Skinner v. Dawson Metal Products

• Decision Date: 29 December 1978
• Docket Number: No. 10474,10474
• Citation: 575 S.W.2d 935
• Court: Missouri Court of Appeals
• Parties: Beverly Sue SKINNER, Claimant-Appellant, v. DAWSON METAL PRODUCTS and Aetna Casualty & Surety Company, Employer-Insurer-Respondents.

Page 935

575 S.W.2d 935

Beverly Sue SKINNER, Claimant-Appellant, v. DAWSON METAL PRODUCTS and Aetna Casualty & Surety Company Employer-Insurer-Respondents.

No. 10474.

Missouri Court of Appeals, Springfield District.

Dec. 29, 1978.

L. R. Magee, Hines & Magee, Kansas City, for claimant-appellant.

Kelly Pool, Hendren & Andrae, Jefferson City, for employer-insurer-respondent.

Before HOGAN, P. J., STONE, J., and GRIMM, STEELMAN and McHANEY, Special Judges.

HOGAN, Presiding Judge.

This is a workmen's compensation case. Beverly Sue Skinner (claimant), a female 29 years of age, made a claim for compensation for injury sustained by accident, a series of accidents or occupational disease arising out of and in the course of her employment. After a hearing, a referee denied an award. Upon appeal, the Labor and Industrial Relations Commission (Commission) reversed the award and allowed compensation as follows: $1,080.00 for temporary total disability; $25.00 for necessary travel and $398.51 for medical treatment rendered by claimant's family physician. The aggregate amount of the award is $1,503.51. On appeal, the Circuit Court of Camden County reversed the Commission on the ground that the employer and insurer received no timely notice of a potentially compensable injury and that the period of limitation prescribed by § 287.430, RSMo (1969), V.A.M.S., had run. Claimant appeals.

The issues presented can best be appreciated by stating some elementary principles. The findings of the referee are in no wise binding upon the Commission; the Commission reviews the record, determines the credibility of the witnesses and the weight to be given their testimony, resolves any conflicts in the evidence and reaches its own conclusions independently of the referee's findings. Begey v. Parkhill Trucking Co., 546 S.W.2d 529, 532 (Mo.App.1977); McAdams v. Seven-Up Bottling Works, 429 S.W.2d 284, 287 (Mo.App.1968). It is the award of the Commission, not the finding of the referee, which we review, Michler v. Krey Packing Co., 363 Mo. 707, 716, 253 S.W.2d 136, 140 (banc 1952); McAdams v. Seven-Up Bottling Works, supra, 429 S.W.2d at 287, and we are required to construe the whole record in the light most favorable to the findings and award of the Commission; when the evidence and inferences are conflicting, resolution rests with the Commission and that resolution is conclusive on the reviewing court. Bradshaw v. Richardson Trucks, Inc., 467 S.W.2d 945, 947 (Mo. banc 1971); Brown v. Missouri Lumber Transports, Inc., 456 S.W.2d 306, 307-308 (Mo.1970). And, as a limitation and restriction upon the scope of this opinion, we may again note that the only issues for consideration on any appeal are those presented in the "points relied on" part of the appellant's brief; questions not there presented are considered abandoned. Pruellage v. DeSeaton Corporation, 380 S.W.2d 403, 405 (Mo.1964); Drysdale v. Cornerstone Bank, 562 S.W.2d 182, 183 (Mo.App.1978); MFA Cooperative Ass'n of Ash Grove v. Elliott, 479 S.W.2d 129, 132-133 (Mo.App.1972).

The claimant's first point is that the trial court erred in reversing the award of the Commission on the ground that the claim was barred by limitation because that finding is contrary to the law and the evidence and the trial court substituted its judgment for that of the Industrial Commission. The employer and insurer respond by contending that the claim was barred by limitation because it was not filed within one year of the date of the alleged occurrence.

In brief sketch, and recited in accord with the general principles stated, the Commission could have found that on June 12, 1972, Dawson Metal Products constructed and supplied air conditioning parts to various purchasers. The claimant was employed as a welder. At the time she sustained her injury, claimant was welding an object identified only as a "bubble for Chrysler." The bubbles were "made funny" so they did not fit properly on a welding table. It was therefore necessary to put the bubble on the table "upside down." The claimant sat on a five-gallon lard can and worked underneath the bubble. Using a torch, sunglasses, a "solder" and "Blue Label" flux, ¹ claimant welded copper surfaces of some kind.

The claimant maintained that the ventilation was inadequate. Whether it was or not, the welding process produced noticeable vapors or fumes. The fumes were strong and claimant developed a headache above the bridge of her nose through her forehead up to her hairline. Claimant had not had those particular headaches before. She consulted her family physician, a Dr. Ridgeway, but continued working, welding the copper parts. Claimant thought she ". . . was getting something in (her) eyes." She ". . . thought (she) had got some metal or something" in her right eye. Claimant's left eye was not affected.

