Lewis v. Kansas Explorations

• Decision Date: 02 May 1945
• Citation: 187 S.W.2d 524,238 Mo.App. 697
• Parties: Ezra Lewis, Respondent, v. Kansas Explorations, Inc., Appellant
• Court: Missouri Court of Appeals

187 S.W.2d 524

238 Mo.App. 697

Ezra Lewis, Respondent, v. Kansas Explorations, Inc., Appellant

Court of Appeals of Missouri, Springfield District

May 2, 1945

Appeal from the Circuit Court of Jasper County; Hon. John H Flanigan, Judge.

Reversed abd remanded (with directions).

Paul E. Bradley and George W. Wise for appellants.

The Commission did not act arbitrarily in refusing the request of respondent to offer additional medical evidence on final review by the full Commission, nor was its refusal to hear such proffered evidence an abuse of its discretion. Sec 3731, R. S. Mo. 1939; Schmelzle v. Ste. Genevieve Lime & Quarry Co., 37 S.W.2d 482; Waterman v. Chicago Bridge & Iron Works, 328 Mo. 688, 41 S.W.2d 575; Hohlstein v. St. Louis Roofing Co., 49 S.W.2d 226; Richardson v. City of Hannibal, 330 Mo. 398, 50 S.W.2d 648; Muse v. E. A. Whitney & Son, 227 Mo.App 640, 56 S.W.2d 848; Freese v. St. Louis Public Service Co., 58 S.W.2d 758; State ex rel. Randall et al. v. Shain et al., 341 Mo. 201, 108 S.W.2d 122. The award of the Commission must be upheld if supported by competent evidence and all reasonable favorable inferences that may be drawn therefrom. Snavely v. Delmar Hotel Co., 84 S.W.2d 188; Elihinger v. Wolf House Furnishing Co., 337 Mo. 9, 85 S.W.2d 11; Lunsford v. St. John's Hospital, 107 S.W.2d 163; Schmelzle v. Lime & Quarry Co., 37 S.W.2d 482; Noto v. Hamp & Co., 231 Mo.App. 982, 83 S.W.2d 136. The court is bound by the record before the Commission and cannot hear or consider any other evidence or records. State ex rel. May Department Stores Co. et al. v. Haid et al., 327 Mo. 567, 38 S.W.2d 44; Higgins v. Heine Boiler Co., 328 Mo. 493, 41 S.W.2d 565; Weiler v. Peerless White Lime Co. (Mo. App.), 64 S.W.2d 125.

Norman & Foulke for respondent.

The Workmen's Compensation Commission acted arbitrarily in this cause in refusing to permit the claimant to offer medical testimony in his behalf, before the taking of testimony was closed, and in refusing to permit the claimant to offer medical testimony in his behalf, after he had been advised that he could do so on review by the Full Commission. The action of the Commission was an abuse of its discretion and was arbitrary and unreasonable and deprived the claimant of his substantial rights under the Workmen's Compensation Law. Waring v. Metropolitan Life Insurance Company, 39 S.W.2d 419; Forrester v. Marland, 286 P. 302; Stanolind Pipeline Company v. Geurin et al., 19 P.2d 139; Jack v. Morrow, 185 N.Y.S. 588; Waterman v. Chicago Bridge & Iron Works, 41 S.W.2d 575.

Fulbright, P. J. Blair and Vandeventer, JJ., concur.

OPINION

FULBRIGHT

This is an appeal from a judgment of Division Number Two of the Circuit Court of Jasper County reversing an award of the Workmen's Compensation Commission and remanding the cause for further consideration.

On February 11, 1943, Ezra Lewis filed his claim for compensation against the Kansas Explorations, Inc., his employer, alleging that he was injured in employer's mine on December 24, 1942, while loading cans; that two empty cans were knocked against him catching him between said cans and the wall, whereby his back, spine and chest were badly injured, contused and vital internal organs injured.

Employer, Kansas Explorations, Inc. (self insurer) filed its answer February 15, 1943, denying any liability after payment of compensation, the last payment of which was on January 26, 1943. On March 8, 1943, the Commission set the case down for hearing in Joplin on March 23, 1943, at 1:00 o'clock P. M. and mailed a copy of said notice to each of the parties. Among other things the notice stated: "All parties are requested to introduce all their evidence at the first hearing, as our policy will be not to grant the taking of additional testimony on review except in extreme cases." Hearing was had pursuant to the notice. It was admitted that the parties were subject to the Compensation Act; that claimant was an employee of Kansas Explorations, Inc., at the time of the accident; that employer had due notice of the accident and that the claim was timely filed. It was admitted by employee that the maximum compensation rate was $ 20 per week; that he had been paid for four weeks aggregating $ 80 and had been furnished medical attention.

