*1 George F. Sei, Relator, ex rel. W. Haid, Dee William State Judges St. Louis Court of Nipper, Becker, Simon G. Appeals. S. W. 950. One,
Division June 1933.* Opinion Term, 1932, *NOTE: filed at April 20, October 1933; motion for rehearing filed; May motion Term, at overruled June for relator. Dame Hall cb *2 respondents. & Evans for
Woodward *3 HYDE, opin proceeding quash C. This is a in certiorari to Appeals ion the St. Louis Court of in the case Sei v. Guthrie Company, (2d) & 50 S. W. 664. The St. Court Louis judgment there reversed of the circuit court favor of relator and remanded the with directions cause to set aside the award of facts, the Commission. stated, The hereinafter by are shown opinion of the St. of Appeals, Louis Court where go we must get Daues, them. ex rel. Koenen v. 14; [State 288 S. W. State Cox, 790, ex rel. Arndt v. 327 Mo. 1079; S. W. State ex ex (2d) 1054; see, also, 43 W. State v. S. Smith, rel. Silverforb 865, Becker, 316 293 S. W. Biscuit rel. Union Co. 783.] and other August a fractured skull 11, 1928, sustained Relator, on medi- provided fell his head. was bruises when iron rod on employer through its by paid compensation his cal attention and Compensation Com- Workmen’s filed a with the insurer. He claim 1929. hearing September, given time was mission due and hearing, 26, 1929, a review September On after a followed fifty-five tem- weeks of Commission, an was entered for full disability from the date porary disability which for such total was September, 1929. The Commis- day first the accident disability, fact further either finding sion’s that there was no was date. Relator permanent partial, temporary, total after that compensation. and evidence appeal paid did not hearing Ap- Court of in the of the St. Louis is stated peals, as follows: temporarily dazed, and employee . . . He
“The testified. Webb, immediately up sewed was taken office Dr. who Hospital. Mary’s him He remained cut in head and sent to St. hospital, hospital time, in this for short and then reentered another tes- placed where he was care of Carrol Smith. He under the Dr. tified that unable work he had been to do since date growing accident, weaker at the time head, jerking dizziness, headaches, in his pressure suffered from throat, which him caused to vomit. August “Dr. Smith testified that he first saw the claimant on and commenced treat him on October care, February 2, that .time he under the until doctor’s *4 day 3, 1929, September doctor also made an examination on a This hearing. before claimant was first was When examined he suffering skull, scalp, to from found laceration of the a fractured just care joint. on the shoulder The and bruise left arm below the given 1928, 1929, October, February, and treatment him between and mostly systematic complained was of diz- treatment. The claimant ziness, eyes, temples darkness before his pressure about his and arms, general head, back his and of numbness about the feet and injury, on organic weakness. There no and was evidence of brain 1929, injury. February 2, any physical At was evidence there of suffering psychoneurosis. time At claimant was from ex- 3, 1929, tightness complained amination September claimant of on inability in talk choke his chest and to well. He said that he would dizzy all up spells throat have and and at time would shake again weakness, complained over. of his pressure on side swallowing. sign injury, difficulty head, and was no There diagnosis activity but some increased The in the reflexes. same psychoneurosis examination, opin- was made. After this Dr. Smith’s light engaged in form work had some if claimant was that ion his hearing. time of the at the have been normal January Unterberg examined the claimant on stated that he “Dr. pressure complained of on the
22, claimant then 1929. He said head, which pain in his moved over to top and of his head growing that his arms and eyes, he weaker and stated that was and any legs numb; walked for distance he became that when he were necessary vomited; and it was for him nauseated sometimes go through movements with his mouth and throat peculiar to normal, with exception order to swallow. The were reflexes very eyelids, tongue. was lips some tremor of the and The claimant suffering organic injury. any emotional, but not from doctor This suffering psychoneurosis, was from in- he with emotional stated stability, permanent, but this was not should be cured proper might claims treatment and a settlement of he have.” year award, applica-
More after filed an than this final relator rehearing Compensation Act, tion 42 of the for a under Section Sec- 1929, 3340, tion Revised Statutes “on account of con- temporary disability dition that claimant’s former had become permanent injury disability.” hearing A was in January, held made, a temporary January was award on disability “temporary September 1, 1929, total July from theory 1931, on the the claimant shown had in his condition for September 26, the worse since the 1929.” The Commission found that relator “had been unable work since totally award was issued and had been temporarily disabled from the date Thereafter, of the accident.” final award for tem- porary disability made, total which sustained the circuit court, upon employer’s appeal. It is the of the St. Court determining
