Meilves v. Morris, 52702

Decision Date08 January 1968
Docket NumberNo. 2,No. 52702,52702,2
Citation422 S.W.2d 335
PartiesEffie MEILVES, Respondent, v. M. E. MORRIS, Treasurer of the State of Missiouri, as Custodian of the Second Injury Fund, Appellant
CourtMissouri Supreme Court

Harry J. Nichols, St. Louis, for respondent.

Norman H. Anderson, Atty. Gen., Jefferson City, Irving L. Cooper, Special Asst. Atty. Gen., Clayton, for appellant.

EAGER, Judge.

This is an appeal by the custodian of the 'Second Injury Fund' from an award in a Workmen's Compensation claim against that fund. The award was upheld by the Circuit Court. We have jurisdiction because a State Officer, as such, is a party. Grant v. Neal, Mo., 381 S.W.2d 838; Stewart v. Johnson, Mo., 398 S.W.2d 850. In essence, the applicable statute, § 287.220, RSMo 1959, V.A.M.S., provides that if an employee has a 'permanent partial disability, whether form compensable injury or otherwise, * * *' and thereafter receives a subsequent compensable injury resulting in additional permanent partial disability, the employer shall be liable only for that percentage of disability which would have resulted from the last injury, and the remainder shall be determined and paid out of the 'Second Injury Fund.' That fund is maintained from a portion of the proceeds of a tax on all insurance carriers under § 287.710.

Counsel for the claimant complains that the Points in appellant's brief are merely abstract; he has filed no motion to dismiss. From an examination of the Points and the argument of appellant the contentions are abvious, and the matter needs no further discussion. In view of the nature of the case and the contentions made, the Points appear to be sufficient in any event.

The claimant, Effie Meilves, 78 years of age at the time of her injury in July, 1963, and nearly 81 at the time of the hearing, was employed as a cleaning woman by the St. Louis Visiting Nurses' Association. She cleaned the desks and chairs and the nurses' room and, upon occasion, cleaned the venetian blinds by washing them while standing on a ladder. For about two years prior to July, 1963, she had worked only one day a week at $8.60 per day; previously she had worked three days a week. the failure of counsel to show the reason for this change has been very material to our consideration. The claimant performed her work with complete satisfaction to the employer and without any complaints on her own part; she worked regularly from 8:00 a.m. to 4:15 p.m., with 30 minutes for lunch, and she was on her feet 'quite a bit.' She had worked for the same employer for nearly twenty-five years.

On July 18, 1963, she slipped and fell in her place of employment. The employer ane employee conceded in the original proceedings that the claimant sustained a fall on the date in question. We must more or less infer that fact as between the present parties. The claimant was not asked about the fall when she testified, and the evidence of one of her supervisors concerning the fall was excluded as hearsay. All the facts, however, including the evidence of hospital and medical treatment and the Workmen's Compensation documents and findings, are sufficient for this purpose.

Claimant's injuries from the fall consisted principally of a fracture of the right shoulder and fractures of two bones of her right wrist. The result was limitation of motion and of rotation in the right shoulder, with stiffness and periodic pain, a 5 --10 'flexion deformity' of the right elbow, a radial deformity of the right hand at the wrist with limited motion of the wrist and recurrent pain, and an inability to close the right hand so as to 'make a fist,' because of stiffness of the fingers. The claimant never went back to work. While the appellant denies the existence of total and permanent disability since the fall, there was ample evidence to sustain the finding so made. Following the injury, the claimant settled with the insurer of her employer for that injury, and thereafter filed the present claim against the Second Injury Fund. The settlement, approved by the Commission, was based upon a permanent disability of 20% of the right arm at the shoulder and wrist, and 15% at the elbow. The total payment made was $1,671, in addition to the medical aid.

Claimant was examined by two physicians prior to the hearing on the present claim,--one of her own choice and one chosen by counsel for the fund. X-rays were taken. These examinations were made, respectively, on April 26, 1965, and on March 2, 1965. Sundry ailments and degenerative conditions were found, obviously of long standing, and the inference is clear that they existed prior to July 18, 1963. They were, in substance, as follows: her heart was enlarged, her blood pressure was high, being 200/120 on one examination and 225/140 on the other, she had hypertension, generalized arteriosclerosis, a moderate kyphosis of the dorsal spine and a right dorsal and left lumbar scoliosis. Her back motions were limited; the x-rays showed an anterior wedging of several middorsal vertebrae, secondary to 'senile osteoporosis,' and an atrophy of the musculature of the shoulders and arms. The wedging of the vertebrae had caused the claimant to have a 'humpback' appearance; she also had some edema in her left lower leg and ankle, and poor circulation in her feet. One physician testified that she was totally and permanently disabled and no longer employable; the other thought that she could still do such work as she had been doing for the last five years. The wedging of the vertebrae, supposedly resulting from 'wear and tear,' was of the same general type as are traumatic compression fractures in that region. One doctor stated that her condition prior to the injury constituted an 'unratable' disability. The claimant testified that she could not do the work of her prior employment after the injury because she could not wring out the rags.

The appellant disclaims liability primarily upon the theory that any disability existing prior to the accident must have been industrially disabling before it may be combined with the results of the later accident (for the present purposes), whereas this claimant was not so disabled. Counsel for the claimant concedes the requirement of industrial disability, but insists not only that claimant was totally and permanently disabled after the accident, but that she was permanently and partially disabled, industrially, before that time by reason of her various bodily infirmities and diseases.

The findings of the referee (affirmed by the Commission and the Circuit Court) were that claimant had sustained an accident out of and in the course of her employment and that this injury, in and of itself, resulted in a 50% permanent partial disability of the right arm at the shoulder (116 weeks at $16 per week), which disability, together 'with her previous disabilities due to the infirmities of advancing years, has resulted in permanent total disability.' Since claimant had already settled her claim against the employer, the referee assessed the remainder of the 300 weeks' compensation (184 weeks at $16 per week) and the pension of $18 per week thereafter for life, against the Second Injury Fund. It is from this award that the treasurer appeals.

It is hardly necessary to repeat the principle so often laid down in the review of such awards, namely, that the Court should determine whether the award is supported by competent and substantial evidence on the whole record, and whether the Commission could have reasonably made its findings and reached its results on the evidence; and that, if...

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