Herring v. Safeway Stores, Inc.
| Decision Date | 04 September 1973 |
| Docket Number | No. KCD26436,KCD26436 |
| Citation | 499 S.W.2d 538 |
| Parties | Richard F. HERRING, Appellant, v. SAFEWAY STORES, INC. and the Travelers Insurance Company, Defendants-Respondents. |
| Court | Missouri Court of Appeals |
Hollis H. Hanover, Kansas City, Popham, Popham, Conway, Sweeny & Fremont, Kansas City, of counsel, for appellant.
Gary E. Lowe, Jack B. Robertson, Rogers, Field, Gentry, Benjamin & Robertson, Kansas City, for respondents.
Before DIXON, C.J., and PRITCHARD, and SOMERVILLE, JJ.
Employee's claim for compensation under The Workmen's Compensation Law was denied by the Referee, the Industrial Commission and the Circuit Court. Employee has appealed.
Employee, approximately two days per week, as part of his regular duties for employer, was required to assist in unloading milk trucks and stacking milk containers (weighing approximately sixty to sixty-five pounds) in a walk-in cooler. On June 21, 1967, while stacking milk containers at a height of about 'eye level', the following, in employee's own words, occurred: '* * * as I picked it up, pulled and twisted myself to the left and threw with all my weight to get it up there, why that is when I injured my back.' Stacking milk containers in the cooler at a height of eye level required more strength than stacking them at lower levels. Nevertheless, according to employee's work history, stacking containers at a height of 'eye level' was a routine part of his regularly assigned duties for employer. In response to the following question, 'So you were doing this is the way you ordinarily and customarily did it, weren't you?', employee answered, 'Other than the fact I injured myself that particular morning.' The same amount of exertion was required on prior days in stacking milk containers at 'eye level' as was required on June 21, 1967. Employee did not claim, or introduce any evidence, that he was in an unstable or unbalanced lifting position, or that he slipped or fell, or that the milk container shifted or threw him off balance. Employee experienced a 'sharp pain' in the 'small of his back' while lifting the milk container on the occasion in question, and subsequently under went surgery for a ruptured intervertebral disc.
The Industrial Commission, in its Final Award Denying Compensation, which was affirmed by the Circuit Court, made the following findings:
'(1) The particular maneuver in question was performed in the usual, customary and routine manner;
(2) The employee in performing the lift was in a stationary, stable and balanced lifting position;
(3) No abnormal and unusual muscular force was required in performing the lift over and above that degree of effort required in similar lifts previously performed by employee as a part of his regularly assigned duties; and,
(4) Only the resultant injury was unforeseen and unexpected.'
In his brief employee states 'In all candor, employee must admit that the facts found by the Industrial Commission are supported by substantial competent evidence.' Employee's candid admission precludes this court from questioning the findings of fact made by the Industrial Commission. Rogers v. Sikeston Compress & Warehouse Co., 248 S.W.2d 672 (Mo.App.1952) and Williams v. S. N. Long Warehouse Company, 426 S.W.2d 725 (Mo.App.1968). Interpretation and application of the law is the sole issue falling within the perimeter of appellate review. Merriman v. Ben Gutman Truck Service, Inc., 392 S.W.2d 292 (Mo.1965), Williams v. Anderson Air Activities, 319 S.W.2d 61 (Mo.App.1958).
The sole issue on appeal can be stated with acuity: Did employee, under the facts found by the Industrial Commission, as a matter of law, sustain an accident within the meaning of Section 287.020, subd. 2, RSMo 1959, V.A.M.S.? If the answer is affirmative, the ruptured intervertebral disc was a compensable injury and the judgment of the Circuit Court must be reversed. If the answer is negative, the ruptured intervertebral disc was not a compensable injury and the judgment of the Circuit Court must be affirmed.
Section 287.020, subd. 2, RSMo 1959, V.A.M.S., defines 'accident' as 'an unexpected or unforeseen event happening suddenly and violently, with or without human fault and producing at the time objective symptoms of an injury.'
In Crow v. Missouri Implement Tractor Company, 307 S.W.2d 401 (Mo. banc 1957), a landmark case, it was held that an 'abnormal strain' producing injury constitutes a compensable accident within the meaning of Section 287.020, subd. 2, RSMo 1949, V.A.M.S. (identical to Section 287.020, subd. 2, RSMo 1959, V.A.M.S.). It is implicit in...
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Wolfgeher v. Wagner Cartage Service, Inc.
...constitute an accident within the meaning of the statute. Langendoerfer v. Hazel, 576 S.W.2d 553 (Mo.App.1978); Herring v. Safeway Stores, Inc., 499 S.W.2d 538, 540 (Mo.App.1973). To establish a right to compensation, employee must prove both an accident and an injury, i.e., the unexpected ......
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...an injury." The fact of injury alone does not constitute an event or accident within the meaning of the statute. Herring v. Safeway Stores, Inc., 499 S.W.2d 538 (Mo.App.1973). If an employee suffers an injury resulting from a mere strain while he is engaged in doing his normal or customary ......
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...both the accident and injury the occupational cause and effect the unexpected event and the resultant trauma. Herring v. Safeway Stores, Inc., 499 S.W.2d 538, 540(3) (Mo.App.1973); Baker v. Krey Packing Company, 398 S.W.2d 185, 189(3, 4) The appeal presents a question of law: whether the ev......
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... ... Merriman v. Ben Gutman Truck Service, Inc., 392 S.W.2d 292, 297(9) (Mo.1965), McLain v. Yellow Cab Co., 439 S.W.2d ... similar argument was presented and rejected in the recent case of Herring v. Safeway Stores, Inc., 499 S.W.2d 538 (Mo.App.1973), at 540(3) which ... ...