Louis Appeals, employer’s appeal reversing judgment court, of the circuit which asked we are now quash. hearing evidence the second was stated the St. Louis
Court of as follows: “The claimant had been testified he unable to work since the date of his suffering and was from headaches and dizzi- ness; that pain the dizziness and in his head continuous. He stated he had been testimony under the care Dr. Lamb. His revealed at this that he suffering practically symptoms same prior had August 31, existed “Dr. Lamb began treating testified that he the claimant some time *5 in October or November, 1929; the that treatment consisted of nerve sedatives and medicine for his stomach. He saw him once or twice a month; that complained claimant headaches, swallow, inability of to nausea, vomiting vertigo. and He suffering general was from condition, nervous which was indicated tremor. At the time of anything, not was and, if improved, hearing had not plaintiff the again diagnosis was year before. The as he been as well had any labor. manual able to do was not
psychoneurosis, claimant and per- was condition the whether not say doctor was unable to The if year well in a be that he would manent, possible that was but it neurologist. claimant some proper from treatment he received symptoms suffering from the same had been this doctor that told he injury. since the date of the of he an examination
“Dr. testified had made Miller small He found patient’s request employer. ears at of which discharge pus, perforation drum, ear with a of the left no discharge. was There catarrhal middle ear indicated acute nervous of the central impairment hearing no involvement and not seem did sj'-stem. history he stated there case From the any condition. connection ear to be between the he had again “Dr. Carroll Smith testified at January 1931. 3, 1929, September the claimant until not seen from January again date, him this on He examined on latter complaint, symptoms described exception With the ear January 9, they prior were patient were on as the same same, general September about the 1929. His condition was signs any injury and no was noted. no marked There were system, diagnosis psychoneurosis to the nervous the same been In the claimant have made. this doctor’s forgot improved gone himself; if his he to work and about had entirely depended his upon his own mental attitude and future surroundings. thought psychic condition was He stated that he his began get one, and that after claimant interested there trembling shaking. did think He said he claimant deliberately thought putting symptoms; on he had those that he probably gotten doing things unconsciously; into the habit those permanency depended condition on his mental at- his doing get he surroundings, titude and his where could back to some- thing in take his order to mind off of own condition. Unterberg again
“Dr. testified that he had examined claimant January 8, 1931, on complaints, to his listened and made any first, second examination without to the reference and was remarkably surprised to see how the two were. The claimant alike psychoneurosis suffering organic injury. without He given might stated that also the claimant be some treatment which theory work, him up to the would educate life but included necessary might entirely; isolate him that with his mental as payment compensation ag- it was would tend gravate his condition. day
“Dr. Jacobson testified that he examined the claimant hearing. complained headache, nausea, before the dizziness
1067 normal, vomiting. of the The reflexes were examination any lung's abnormalities. He and abdomen did reveal heart and tongue twitching muscles had a tremor of the movement the general good. apparently condition was He of the throat. The diagnosed psyehoneurosis, and stated did not think the case as he although year, probability a claimant be able to work for the would specialist. that he would recover under the direction nerve compensation any payment not think the have did particular claimant.” upon effect the condition of the Appeals
The of the St. Louis Court about this evi- conclusion opinion was stated in their as follows: dence case, opinion,
“An record in examination of the this in our shows change no in material or substantial claimant’s the condition from hearing. the the last upon final award made the will time It doctors, himself, all of well as be observed that the as claimant symptoms identically enumerated his and his ailments as almost upon any in symptoms the same as the former so far as previous original or injury.” ailments had to do or opinion Relators’ claim is that the of the Louis St. Court of Appeals opinion is in conflict with the of this court in Wheeler v. Ry. Co., 888, 42 (2d) 579,
Missouri Pacific W. S. in its act, construction of Section of the Section Revised Statutes 1929, the applicable part is, of which as follows: “Upon its upon application owm motion or any party in ground change condition, interest on in may the Commission any rehearing at time after due the parties notice to interested any award, may review and on such ending, review make an award increasing diminishing or the compensation previously awarded, sub- ject provided chapter.” maximum or minimum this Appeals question Court of said: that, “There under the circumstances in this section, may enumerated the Commission change the final award.”