Employee, the only witness in his own behalf, testified that he was fifty-two years old, had been a miner about fifteen years and at the time of the accident was engaged as a pumper, that is, when loaded cans were pulled from the underground drifts to the bottom of the shaft he would push them to the shaft as necessary to be hoisted out and would push the empty cans away from the bottom of the shaft. The empty cans weighed about 200 lbs., were made of steel, were about four and one-half feet tall and two and one-half feet across at the top and rested on a flat platform-four-wheel car which was about a foot high. At the time of the accident employee had started out with a load of empty cans when a motor train came in, hit them and pushed him over against the wall; that both cans hit him. After sitting down for about an hour he continued working until noon. He further testified that prior to the accident he had never had any trouble with his chest. He went to Dr. Myers who treated him two or three weeks, two or three times a week. He stated that he had no broken bones. Prior to the accident he didn't have a cough or pains in the chest, but since that time he had pains in the chest constantly and he couldn't sleep at night. After he had been off four or five weeks he went down to the mine, worked about an hour and had to come out; that he started coughing and couldn't get his breath; that after another week he went back, worked 3 and one-half days and they put him on a hard job and he quit.

Employer introduced the report of Dr. Roy E. Myers, who had treated employee on behalf of employer, which was admitted without objection. This report concluded as follows: "We see no reason from the physical examination, X-ray or electrocardiographic examinations why this man should not be able to work."

Thereupon, Mr. Norman, attorney for claimant, stated: "I think in view of Dr. Myers' statement about this man's condition that the lungs shows some scarred tissue and from the testimony of this man he ought to be sent to a lung expert."

"By the Referee: Let the record show that it is argued that the employee will immediately report to Dr. Jesse Douglas of Jasper County, Webb City, Missouri, and a copy of the findings of Dr. Douglas to be reduced to writing and a copy furnished for the Commission, to be treated as evidence in this case as well as a copy for the employer and employee, making three copies in all."

Thereafter Dr. Douglas made his report and the same was made a part of the record in accordance with the agreement. The report concludes as follows:

"Opinion: My chest examination discloses no disease of the lungs, nor is there any evidence of any injury to the lungs, or to the bony chest cage. From this examination I must conclude that this man has no disability arising from a lung disease or a lung injury."

On the 17th day of April, 1943, the Referee made the following award: "I find from all the evidence that the employee herein sustained an accidental injury on December 24, 1942, which arose out of and in the course of employment, as alleged, but said injury was not of a permanent nature and he has been fully compensated for any and all disability sustained. Additional compensation, therefore, is accordingly denied."

It will be observed that employee, through his attorney, also received a copy of the report made by Dr. Douglas and on the 15th day of April, 1943, mailed a letter to the Workmen's Compensation Commission at Jefferson City, stating in part as follows: "Gentlemen: As Judge Kinder will remember, this man was sent to Dr. Douglas of the Jasper County T. B. Hospital to determine whether or not his injury had caused a latent tubercular condition to become active. Dr. Douglas examined him and found that he does not have a tubercular condition.

"I have had him examined by other doctors and find that he has a lung condition that they tell me was caused by the accident, and that, for that reason, I would like to have his case set at Joplin to take additional medical testimony on behalf of the employee."

On the 17th day of April, 1943, the same date on which Referee Kinder made his award, the Secretary of the Workmen's Compensation Commission wrote the attorney for employee in reply to his letter of April 15th, as follows: "The Award in the above case has been prepared and sent out. Therefore any additional evidence in this case will have to be offered on review."

Pursuant to this letter, on April 22, 1943, and within ten days after the making of said award by said referee, respondent filed with the Commission his application for review, stating therein among other things: "Employee desires to present additional medical evidence. (No medical evidence was offered, except by employer, in form of written report of Dr. Douglas, of Jasper County T. B. Hospital)."

On May 7, 1943, the full Commission made and entered its final award without further notice to the parties or without receiving or hearing any additional testimony, and without previously acting upon employees application for review. The Award reads as follows:

"We find from all the evidence that employee herein sustained an accidental injury on December 24, 1942,...