Richter v. Multiplex Display Fixture Co.

• Decision Date: 02 May 1939
• Docket Number: No. 24911.,24911.
• Citation: 127 S.W.2d 783
• Parties: RICHTER v. MULTIPLEX DISPLAY FIXTURE CO. et al.
• Court: Missouri Court of Appeals

127 S.W.2d 783

RICHTER v. MULTIPLEX DISPLAY FIXTURE CO. et al.

No. 24911.

St. Louis Court of Appeals. Missouri.

May 2, 1939.

As Modified on Denial of Rehearing May 19, 1939.

Appeal from St. Louis Circuit Court; Ernest F. Oakley, Judge.

"Not to be reported in State Reports."

Proceeding for compensation under the Workmen's Compensation Act by Jane Richter, employee, opposed by the Multiplex Display Fixture Company, employer, and the Liberty Mutual Insurance Company, insurer. From a judgment affirming a portion of the Workmen's Compensation Commission's award refusing claimant an allowance for medical aid, she appeals.

Affirmed.

Roy M. Hardy and Fred E. Maetten, both of St. Louis, for appellant.

Woodward & Evans, of St. Louis, for respondents.

BECKER, Judge.

This is an appeal from the judgment of the Circuit Court of the City of St. Louis affirming that portion of the award of the Missouri Workmen's Compensation Commission which refused an allowance for medical aid to Jane Richter, employee, against the Multiplex Display Fixture Company, employer, and Liberty Mutual Insurance Company, insurer, because the doctor was selected by claimant of her own accord and not at the instance of her employer.

On December 8, 1936, claimant suffered an accidental injury while working at her employer's place of business. Her injury was a small scratch on her leg. Claimant, however, continued to work on the following days until December 12, 1936, when she was "let off at the seasonable decline." Claimant treated the scratch on her leg with alcohol and iodine until December 18th, when her family doctor was called in. He diagnosed her condition as a suppurative cellulitis abscess and he continued medical and surgical treatment until June, 1937.

On May 13, 1937, Jane Richter filed her claim for compensation with the Missouri Workmen's Compensation Commission. On hearing before a referee the employee was awarded compensation but no award was made for medical aid.

The employer and insurer applied to the full commission for review of the award, and the employee applied for a review of the award to the extent only of the question of the failure of the referee to award her medical expense. The full commission affirmed the award of the referee. Neither the employer nor the insurer appealed from that award, but in due course the employee appealed to the Circuit Court of the City of St. Louis from that portion of the award which failed to award her medical aid. The circuit court affirmed the award and the employee in due course brings this appeal.

Under section 3311(a), Rev.St.Mo.1929, as amended by Laws of Mo.1931, p. 381 (Mo.St.Ann. § 3311(a), p. 8246) of our Workmen's Compensation Act, it is provided that "in addition to all other compensation, the employe shall receive and the employer shall provide such medical, surgical, and hospital treatment, including nursing, ambulance and medicines, as may reasonably be required for the first ninety days after the injury or disability, to cure and relieve from the effects of the injury, not exceeding in amount the sum of seven hundred and fifty dollars, and thereafter such additional similar treatment as the commission by special order may determine to be necessary. If the employe desires, he shall have the right to select his own physician, surgeon, or other such requirement at his own expense. * * *"

The granting or denying by the Compensation Commission of an allowance to an employee for medical aid is a finding of fact and, therefore, if supported by sufficient competent evidence, it is as conclusive on appeal as a verdict of a jury and cannot be set aside as being against the weight of the evidence. Moorman v. Central Theatres Corp., Mo.App., 98 S.W.2d 987, 991; McComosh v. Shapleigh Hardware Co., Mo.App., 40 S.W.2d 728.

We direct our attention, therefore, to the question as to whether or not there is substantial competent evidence to support the finding of the commission on the question of the allowance for medical aid. If there is such evidence in support of the refusal to make such an allowance, the judgment of the circuit court stands for affirmance. McComosh v. Shapleigh Hardware Co., supra; Wheat v. E. A. Whitney & Son, Mo.App., 34 S.W.2d 158; State ex rel. Brewen-Clark Syrup Co. v. Missouri Workmen's Compensation Commission, 320 Mo. 893, 8 S.W.2d 897; Kinder v. Hannibal Car Wheel & Foundry Co., Mo.App., 18 S.W.2d 91; Hammack v. West Plains Lumber Co., 224 Mo.App. 570, 30 S.W.2d 650.

We have read the record and find there is a conflict of substantial evidence upon the question in hand and have come to the conclusion that there is sufficient substantial evidence to support the finding of the commission denying an allowance for medical aid to claimant.

Claimant testified that on December 8, 1936, in the course of her employment, she tripped on a board which "flew up and hit me on the left leg about six inches below the knee. It tore my stocking and broke the skin. It was such a tiny scratch that I didn't put anything on it." That evening claimant put iodine on it. She continued working until December 12th, when she was laid off. The scratch continued to bother her and on December 18th she called in Dr. John Patrick Murphy.

Dr. Murphy testified that he found plaintiff had a suppurative cellulitis abscess, which he incised and drained. The first abscess was followed by many others, which were treated in like manner until about the middle of June, 1937.

Claimant testified that the day before Christmas she went back to her employer to get her pay check and there met Mr. Garstang, who had been her boss; that she told him about her injury, collected her belongings and went home. Asked what Mr. Garstang said when she told him about her injury, she answered, "He didn't say anything. He just asked me why I didn't use the company doctor."

On cross-examination claimant testified that "between December 8th and December 12th, I said nothing to Mr. Garstang or any other boss or official there about my leg being hurt. I told them the day before Christmas when I got my check. Before calling my own doctor I did not make any request of the company to furnish me a doctor. I first called my own doctor on December...