Oder v. St. Joe Minerals Corp.

484 S.W.2d 487, 1972 Mo. App. LEXIS 744
CourtMissouri Court of Appeals
DecidedAugust 15, 1972
DocketNo. 34138
StatusPublished
Cited by7 cases

This text of 484 S.W.2d 487 (Oder v. St. Joe Minerals Corp.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Oder v. St. Joe Minerals Corp., 484 S.W.2d 487, 1972 Mo. App. LEXIS 744 (Mo. Ct. App. 1972).

Opinion

KELLY, Judge.

This is an appeal from a judgment of the Circuit Court of St. Francois County affirming a final award of the Industrial Commission awarding the employee, Euhel Oder, the total amount of $12,237.50, for injuries sustained in an accident suffered while in the course of his employment and arising therefrom.

The employer contends that the Circuit Court erred in affirming the Final Award of the Industrial Commission because: 1) the Referee and the Industrial Commission erred in admitting evidence and considering in support of their award the opinion of a physician, Dr. William Paul Dennis, M.D., that claimant’s myocardial infarction was precipitated by smoke inhalation on January 10, 1969, over the repeated objection of employer that no report of Dr. Dennis had been furnished the employer, and that his testimony was admissible only to the extent his findings and opinions appeared in the Discharge Summary of the Bonne Terre Hospital Record which was the only information furnished the employer on the subject; and 2) that the testimony of one of the physicians offered by the claimant, Dr. A. J. Steiner, M.D., did not constitute competent and substantial evidence that claimant’s myocardial infarction was caused by smoke inhalation.

In reviewing an appeal from the Industrial Commission our duties are restricted to determining whether, upon the entire record, the Industrial Commission [490]*490could have made the findings and award it did in fact make. If the award is supported by competent and substantial evidence upon the whole record we must affirm. All the evidence and reasonable inferences deducible therefrom must be viewed in the light most favorable to the findings and the award and we must disregard all opposing and unfavorable inferences even though the findings of the Commission, if to the contrary, would also have been supported by the evidence. The weight to be given to the evidence in the case rests with the Industrial Commission and it alone may decide upon the credibility of the witnesses. Where the competent evidence or permissible inferences are conflicting, it is for the Industrial Commission to choose which it shall believe, and its choice is binding upon this Court.

Viewing the evidence and the reasonable inferences deducible therefrom in the light most favorable to the findings and the award, claimant, Euhel Oder, a man 60 years of age, had been employed by the St. Joseph Lead Company since 1942. On Friday, January 10, 1969, he was an operator of a locomotive at employer’s #17 Mine in St. Francois County, Missouri. He arrived at the “change room” at around 6:00 a. m. that morning feeling fine although he had a cold. His health prior to January 10, 1969 had been good. At 20 minutes to 7:00 he went “underground” and commenced his job as a locomotive engineer. Nothing unusual happened until sometime between 12:30 and 1:00 o’clock in the afternoon when a fire broke out. A creosote cross-arm with a switch-block — “a fire block” — and a rubber cable burned. Claimant was “laying by”, that is, stopped by a red light of the block-signal system, waiting for another train to pass. He was not permitted to move his locomotive in the face of a red light. He and his locomotive were on the main line in what is called a “drift”. The smoke from the fire came down on him and became so thick that even with his light shining on it he could only see about an arm’s length. It was dense, heavy smoke, very dense, and he was exposed to this heavy dense smoke for about 30 minutes. Although he used his radio to get clearance to move out of the lay-up without the red light being changed, he was not given permission to do so. While in this smoke he “began to get the fidgets” and did not know what to do. He got off the locomotive and attempted to get out of the smoke but wherever he went the smoke was just as bad. He found an old piece of waste — threads and stuff with which they dust off the motors — and he wet this and held it over his nose to help him breathe. He was not able to breathe too well in the smoke; panted like a dog and felt like he was smothering. He coughed and gagged and broke out in a cold sweat. He became weak and did not know what was going on. Breathing caused him to have pain and to be discomforted; he felt nauseous. When the block signal cleared he took the train to the dump, returned and parked his train. This took him IS to 20 minutes. He then prepared to leave work. He became more sick all the time and “threw-up”. Later he felt like he was going to vomit again and he continued to sweat. Before he left the Mine he reported to his foreman that the smoke had made him ill. He went home.

That evening, after his son came home, claimant was driven to the office of a Dr. Dennis in Flat River, Missouri. He arrived there a little after 4:00 p. m. Claimant complained to Dr. Dennis of nausea and epigastric pain and gave a history of smoke inhalation in an underground fire at his place of work that day. Dr. Dennis’ examination revealed congestion of the pharynx, some tenderness of the upper abdomen and a low grade fever. The Doctor prescribed an analgesic injection to help with the nausea and prescribed some other medicines to help settle claimant’s stomach. The Doctor advised the claimant to go straight home, take the medicines and go to bed.

Claimant remained in bed until early the following Monday morning, January 13, [491]*4911969. All the time he choked more and more and had pain in his back and chest. Finally, early Monday morning, January 13, 1969, he had to get up and walk in the yard and swing his arms to get his breath. At about 12:45 a. m. that morning, he was admitted to the Bonne Terre Hospital where he was hospitalized for twenty days.

On his admission to the hospital he complained of epigastric pain in the upper abdomen and lower chest which had become more severe since he was first seen at Dr. Dennis’ office on January 10, 1969. He was put on oxygen and analgesics, “the usual things for a suspected coronary.” Dr. Dennis at that time, had formed an opinion that the claimant was having a coronary. Blood tests were conducted and electrocardiograms and x-rays were made at the Bonne Terre Hospital during this term of hospitalization. Dr. Dennis’ Discharge Summary diagnosis was myocardial infarction secondary to arteriosclerotic heart disease and smoke inhalation causing acute gastritis, pharyngitis and bronchitis. The only indication of smoke inhalation found by him was “some injection of the pharynx.” After the claimant left the hospital Dr. Dennis continued a course of treatment by keeping him at minimal activity and on coagulants. During the period of recuperation Dr. Dennis felt claimant was having cardiac decomposition, i. e., the heart action fails to maintain the circulation properly and patient develops a pulmonary congestion and a passive congestion of the liver. Other symptoms of this condition present at this time were shortness of breath and fast heart rate. He prescribed digitalis and this condition improved. It was his opinion that the claimant’s acute myocardial infarction was precipitated by the smoke inhalation in the Mine on January 10, 1969 and that claimant therafter suffered a pulmonary embolism.

Dr. A. J. Steiner, a specialist in diseases of the heart and lungs, examined claimant at his office on the 24th day of November, 1969. At that time he had the benefit of Dr. Dennis’ “report” and the Bonne Terre Hospital Records. He corroborated the opinion of Dr.

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Bluebook (online)
484 S.W.2d 487, 1972 Mo. App. LEXIS 744, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oder-v-st-joe-minerals-corp-moctapp-1972.