Brotherton v. International Shoe Co.

• Decision Date: 06 September 1962
• Docket Number: No. 8048,8048
• Citation: 360 S.W.2d 108
• Parties: Fed Leon BROTHERTON, Plaintiff-Appellant, v. INTERNATIONAL SHOE COMPANY, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 108

360 S.W.2d 108

Fed Leon BROTHERTON, Plaintiff-Appellant, v. INTERNATIONAL SHOE COMPANY, Defendant-Respondent.

No. 8048.

Springfield Court of Appeals, Missouri.

Sept. 6, 1962.

Richard D. Moore, Green & Green, H. D. Green, West Plains, for plaintiff-appellant.

James E. Garstang, C. Lawrence Mueller, Louis W. Riethmann, St. Louis, for defendant-respondent.

RUARK, Presiding Judge.

This is a Workmen's Compensation case involving an alleged lower back strain or sprain.

Appellant's initial claim was that on June 12, 1958, 'while unlocking a preparator [perforator?] machine, was using long wrench with pipe over handle of wrench. Claimant moved out on end of pipe, pipe bounced throwing claimant in strained position resulting in present injury.'

At the hearing (held June 16, 1960) before the referee, claimant testified that he was 23 years old and had been working for the International Shoe Company for approximately two years prior to the injury. His work was 'belt boy or maintenance and handy man.' 'We was unlocking a preparator [perforator] machine, we tried practically every way we knew and nothing worked so we got a long pipe wrench and put on the shaft and tried to break it loose, that didn't work, so we got a pipe to put over the handle of the wrench for more leverage and we was out on the haldle of the pipe bouncing up and down on it, I was bouncing on my right foot and when I come down my right foot slipped. I told the employee that was with me I hurt my back.' (Objection to the portion concerning his statement to his fellow employee was sustained.) He said it 'felt like something tore loose' on the right side of the lower back. The fellow working with him, Woodworth, 'was the machinist over me.' On that day he went to see the foreman and reported that he had hurt his back while unlocking the perforator machine. The foreman sent him to the first aid room. He went 'and she [the woman in charge] put it down on the record and told me if I had any more trouble to come back.' About a month later he went back 'and told her my hip and back was bothering me and she put it down on the record again. Told me if I had any more trouble to come back.' Approximately three months later his back bothered him 'real bad again' and he went to first aid again and 'told her something had to be done about it.' 'She' talked with the foreman and came back and said there was nothing he could do, so he went to a Dr. Wiles on his own. The employer offered no evidence to deny these reports of accident and injury. After his second trip to Dr. Wiles, claimant was sent to Dr. Yancey of Springfield, who examined him and prescribed a back brace. Afterwards he went back to Dr. Yancey for another examination. After the claim was filed the company sent him to Dr. Kelly of Jefferson City, who examined him. Later on the company sent him to Dr. Ritter of Cape Girardeau for examination.

Claimant testified that he continued at the same job and had not lost any time from work except when he went to see the doctors but that his back bothered him 'when I lift, stoop to pick something up, drive the car very far or turn quick, twist,' and that he had complained to the foreman several times. He had obtained a subpoena for the appearance of J. T. Woodworth (the machinist who was working with him), but we gather from colloquy of counsel that the witness had left the area. Claimant had been a member of the National Guard and since his injury, had gone to two weeks' camp with the Guard on two occasions. On the first trip he tried drilling and couldn't and was put in the kitchen as a cook apprentice. On the second trip he did no drilling and was assigned as telephone operator riding back and forth at the company outpost on a Jeep or truck.

The deposition of Dr. Kelly of Jefferson City was introduced. He stated that he examined claimant on September 22, 1959. Claimant gave a history of being employed as a belt boy or maintenance man. Claimant and another employee were using a pipe wrench with a pipe extension to loosen a machine and in so doing they pulled up and down, and he felt a sudden severe pain in his lower back as if something were loose in his back. He then described the complaints of the claimant concerning pain in his lower back. 'Then as a conclusion according to the history and examination, this man strained his back while at work either in May or June 1958.' He gave it as his opinion that 'this patient has approximately ten per cent permanent partial disability in his back which could very will improve as time goes on.'

