Kopolow v. Zavodnick

• Decision Date: 08 February 1944
• Docket Number: No. 26518.,26518.
• Citation: 177 S.W.2d 647
• Parties: KOPOLOW v. ZAVODNICK et al.
• Court: Missouri Court of Appeals

177 S.W.2d 647

KOPOLOW v. ZAVODNICK et al.

No. 26518.

St. Louis Court of Appeals. Missouri.

February 8, 1944.

Rehearing Denied February 29, 1944.

Appeal from St. Louis Circuit Court; William H. Killoren, Judge.

"Not to be reported in State Reports."

Proceeding under the Workmen's Compensation Act by Harry Kopolow, claimant, opposed by Harry Zavodnick, employer, and Maryland Casualty Company, insurer. From a judgment reversing a Compensation Commission award denying additional compensation and remanding the cause to the commission for further proceedings in conformity with circuit court's opinion, employer and insurer appeal.

Judgment reversed and cause remanded with directions.

Seldon E. Brown, Moser, Marsalek & Dearing, and J. C. Jaeckel, all of St. Louis, for appellants.

Joseph D. Feigenbaum, of St. Louis, for respondent.

ANDERSON, Judge.

This appeal is by an employer and an insurer from a judgment of the Circuit Court of the City of St. Louis which reversed an award of the Missouri Workmen's Compensation Commission.

Claimant Harry Kopolow alleged an injury to his right side and back as the result of falling from a scaffold on November 26, 1941. The answer denied that respondent sustained an injury which would result in permanent disability.

The evidence shows beyond question that respondent suffered three fractured ribs and injury to the soft tissues of his chest. Respondent also claimed an injury to the liver, but this was disputed by appellants.

On January 19, 1942, a hearing was held on said claim before a referee of the Commission, and on February 26, 1942, the referee entered a temporary or partial award in favor of respondent in the sum of $20.00 per week from November 26, 1941, to December 23, 1941, and in addition the sum of $56.00 to be paid to Dr. Ben D. Senturia for medical care furnished respondent. By said award appellants were ordered to furnish respondent with such further medical treatment, including nursing, hospitalization, and medicines, as might reasonably be required to cure and relieve him from the effects of his injury.

Upon application of respondent, a review of this award was had before the full Commission; and on May 8, 1942, said Commission rendered its temporary or partial award allowing respondent $20.00 per week from November 26, 1941, to and including December 21, 1941, and ordering the claim reset for further hearing on or about June 1, 1942, so as to determine whether further liability existed as a result of the accident. The award also provided that in the meantime appellants should furnish respondent such medical, surgical, and hospital treatment as might be reasonably necessary to cure and relieve him from the effects of his injuries. With the award, the Commission filed findings of fact, one of which was that the services of Dr. Ben Senturia were secured by the respondent at his own instance, and that the appellants were not liable for said doctor's bill of $59.

On June 10, 1942, a further hearing was held before Commissioner Lahey; and on July 15, 1942, the full Commission made an award making the award of May 8, 1942, final, finding that respondent had been fully compensated for any and all disability suffered as a result of the accident, and denying additional compensation.

Respondent appealed to the circuit court, and that court rendered judgment, reversing the award and remanding the cause to the commission for further proceedings in conformity with the written opinion of the court. The grounds upon which the court reversed the final award appear in the court's opinion, as follows:

"In view of the fact that the uncontradicted testimony submitted in this matter shows that employee sustained three fractured ribs, for which he was allowed temporary total disability in the sum of $20.00 per week from November 26, 1941, the date of the accident, to and including December 23, 1941, or the sum of $80.00, and the further fact that no allowance was made for medical expenses after the 19th day of January, 1942, I am of the opinion that there is not sufficient competent evidence in the record to warrant the making of the award denying employee additional compensation and medical expenses; therefore the award heretofore entered is reversed and the cause remanded for further hearing."

