Wilhite v. Hurd, 52044

• Decision Date: 09 January 1967
• Docket Number: No. 52044,No. 1,52044,1
• Citation: 411 S.W.2d 72
• Parties: Floyd E. WILHITE, Plaintiff-Appellant, v. Luther and Glen HURD, d/b/a Springfield Tire Exchange, Hawkeye-Security Insurance Company, and State Treasurer, State of Missouri, Custodian, Second Injury Fund, Defendants-Appellants
• Court: Missouri Supreme Court

Page 72

411 S.W.2d 72

Floyd E. WILHITE, Plaintiff-Appellant, v. Luther and Glen HURD, d/b/a Springfield Tire Exchange Hawkeye-Security Insurance Company, and State Treasurer, State of Missouri, Custodian Second Injury Fund Defendants-Appellants.

No. 52044.

Supreme Court of Missouri, Division No. 1.

Jan. 9, 1967.

Motion for Rehearing or to Transfer to Court En Banc Denied

Feb. 13, 1967.

Neale, Newman, Bradshaw, Freeman & Neale, Warren S. Stafford, Springfield, for plaintiff-appellant.

Buell F. Weathers, David P. Hargrave, Mann, Walter, Burkart, Weathers & Schroff, Springfield, for defendants-appellants Luther and Glen Hurd, d/b/a Springfield Tire Exchange, and Hawkeye-Security Ins. Co.

Norman H. Anderson, Atty. Gen., Jefferson City, Donald L. Randolph, Asst. Atty. Gen., for defendants.

HIGGINS, Commissioner.

Floyd E. Wilhite claimed compensation from his employers, Luther and Glen Hurd, d/b/a Springfield Tire Exchange, and their workmen's compensation insurer, Hawkeye-Security Insurance Company, for alleged injury to eye and head on February 11, 1959, and from the State Treasuer of Missouri, Custodian, Second Injury Fund, alleging pre-existing disability due to cataract in his left eye. Referee Leonard Newton of the Division of Workmen's Compensation entered an award of total and permanent disability against the employer and insurer and the Second Injury Fund. The Industrial Commission modified the Referee's award to an award of compensation for permanent partial disability of the sight of plaintiff's right eye and, upon further review, the Circuit Court in part reversed the Industrial Commission. All parties, including the State Treasuer, have appealed.

On February 11, 1959, plaintiff was operating a tire spreader at his employer's place of business when a large truck tire slipped from the spreader and struck him on the forehead knocking him to the floor. He was not rendered unconscious and he reported the accident to his employers. Shortly thereafter, he experienced a severe headache, 'black marks' floating across his right eye, and had a feeling of 'slashing water' in that eye. He continued to work until February 18, 1959, when he saw Dr. Robert Stewart, an eye specialist. He was then blind in his right eye and Dr. Stewart diagnosed the injury as a retina detachment of the right eye. During the next four months plaintiff was in the hospital on two occasions and Dr. Stewart performed three separate operations on plaintiff's right eye to correct the detached retina. The operations were not successful and plaintiff could see only light with his right eye.

Plaintiff returned to his job in June, 1959, and worked for approximately nine months before being discharged for causes not related to his injury. He had no trouble doing the same work he had done before the accident and he had also resumed his driving and reading.

On May 21, 1960, plaintiff filed a claim for compensation against his employers and their insurer. He alleged injury to 'eyes and head * * * Retina detachment of right eye and injury to left eye. Head was also injured.' On March 6, 1961, plaintiff and his attorney and the employers and their insurer by their attorney appeared before Referee Leonard E. Newton at which time plaintiff asked that his claim be dismissed 'so that a rating of permanent disability' could be made. Pursuant to the request, Referee Newton Dismissed plaintiff's claim without prejudice and made the following additional record entry: 'Compensation rate $37.50, compensation has been paid in the amount of $600.00 for 16 weeks healing period, medical is being furnished in the amount of $1618.80, permanent partial disability right eye rated at 92% loss or 128.8 weeks or $4830.00, facial disfigurement for the up-turning of right eye ball rated at $200.00 total or $5030.00 together with healing period of $600.00 makes a total of $5630.00. Mr. Weathers (attorney for employers and insurer), do you agree to the rating as dictated? Mr. Weathers: Yes, Your Honor.'

The last payment pursuant to the foregoing rating was made November 28, 1961, and on January 2, 1962, plaintiff again filed his claim for compensation against his employers and their insurer and the custodian of the Second Injury Fund. He alleged injury to 'Eyes and head--Preexisting disability being industrial blindness of left eye due to cataract * * Retina detachment of right eye and head injury. Further injury to left eye. Worsening of nervous condition. Nervous and mental condition.' The Referee's hearing was commenced February 26, 1963, and recessed from time to time, being concluded October 2, 1963.

