Davies v. Carter Carburetor, Division ACF Industries, Inc.

• Decision Date: 08 July 1968
• Docket Number: No. 1,No. 52621,52621,1
• Citation: 429 S.W.2d 738
• Parties: Carl DAVIES, Plaintiff-Respondent, v. CARTER CARBURETOR, DIVISION ACF INDUSTRIES, INCORPORATED, Defendant-Appellant
• Court: Missouri Supreme Court

Page 738

429 S.W.2d 738

Carl DAVIES, Plaintiff-Respondent, v.CARTER CARBURETOR, DIVISION ACF INDUSTRIES, INCORPORATEDDefendant-Appellant.

No. 52621.

Supreme Court of Missouri, Division No. 1.

July 8, 1968.

Gentry, Bryant & Sheppard, Arnot L. Sheppard, Herbert E. Bryant, St. Louis, for defendant-appellant.

John D. Connaghan, St. Louis, for respondent.

MARSHALL CRAIG, Special Judge.

This appeal is from judgment in the Circuit Court affirming an award of the Industrial Commission of this State in favor of the employee (claimant), Carl Davies.Appellant(employer) was ordered to pay claimant $7,350 for medical and hospital care and treatment; the sum of $42.50 per week for a total of 300 weeks and then $27.50 per week for the balance of his life, for permanent disability.The employer denies responsibility to claimant for injuries, if any, which he claims to have sustained.The facts pertinent to the issues are here set out and will be considered in the light most favorable to the prevailing party.Harper v. Home Imp. Co., et al., Mo.Sup., 235 S.W.2d 558.We must affirm the award if it is supported by competent and substantial evidence on the whole record.We cannot substitute our judgment on the evidence for that of the Commission.

On October 8, 1962, claimant was in the employ of the appellant.He had been so employed for about three years.At the time of the trial claimant was thirty-eight years of age.On the day in question, he reported for work at 3:30 P.M.His duties consisted of running an onsrud mill which was a revolving turntable on which parts of carburetors were placed to be moved through cutters of a circular machine.The parts were placed on the turntable at a point on the north arc of the machine, and passed counterclockwise to plaintiff's left.After they passed through the cutters, they were picked up by the claimant and placed on 'flats.'These were metal instruments about four inches above the ground and rested on metal runners.They were then transferred to 'pans' which were metal instrumentalities about six inches to ten inches deep.They weighed about eleven pounds empty and from thirty-five to forty pounds when full of carburetor components, and were about three feet long.The sides of the pans were not vertical, but slanted out from the bottom to the tops.The sides near the tops were curled from the top down so as to make a lengthwise extrusion of metal to be used as a handle.They were of aluminum alloy.The material he was working with and handling were carburetor bodies, and twelve such bodies were loaded on each pan.

After the carburetor bodies had moved counterclockwise to the south side of the table, plaintiff picked up each carburetor body and placed it in a pan on the left side of the turntable.This type of maneuver was a regular routine and he did this in the same manner every day.He picked up the carburetor body on top of the pile then took the second one and worked down toward the bottom of the pan.As he worked toward the bottom of the pan, the employee customarily turned slightly to the right or left to get hold of these pans.His testimony on cross-examination as to these maneuvers was as follows:

'Q And when you did that, was it your custom to turn slightly to the right or the left to get hold of these pans?

'A Yes.

'Q You had to do that, didn't you?

'A Yes.

'Q No other way to do it, was there?

'A Not to my knowledge.

'Q That's the way you did it?

'A Yes.

'Q And then, as you reached lower down, did you, when you got to the second tier there, let's say number four from the bottom, you reached to the closest pan and worked your way over to the opposite end of the flat, didn't you?

'A Yes.

'Q Did you do that with each one of them?

'A I'm pretty sure.

'Q Each tier, I mean.

'A I'm pretty sure.

'Q You turned, reached over and got the end one?The one closest to you.You didn't reach over and get the one on the opposite end first, did you?You always picked up the one closest to you?

'A Yes.

'Q Began at the top, turned around to your right somewhat, turned back and laid it on your table?

'A Yes.

'Q All the time you did that; right along?

'A Yes.

'Q You worked it the same way on the day this occurred?

'A Right.

'Q Right?

'A Right.

'Q And you made the same character of movement and about the same steps every time.You had to didn't you?

'A Every time.

'Q You had to stop (stoop) lower as you got down into the lower tiers?

'A That's correct.

'Q That was true of every one of them, wasn't it--every flat?

'A Yes.'

