Wray v. Schwitzer Co., 12001

• Decision Date: 24 April 1981
• Docket Number: No. 12001,12001
• Citation: 615 S.W.2d 646
• Parties: Mildred R. WRAY, Employee-Appellant, v. SCHWITZER COMPANY, Employer-Respondent, Liberty Mutual Insurance Company, Insurer-Respondent.
• Court: Missouri Court of Appeals

Page 646

615 S.W.2d 646

Mildred R. WRAY, Employee-Appellant, v. SCHWITZER COMPANY, Employer-Respondent Liberty Mutual Insurance Company, Insurer-Respondent.

No. 12001.

Missouri Court of Appeals, Southern District, Division One.

April 24, 1981.

Charles A. Mogab, Thomas J. Gregory, Mogab & Hughes, Attorneys, Inc., St. Louis, for employee-appellant.

Anna Mayer Beck, Riethmann & Soebbing, St. Louis, for insurer-respondent.

TITUS, Judge.

Employee Mildred R. Wray filed for benefits under the workmen's compensation law. Ch. 287, V.A.M.S. In all involved proceedings, the principal issue in dispute concerned the nature and extent of employee's permanent partial disability. The only medical evidence adduced relative to disability was via written reports submitted by various treating and examining physicians. Through its chief administrative law judge, the Division of Workmen's Compensation (division) awarded Mrs. Wray compensation based on 15% permanent partial disability to the body as a whole. Upon review, the Labor and Industrial Relations Commission (commission) modified the division's award by increasing the disability rating to 27.5%. Following appeal from the last-noted award, the circuit court reversed and remanded the cause to the commission "with instruction to reconsider the evidence and to enter an award in conformity" with the court's order and judgment. Employee appealed.

The substance of the circuit court's basis for reversing and remanding the matter was its conclusion that the commission's award was based upon "speculation, guess work (sic) and conjecture" because its findings regarding the percentage of employee's permanent partial disability apparently was predicated upon the "Impression" of Mrs. Wray's examining physician rather than upon his "opinion based upon any degree of medical certainty." As already noted, the entire medical evidence in this case consisted of the written reports of the treating and examining physicians, all of which where admitted without a single objection. Under these circumstances, any contention the reports should not have been considered by the fact trier would, of course, be without merit. Vickery v. ACF Industries, Incorporated, 454 S.W.2d 620, 623(5) (Mo.App.1970).

Specifically, the circuit court was referring to a letter written by Mrs. Wray's examining physician relative to his "repeat" or second examination of the employee. Following a recitation concerning the particulars of the patient's medical history, complaints and the nature, extent, and result of his examinations, the doctor's report concluded with the following paragraphs, each titled as noted: "IMPRESSION (1) Herniated lumbar disk with L4 and L5 root compression on right. (2) Chronic lumbo- sacral strain syndrome. It is my opinion that the industrial accident described in our (previous) correspondence ... is the sole producing cause of the above disabilities. PROGNOSIS It is my opinion that the patient will continue to experience back and leg pain as a result of this injury. At sometime in the future, it is quite probably (sic) that she will require hospitalization and, possibly, back surgery. DISABILITY For purposes of Workmen's Compensation, the following disability ratings are made: For herniated lumbar disk, a permanent partial disability of 25% of a woman as a whole is made. For chronic lumbosacral strain syndrome, a permanent, partial disability rating of 15% of a woman as a whole. In total, a permanent, partial disability of 40% of a woman as a whole."

A perusal of the court nisi's opinion suggests the capitalized and underscored paragraph titles in the medical report, supra, were so mesmeric that the communications contained in the body of the writing may have escaped attention. The court took "impression" to mean a vague, indistinct inkling or notion, overlooking the fact that the word is also defined as something having a considerable effect upon the mind. But regardless of what may be the intended meaning of the word when employed in any given context, it is worthy of note that just as employee's examining physician used "impression" in heading a paragraph wherein he expressed his medical opinion, the doctor who...