Weilert v. Fruin-Colnon Corp.

• Decision Date: 18 November 1969
• Docket Number: No. 33288,FRUIN-COLNON,33288
• Citation: 447 S.W.2d 781
• Parties: James L. WEILERT, (Employee), Plaintiff-Respondent, v.CORPORATION and Insurance Company of North America, (Employer and Insurer), Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 781

447 S.W.2d 781

James L. WEILERT, (Employee), Plaintiff-Respondent, v. FRUIN-COLNON CORPORATION and Insurance Company of North America, (Employer and Insurer), Defendants-Appellants.

No. 33288.

St. Louis Court of Appeals, Missouri.

Nov. 18, 1969.

Robertson, DeVoto & Wieland, St. Louis, for defendants-appellants.

Timothy G. Noble, St. Louis, for plaintiff-respondent.

DOWD, Judge.

This is an appeal from a judgment of the Circuit Court affirming a workmen's compensation award by the Industrial Commission in favor of the claimant. An award was entered for $5,412.50 for a permanent partial disability and a healing period, less a credit for disability payments paid to claimant in the amount of $3,345.34. The balance now due the claimant under the award is $2,067.16. The employer and insurer appeal.

The extent of the claimant's disability was the issue litigated.

Appellants contend on this appeal that the commission acted without or in excess of its power in striking the entire testimony of Doctor Arthur H. Stein, the treating and examining physician furnished by the employer and insurer. Doctor Stein's testimony was stricken for the reason that two of his reports were not furnished to claimant's attorney even though eighteen reports were furnished.

On January 13, 1965 the scaffold-board on which claimant, a carpenter, was standing, broke and claimant fell twelve feet to the ground and sustained a comminuted, completely displaced fracture of the midportion of the right radius. The following day Doctor Stein performed an open reduction with internal fixation. A Rush pin was inserted in the radius and a cast applied to the arm. After the claimant was discharged from the hospital, he was seen by Doctor Stein in 1965 on February 3, March 3, March 31, April 21, May 19, June 18, July 17, September 3, and November 4. Because the 'bony union (was) not solid' claimant was readmitted to the hospital in December 1965, and Doctor Stein performed a bone graft operation on the arm. After discharge from the hospital, the claimant was again seen by Doctor Stein in 1966 on February 9, March 9, April 6, May 4, June 1, October 3, and on January 6, 1967.

Doctor Stein testified in detail as to his treatment of claimant and as to the progress of claimant's condition. Doctor Stein rated the claimant's injury at approximately 10% permanent partial disability of the arm at the level of the elbow. Claimant's doctor testified that the claimant had a permanent partial disability of the arm at the wrist of about 30% and at the elbow of about 35%, and a permanent partial disability of the man as a whole of about 5% due to the post-operative scar of his left iliac region.

At the hearing Doctor Stein had all the reports which were furnished the employer and the insurer, and during his cross-examination these reports were given to claimant's attorney, who discovered that the only reports he had not previously received were reports dated July 17, 1965 and September 3, 1965. He asked Doctor Stein whether he used the report of July 17 in his testimony. The doctor replied that he did not use this report in his testimony and that the information contained in this report is 'appropo' of his previous testimony. The doctor was then asked whether the report of September 3 was 'part of your testimony today.' The doctor answered that this report was 'only again a running account of the fact the fracture is not uniting and which eventually wound up having some further surgery done on it.'

Claimant's attorney then objected to Doctor Stein's testimony on the grounds that he had not been furnished the medical reports dated July 17 and September 3 and asked that '* * * all of Doctor Stein's testimony on direct and on cross examination be stricken * * *.' The referee sustained the objection and struck all the testimony of Doctor Stein stating, 'The statute (287.210, (3), V.A.M.S.) I think is quite clear and cold.' All of the findings and rulings of the referee were adopted by the Industrial Commission.

