition. On Sunday, November 3, 1963 claimant telephoned Jess W. Schroll, his employer, and told him he had been to the doctor, had a ruptured disc, and would have to get lighter employment. Schroll asked claimant whether he had been hurt on the job, and claimant answered no, that he couldn't recall having been hurt; and that he didn't know what caused his injury. Schroll suggested claimant come by the next evening, and claimant did so. On that visit claimant told Schroll he had awakened from a dream one night with his back hurting him, that he had gone to the doctor a couple of times, and that the doctor finally said he thought it was a ruptured disc and claimant should get some other kind of job. Schroll asked claimant how he was going to take care of his doctor bills, and when claimant said he would make out, Schroll told claimant there were two ways in which he could help him; that if he was hurt on the job he should apply for workmen's compensation, and if he wasn't hurt on the job he should apply for welfare from the Carpenter's Welfare Fund. After Schroll's conversation with claimant on November 4, 1963, Schroll called the insurer, reported that claimant had an injury, and was instructed to make out a report. Schroll made one out on the Workmen's Compensation Division Form 1, 'Report of Injury.' To the printed question, 'Is injury under the Law?' he answered, 'Yes,' but in response to the question of how the injury occurred he wrote: 'Arthur does not claim injury specifically. He first notified us on Nov. 4, 1963 that his back was bothering him and he had consulted a doctor who suggested that he quit work for a while.' While this report was dated November 19, 1963 and sent to the insurer at the time, it was not filed with the Division until March 19, 1964.

About a week or two after November 4, 1963 claimant called Schroll on the telephone and during the conversation Schroll suggested that claimant go to Dr. M. A. Diehr for an examination to be sure he had a ruptured disc. Schroll told claimant that he would pay for the examination. Schroll made the suggestion and personally paid for the examination because he considered claimant as a friend and a young man; and because he wanted to find out what was wrong with him as he had a boy about claimant's age. During the conversation claimant made no mention of having been injured on the job. Claimant did go to Dr. Diehr for an examination on December 6, 1963. The doctor testified that claimant gave a history of his back beginning to ache about the first of September, but said claimant did not remember injuring his back. After examining claimant and the x-rays which had been taken for Dr. Forsyth, and which claimant brought with him, Dr. Diehr told claimant he could not make a definite diagnosis without a further examination, including a myelogram.

On November 29, 1963, claimant filed a claim for benefits with the Carpenter's Health and Welfare Fund, which is supported by contributions made by employers at the rate of 10cents an hour worked by each carpenter they employ. In the written application claimant gave the following answers to the questions on the form: Q. 'When did accident happen or sickness begin. A. Unable to name exact time 1963. Q. Discribe injuries received or nature of sickness. A. Ruptured disc. Q. If an accident, where and how did it happen? A. time unknown. Q. Was disability due to occupational accident or occupational sickness? A. Unknown.' The purpose of the Fund is to provide benefits to members of the carpenter's union for illness or injuries not connected with accidents while at work. Claimant was paid $25 per week by the Fund for the period from November 4, 1963 to March 29, 1964.

The files of the St. Louis office of the Division of Workmen's Compensation showed that claimant consulted Referee Thomas L. Sullivan for free legal aid on December 3, 1963. The notation made on the Division's form prepared by Sullivan (who had died prior to the hearing) reads:

'Loading truck, foot slipped between too (sic) timbers and fell, followed by back pain. No disability at that time. Consulted own doctor. Notified boss of condition on 11/1/63. Employee advised of rights. Set for conference as soon as possible.'

On December 17, 1963 claimant was interviewed by someone representing Bituminous Casualty Corporation, Schroll's compensation insurer, and gave him a written statement, which was introduced by claimant. In it claimant stated that he had fallen off of the timbers and to the ground about the first week in September, 1963, while looking for a particular timber, causing pain in his right arm and hip, and in the lower part of his back.

On direct examination by his counsel claimant was asked: 'You yourself have never told Mr. Schroll about having fallen out there at work, have you?' to which he answered, 'No, sir.' Schroll, who was called as a witness by claimant, testified on cross-examination:

'Q (BY MR. LAHEY) Up to the present time has Arthur Klopstein ever said anything to you about having fallen while at work and being injured?

'A No.

'Q What was the first knowledge you had that this man was claiming that he was injured at work?

'A First I got a letter from the Workmen's Compensation Commission that he applied for Workmen's Compensation.'

Schroll was not asked and the evidence does not show when he received the letter from the Commission, and we cannot be certain whether it was received after claimant consulted Referee Sullivan for free legal aid on December 3, 1963, or whether it was after claimant filed his claim on April 15, 1964.

In view of the issues raised by claimant in this appeal it is unnecessary to digest at length the testimony of Dr. Forsyth or Dr. Samson Wennerman, who testified on behalf of claimant, or of Dr. Marshall B. Conrad, who was called by the employer and insurer, except to say that neither Dr. Wennerman nor Dr. Conrad found that claimant suffered a herniated intervertebral disc, and both found that claimant had a congenital deformity of the upper part of the sacrum. In general they seem to have agreed that claimant had a low back sprain and a congenital defect of the back. Their opinions as to his disability, however, varied from 5% as expressed by Dr. Conrad to 15% as stated...