At the time of the occurrence from which he claims his injury, he was lifting the pan straight up.It was the last layer, the one closest to the floor.He thought he had lifted it, at that time, approximately a foot above the pan at which time he felt a pain and he set it back down and let go of it.

As to the exact occurrence at the time, the evidence was as follows:

'Q (Mr. Connaghan) You may describe what kind of position you were in.

'A I was turned to the right.My body was twisted.I bent over the flat, picked up the pan of parts and, as I came up, I went off balance with this pan of parts and I felt this pain in my back--this sharp pain; and I was standing with my left foot forward and my right foot back and, when this threw me off balance, my foot-my right foot come back and, as I say, this pain shot through my back.I straightened up and that pain diminished, but an ache formed, you know, a pain, and it gradually just got worse.

'THE REFEREE: Just a moment--had you finished your testimony?

'THE WITNESSES: So far, yes.

'THE REFEREE: Your left foot was forward and your right foot was back and you were turned to the right and you bent to pick up this pan?

'THE WITNESSES: Yes sir.

'THE REFEREE: You said that you went off balance and you also used the term 'when it threw me off balance', unquote, could you tell me a little more what you mean by that?

'THE WITNESS: The fact that I was twisted in lifting this pan of parts,--the position I was in was what threw me off balance.

'THE REFEREE: You may proceed, Mr. Connaghan.

'Q (Mr. Connaghan) Now, where was this pan that you were lifting at the time you just described there?Where was it located on this flat in regard to the flat?

'A It was on the far side of the flat from me.

'Q Was it the first pan that you lifted off the flat?

'A No.

* * *

* * *

'Q In regard to which row, which stack was this particular pan in that you lifted?

'A It was at the bottom.'

Immediately following the occurrence, the claimant, with the permission of the foreman, made two visits to the nurse and went home.The next day he was admitted to St. Anthony's Hospital and on October 17, 1962he was operated on by Dr. Udaya N. Dash.The operation consisted of a laminectomy.On October 25, 1962, another and like operation was performed on the claimant.Following the second operation, plaintiff was treated for a bacterial growth known as pseudomonas aeruginosa.In this connection, he was treated by both systemic and local injections of solutions.After several days of treatment this infection was finally healed.

Claimant had additional trouble near the area of operation for the two laminectomies and was admitted to Alexian Bros. Hospital on November 29, 1962 where he remained until December 11, 1962, and was then again admitted to the same hospital on January 5, 1963.

Because of continuing trouble, he entered the Veteran's Hospital in St. Louis on January 31, 1963, going directly there from Alexian Bros. Hospital, and was released on June 5, 1963 and remained away until July 3, 1963.However, while he was in the Veteran's Hospital, Dr. Earl P. Holt, Jr. operated on his back on February 7, 1963.About a week later he again was operated on at Veteran's Hospital.Following the second operation at Veteran's Hospital, the wound was closed with a small drain, and he was in that condition for some time.Hearings were held on June 6, 7, 12 and 13, 1963, at which time claimant was ambulatory.

The claimant was referred by his family doctor to Dr. Udaya N. Dash, an orthopedic surgeon.Dr. Dash testified that he first saw claimant on the 10th day of October, 1962 and examined him at St. Anthony's Hospital.He was given a history of pain in the low back.The Doctor found tenderness in the low part of the back between the L--4, L--5 and S--1 region and in the sciatic notch and the right sciatic nerve.After a physical examination, examination of X-rays, and a myelographic study, claimant was placed in traction and when improvement was not shown, a laminectomy was done on October 17, 1962.The ligament of flavil was removed along with pieces of bone from the lamina of L--4 and L--5 of the right side exposing the dural sac and the nerve root.On exploration of the disc space it was found that there was a bulging disc underneath the nerve root of L--5, this was soft and incision was made into the posterior longitudinal ligament, and the disc material was removed piecemeal.It was found that the spinal fluid was leaking at one place from a rent in the dura.Three or four days following the operation, claimant started having some drainage from his wound and on October 25, 1962 a laminectomy was again performed.This operation was done by Dr. Burst.Following this second operation there was infection and further treatment required.The claimant was discharged from St. Anthony's Hospital on November 17, 1962.He was later admitted to Alexian Brothers Hospital where Dr. Dash saw him several times, the last time being on January 4, 1963.In answer to a hypothetical question, the Doctor answered that 'The injury could have caused it; the injury caused the ruptured disc.'

'Q.Doctor, you say the injury caused the disc?Could you be more specific with what you mean by the injury?

'A While Mr. Davies was lifting this heavy object, he injured his back and the part of the back that was injured was the disc.'

Dr. Earl P. Holt, Jr., an orthopedic surgeon, who...