Appellants' attorney made an offer of proof and read into the record the reports of July 17 and September 3. The case was taken under submission. The following day the appellants asked the referee for leave to reopen his case '* * * for the purpose of showing 18 medical reports were furnished to Mr. Noble (claimant's attorney).' The referee refused stating, '* * * I will be quite free to admit that I have the 18 copies * * *.' At the beginning of the hearing the claimant's attorney was asked by the referee whether there was any question about medical reports. Claimant's attorney answered, 'As far as I know I have enough, but I'm certainly not going to stipulate that I received all of them, because I don't know what he had. I received some. I assume all the medical reports are going to be used in this hearing, but I'm not going to stipulate that I have them all.' Respondent concedes in his brief that the evidence which appellants referred to in the attempt to reopen their case was evidence which had been submitted during the trial of the case and had been rejected after objection of claimant's attorney. The referee acknowledged that he had the 18 reports. It was only after claimant's attorney examined these reports that he found that he had not been furnished the two reports. He made no objection that he did not receive the other 18 reports. Claimant's attorney objected solely on the grounds that he was not furnished reports dated July 17, 1965 and September 3, 1965. It is clear from the record that claimant's attorney received the 18 reports. It was unnecessary for appellants to move to reopen their case to make a record that the 18 reports were furnished.

Defendants admit the reports dated July 17, 1965 and September 3, 1965 were not furnished to claimant's attorney. These 2 reports had been sent by Doctor Stein to Doctor Sutter who had referred the claimant to Doctor Stein.

The 18 reports which were furnished the claimant's attorney are dated as follows:

January 13, 1965

January 22, 1965

February 3, 1965

March 31, 1965

April 21, 1965

May 19, 1965

June 18, 1965

November 1, 1965

December 6, 1965

December 30, 1965

January 7, 1966

February 9, 1966

March 9, 1966

April 6, 1966

May 4, 1966

June 1, 1966

October 3, 1966

January 6, 1967

Because the issue here is whether the parties were commonly informed of all medical findings and opinions, we believe it important that the medical reports be set out in detail in this opinion.

Doctor Stein was seeing claimant practically every month and was preparing interim or running accounts of his findings as to claimant's condition. There were 7 reports furnished claimant's attorney prior in time to the dates of the 2 reports not furnished. The first report dated January 13, 1965 was detailed and gave the history and the x-ray findings which showed a comminuted completely displaced fracture of the mid portion of the right radius and a statement that the patient would require surgery 'which will be an open reduction and internal fixation of the right radius.' This report estimated 10 days hospitalization and probable inability to work for 4 to 6 months. The report of January 22, 1965 showed that the claimant was discharged from the hospital with x-rays showing perfect realignment of the fracture. This report also showed that the doctor anticipated that claimant would be in a cast for approximately 3 months. The report of February 3, 1965 showed that claimant was using his hand satisfactorily and had good finger function. The x-rays showed excellent position of the fracture fragments. Report of March 31, 1965 showed that the hand function was good and the fracture line was still evident. Report of April 21, 1965 showed that 'There is not much in the way of external callus but the fracture line is definitely hazy, indicating that union is taking place,' and stated that claimant was to do no heavy lifting. Report of May 19, 1965 showed that claimant was regaining good wrist, hand, and elbow function and that the fracture line was clearly evident and that 'There is no external callus but there does appear to be some haziness of the fracture line suggesting that union is occurring at a slow rate.' This report pointed out that there was going to be some delay in union and a decision as to a possible bone graft would be made in 2 months. The report of June 18, 1965 showed that the claimant had regained good function of his elbow, wrist and hand with some tenderness over the fracture site. This report further stated that the x-rays showed that the fracture line was still present but there had been some further new bone formation in the from of periosteal new bone about the fracture site. This report recommended that claimant continue to remain out of the cast, with light use of the hand and that claimant be reevaluated again in about 1 month. The report of July 17, 1965 which was not furnished claimant's attorney showed that the claimant was seen on that date and that he had excellent function of the wrist and elbow and was not complaining of much pain in the forearm. The report further stated that the x-rays showed that there had been some maturation of the callus about the fracture site but the fracture line itself was still clearly evident. The report continued that the claimant was not ready to return to any type of heavy work such as using his hand in carpentry, and that the claimant should be seen again in 1 month. The other report not furnished, dated September 3, 1965 showed that the claimant was seen again on September 3, 1965 and that he still complained of some discomfort about the fracture site and that he had excellent wrist and hand function in the injured forearm. Doctor Stein further stated in this report that he believed 'that there is now a fair amount of callus developing across the fracture site and the fracture line is becoming partially obliterated.' This report continued: 'Although this...