Trokey v. United States Cartridge Co.

• Decision Date: 21 June 1949
• Docket Number: No. 27666.,27666.
• Citation: 222 S.W.2d 496
• Parties: TROKEY v. UNITED STATES CARTRIDGE CO. et al.
• Court: Missouri Court of Appeals

222 S.W.2d 496

TROKEY v. UNITED STATES CARTRIDGE CO. et al.

No. 27666.

St. Louis Court of Appeals. Missouri.

June 21, 1949.

Appeal from St. Louis Circuit Court; F. E. Williams, Judge.

"Not to be reported in State Reports."

Action by Theodore Trokey against United States Cartridge Company, employer, and others, to set aside a compromise compensation settlement and to compel the Missouri Workmen's Compensation Commission to hear claim for additional compensation and make an award thereon. An appeal from final award of the Commission refusing to set aside the settlement was consolidated with the action on trial. The Division of the Workmen's Compensation, Department of Labor and Industrial Relations of Missouri, was substituted for the Commission on trial. From decree entered, the plaintiff appealed to Supreme Court and cause was ordered transferred to the Court of Appeals, 214 S.W.2d 526.

Affirmed.

Samuel Richeson, Potosi, for appellant.

Jones, Hocker, Gladney & Grand, Lon Hocker, Jr., and Orville Richardson, St. Louis, for respondents.

BENNICK, Commissioner.

This is a consolidated case by which plaintiff, Theodore Trokey, seeks to have the court set aside and vacate a compromise settlement entered into before the Workmen's Compensation Commission pursuant to the provisions of Section 3723, R.S.Mo. 1939, Mo.R.S.A. § 3723.

The controversy grows out of an accidental injury sustained by plaintiff on December 28, 1943, while he was in the employ of the United States Cartridge Company at what was known as the Small Arms Plant in the City of St. Louis. While the employer was apparently unable to verify the fact that an accident had happened, there was never any dispute but that plaintiff had received a compensable injury as the result of striking his right leg against the corner of a steel bench at a point about two inches below the knee. The controversy was over the question of whether the accidental injury had aggravated a preexisting tubercular condition of the knee, or whether, on the contrary, any permanent disability was solely attributable to the tubercular condition unassociated with the temporary consequences of the accidental injury.

Plaintiff did not regard his injury as serious, and continued at his work until five days after the accident when the knee became swollen to about twice its normal size. Some few days later he consulted a Dr. Swekosky, a physician of his own choosing, who told him that the bone was bruised and sent him to Alexian Brothers Hospital, where he remained overnight. X-ray pictures were taken at the hospital, which, according to the report, showed changes in the knee of a destructive type of arthritis, the exact nature of which was not evident from the pictures alone, but for which tuberculosis was considered to be most probably responsible.

On January 11, 1944, plaintiff called upon Dr. C. H. Johnson, the employer's plant doctor, who took an X-ray picture and referred him to Dr. John Patrick Murphy. Plaintiff's visit to Dr. Johnson was his first report of the accident.

Dr. Murphy treated plaintiff over a period of two or three months, and sent him once again to Alexian Brothers Hospital, where the doctor operated on his knee some time in February, 1944.

The record contains three reports from Dr. Murphy, the first on February 3, 1944; the second on April 6, 1944; and the third on May 2, 1944. The reports were apparently made to the employer or its insurance carrier in connection with the question of liability for compensation. Incidentally, it appears that prior to the compromise settlement, compensation in the total amount of $308.58 was voluntarily paid plaintiff in addition to medical aid in the sum of $105.50.

In Dr. Murphy's report of February 3rd, he stated that according to plaintiff's past history, he had always had an enlarged right knee joint; that there was considerable intra-articular swelling of the entire joint with fluctuation over the proximal end of the tibia, and with a draining sinus exuding a thin, yellow fluid; that all motions of the knee were normal; that X-ray pictures of the knee revealed marked destruction of the entire joint; that from what the pictures revealed, including the long duration and the discharge, the condition probably represented an old tuberculosis of the knee; and that having been unable to aspirate any fluid from the pocket because of its thickness despite the fact that the discharge was serious, he suggested that plaintiff be hospitalized and an incision made large enough to obtain material for a guinea pig inoculation.

