Vogel v. Hall Implement Co.

• Decision Date: 02 May 1977
• Docket Number: No. KCD,KCD
• Citation: 551 S.W.2d 922
• Parties: Vernon VOGEL, Respondent, v. HALL IMPLEMENT COMPANY and John Deere Insurance Company, Appellants. 28687.
• Court: Missouri Court of Appeals

Page 922

551 S.W.2d 922

Vernon VOGEL, Respondent, v. HALL IMPLEMENT COMPANY and John Deere Insurance Company, Appellants.

No. KCD 28687.

Missouri Court of Appeals, Kansas City District.

May 2, 1977.

Motion for Rehearing and/or Transfer Denied June 1, 1977.

Application to Transfer Denied July 11, 1977.

Wendell E. Koerner, Jr., St. Joseph, for appellants; Brown, Douglas & Brown, St. Joseph, of counsel.

Price Shoemaker, St. Joseph, for respondent.

Before SWOFFORD, P. J., PRITCHARD, C. J., and DIXON, J.

SWOFFORD, Presiding Judge.

This is a Workmen's Compensation case. The employer, Hall Implement Company (Hall), and its insurer, John Deere Insurance Company (Deere), appeal from a judgment of the Circuit Court affirming an award of the Labor and Industrial Relations Commission (Commission) in favor of the employee-respondent, Vernon Vogel (Vogel), for permanent and total disability.

The only issues raised by Hall and Deere before the Commission and in the court below were the nature and extent of Vogel's injuries and resulting disability. Here, they raise two points seeking the mandate of this court reversing the award or, in the alternative, ordering a remand to the Commission for the taking of additional evidence. They assert: First, that the court below should have set aside the Commission's award because there was not sufficient competent evidence to support an award for permanent total disability, and second, there was not sufficient competent evidence to support the finding that Vogel's condition was the result of the accident sustained by him.

It is appropriate to recognize at the outset the firmly established confines of judicial review in this type of proceeding, of particular significance in the determination of this appeal. The constitutional provision covering judicial review of administrative decisions states that "such review shall include the determination whether the same are authorized by law, and in cases in which a hearing is required by law, whether the same are supported by competent and substantial evidence upon the whole record." Article 5, Section 22, Constitution of Missouri.

The controlling decisional law is clear that the reviewing court should not substitute its judgment for that of the Commission (even though the court might have been persuaded to a different initial conclusion); the Commission's award should be set aside only when it is not supported by substantial evidence or when it is clearly contrary to the overwhelming weight of evidence; the evidence, including all legitimate inferences, must be viewed in the light most favorable to the award; the Commission judges the credibility of the witnesses and the weight of their testimony; and the ultimate obligation of the reviewing court is to determine from the whole record whether the Commission could reasonably have made its findings and award. Merriman v. Ben Gutman Truck Service, Incorporated, 392 S.W.2d 292, 296(1-3) (Mo.1965); Brown v. Missouri Lumber Transports, Inc., 456 S.W.2d 306, 307 (Mo.1970); Slider v. Brown Shoe Company, 308 S.W.2d 306, 307(1, 2) (Mo.App.1957); Stegall v. St. Joseph Lead Company, 465 S.W.2d 855, 861(3) (Mo.App.1971); Saale v. Alton Brick Company, 508 S.W.2d 243, 246(1-4) (Mo.App.1974), and Smith v. Plaster, 518 S.W.2d 692, 696(1) (Mo.App.1975).

Giving appropriate recognition to these controlling principles, the facts, as pertinent to the points raised on appeal, may be thus summarized:

Vogel, the claimant, was nearing his 53rd birthday on March 11, 1972. He had finished grade school and then engaged in farming until 1947. He was then employed by Swift and Company in its packing plant and worked for the company for 17 1/2 years, until it shut down. He went to work with Hall's in 1967 as a farm equipment set-up man assembling heavy farm implements of various kinds. All of these occupations involved heavy manual labor.

On March 11, 1972, he was engaged in removing a cornhead from a Massey-Ferguson combine, when spring loaded arms holding the cornhead suddenly released and the arms struck him across the chest. That same day, he was seen by Dr. Butler, an associate of the Thompson-Brumm-Knepper Clinic (Clinic) at St. Joseph, Missouri, whose initial diagnosis was contusion of the lower sternum and chest. He was treated as an outpatient at the Clinic from March 11, 1972 to April 4, 1972, principally by Dr. Donald Stallard, an internist, and was also seen during that period by Dr. Fischer, a thoracic surgeon, both associates of the Clinic.

