Matthews v. Roadway Exp., Inc., 12875

• Decision Date: 09 November 1983
• Docket Number: No. 12875,12875
• Citation: 660 S.W.2d 768
• Parties: James MATTHEWS, Appellant, v. ROADWAY EXPRESS, INC., Respondent.
• Court: Missouri Court of Appeals

Page 768

660 S.W.2d 768

James MATTHEWS, Appellant, v.ROADWAY EXPRESS, INC., Respondent.

No. 12875.

Missouri Court of Appeals,

Southern District,

Division One.

Nov. 9, 1983.

L.R. Magee, Hines & Magee, Kansas City, for appellant.

Kenneth T. Walter, Mann, Walter, Burkart, Weathers & Walter, Springfield, for respondent.

FLANIGAN, Presiding Judge.

AppellantJames Matthews filed a claim, under "The Workers' Compensation Law," against respondentRoadway Express, Inc., his self-insured employer, for injuries sustained on November 11, 1978, at respondent's truck terminal.The claim was tried before James H. Wesley, Chief Administrative Law Judge of the Division of Workers' Compensation, who found in favor of the employer.Matthews filed an application for review to the Labor & Industrial Commission, which affirmed the award.Matthews appealed to the Circuit Court of Greene County where the commission's award was affirmed.Matthews appeals.

Matthews contends that the commission's award, which denied him compensation, "is clearly contrary to the greater weight of all of the evidence in the whole record in that the evidence establishes that [Matthews] suffered accidental injury arising out of and in the course of his employment with [Roadway]."

On this appeal this court must determine if the award of the commission is supported by competent and substantial evidence on the whole record.All of the evidence and legitimate inferences therefrom must be viewed in the light most favorable to the award.This court may not substitute its judgment for that of the commission.The award may be set aside only if there is no competent and substantial evidence to support it or if the findings of the commission are clearly contrary to the overwhelming weight of the evidence.Conflicts in the evidence are for resolution by the commission.Blair v. Associated Wholesale Grocers, Inc., 593 S.W.2d 650(Mo.App.1980).This court must disregard any evidence which might support a finding different from that of the commission and that is true although a finding of the commission to the contrary would have been supported by the evidence.Petersen v. Central Pattern Co., 562 S.W.2d 153, 155(Mo.App.1978).Petersen also holds that the commission is charged with the responsibility of passing upon the credibility of all witnesses and may disbelieve testimony of a witness even if no contradictory or impeaching evidence appears.

The parties stipulated that Matthews, as a result of the incident of November 11, 1978, received an 83.5 percent hearing loss to the right ear, was temporarily and totally disabled for a period of eight weeks and incurred certain reasonable and necessary medical expenses.The only issue was whether Matthews' injuries resulted from an "accident arising out of and in the course of his employment."§ 287.120.¹See also§ 287.020 for a definition of "accident."

At 11:35 p.m. on November 11 Matthews was engaged in loading 55-gallon drums, with the use of a dolly, into a trailer at the Roadway Terminal.Each drum weighed about 450 pounds.Matthews testified, "As I was loading these drums all of a sudden I just felt sick and stepped out of the trailer.When I first felt sick I was up in the trailer, approximately half way, assuming it's a 40-foot trailer.That is where I had the dolly.I just felt sick all over all of a sudden, nauseated, and stepped out of the trailer.I didn't want to get sick in the trailer.I walked to the back of the trailer and then fell off the dock.I remember vomiting after I was down on the ground.The trailer was backed up to the dock.I fell to the ground on the right side of the trailer.I fell just straight down on the pavement.The drop was approximately five feet.²

"I don't know what caused the nausea.I had not had any nausea earlier that evening.I had gone to work about 3:30 p.m.The last thing I remember before I fell is that I just stepped out of the trailer there to the left of the trailer as you come out of the trailer.I remember nothing after that until I woke up on the ground."

The claim for compensation form, which Matthews signed, called for "how injury occurred, cause, and work employee was doing for employer at the time."Matthews' answer was, "I was loading drums on the truck and became sick, passed out and fell off the truck on my head.Doctors did not give me a definite cause for it."

The commission, in its final award, adopted the findings of Judge Wesley.One such finding reads:

"[Matthews] is not making any claim that his employment caused his dizziness so in order for [Matthews'] claim to be compensable, [Matthews] must have either sustained an accident and the accident resulted in his fall and injury or [Matthews'] fall must be considered to be idiopathic but because of special hazards connected with his employment, the resulting injuries would be considered to be compensable.

"[Matthews] testified that while loading a trailer, he felt sick, stepped out of the trailer, became nauseated and 'felt sick all over' and at that time, he fell off the dock.There is no indication in the record that [Matthews] sustained an accident which caused his fall."

In denying compensation Judge Wesley and the commission relied primarily upon Collins v. Combustion Engineering Company, 490 S.W.2d 394(Mo.App.1973).In Collinsthe claimant climbed a four-foot ladder, which was set against the tailgate of a trailer, and unhooked a chain.As he was starting to step from the trailer onto the ladder, and while he was astride the tailgate, the claimant got dizzy and fell to the ground.Although the commission found that the fall was caused by claimant's dizziness, the commission also found that there was no causal connection between claimant's employment and the onset of the dizziness.The commission also found that the height from which claimant fell probably contributed to the extent of his injuries but was not a contributory cause to the fall itself.

In using the term "idiopathic fall,"the court defined the word "idiopathic" as "peculiar to the individual" and "arising spontaneously or from an obscure unknown cause."Upholding the award denying compensation, the court said:

"The fall in the instant case was peculiar to the claimant in that it arose out of a dizzy spell which he experienced at the time and which precipitated the fall.Certainly no exterior force was shown to have been exerted upon the claimant at the time of the fall and none was found by the commission.The cause of his dizziness was not explained.Injuries suffered in an idiopathic fall are not compensable because they do not arise out of and in the course of the employment as required under § 287.120, subd. 1, supra....[I]t is only when the idiopathic fall is accompanied by evidence which shows a hazard connected with the...