In his report of April 6th, Dr. Murphy advised that the original swelling about the infra-patellar bursa of the knee had completely subsided, but that there was still a small amount of persistent drainage which should not prevent plaintiff from working. He concluded with the statement that plaintiff was discharged to return to work April 10th.

On May 2nd Dr. Murphy reported that as noted in his previous reports, plaintiff had an old tuberculosis of the knee; that it had been ascertained from the operation at Alexian Brothers Hospital that there was no communication between the abscessed cavity of the anterior aspect of the knee and the joint itself; that his conclusion therefore was that plaintiff had sustained a prepatellar bursitis, which became infected that the site of the incision had practically closed, although there was a very slight moisture on the dressing each day; that in his opinion plaintiff had an infected prepatellar bursitis as the result of his injury at the plant, but with no aggravation of the pre-existing tuberculosis of the joint; and that plaintiff was able to resume work at that time.

Shortly after plaintiff's discharge from the hospital he was interrogated by one Robert Crowe, the attorney and claims investigator for the Travelers Indemnity Company, the employer's insurance carrier. This was of course in connection with plaintiff's claim for compensation.

In the latter part of May, 1944, plaintiff called to see Crowe at his office in regard to the final settlement of his claim. Prior to that time plaintiff's claim had been in the hands of another of the company's attorneys named Murphy, who had informed plaintiff that since he had been discharged by the doctor to go back to work, he would not be entitled to any further compensation. One of the reasons for plaintiff's anxiety to settle the case was his admitted desire to go to Arkansas. It is not clear whether plaintiff called on Crowe once or twice, but according to plaintiff's testimony, he and Crowe tenatively agreed to $300 additional compensation. Crowe testified that he not only informed plaintiff of Dr. Murphy's reports upon the basis of which there would not be any further compensation due him, but also advised him that any settlement the two of them might agree upon would be subject to the approval of the Compensation Commission.

Plaintiff thereupon went to the Commission's office accompanied by his mother, where he was referred to Mr. Neil J. Clarke, a referee of the Commission. There was a dispute as to whether Crowe went along on this first occasion. At any rate Clarke refused to entertain a settlement, and told plaintiff to return in a month or six weeks when it would be the more possible to determine what the ultimate condition of the knee would be. Upon inspecting plaintiff's knee Clarke had noticed a slight seepage, and informed plaintiff that it was the Commission's policy not to approve a settlement in any case so long as there was a probability of any portal of entry for infection. Crowe and Clarke both testified that Clarke had been shown the medical reports so that he was fully apprised of the case history indicating tuberculosis of long standing. Clarke also suggested that plaintiff consult a doctor of his own choosing so as not to be wholly dependent on Dr. Murphy's findings; and he further recommended that Crowe pay him three additional weeks of compensation totaling $60 in order to take care of his immediate need for money until a final settlement could be made. Crowe agreed to Clarke's proposal, and the three weeks' additional compensation was paid at the rate of $20 a week.

Meanwhile plaintiff left St. Louis for his home in Potosi, Missouri, but later returned to St. Louis and arranged with Crowe to meet him at the Commission's office, where a compromise settlement was entered into before Referee Clarke on July 13, 1944. Clarke again examined plaintiff's knee and saw no evidence of swelling, infection, or limitation of movement after its use was demonstrated. The agreement was that plaintiff should be paid the sum of $250 in final settlement, which, added to the three weeks' compensation of $60 which had already been paid him on Clarke's suggestion, meant that he actually had received $310 after the matter of settlement had been tentatively agreed upon.

The transcript of the hearing shows that Clarke first took note of the fact that there was a question as to whether the accidental injury had aggravated the pre-existing tubercular condition of the knee, and whether any temporary total or permanent partial disability of the knee had resulted from the accident. Upon inquiry by Referee Clarke, plaintiff testified that he had been advised by Clarke of his rights under the compensation law; that the draining cyst in his knee had been closed for some time; that he had discussed the case with the several attending physicians, and agreed with their finding that he had no permanent disability as the result of the injury; that he understood and agreed to the settlement, and was aware that if any trouble should later develop, he would not be entitled to any further compensation payments; and that with all these things in mind, he was asking the Commission to approve the settlement by the payment of the additional lump sum of $250. Clarke thereupon entered a formal order approving the settlement, and plaint...