Wigham v. Ben Franklin Division of City Products Corp.

459 S.W.2d 32, 1970 Mo. App. LEXIS 532
CourtMissouri Court of Appeals
DecidedOctober 5, 1970
DocketNo. 25342
StatusPublished
Cited by4 cases

This text of 459 S.W.2d 32 (Wigham v. Ben Franklin Division of City Products 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
Wigham v. Ben Franklin Division of City Products Corp., 459 S.W.2d 32, 1970 Mo. App. LEXIS 532 (Mo. Ct. App. 1970).

Opinion

SHANGLER, Presiding Judge.

The basic question presented by this appeal is whether the facts found by the Industrial Commission permit the application of that rule of law delineated in its opinion and relied on to find the ultimate issue of accident against the claimant.

Japolyn Jo Wigham was Employed by the Ben Franklin Division of City Products Corporation as a stockhelper. She claims to have injured her back while at work on January 15, 1968 and reported such an event to her employer on that day. Her employer accorded her medical and hospital aid at the cost of $920.29 and paid her temporary total disability compensation benefits of $285' for a five week period. Thereafter, all compensation benefits were terminated, although her treating and consulting physicians, to whom she had been referred through the employer, were all of opinion that she required additional treatment and perhaps back surgery. Dr. F. L. [34]*34Feierabend, whom claimant had engaged to examine her, concurred in this necessity.

A hearing was conducted to determine and enforce (should it be found) the claimant’s right to continued medical treatment and other compensation benefits. The referee entered a temporary or partial award in favor of claimant, having found that she had suffered a compensable accident resulting in injury to her back, the nature and extent of which were not then determinable. He also found that claimant was in need of additional treatment and that the employer had refused to furnish it. Accordingly, he entered a running award whereby the employer was ordered to furnish necessary treatment as well as to pay benefits for temporary total disability to the date of the award. The Industrial Commission reversed the award of the referee and was sustained, on review, by the Circuit Court.

The Industrial Commission’s final award denying compensation contained “Findings of Fact and Conclusions of Law” and was premised on them. The first of them recited :

“(1) Employee was not consistent as to the description of the event which she claimed caused her injury.”

The last of them concluded:

“There were no witnesses to the occurrence except the employee. She has described the event from which she claims to have sustained injury in more than one way. The Missouri Supreme Court En banc has held that contradictory evidence to prove a fact does not constitute substantial evidence in the absence of an explanation or circumstances to show which of the two versions is true. Welborn v. Southern Equipment Company, 395 S.W.2d 119, 1. c. 126.”

Interspersed between these two “findings” were eight others, four of which made specific reference to testimony given by claimant at the hearing as to how the accident occurred. The other four referred to statements (contained in claimant’s medical and hospital record exhibits or elicited from her witnesses) which she had made to her physician, among others, concerning the onset of her injury. The Industrial Commission ultimately found that “(e)mployee did not sustain an accident or such unusual strain as would constitute an accident”. This ultimate finding, avowedly, was based on the application of the rule employed in Welborn v. Southern Equipment Company, supra, as interpreted by the Industrial Commission. The Commission had concluded that, since testimony given by claimant and the statements made by her to others describing the event resulting in her injury were inconsistent, and since there were no other witnesses to the event, her testimony did not constitute substantial evidence from which the Commission could find an accident.

Our review extends only to questions of law. Whether a finding is an ultimate fact or conclusion of law depends upon whether it is a product of ratiocination or of the application of fixed rules of law. Maltz v. Jackoway-Katz Cap Co., Mo., 336 Mo. 1000, 82 S.W.2d 909, 913 [7,9]. Nor are we bound by a legal conclusion of the Industrial Commission drawn from the evidence or the application of the law to the facts. Brotherton v. International Shoe Company, Mo.App., 360 S.W.2d 108, 111 [5,6], So considered, the finding that “(e)mployee was not consistent as to the description of the event which she claimed caused her injury” was a conclusion reached by the application of the rule of law followed in Welborn, and is thus subject to our review. The cognate and contingent question of law also presented is the legal sufficiency of the evidence to warrant the denial of an award, should it be determined that claimant’s testimony was probative as to accident.

Before reviewing the evidence, we examine the Supreme Court en banc holding in Welborn because the Industrial Commission’s ultimate finding of no accident is pinioned to it. The appellate history of [35]*35that case commenced by the claimant being denied compensation benefits when the Industrial Commission found that although claimant had suffered an accidental injury, his claim had not been timely filed. The circuit court affirmed these findings. This judgment was appealed to the St. Louis Court of Appeals whose decision is reported as Welborn v. Southern Equipment Company, Mo.App., 386 S.W.2d 432. That court found that the claim had, in fact, been filed within the time allowed by law and reversed the judgment of the circuit court as to that aspect of its judgment and directed that the cause be remanded to the Industrial Commission for further proceedings. On Motion for Rehearing, the employer contended that the decision of the Industrial Commission denying compensation was correct, nonetheless, because the claimant had failed to give proper notice of the injury to the employer. The St. Louis Court of Appeals painstakingly reviewed the record and concluded that, although the claimant had testified randomly to having given notice to the employer, it was not an issue in which the parties had joined, nor one which had been tried by the referee, nor ruled by the Commission or the Circuit Court. The St. Louis Court of Appeals discussed the notice question, arguendo, nonetheless, and ruled against the employer. Having done so, it transferred the case to the Supreme Court en banc on its own motion because of a conflict between its decision on the statute of limitations question with that of the Kansas City Court of Appeals.

The Supreme Court en banc in Welborn v. Southern Equipment Company, 395 S.W.2d 119, resolved the statute of limitations conflict between the two Courts of Appeals and thereafter discussed the notice question. It suggested that the record disclosed a conflict in the testimony of claimant as to the giving of notice, but expressly refused to rule that issue on the unsatisfactory record before it (1. c. 125). It described that evidence as lacking “the clarity and undisputed quality necessary for an appellate court to rule an issue not passed on by the Commission” (1. c. 126). It was within that context that the court expressed the rule, not new to the law of evidence,1 that (1. c. 126) :

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459 S.W.2d 32, 1970 Mo. App. LEXIS 532, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wigham-v-ben-franklin-division-of-city-products-corp-moctapp-1970.