The evidence showed that respondent was a carpenter, 52 years of age. On November 26, 1941, while in the employ of Harry Zavodnick, plaintiff fell from a scaffold, a distance of about 8 feet, and struck his side against the sharp edge of a "walking board," which was being used by hodcarriers on the job. He was immediately taken for treatment to the office of Dr. Hangen. The doctor took X-rays, and applied tape to his side. Plaintiff then went back on the job, but was unable to remain for more than a half hour, when he went home. That afternoon his injury became so painful that his wife called Dr. Senturia, who gave him medicine to ease the pain. Willie Zavodnick, son of Harry Zavodnick, was present at the time, and respondent testified that when he took two dollars out of his pocket to pay the doctor, Willie Zavodnick said: "You don't have to pay, I will see the insurance will pay it." The record nowhere shows authority from either of the appellants to Willie Zavodnick to give their consent to the employment of Dr. Senturia.

On cross-examination respondent admitted that he did not obtain authority from anyone to engage the services of Dr. Senturia, but did so on his own initiative; that neither the Maryland Casualty Company nor Harry Zavodnick ever authorized him to consult Dr. Senturia.

Dr. Senturia thereafter called to see respondent at his home daily over a period of five days. Respondent then called at Dr. Senturia's office for diathermy and infra-red treatments every day for the next week or ten days, and every other day for sometime thereafter. His last visit to Dr. Senturia's office, prior to the hearing before the referee held on January 19, 1941, was two days previous, or January 17th. For three or four weeks prior to the latter date, he did not go to the doctor's office because, he said, "I didn't get no better with the treatment, and if he can't do it any better why should I go on and pay doctor's bills when I can't do nothing about it, and it still hurts anyhow."

Respondent did not return to the employ of Zavodnick, but on December 15, 1941, took another job with a Mr. Dubinsky. On that day, because of pain in his arm and chest, he was unable to work longer than a half hour. On December 17th, he again tried to work, but after a half or three quarters of an hour was forced to quit. On Saturday, December 19th, he worked until about 10 or 10:30, but when he tried to lift a board he became faint and had to quit. On December 21st, he again reported for work, and, according to his testimony before the referee on January 19, 1942, he did light work off and on thereafter, but, he stated, "I could not do any heavy work, lifting heavy beams; that hurts my side, my right side. * * * In my work as a carpenter prior to the time I was hurt, I did all kinds of work. I put in joists, beams, trim, any kind of work. * * * It is heavy work and it is light work. * * * I have not been able to do all those things since I was hurt. Trim is putting up casings, putting in windows, light work like that, and I am able to do it now. I am not able to raise joists and beams; when I try to do that it hurts my side. I can't bear down very hard and I can't raise my hand over that far (indicating), then it hurts my side. I don't work as fast as I used to; my pain has something to do with that. I am now unable to do about one-half of the things I used to do as a carpenter."

He further testified: "I went back to work because I have to make a living, you know, and nobody paid me anything. The insurance company did not pay me anything and did not offer me anything. * * * I received $4.00 a week from the Carpenters' Union, for three weeks. I have a wife and two kids."

On cross-examination, respondent testified that after December 19th he did the following work for Dubinsky: On an apartment at Hamilton and Julia, he worked on some windows and doors, and hung two doors which weighed twenty-five or thirty pounds each; at three addresses on Pershing avenue, he fixed steps and windows; at 22nd and Jefferson avenue, he hung garage doors which were pretty heavy, but he had a helper. He also testified: "I worked at 4510 Easton all last week; that's a fire job, and I have been facing windows and doors."

He further testified that his side had pained him ever since he was injured.

At the hearing before the referee, he testified that working for Mr. Dubinsky, he made $15.00 the week two weeks before the hearing, and the week before that he made $24. The week of December 21st and 22nd, he made $45.00, working on Christmas Day on a special job. He further testified that since December 23, 1941, he had worked steadily; that his wage scale was $10.00 per day, but Dubinsky paid him $8.00 per day; that when he worked for Mr. Dubinsky the year before, he was paid $7 per day.

At the hearing before Commissioner Lahey, held June 10, 1942, respondent testified that since the first hearing he had been doing light carpenter work, "Just windows, screens, remodeling. Little small jobs, no big jobs." He further testified that he could not do heavy work, such as carrying joists and beams, because it hurt his side; that at that time he did about one-half of his work as a carpenter. He stated that since the first hearing most of his work had been odd jobs, and that his earnings had been $30.00 per week; that during the six months he worked for Zavodnick, he earned $10.00 per day and averaged $55 per week.

When asked how he had been feeling since the previous hearing, respondent replied: "No better; no worse; about the same." He said he had been to see Dr. Senturia a half dozen times since the hearing before the referee,...