Vickery v. ACF Industries, Inc.

• Decision Date: 28 April 1970
• Docket Number: No. 33623,33623
• Citation: 454 S.W.2d 620
• Parties: Claude E. VICKERY, Employee, Plaintiff-Appellant, v. ACF INDUSTRIERS, INCORPORATED, Employer, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 620

454 S.W.2d 620

Claude E. VICKERY, Employee, Plaintiff-Appellant, v. ACF INDUSTRIERS, INCORPORATED, Employer, Defendant-Respondent.

No. 33623.

St. Louis Court of Appeals, Missouri.

April 28, 1970.

Douglas W. O'Neill, St. Louis, for plaintiff-appellant.

Gentry, Bryant & Sheppard, Stephen M. Hereford, St. Louis, for defendant-respondent.

SMITH, Commissioner.

This appeal arises from the affirmance by the Circuit Court of an award by the Industrial Commission denying compensation in a workmen's compensation case. The award by the referee, affirmed and adopted by the Commission, was that the 'employee did not sustain injury by accident arising out of and in the course of his employment.' It is our duty on review to determine whether on the entire record the Industrial Commission could make the findings and award it did make, i.e., whether the award is supported by competent and substantial evidence in the record. We hold it is.

The parties treat this case as presenting a question concerning the exchange and copying of medical records under Sections 287.140 and 287.210 RSMo. 1959, recently discussed by this court in Springett v. St. Louis Independent Packing Co., Mo.App., 431 S.W.2d 698; Johnson v. Park N Shop, Mo.App., 446 S.W.2d 182; and Weilert v. Fruin-Colnon Corp., Mo.App., 447 S.W.2d 781. The presence of such a question is superficial.

Employee testified that on May 24, 1966, while in the course of his employment, he was violently swung to and fro by a defective hoist which was picking up a metal head assembly upon which he had been working. During this activity something fell on employee's right foot and he noticed a pain shooting in his hip. He went to the dispensary operated by employer and there received treatment by the nurse on duty, consisting of soaking his foot in cold water and receiving liniment for his hip. He returned to work and later in the evening noticed increased pain in his hip and pain starting in his testicles and going up into his low back. The difficulty in the right foot cleared up within a few days, but the hip and back pain continued, particularly when employee was doing heavy lifting. In July, 1966, employee noticed a numbness in his right leg and consulted his doctor. Eventually his complaints resulted in hospitalization and a hemilaminectomy and spinal fusion.

Employee's foreman testified for employee and stated he remembered employee having injured his foot but was unaware of any hip or back injury until the week before the hearing. Employee's co-worker, also presented by employee, remembered the incident and that employee had said he was hurt and was going to the dispensary. He was unable to recall what it was employee said hurt.

Employee's exhibits included the hospital records from Normandy Osteopathic Hospital where the operation was performed. They include the following: 'Onset and course--Patient injured while working 3--4 yrs. ago. Testicles swelled @ time and back began hurting. Pain has been of a low grade and hasn't caused trouble, but on 7--29--66 pt. began to notice numbness in rt. leg throughout the course of the Sciatic N.--numbness & tingling.' These records carry no indication of injury in May, 1966, or any reference to the accident testified to by employee and in the history portion after the heading 'previous accidents' appears 'denies.' Employee admitted he was questioned at length at the hospital and the questioners wrote down things as he talked to them, but he denied making the specific answer appearing on his exhibit--the hospital records.

Employer placed in evidence certain of its records including dispensary records of March 16, 1965, and May 24, 1966, (Exhibits 3 and 2), a surgical case record card for employee of March 16, 1965 (Exhibit 4), and a medical record card for employee of May 24, 1966 (Exhibit 5). Exhibits 2 and 3 were admitted over the objection of employee that they had not been furnished to employee's attorney at the time he went to employer's premises to copy medical records. Exhibits 2 and 3 constitute the daily 'log' of the dispensary setting forth all employees seen or treated on a given day, their complaints, and their treatment. Exhibits 4 and 5 are cards maintained for the individual employee which are prepared from the dispensary sheets. Exhibits 3 and 4, dated March 16, 1965, pertain to employee's complaint that he had twisted his leg while working causing 'sore left hip--Pain radiates from knee up leg thru hip into buttocks & back.' The treatment consisted of medicine and liniment. Exhibits 2 and 5 dated May 24, 1966, pertain to employee's complaint that a piece of material hit the top of his foot resulting in 'Contused Metatarsal Area on left foot.' They contain no reference to hip or back complaints and reflect the treatment as ice water soak of the foot.

Employer additionally placed in evidence the claim file of ...