By agreement of the parties, there were offered and received in evidence two written reports of Dr. Yancey of Springfield, on the part of claimant, and a written statement or report by Dr. Ritter of Cape Girardeau, this by the respondent.

Dr. Yancey's report of an examination made on May 18, 1959, related the history that claimant was using a large pipe wrench and a pipe under the handle of the wrench to give more leverage and was pulling on the handle, which was over his head, when he experienced a sharp pain in the lower portion of his back. 'Diagnosis: 'Chronic lumbosacral strain with mild sciatic radiation. * * * Comment: I believe this man sustained a low back injury at the time he described and from which he has not completely recovered.' He recommended that claimant be fitted with a low back support and stated that he felt he could continue his regular work if such support was fitted to him. He estimated that claimant had approximately 10% permanent disability to his low back.

The report of Dr. Ritter offered by respondent was a result of an examination made April 1, 1960. He related a history, as stated to him by the claimant, that a perforator machine had centered on the dies and in an effort to unlock its fixed position they decided to get a heavy long monkey wrench applied to the shaft in order to break it loose. This was unsuccessful, so a long steel pipe was attached to the handle of the wrench. The extension is said to have been about six or eight feet long. Claimant and another man took hold of the handle, pulling it first up and then down. The spring of the pipe would pull them off the floor and claimant came down bouncing on the right leg. His foot came in contact with the floor and he slipped on some leather shavings and turnings, thus losing his balance. He was pulled back up, at which time he said he let go of the pipe and felt as though something had struck him in the back with a knife.

After dealing with present complaints and further history, then his own examination, the doctor stated that the findings are entirely subjective, but 'on the basis of the history given' it was his opinion that claimant had a back sprain and that his disability rating, if any, should not be in excess of 5%.

The referee found that the claim was not filed within one year and therefore denied compensation. However, the final decision of the commission which we review was not based on that ground and in this appeal the respondent does not make any contention in that regard. Since the one-year requirement is a statute of limitations ¹ and limitations is an affirmative defense, ² it would appear that it has been abandoned, and we will not concern ourselves with it. In any event, it is the award of the commission, not that of the referee, which we review. Manning v. Manor Baking Co., Mo.App., 356 S.W.2d 505(4).

On appeal the finding of the Industrial Commission was:

'We find from all of the evidence that employee has failed to sustain his burden of proof in that he has failed to prove causation of his physical condition by the alleged slipping of his right foot as he tugged on the pipe in question. None of the medical witnesses testified to the effect that said condition was caused by said slipping of said foot.

'Nor is there evidence sufficient to establish an accidental injury under the doctrine of the case of Crow v. Missouri Implement Company, Mo., 307 S.W.2d 401. While employee's exertions in pulling on said pipe (which was on the handle of a wrench) may have been unusual, abnormal, and outside of the scope of his normal activities, the evidence does not so indicate.

'Compensation, therefore, must be and is hereby denied.'

As we see it, the commission did not make its award based upon disbelief of the facts testified by the witnesses. (See Corp v. Joplin Cement Company, Mo., 337 S.W.2d 252, 258.) If we understand its findings, there is no finding that the employee did not suffer injury at the time or place he said he did; and there is no finding that the employee's foot did not slip. The finding is that there was no causal connection between the slipping and the injury.

The questions therefore are two, i. e., (1) whether the commission was justified under the evidence in denying the claim on the theory that there was no legal causation link between the slipping and the injury; and if such holding was correct, then (2) whether the commission was justified in holding that, sans slipping as a cause, the exertions at the end of the pipe were legally insufficient to permit the injury to be classified as an accident under the Compensation Act.

In reviewing these questions we feel it is not necessary to cite authority for the often repeated statements that we cannot substitute our judgment on a disputed question of fact for that of the commission, but that we can and must decide whether such body could reasonably have made the finding which it did; and that the burden is on the claimant to prove a compensable injury.

Referring now again to (1), i. e., that there was no causal connection between slipping and injury, and on the premise that the commission did not find that there was no injury or that there was no slipping: The elaboration that 'none of the medical witnesses testified to the effect that said condition was caused by said slipping of said foot' indicates that the commission did not believe the...