Malcom v. La-Z-Boy Midwest Chair Co.

• Decision Date: 25 June 1981
• Docket Number: LA-Z-BOY,No. 12062,12062
• Citation: 618 S.W.2d 725
• Court: Missouri Court of Appeals
• Parties: Jim E. MALCOM, Claimant-Respondent, v.MIDWEST CHAIR COMPANY, Employer-Appellant, and United States Fidelity & Guaranty Company, Insurer-Appellant.

Page 725

618 S.W.2d 725

Jim E. MALCOM, Claimant-Respondent, v. LA-Z-BOY MIDWEST CHAIR COMPANY, Employer-Appellant and United States Fidelity & Guaranty Company, Insurer-Appellant.

No. 12062.

Missouri Court of Appeals, Southern District, Division Two.

June 25, 1981.

L. R. Buehner, Buehner & Buehner, Joplin, for claimant-respondent.

John R. Martin, Blanchard, Van Fleet, Martin, Robertson & Dermott, Joplin, for appellants.

PREWITT, Presiding Judge.

The Labor and Industrial Relations Commission reversed the administrative law judge and entered an award in favor of claimant. The Commission found that his back was injured by an "abnormal strain" caused by several hours of "twisting and turning". The circuit court affirmed the award. Appellants contend that the evidence was insufficient to find that claimant sustained an accident as a result of an abnormal strain; that the Commission erred in finding that claimant gave sufficient notice to his employer of the injury; and the Commission erred in determining that claimant sustained 50% permanent partial disability to the body as a whole.

We initially consider appellants' first point. Only where an award of the Labor and Industrial Relations Commission is not supported by substantial evidence or is clearly contrary to the overwhelming weight of the evidence should we disturb it. Vogel v. Hall Implement Company, 551 S.W.2d 922, 923 (Mo.App.1977). The Commission is the judge of the credibility of witnesses and a reviewing court does not substitute its view of the facts for those found by the Commission. Merriman v. Ben Gutman Truck Service, Inc., 392 S.W.2d 292, 296 (Mo.1965).

On November 20 or 21, 1973, claimant's foreman assigned him to work as a "catcher" on the double-end cut-off, a job claimant said he had not previously performed. There was evidence indicating that this job required greater physical effort and put more strain on the back than claimant's regular job. Claimant testified that previous to this date he had no back problems. Claimant had worked for appellant La-Z-Boy Midwest Chair Company for approximately two years. His regular work was driving dowel pins into furniture. He had worked as the "operator" on the double-end cut-off before but never as the "catcher". When driving dowel pins claimant was able to work at his own pace but when working as the catcher on the double-end cut-off he had to work at the pace set by the operator.

The double-end cut-off is a large machine with two saws. Two men operate it. The operator stacks boards on a conveyor which carries them through the saws. In the process both ends of the boards are cut off. After the boards pass through the saws the catcher collects them from an "apron" on his side of the saws and stacks them on a "skid". If the pieces are not properly handled they fall onto the floor and can disrupt the operation. Claimant would stack 12 pieces together on the apron and when he had 3 stacks of 12 turn and stack them on the skid. The 36 pieces weigh approximately 35 to 40 pounds. While stacking the boards on the skid claimant did not move his feet; he "would just turn and twist and stack them on the skid". Claimant had been working as a catcher about 3 hours and as he was receiving some boards and stacking them felt a pain in his back. He said it "felt like a knife stuck in my back, a tearing, cutting sensation." The employer's records indicate that claimant and the operator were working faster than the average for persons doing those jobs. The operator controls the speed of operation of the saw but because of incentive pay "everybody always run it wide open". Claimant continued to work in that job the balance of the day. His back got progressively worse until the 4th or 5th of December when he ceased work.

Our examination of Crow v. Missouri Implement Tractor Company, 307 S.W.2d 401 (Mo. banc 1957) and cases following it, including Snuggs v. Steel Haulers, Inc., 501 S.W.2d 481 (Mo. banc 1973); Lindquist v. Container Corporation of America, 537 S.W.2d 676 (Mo.App.1976); Smith v. Plaster, 518 S.W.2d 692 (Mo.App.1975); and Herbert v. Sharp Brothers Contracting Co., 467 S.W.2d 105 (Mo.App.1971), convinces us that the facts here are sufficient to support the Commission's finding that claimant's back injury was caused by an abnormal strain. Claimant was in a job he was not used to and there was evidence indicating that it was physically harder on him than his regular job. In performing it he was standing and twisting in a different manner than in his normal work. Working at a fast pace might have put an unusual strain on his back resulting in the injury. If a claimant suffers an injury resulting from an abnormal strain while engaged in doing different work than normal it is an accident and compensable. Herbert v. Sharp Brothers Contracting Co., supra, 467 S.W.2d at 108. While the facts in Withers v. Midwest Footwear, Inc., 421 S.W.2d 800 (Mo.App.1967), cited by appellants, in some respects are similar to those here, the Commission there found against the claimant. In our review we determine if the Commission could reasonably have made the award under consideration, not whether a contrary conclusion would have been permissible. Smith v. Plaster, supra, 518 S.W.2d at 696. Here a contrary result would have been permissible but based on the scope of our review we...