On June 15, while she was welding "Chrysler bubbles," claimant lost the sight of her right eye. She informed her foreman, Earnie. ² Earnie "let (claimant) weld a while longer" and then permitted claimant to inspect parts, but claimant "couldn't see the parts good enough to inspect them." Claimant told Earnie she could not continue because she "simply couldn't see" the parts. Earnie drove the claimant to the claimant's husband's office.

The claimant went directly to see Dr. Ridgeway, her "family doctor." Dr. Ridgeway a board-certified practitioner of family medicine, prescribed an antibiotic, a steroid and a nasal decongestant. Dr. Ridgeway testified that he had seen claimant on May 6. Claimant told him she had been welding; when she welded with a particular compound "blue flux or whatever" the compound would irritate her nose and eye. The doctor instructed claimant to change jobs. When Dr. Ridgeway saw claimant on June 10, her complaints were exacerbated; therapy was intensified, but claimant did not immediately respond.

After claimant lost the sight of her right eye, Dr. Ridgeway referred her to a Dr. Prater, a board-certified ophthalmologist. Dr. Prater examined claimant. He found no impairment of visual acuity in claimant's left eye; claimant was limited to the perception of hand motion in her right eye. Dr. Prater found a "large central scotoma" in the right eye, which indicated a loss of vision, primarily in her right eye. The doctor's diagnosis was retrobulbar neuritis of the right eye. The usual treatment for that ailment is oral steroids, which were prescribed. Claimant was improved on June 28. By August 14, claimant showed marked improvement. Dr. Prater did not see the claimant again until 1974.

The claimant returned to work in October 1972. Claimant "had vision enough to return to work but it was never the same as it had been before." Claimant returned to Dawson as a parts inspector and eventually began work as a welder. Claimant welded "Chrysler bubbles" only once after she returned to her employment. Her headaches immediately returned. Claimant left Dawson's employ in 1973. Her testimony, repeated and reiterated, was that she had some loss of vision in her right eye. The Commission found some impairment of claimant's vision before June 12, 1972; found that she had made a good recovery after treatment, and denied an award of compensation for permanent partial disability. Except for medical treatment in the amount of $398.51, and travel expenses in the amount of $25.00, the whole amount awarded represents an allowance for a healing period of 154/7 weeks at $70.00 per week. Computation of the award is not challenged; no claim for credit for payments is advanced, and it does not appear that any such claim was made before the Commission. Such, capsulized, are the general background facts as the Commission might have found or fairly inferred them to be.

The finding of the Commission upon the first issue tendered is indeed a very general finding, but the Commission is not required to elucidate its reasoning process in the absence of a request to do so, Scott v. Wheelock Bros., 357 Mo. 480, 485, 209 S.W.2d 149, 152 (banc 1948), and contrary to the view taken by the trial court, a general award necessarily implies the finding of every fact necessary to support it, including that of good cause or lack of prejudice under § 287.420, RSMo (1969), V.A.M.S. Reichert v. Jerry Reece, Inc., 504 S.W.2d 182, 188 (Mo.App.1973). Also, with deference to the trial court, we believe it misconstrued the nature of the applicable statute of limitations. We cordially agree that the construction of a statute is a matter of law for a court, but in this instance the statute has been authoritatively construed, and we are firmly held and bound by that construction. In 1943, in Wentz v. Price Candy Co., 352 Mo. 1, 175 S.W.2d 852 (1943), and again in Welborn v. Southern Equipment Company, 395 S.W.2d 119 (Mo.banc 1965), our Supreme Court held that § 287.430, RSMo (1969), is merely a statute of repose; the running of the period does not extinguish the remedy and payment made on account of the injury in the form of medical aid may either toll the running of the statutory period or revive the claim and right of action if made after the statutory period has run. Welborn v. Southern Equipment Company, supra, 395 S.W.2d 123-125.

This record presents several bases for holding that the employer and insurer had notice of a potentially compensable injury and that the claim was timely filed. We shall discuss two such bases briefly.

The precedents cited by the claimant on appeal, e. g., Smith v. Plaster, 518 S.W.2d 692 (Mo.App.1975), and Snow v. Hicks Bros. Chevrolet, Inc., 480 S.W.2d 97 (Mo.App.1972), hold, inter alia, that notice of a potentially compensable injury acquired by a supervisory employee is imputable to the employer. Moreover, as this court attempted to make clear in Smith, supra, 518 S.W.2d at 699, the employee's recovery of compensation is Not predicated upon the employer's opinion or persuasion that the injury was compensable, prior to administrative...