The Court of further said: “It is evident that incapacity continued same kind and character and for the same for which an award has been made change is not a of condition meaning within the above the statute to. This referred statute was not intended to afford a method of correcting fixing errors made in original award, amount of the but was enabling purpose for the employer employee end, compensation awarded, terminate increase the previously provided there subsequent entry in condition to original award.” The Court of Appeals then held: “There nois substantial evidence tending any change record to show subsequent in claimant’s condition to the final award made prior hearing. Commission to this If the evidence be said could change, indicate better, it was for the and not for worse. au- In our there is no substantial evidence this record thorizing finding that there the Commission occurring subsequent claimant ren- physical condition of the *7 award, and, therefore, the in dition of the final circuit court erred affirming the the award of Commission.” supra, employee injury
In case, Wheeler sustained an to the ninety eye impairment in which had resulted some of vision within days year, No after the Claim was filed until than more a accident. eye grew condition of his when the worse resulted in total blind- ness. It was that the six months’ limitation period contended did completely sight not after he had lost commence to run until the of eye greatest (the happening possible injury ac- the from the sight cident), compensation. for. which loss of his claim asked This period court that limitation to run “from held the commenced the reasonably apparent a com- time it becomes discoverable that pensable has This injury been sustained.” court then stated: interpretation ‘injury’
“Our of the term used in 39 of as section act, course, right the would not have com- affected claimant’s pensation complete sight eye, loss the of his filed for the had he disability injury his claim for a less or within six months after he compensable injury, empowers a for section act received the change purpose Legislature the commission to an award. The the by plainly the act to our minds as disclosed shows that it its provide intention that claim the should be filed within six months receipt compensable injury and, after by employee of a transpire injury should it thereafter that developed received has injury compensable a into more serious in a manner, different change commission if previously should the award made.” conflicting. do not think these We statements are In the Wheeler case, may change that the court said Commission final a award (by awarding compensation) when, made, more after the is award developed injury “the received has into a serious more com pensable (which in change a different manner” a would be in con dition) here, while, ; the Court of that if a said there is change may change in condition “the Commission the final award.” Appeals goes
The Court of further and states the converse of this proposition only when incapaeitjr there “a continued is (which change condition) same and character” is kind not in compensation cannot merely Commission make a further award be incorrectly period disability, cause it the exact determined in the place, making first nothing a final award. There in this construc act, tion of Section Section Revised Statutes which conflicts with the construction of it made this court the Wheeler case that decision because does not hold “a con incapacity of the same tinued kind and character” is meaning within only of the statute. Wheeler case “injury- when the in condition is such there holds injury compensable developed serious into a more has received Appeals, Therefore, of the Court of manner.” a different conflict, directly inferentially, either or case, does in this holding Commission finds that a if the case the Wheeler disability period resulting from have a certain or did claimant has by an accident makes an award condition caused certain entitled therefor, claimant cannot become to another award then showing condition, prior this same which merely existed longer period a,ward, disability cause than caused cause. Commission found did would such construction is sound for two think reasons:
We says First: Section Revised Statutes final “the binding shall conclusive award of the Commission unless thirty dispute days shall within party to the either the date appeal court.” Therefore, of the final circuit if *8 condition, by as a fact that a Commission determines in caused an period jury, or will result in a compensable has resulted certain (or disability appeal is taken if is and no one taken and the Com upheld) is then is finding mission's that fact forever established will be heard to claim that no one the condition and same did or greater period compensable result in or wdll either less dis ability. 1929, provides
Second: Section Statutes Revised that temporary partial may made, may “a award be and the same be case, modified time to meet from time to the needs of the and the ’’ open may kept same be until a final award Therefore, can be made. if feels cannot, Commission that it at hearing, the the of any time accuracy, period determine compensable reasonable the dis duty ability, partial it its is to make awards time to time until it When can do so. the question Commission does decide the and award, presumed it will final duty make be that it has its done properly making under this section acted and in a final at award Chicago the time it did so. Bridge Works, [Waterman & Iron 688, 41 S. W. 575.] purpose Compensation It is the of the give Act to employee an compensation, injuries for arising from accidents out of and employment, course of his within act, the limits fixed for time the full full extent he is actually disabled but reason, more. For that in order this accurately gauge to more matter, possible than it jury for common-law to do hearing, single temporary authorized, awards are Section 3344. Like- wise, safeguard as against an additional developments, which cannot at foreseen time a final award is made, a further “award ending, diminishing increasing the compensation previously is authorized when awarded” change there has been a in condition, enjoined by carrying act are 3340. Courts out Section liberally provisions “shall be construed with a view purpose, its this However, E. S. public welfare.” does to the [Sec. 1929.] beyond extending they terms of the act what authorize principle say that controversies the fundamental plainly nor settled fact must be somewhere and as soon as about matters reasonably possible. clearly says only ground reviewing for an
