Patane v. Stix, Baer and Fuller

• Decision Date: 21 July 1959
• Docket Number: No. 30184,30184
• Citation: 326 S.W.2d 402
• Parties: Mary Rose PATANE (Plaintiff), Appellant, v. STIX, BAER AND FULLER (Employer), Respondent, and American Insurance Company (Insurer), Respondent.
• Court: Missouri Court of Appeals

Page 402

326 S.W.2d 402

Mary Rose PATANE (Plaintiff), Appellant, v.STIX, BAER AND FULLER (Employer), Respondent, and American Insurance Company (Insurer), Respondent.

No. 30184.

St. Louis Court of Appeals, Missouri.

July 21, 1959.

Motion for Rehearing or to Modify Opinion or to Transfer to

Supreme Court Denied Aug. 24, 1959.

Charles A. Mogab and Donald S. Hilleary, St. Louis, for appellant.

Edw. C. Friedewald, St. Louis, for respondents.

RUDDY, Judge.

This is an appeal by an employee in a proceeding under the Workmen's Compensation Law, section 287.010 et seq.RSMo 1949, V.A.M.S.

A Referee of the Division of Workmen's Compensation of the Department of Labor and Industrial Relations found in favor of the employee and entered an award of temporary total disability in the amount of $30 per week from March 1, 1955, to March 5, 1955, and for the additional period from February 18, 1956, to June 28, 1957.The Referee ordered employee's claim reset for further hearing on or about March 1, 1958, to further determine employee's condition.

The employer and insurer applied to the Industrial Commission of Missouri for a review by the full Commission.The full Commission, with one member dissenting, found that the employee sustained an accident on February 28, 1955, arising out of and in the course of her employment and that as a result of said accident the employee was temporarily totally disabled from March 1, 1955, to March 5, 1955, and that she has been fully compensated therefor.The majority of the full Commission further found that the employee 'is now suffering from simple, chronic glaucoma that said disease preexisted the accident; and further, that said disease was not caused or aggravated by the accident of February 28, 1955.'The Commission further found 'that the employee is now totally disabled by a condition known as psychoneurosis, mixed type.'The Commission further found:

'* * * that this psychoneurotic condition was caused or precipitated by her being released from her employment on February 17, 1956, and that it was not caused or aggravated by the accident of February 28, 1955.'

The Commission said:

'In reaching this conclusion, we notice that the psychoneurotic condition did not evidence itself for almost a year after the accident.Cf.Thompson v. Railway Express Agency, [Mo.App.], 236 S.W.2d 36, loc. cit. 39.During this period of time, so far as we can determine from the record, the employee continued with her usual work; she made no complaints to the employer referable to the accident.Her work, though possibly sub-standard, was on a par with her pre-accident efforts.Further, we note that her Claim for Compensation was filed on February 20, 1956, three days after her release from her employment.All of these things considered together, constrain us to find and conclude that the release from the employment, and not the accident, caused or precipitated her psychoneurotic condition.'

The Commission denied the employee further compensation and reversed the award of the Referee.

The employee appealed to the Circuit Court and from the judgment of that court affirming the award, the employee appeals to this court.

The employee contends that the Commission erred in not finding that the psychoneurosis was caused or precipitated by the accident of February 28, 1955, and further contends there was no substantial evidence to support the findings of the Commission, (1) that the psychoneurotic condition did not evidence itself for almost a year after the accident and (2) that her work, though substandard, was on a par with her pre-accident level.

Employee further contends that the other two findings, namely, (1)'she made no complaints to the employer referable to the accident' and (2) filed her claim for compensation three days after her release from her employment, do not give rise to a substantial inference that she was not suffering from psychoneurosis by reason of the accident.

Employee further contends that the overwhelming weight of the evidence shows that the psychoneurotic condition was caused or precipitated by her accident February 28, 1955.

The above contentions require a full statement of the facts as they pertain to the issues presented.The employee, Mary Patane, had been employed by Stix, Baer and Fuller, a department store, as a saleslady in the housewares department, from August 12, 1946, to February 17, 1956.At the time she testified before the Referee she was 45 years of age.She had an eighth grade education and had never been married.She lived with her mother, father, brother and sister-in-law.She is the oldest of five children and helped her mother raise the other children.She had never 'gone out with follows at any time' and never had any romances.She was very religious and wanted to follow a religious vocation, but this was denied her because of the need for helping the mother raise the other children.The testimony shows she spent all of her life close to the family circle and on her trips to the movies or when automobile riding she was always with the family.

