Wilson v. Emery Bird Thayer Co.

Decision Date04 April 1966
Docket NumberNo. 24482,24482
Citation403 S.W.2d 953
PartiesMildred L. WILSON, Respondent, v. EMERY BIRD THAYER COMPANY and Commercial Union Insurance Company of New York, Appellants.
CourtMissouri Court of Appeals

Fred H. Metcalf, Kansas City, for appellants.

Theo C. Anderson, Kansas City, for respondent.

CROSS, Presiding Judge.

This case arose as a claim under the Workmen's Compensation Law. The employer, Emery Bird Thayer Company and its insurer have appealed from a judgment of the circuit court affirming the Industrial Commission's final award of compensation benefits in the total sum of $3,246.50 to claimant-employee, Mildred L. Wilson. The facts pertinent to the issues for decision are here set out and will be considered in the light most favorable to the prevailing party. Harper v. Home Imp. Co. et al, Mo.Sup., 235 S.W.2d 558.

Claimant testified that on April 27, 1964, and for more than twelve years prior to that date, she was employed by Emery Bird Thayer Company as chief operator of its telephone switchboard. In that capacity she supervised the switchboard and two other operators. On the day above named, at some time between 4:30 and 5:00 P.M., claimant relieved the operator who had previously been on duty. Working alone, claimant proceeded to operate two 'positions'--her own which directly faced her as she was seated upon a tall 'operator's' chair, and the position next adjacent on her right which is identified as the 'second position'. Each position was a panel of connecting apparatus about two feet wide normally facing the operator to which it was assigned. While so working, claimant reached over to the 'second position' to make some 'disconnects' by pulling the connecting plugs out of the 'jacks' they were in. As claimant 'jerked' one of the plugs out, her feet slipped on a metal foot rail, she lost her balance, and she fell in a twisting position from her own operator's chair onto and against the chair next to her, knocking off her headset which fell to the floor. Within a few minutes she suffered pain in her neck, arm and shoulder. She quit work at five o'clock and went home. Her pain was severe that night and became progressively worse. Next morning her daughter called the employer by telephone and gave notice of the accident. At the employer's direction claimant consulted Dr. Flanders, who was the company physician. Dr. Flanders initially treated her on April 28th, 29th and 30th, and then made an appointment for May 5th for claimant to consult Dr. Barnard, an orthopedic doctor with the Dixon-Dively Clinic. Claimant was not consulted as to the selection of Dr. Barnard and had nothing to do with securing the appointment.

Dr. Barnard examined claimant and proceeded to treat her at the clinic. She was given traction and other therapy. Her condition did not improve and on June 29th she entered St. Luke's Hospital on the advice of and through arrangements made by Dr. Barnard. She was there placed in traction and otherwise treated under the care of Dr. Barnard, until the date of her release from the hospital on July 3, 1964. She continued to see Dr. Barnard at the Dixon-Dively Clinic until he released her on September 21, 1964. During this time she was still having pain and complained of trouble she was having in opening her jaws. This was a condition diagnosed as having resulted from the traction she had undergone in the course of her treatment. This jaw condition did not exist prior to her entry in the hospital. In dismissing claimant, Dr. Barnard informed her he could do nothing further for her jaw complaint.

Claimant further sought relief from the pain and disability of her jaw at K. U. Medical Center and from various other physicians, dentists and oral surgeons. She was advised by Dr. McCoy that she needed surgery to relieve the jaw injury. She was unable to avail herself of the recommended operation because she 'didn't have any money to pay for it'.

It appears by stipulation into the record that 'the insurer cut off all medical treatment as of May 20, 1964'. At some time, which is not clearly shown, appellants advised the Dixon-Dively Clinic that they would not pay the cost of claimant's medical services after the date above noted. Claimant testified that this fact did not become known to her until early in June, 1964. Notwithstanding, claimant continued to receive the services and treatment (including hospitalization) from doctors which had been selected by appellants, until her release by Dr. Barnard on September 21, 1964. In so doing, and by reason of the employer's refusal to pay for those medical services, she became obligated to pay medical bills totalling $596.50 for medical and hospital services received within the 90 day period and.$128.50 for services received thereafter (for which no claim is made).

Claimant presently complains of pain in her back, neck, shoulder and arm, and that she still has the trouble with her jaw, accompanied by 'terrible bad earache'. She attributes her back pain and jaw condition to the traction she received. She has not returned to work since she sustained her accident and injuries.

Dr. Duncan examined claimant twice and testified on her behalf. He stated that she was suffering from subacute sprain of the neck, upper back region and upper extremity, ('which patient states is due to her occupation in performing her regular work'), aggravated by the contusion and sprain received April 27, 1964 when she slipped and fell against the adjoining chair. It was Dr. Duncan's opinion that claimant's back condition and the injury to the temporomandibular joint (her jaw condition) could have been caused by the traction she received in treatment following her fall and injuries received April 27, 1964. Dr. Duncan testified that as of April 5, 1964 (the date of the hearing before the referee) claimant had a 15 per cent permanent partial disability of the body as a whole.

Dr. Pipkin examined claimant once and testified on behalf of the employer and insurer. He stated that in his opinion claimant had limitation of shoulder motion amounting to 25 per cent arising from an arthritic condition. The fall she had on April 27, 1964 could have aggravated that condition. Dr. Pipkin additionally found some limitation of motion in claimant's cervical spine, disability in her shoulder and arm, and some limitation of motion in her right leg. He did not X-ray claimant's temporomandibular joint because he understood 'she was to see a specialist about her jaw'.

The referee found that claimant had sustained an accident which arose out of and in the course of her employment with Emery-Bird-Thayer, and in which she received injuries resulting in 10 per cent permanent partial disability. The referee awarded compensation accordingly in the total sum of $1700 and an additional lump sum of $200 for facial disfigurement, but denied claimant an allowance for medical aid expenditures she had made and further denied compensation for a healing period during the 90 day period following the accident.

On final hearing the Industrial Commission made findings of fact and conclusions of law as follows:

'We find from all the credible evidence upon the whole record that Mildred L. Wilson, Employee, sustained injury to her arm, shoulder, upper back, temporomandibular joint and body as a whole as a direct result of an accident arising out of and in the course of her employment with Emery Bird Thayer Company on April 27, 1964.

'We further find from such evidence that Employer and Insurer had notice that Employee sustained a compensable accident on April 27, 1964 and that they refused to provide Employee with necessary medical and hospital treatment to cure and relieve her from the effects of her said injury within the first ninety days following said accident and injury on April 27, 1964, and the Employee was required and did procure such medical and hospital treatment at a cost of $596.50 to her within said ninety day period and the Employer and Insurer are hereby ordered to pay said sum to the Employee. Tr. 78, Slider v. Brown Shoe Company, 308 S.W.2d 306, l.c. 310; Tr. 88 and 89.

'We further find that Employee sustained temporary total disability as a direct result of the aforesaid accident for a period of twenty weeks and that the Employee is entitled to said twenty weeks temporary total disability as a healing period. Tr. 50, 57 and 59.

'We further find from such evidence that Employee sustained ten per cent permanent partial disability to her body as a whole as a direct result of said accident'.

On the basis of the quoted findings and conclusions, the Industrial Commission made its final award allowing claimant the total sum of $1700 for permanent partial disability, $596.50 for the value...

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