McAdams v. Seven-Up Bottling Works

• Decision Date: 03 June 1968
• Docket Number: No. 24902,SEVEN-UP,24902
• Parties: D. R. McADAMS, Employee-Respondent, v.BOTTLING WORKS, Employer-Appellant, and Safety Mutual Casualty Company, Insurer-Appellant.
• Court: Missouri Court of Appeals

Page 284

429 S.W.2d 284

D. R. McADAMS, Employee-Respondent, v. SEVEN-UP BOTTLING WORKS, Employer-Appellant, and Safety Mutual Casualty Company, Insurer-Appellant.

No. 24902.

Kansas City Court of Appeals, Missouri.

June 3, 1968.

Renderer & Nolde, William B. Kelleher, St. Louis, for appellants.

Hulen & Hulen, Gary A. Tatlow, Moberly, for respondent.

CROSS, Judge.

This is a workmen's compensation case. The employer, Seven-Up Bottling Works, and its insurer, have appealed from a judgment of the circuit court affirming a final award of compensation benefits entered by the Industrial Commission in favor of claimant-employee D. R. McAdams.

The original proceeding was before a referee. Based on the evidence, consisting of testimony by claimant and medical reports and records, the referee found that claimant had sustained an accidental injury arising out of and in the course of his employment which resulted in injury to his left arm at the shoulder, and made an award in claimant's favor in a total amount of $1,670.89 based on a healing period of 20 weeks and a finding of 20% permanent partial disability to the left arm at the level of the shoulder.

On application by claimant the Industrial Commission reviewed the proceedings, without further hearing of testimony and oral argument, and made a final award affirming the award of the referee with the modification that the permanent partial disability of the left arm at the shoulder amounted to 100%, and that the total award of compensation be in the sum of $6,720.84. Appellant assigns that 'The amended award of the Industrial Commission, as affirmed by the Circuit Court of Randolph County, is in error in its award to the Respondent for the reason that said award is not warranted or justified by sufficient competent evidence, as provided by law.'

The facts are not in dispute except as to the extent of claimant's injury and his disability rating. Claimant, approximately 75 years old at the time of the accident, had been an employee of Seven-Up for the previous seven or eight years. As to his duties he stated that he 'nailed up the cartons and folded cartons and things like that in the plant.' The accident occurred at the Seven-Up bottling plant in Moberly on the morning of February 24, 1965, while claimant was eating a sandwich and drinking coffee. He was seated next to a 'pallet' stacked with some 112 'soda shells' (containers for bottles filled with 7-Up), when a fellow employee operated a 'tow-motor' loaded with 1700 pounds of syrup in such a manner as to strike the pallet, causing the load of soda shells to fall onto claimant, and knock him to the floor. In claimant's words, 'Well, he just backed up and here he come with all that syrup and hit that whole pallet of shelves (shells) and knocked it over on me. * * * They was 112 on a pallet and he hit that and knocked it over on me, all them shells. * * * About 110 fell on me, there's a 112 in a pallet.' The shells struck claimant on the shoulder, arm, neck and ear and pinned him against some other shells, causing injury to the parts named. He was unable to say whether he lost consciousness--'it hurt so bad that I just couldn't tell what happened hardly.' He finished the day's work but was unable to sleep that night and reported his injury to his supervisor the next morning. The employer sent claimant to Community Memorial Hospital where he was first examined by Dr. W. H. McCormick and given physiotherapy treatment.

Three days later he sought the medical services of his family physician, Dr. Robert Hasson, but continued to have physiotherapy at Community Memorial Hospital until May 19, 1965, 22 treatments in all. Claimant remained in the care of Dr. Hasson regularly up until the date of the hearing.

In August of 1965 Dr. Hasson referred claimant to Dr. Grafton A. Smith of Columbia. Dr. Smith entered claimant as a patient at Boone County Hospital where he underwent a general clinical examination and treatment and bronchoscopy performed by Dr. Smith. After approximately one week he was released from the Boone County Hospital and transferred to the University of Missouri Medical Center at Columbia, where he was examined and given X-ray therapy by Dr. William J. Stewart and observed by other doctors and a number of students. Shortly before the hearing claimant was given a complete examination by Dr. James E. Campbell at Macon. Claimant is unable to perform any work and has not returned to employment since the accident.

In support of their contention that the circuit court erred in sustaining the commission's award as modified to raise the referee's disability rating of 20% permanent partial disability of the left arm at the level of the shoulder to 100%, appellants first submit that 'Though it is the award of the Industrial Commission in compensation proceedings that is reviewed, (the) Referee's award and findings are a part of the record and should be given due consideration.' Appellants take the position that since the evidence was heard by an experienced and able referee, who had not only the medical and hospital reports before him, but also the opportunity to observe the employee and to question and examine him, the referee was in a superior position to evaluate the evidence of claimant's disability than was the commission, which heard no additional evidence or argument. Appellants charge that the commission 'for no stated reason whatsoever, ignores, disregards, and in effect overrules the findings and conclusions of the trial referee' and that the commission's amended award 'is necessarily based on speculation and conjecture.' This contention runs counter to the law as the courts have declared it.

Although the referee's findings of fact with reference to the percentage of disability is a favor to be considered in determining whether the Industrial Commission's award is supported by competent and substantial evidence, it is the award of the commission and not the award of the referee which is reviewed by the court. Barron v. Mississippi Lime Company of Missouri, Mo.App., 285 S.W.2d 46. The duty of the Industrial Commission is to review the record, determine credibility of the witnesses, the weight to be given their testimony, to resolve any conflict therein, and as a fact finding tribunal to reach its own conclusions, independently of the findings made by the referee. The findings of the referee are in no way final and binding upon the Industrial Commission if, upon a consideration of all evidence, the commission reaches a conclusion different from that of the referee. Brown v. Griesedieck Western Brewing Co., Mo.App., 250 S.W.2d 803. As stated in Douglas v. St. Joseph Lead Co., Mo.App., 231 S.W.2d 258: 'If we were to hold that the findings of a Referee must be deferred to, it would be equivalent to holding that the Referee is the supreme authority and that his findings are binding upon the Commission and on the Circuit Court as well as upon this court merely because the witnesses in such a case as this appear before the Referee but do not appear before said reviewing tribunals. A mere reading of the statutes governing Workmen's Compensation shows that the duties and scope of authority of Referees are positively defined and clearly limited. They are merely the servants and agents of the Commission. To adopt employer's view would make referees the masters of and superior to the Commission. Neither the statutes nor the decisions of our courts warrant such a view.' In the recent case of Miranda v. American Refrigerator Transit Co., Mo.App., 392 S.W.2d 413, the court had the instant question before it and held there was no merit to the point that the commission in making the award had not given due consideration to the referee's finding and award. The court there said: 'It is true that the finding of the referee is of importance and should be considered together with all the facts and...