Vollet v. Federal Brilliant Sign Co.

• Decision Date: 03 May 1932
• Docket Number: No. 22037.,22037.
• Citation: 49 S.W.2d 201
• Parties: VOLLET v. FEDERAL BRILLIANT SIGN CO. et al.
• Court: Missouri Court of Appeals

49 S.W.2d 201

VOLLET v. FEDERAL BRILLIANT SIGN CO. et al.

No. 22037.

St. Louis Court of Appeals. Missouri.

May 3, 1932.

Appeal from St. Louis Circuit Court; Moses N. Hartmann, Judge.

"Not to be officially published."

Proceeding under the Workmen's Compensation Act by Walter Vollet for personal injuries, claimant, opposed by the Federal Brilliant Sign Company, employer, and T. H. Mastin & Company, insurer. From the judgment of the circuit court reversing the final award of the Compensation Commission and remanding the case to the commission, defendants appeal.

Judgment reversed, and cause remanded.

Fordyce, White, Mayne & Williams and G. C. Stribling, all of St. Louis, for appellant.

Everett Hullverson and Staunton E. Boudreau, both of St. Louis, for respondent.

BENNICK, C.

This is an appeal from the judgment of the circuit court of the city of St. Louis in a proceeding under the Workmen's Compensation Act (sections 3299-3376, R. S. 1929).

It is conceded that the employee, Walter Vollet, was injured by accident arising out of and in the course of his employment with the Federal Brilliant Sign Company, on November 27, 1929. The injury was to the right leg, extending from the knee downward to and including the foot. The employer recognized its liability under the act, and paid the employee a total of $1,260 in compensation, based upon a rate of $20 a week for a period of 63 weeks.

A disagreement arose between the parties in regard to the extent and duration of the disability resulting from the injury, and on February 18, 1931, the employee filed his claim with the commission. On February 24, 1931, the employer and insurer answered, denying that any further compensation was due the employee. The issue thus raised was the only matter for the determination of the commission.

On March 23, 1931, the claim was heard before Hon. Orin H. Shaw, one of the members of the commission, and on March 28, 1931, the commissioner entered his award, finding that for temporary total disability the employee was entitled to compensation at the rate of $20 a week for 69 weeks, such payments to begin as of the date of the accident. The commissioner specifically found that there was no permanent injury.

On March 31, 1931, the employee filed his application for a review of the award before the full commission.

On April 13, 1931, the full commission entered its final award, modifying the award of the single commissioner in but one respect, and finding that the employee was entitled to compensation for temporary total disability at the rate of $20 a week for 64 5/7 weeks, such payments to begin as of the date of the accident. The full commission also specifically found that there was no permanent disability of any character as a result of the injury.

Thereafter the employee appealed to the circuit court; and in due course the court entered its judgment, reversing the award of the commission upon the ground that there was not sufficient competent evidence in the record to warrant the making of the award, and remanding the case to the commission, with directions to receive further evidence as to the extent of the employee's temporary total and permanent partial disability.

From such judgment of the circuit court, and at the judgment term, the employer and insurer have duly perfected their appeal to this court.

The appellants argue that the award of the commission was supported by sufficient competent evidence, and that consequently the circuit court was in error in reversing the same, thus presenting a point for our decision which calls for a review of the evidence in the light of the well-settled rule that the appellate court will look only to the evidence most favorable to support the finding made. Sanders v. Central Building Materials Co. (Mo. App.) 43 S.W.(2d) 863; Jackson v. General Metals Refining Co. (Mo. App.) 43 S.W. (2d) 865; Simmons v. Mississippi River Fuel Corporation (Mo. App.) 43 S.W.(2d) 868; Jones v. Century Coal Co. (Mo. App.) 46 S.W.(2d) 196.

The employee was first treated by a Dr. O'Bar, but on February 18, 1930, he was put in the care of Dr. A. H. Diehr. The latter testified that, when he first saw the employee, he had a considerable swelling of his leg and foot; that there was a marked limitation in the movement; and that he walked with a very definite limp. The doctor took X-ray pictures, which showed a slight bone exudate in the posterior surface of the tibia at its lower border, and there appeared to be a slight erosion or irregularity around the surface. There was no evidence of any destruction of bone, but there was evidence of atrophy from nonuse.

The treatment consisted of physical motion, massage, dressings, and heat applications, and the condition of the leg improved very materially until the first part of May, 1930, when there...