Prior to February 28, 1955, she worked regularly in her employment at Stix, Baer and Fuller, never had any pain in the head; had no trouble with her eyes, other than the need to wear glasses when she was working.When asked if she had any dizzy spells before the accident, she answered: 'I used to get hot flashes at times, due to age, but other than that, that's all.'She was able to sleep well and physically speaking her health was good.However, the evidence shows she had a psychoneurotic personality long before the accident.

There is no dispute as to the cause of the accident inflicting the injury of which the employee complains.On Monday, February 28, 1955, about 2:30 P.M., the employee was struck on the head by a lid of a counter.The record indicates that the lid of the counter when lowered formed a part of the counter.It was hinged on one side and could be raised, we assume, for purposes of ingress and egress.On the occasion of the accident the counter lid was in a raised position and while the employee was putting merchandise underneath the counter and below the counter lid, the lid fell and struck the employee on the top of her head.The employee testified that the blow 'knocked me out and knocked my glasses off and it knocked me delirious * * *.'In another part of her testimony she said she fell to the floor and started screaming but was able to get up without help.She said she felt pain in her head immediately after the blow and felt real dizzy.She said she'had a bump and a bruise on the top of' her head that was 'about as big as a good sized egg.'However, her head was not cut or bleeding.

The employee further testified that she was taken to the first aid room where the nurse put ice on her head and gave her some medicine.From the first aid room she was sent to Dr. Richard Sutter.She said Dr. Sutter looked at her head and then at her eyes and asked her if she was cross-eyed.The doctor made some reflex tests, gave her some pills to take for pain and instructed her to return the next day.She saw Dr. Sutter the next day and again on the following Thursday.Dr. Sutter did not take X-rays on the first visit, but on the employee's request he took X-rays on a subsequent visit and they showed negative.She further testified that Dr. Sutter told her to return to work, but, because of the constant pain in her head and eyes, she felt she could not work and did not return to her employment until the following week.Dr. Sutter gave her no medication.She complained to him about her eyes and he sent her to Dr. Milster.She again saw Dr. Sutter about six months after the accident.The lump on her head remained approximately two weeks.She lost one week from work and lost no time after she returned to her duties.After she returned to her employment she said the dizzy spells and the pain in her head and eyes continued.However, she said the pain in her eyes subsided when she kept them under medication.

Pursuant to the instructions of Dr. Sutter she saw Dr. Milster who examined her eyes and he told her she had glaucoma.She said she could not believe there was anything wrong with her eyes and saw Dr. Keller, another opthalmologist, who verified the diagnosis of Dr. Milster.Drops were prescribed for her eyes to reduce the pressure.She continued with Dr. Keller about six months and then returned to Dr. Milster, who is still treating her eyes.

On February 17, 1956, she was released by Stix, Baer and Fuller and in this connection she testified she was released 'because I wasn't able to do my work right and I couldn't meet the selling cost * * * I wasn't feeling good * * *.'

She further testified that she was sent by her lawyer to see Dr. Walter Moore, whose specialty is neurology and psychiatry.Her first visit to him was on March 8, 1956, and she again saw him a week before the hearing held before the Referee.On the first visit he sent her to Barnes Hospital for a 'brain wave test.'Dr. Moore gave her some pills, which she took for about one week and then discontinued them because they were not making her feel any better.

She further testified she was examined by Dr. Ernest H. Parsons, a neurologist, on September 18, 1956, who also had her take a 'brain wave test.'

Since February 18, 1956, the date of her discharge, she has not been employed.When asked to describe her condition since the last named date, she said: 'I always have pain in my head more or less every day * * * I get dizzy spells and a lot of times when I am walking around I bump into doors and walls without knowing how I did it.'She said the dizzy spells and the sharp pains in her head arouse her during the night.When asked about her eyes, she said: 'As far as Doctor Milster's last report he said I am holding my own, * * *.'

The employee's description of her feelings and condition at the time of the hearing was...