His condition deteriorated and he was admitted to the Methodist Hospital at St. Joseph on April 4, 1972, where it was found that he had a swollen and tender left leg with one or more blood clots. Bloody fluid was removed from his chest cavity and the final diagnosis was: "Fracture second and third ribs, right; contusion (crack) of sternum; pulmonary embolism and infarction." Dr. Stallard testified that these conditions were the result of the accident of March 11, 1972.

He was seen frequently by Dr. Stallard after his release from the hospital and was given anticoagulant medication. Vogel complained of a complete lack of his previous strength and energy, and shortness of breath and dizziness. He was sent to Kansas University Medical Center by the Clinic for examination and evaluation, and such diagnosis was reported "congestive heart failure, cause unknown".

Vogel continued under Dr. Stallard's care and his complaints persisted. In July, 1974, Dr. Stallard referred him to Dr. Ben McCallister, a cardiologist at Kansas City, for examination. On that occasion, Dr. McCallister made a finding that there was an abnormal bulge on the posterior aspect of Vogel's heart which he thought was an aneurism which could be due to trauma or injury. Vogel returned to Dr. McCallister in September of 1974, at which time a diagnosis was made of a congenital abnormal arrangement of one of the pulmonary veins. The normal function of this vein is to carry the blood from the right side of the heart to the lungs to be oxygenated and then return it to the left side of the heart to be circulated. It was Dr. McCallister's opinion that the pulmonary vein in Vogel's case returns the blood it carries back to the right side of the heart (instead of the left) and thus back to the lung rather than into his body's general circulation system. McCallister estimated that this abnormality involved 20% of Vogel's blood circulation. In his second examination, Dr. McCallister revised his original opinion regarding the bulge in the heart (as an aneurism) and concluded it was due to a congenital abnormality of a heart muscle.

Dr. McCallister did not testify in person but his report to Dr. Stallard dated September 12, 1974 was introduced by Hall-Deere into evidence, without objection. Following his September, 1974 examination, he reported: "The relationship of this problem to the accident would seem to be most unlikely". He added, "At the present time I do feel that Mr. Vogel is disabled for more than mild physical activities and do not feel that he could perform moderate to heavy physical work." Further, Dr. McCallister's report states that Vogel "definitely has evidence of a cardiomyopathy-myocardial disease of indeterminate etiology" and that this condition together with the anomalous pulmonary vein "certainly would compromise patient's cardiac function and account for his symptomatology", yet he attempts to give no medical explanation or opinion accounting for the dramatic onset of the cardiac symptoms contemporaneous with the violent trauma of March 11, 1972, followed by the admitted traumatic results as above described.

Vogel continued under the care of Dr. Stallard, who testified at the hearing on February 21, 1975. After relating the history of the medical treatment given Vogel, the hospitalization and consultations secured, he stated that Vogel was still under his care and testified:

"Q. Concerning the facts of this accident, and, of course, your treatment to (sic) the medical history and so forth, is it your opinion that Mr. Vogel could return to his past employment?

A. No, I don't think he can.

Q. He has never been in condition to return to work since he has been under the care of the Clinic, along with Dr. Butler and yourself?

A. No, he hasn't."

Further, he stated:

"Q. Then I believe I understand you have no idea at the moment or you are unable to determine when, if at anytime, Mr. Vogel could return to work?

A. I think he could return to mild work at any time; moderate or heavy work, no.

Q. Work like he was doing?

A. I don't think he could ever return to that."

On direct examination, Dr. Stallard further testified:

"Q. With reasonable medical certainty, would you say that the condition he suffers from at the present time was a result of the accident of March 11, 1972?

A. Well, I have always found that a hard one for me to answer and yet his symptoms date from that moment. Prior to that time he had no physical problems that I know about. He was a good worker to the best of my information and had a pretty clear bill of health previous to that time. Since that time he has continued to complain with being short of breath with very little exertion and very little strength and energy."

On redirect examination:

"Q. And is it your opinion that the severe blow and (sic) something weighing about twenty-four hundred pounds could have aggravated that congenital condition?

A. Well, I find that a very hard question to answer and I don't think I have a hard and fast answer. This is the way it seems to me as I mentioned earlier. He was to all intents and purposes and appearances in good health prior to the accident and has not been since. He did have pulmonary embolism or clotting to the lung, which resulted in the accumulation of bloody fluid and so forth. It seems to me reasonable that all those events added enough of an extra burden to his heart that it no longer functioned as good as it did...