Mr. Wilhite was 44 years of age at the hearing and had done tire repair work for the Hurds' Springfield Tire Exchange for approximately three years prior to the accident on February 11, 1959. Previous to that employment he worked approximately fifteen years for DeWayne Mattress Company in Detroit, Michigan, and had no eye trouble or nervousness. The 'black marks' and 'slashing water' noticed shortly after the accident were the only unusual conditions present in either eye. 'The right eye was the only thing I was concerned in at that time.' The condition of plaintiff's eyes and sight prior to the accident was described: 'I drove an automobile all the time, I made trips whenever I wanted to, I worked, I fished, went wherever I wanted to in my car without any difficulty.' He had no trouble reading and was not off work for injury or illness. He had worn glasses for nearsightedness for about 25 years. At the hearing plaintiff complained of 'a pressure in my head * * * I'm in fear, if my wife leaves me I can't stand it; she stays with me constantly * * * I have the feeling I'm going to drop or black out, i don't never completely black out, at times I have to stand there and wait until the drunkeness leaves, I feel off-balanced * * * I can't stand noise, excitement whatsoever * * * I can't even stand the television.' He first noticed these symptoms 'within the last year and a half or two years' prior to February 26, 1963. He was nervous after his 1959 eye surgery. He was able to see out of his left eye following the accident and could see 'some' with his left eye at the hearing. He experienced no difficulty in his left eye by reason of being hit by the tire. However, it worsened in 'something like the last year and a half or two years, it's got a lot worse the last few months.' His nervous and mental conditions became worse along with the rapid loss of vision in his left eye. Plaintiff went to Dr. James B. Allison, a specialist in neurology in February 1962. Prior to that he saw Dr. Alex Brown, a psychiatrist, on one occasion following his last work in 1960, and he was treated by Dr. Carle H. Schroff for chronic anxiety emotional disturbance beginning June 16, 1963. Plaintiff admitted 'a pre-existing disability in the right eye of eight percent.' He also admitted that his employers told him he was discharged from his employment for drinking on the job.

Plaintiff's eye specialist, Dr. Stewart, first saw him February 18, 1959. 'At that time he had a retina detachment of the right eye. * * * He was very nearsighted in both eyes requiring about minor 11 sphere roughly in both eyes, the best tyep of vision; vision in his right eye because of the detachment was limited to hand motion, the vision (distant) on that day in his left eye was 20/70 which was the best correction that we could get at that time. * * * There was some central lens ptosis present on both eyes. * * * One could definitely say that the retina detachment was caused by trauma which the patient sustained several days previously * * *. On the day of the examination being 20/70 that would be a 36% loss and at another date the best vision we ever got for Gene was 20/50 minus, that would be about 25% loss.' Other left eye readings were September 1, 1959, 20/50 minus; April 16, 1960, 20/60 minus and 20/50 minus 1 upon dilation; March, 1960, 20/60 plus 1; August 16, 1960, 20/50 plus minus 1; October 5, 1960, 20/50 minus 2; April 18, 1961, 20/60; September 25, 1961, 20/70; February 23, 1963, 20/200. The last would represent 80 percent loss. Vision loss in the left eye on February 18, 1959, was caused by 'the cataract changes in the center part of the eye and also the extreme myopia, the extreme myopia may not have any real bearing on the visual acuity loss because often times with that much myopia you will have 20/20 vision.' Visual efficiency of the left eye on that date based on the Snellan table was 36 percent loss of distance vision and from a reading of 14/98, the near vision loss was 65 percent. he also gave readings of 47.5 percent loss of distance actuity and as much as 86 percent near efficiency loss. Muscle function in both eyes was normal. Dr. Stewart stated that the cataract condition was the cause of deterioration in left eye vision and that if a cataract removal was performed plaintiff would have a recovery percentage of 'five chances out of six of not having a detachment' which is a risk where one detachment has been sustained. He would expect a cataract operation to correct the acuity and field deficiencies in plaintiff's left eye. He found no evidence of traumatic injury to plaintiff's left eye and rendered no treatment for it except to change plaintiff's glasses.

'Q. Now, the loss of vision of the left eye * * * after your examination of February 18th resulted from a worsening of the cataract condition, is that correct? A. Yes, as far as we can tell that's about the only cause as brought about.

'Q. Now, that worsening of the cataract condition would (was) not speed it (speeded) up nor aggravated in any way by any alleged accident on February 11th, 1959, to your knowledge, was it, Doctor? A. No, I couldn't say--I can't answer that question really because a traumatic blow to the head might aggravate the cataract condition. On the other hand, as we followed Gene over a period of a year or so...