Section diminishing ending, making another or increas- “award award and previously awarded” “a con- ing compensation injured employee Therefore, come an cannot before the dition.” award, by saying “my another condition is Commission have you me an period when made award for a definite as it was the same disability longer disability, my lasted or will but has last than you long now that were mistaken about how prove I I that. can true, were disabled.” If that the Commission was or would be given finish until it the maximum a ease had allowed never get a injured employee must show further award act. What an substantially has since become worse condition that award is a compensable (developed into a more serious a different case); not as Wheeler that his manner said in the condition was found always than the Commission to be. must worse show original something, not contemplated, award has hap- since the grow gradually progres- made pened either has resulted in an sively or that worse, occurrence the nature of making partial recovery award, relapse, that, after before so hand, On again worse. the other has since become neither he can get by showing employer come in a.n diminished employee, existing at original the time the condition *9 period made, disability cause a shorter was did of than the had; showing by although found it nor that Commission the same a shorter period still existed would cause of disability condition would. An employer, found it to than Commission be entitled diminishing award, original an must show that an to order con- dition, upon longer which the award was predicated, no existed progressive gradual improvement either which had because substantially improved finally condition or resulted because suddenly original up. had cleared condition try error here was that Commission principal did not namely: application, in the presented question Had the relator’s permanent disability Í total It become that did not even 26, whether, September question 1929, since try when the fully recovered go relator found and able to Commission back to again changed getting his condition had and after work, (as better had), What became worse. they the Commission found he did was September between finding, that 1 go September behind its own
1071 26, relator recovered had to such an extent that he had no com- pensable disability 1, after September a new finding and made original finding (unappealed) its wrong was and that relator totally 26, September fact 1 September disabled from been had ever since his accident. This had au- the Commission no thority to do. "What it should have only done to have tried question whether, September 26, 1929, since been a there had change substantial in relator’s condition. alleged
In case, addition to the conflict with Wheeler relator contends the opinion Appeals conflicts Court of holding with the of this Montgomery Co., court in Elsas Elevator v. 330 Mo. 50 (2d) 130, findings W. S. fact Com supported mission when binding by any substantial evidence are upon appellate courts. There no conflict with this decision be cause the Appeals recognizes Court of that rule. It is true that the Commission made finding change of a in condition for the worse. They it, based however, finding, on the conclusion that their former disability September 1, 1929, wrong ended and the finding, they new made, then that relator had never but recovered was disabled at all Appeals times since the accident. The Court testimony reviewed the and held that substantial there evi change dence of a September 26, 1929, relator’s condition since when the final decide, certiorari, award was made. upon' We cannot whether or not if presented us, the same facts were hold we would they amount do substantial evidence of such a If condition. had question sufficiency we ruled the of the evidence to show upon in condition under the statute the same or facts, similar set then if Appeals Court reached different conclusion, justify quashing there would a conflict be which would Appeals’ opinion the Court of upon However, certiorari. we are con only cerned certiorari with a conflict. ex rel. North [State Trimble, 48; (2d) western Natl. Co. v. 323 20 Ins. Mo. S. W. (2d)
State ex rel. Silverforb 43 W. (Mo.), v. Smith 1054 S. cited; Haid, cases ex rel. State Consolidated School Dist. No. v. 739, 41 Otherwise, W. S. on certiorari 806.] merely appeal Appeals court, from the Court of to this which our Constitution allow. As does not was said this court Trimble, ex 312 Mo. State rel. Cox S. W. where plaintiff’s Court held that demurrer to the evi long dence should have been sustained: “As as said promul court gated which could no rule of law be said to conflict awith former *10 ruling facts, on or similar this court the same it had the inherent right involved, rulings whether right to determine issues its cases). wrong (citing Before the Appeals the Court of sustaining legally a demurrer to the can be quashed by evidence certiorari, appear it would have to on affirmatively this court 1072 opinion of is in some record that said court conflict with also, [See, similar
designated opinion this court based on facts.” 14; rel. (Mo.), 288 W. State ex rel. Koenen v. Daues S. State ex City 1218, (2d) 940; Maclay Cox, 320 10 State ex rel. Mo. S. W. v. Trimble, (2d) 727; W. ex Macon 12 S. State rel. St. v. Mo. 37 W. Ry. Haid, v. S. Francisco Co. Louis-San Ry. Cox, 329 Mo. Francisco Co. v. 437; ex St. Louis-San State rel. 292, 46 (2d)W. S. 849.] Guthrie St. Louis Court of in Sei v.
The decision of the (2d) 664, 50 S. W. conflict Company, & therefore quashed. Ferguson decisions, is and our writ ordered our CC., Sturgis, concur. foregoing Hyde, O., adopted opinion by
PEB CUBIAM: —The judges All opinion of the court. as the concur. Henry, Henry, Burten L. Estate of
Ethel R. Administratrix Railway Chicago & St. Louis Com Cleveland, Cincinnati, (2d) 340. S. W. Appellant. Corporation, pany, One, June 1933.*
Division Term, 1932, 16, 1933; Opinion March filed at October motion *NOTE: 20, 1933; April filed; motion to rehearing overruled motion transfer for May Term, filed; June at motion overruled en Banc Court