Winschel v. Stix, Baer & Fuller Dry Goods Co.

• Decision Date: 31 December 1934
• Docket Number: No. 23352.,23352.
• Court: Missouri Court of Appeals
• Parties: WINSCHEL v. STIX, BAER & FULLER DRY GOODS CO. et al.

77 S.W.2d 488

WINSCHEL v. STIX, BAER & FULLER DRY GOODS CO. et al.

No. 23352.

St. Louis Court of Appeals. Missouri.

December 31, 1934.

Rehearing Denied January 16, 1935.

Appeal from Circuit Court, St. Louis County; Julius R. Nolte, Judge.

"Not to be published in State Reports."

Proceeding under the Workmen's Compensation Act by Leo Winschel, employee, opposed by the Stix, Baer & Fuller Dry Goods Company, employer, and the New Amsterdam Casualty Company, insurer. From a judgment of the circuit court affirming a final award of the Workmen's Compensation Commission, the employer and insurer appeal.

Reversed and remanded, with directions.

Green, Henry & Remmers, of St. Louis, for appellants.

Kurt Von Reppert and Henry B. Budde, both of St. Louis, for respondent.

BENNICK, Commissioner.

This is an appeal by the employer and insurer from a judgment of the circuit court of St. Louis county affirming a final award of the Workmen's Compensation Commission upon a hearing on change of condition brought pursuant to section 3340, R. S. 1929 (Mo. St. Ann. § 3340, p. 8273).

The employee sustained a compensable injury on November 15, 1929, while carrying a large roll of linoleum down a stairway from the second to the first floor in the senior high school building in University City, Mo. His employer was Stix, Baer & Fuller Dry Goods Company, which seemingly had the contract for supplying and laying the carpets and linoleum for the school. While attempting to make a turn in the stairway, with a forty-foot roll of linoleum on his shoulder, he received an injury to his back; and the full nature and extent of the disability resulting therefrom has been the chief subject of inquiry in all the subsequent proceedings brought before the commission.

On May 6, 1930, the employee filed his claim for compensation; and, after a hearing before a single commissioner, an award was rendered on June 25, 1930, awarding compensation for temporary total disability for 19 weeks at $13.33 a week, making the total amount of compensation found to be due the employee the sum of $253.27, subject, however, to a credit of $205.66 previously paid him by the employer or insurer.

The commissioner made a specific finding that there was no permanent injury, as well as no temporary disability extending beyond a period of 19 weeks after the date of the accident, which would mean a finding that all disability had ended by the early part of April, 1930.

Quite evidently such finding was induced by the testimony of the doctors for the employer and insurer, the general tenor of which was that the symptoms of injury were largely subjective, with no evidence of traumatic pathology; that all X-ray pictures were negative, except for a suggestion of mild arthritis; that the employee's complaints had been of pain in the left lumbar region, and had never extended to the lumbar sacro; that the condition had shown temporary improvement in response to the use of plaster casts; and that by the latter part of March, 1930, the employee was advised to return to work, no disability then being apparent.

The employee's own doctors disputed the fact that the symptoms were purely subjective, and insisted that there was objective evidence of an injury to the muscles, tendons, and nerves of the back in the region of the left sacroiliac joint, in all probability due to a strain of the joint, and resulting in muscle spasms and pain on motion, especially in bending forward. Moreover they differed with the other doctors upon the question of whether the disability had ended; their own testimony being that up to the time of the trial the injury had not responded to treatment. However, at such first hearing, no doctor went so far as to say, nor was he asked to say, that the injury was permanent and incurable, or that it was likely to grow progressively worse, and consequently the award was necessarily rendered upon the theory that the disability at best was but temporary in character.

Following the entry of the single commissioner's award, both the employee and the employer and insurer filed timely applications for a review before the full commission, and on July 17, 1930, the full commission entered its final award, affirming in all respects the award which had been previously rendered. From such final award an appeal was taken to the circuit court, wherein the appeal was subsequently dismissed, thus rendering the award conclusive as to all matters adjudicated thereby.

Thereafter, on September 12, 1930, the present proceeding was instituted upon an application filed by the employee asking for a rehearing and review of the award upon the ground of a change in condition. In specifying the nature of the change in his condition, the employee referred to the fact that he had sustained a back strain, and then stated that subsequent to the entry of the award his condition had changed for the worse, necessitating manipulation under an anæsthetic and the placing of his back in a plaster paris cast, and that by reason of such change in condition he had become totally and permanently disabled for work.

One year later, on September 11, 1931, a hearing was had on the employee's said application; and on September 19, 1931, the commission, at its office in Jefferson City, entered a temporary or partial award on change of condition, awarding the employee, for temporary total disability, the sum of $13.33 a week from July 25, 1930, to and including March 15, 1932, with the right in the employee to ask for an extension thereof should disability extend beyond said date, and with the right in the employer and insurer to ask for a modification thereof should disability end prior to March 15, 1932. This award was based upon a specific finding by the commission of a change in the employee's condition for the worse since the rendition of the former award, and was expressly stated to be only a temporary or partial award, with the proceedings to be kept open until a final award could be made.

Upon the entry of such temporary or partial award, from which no appeal could be taken because it did not purport to be a final determination of the issues before the commission, the employer and insurer sued out of the circuit court of Cole county a writ of certiorari to test out the jurisdiction of the commission to have made such temporary or partial award in a proceeding for review based on change of condition. The writ being quashed, an appeal was taken to the Kansas City Court of Appeals, wherein an opinion was handed down on May 22, 1933, affirming the judgment of the circuit court and upholding the action of the commission in having entered the temporary or partial award. State ex rel. v. Richardson, 227 Mo. App. 1221, 61 S.W.(2d) 409.

Thereafter, on July 28, 1933, a further hearing was had before the commission, and on November 1, 1933, a final award on the hearing on change of condition was entered; compensation being awarded for temporary total disability at the rate of $13.33 a week for 400 weeks, payments to begin as of July 25, 1930, and to be payable and be subject to modification and review as provided in the act.

From such award the employer and insurer took their appeal to the circuit court of St. Louis county, wherein the award was in all respects affirmed; and the appeal to this court has followed in the usual course.

Though the employer and insurer purport to raise some six separate assignments of error, there is in reality but one decisive point in the case, and that is the question of whether there was sufficient competent evidence adduced to have warranted the commission in entering the award of November 1, 1933, based upon a finding of a change of condition.

The case is simplified, we think, if we keep in mind the general state of the law which governs proceedings for the review of an award upon the ground of an alleged change of condition, for what the parties...