Miranda v. American Refrigerator Transit Co., 31615

Decision Date15 June 1965
Docket NumberNo. 31615,31615
Citation392 S.W.2d 413
PartiesPhilip MIRANDA, Employee, Plaintiff-Appellant, v. AMERICAN REFRIGERATOR TRANSIT CO., Employer, and the Travelers Insurance Co., Insurer, Defendants-Respondents.
CourtMissouri Court of Appeals

Arthur E. McLeod, St. Louis, for plaintiff-appellant.

Evans & Dixon, Edward W. Warner, St. Louis, for defendant-respondent.

ANDERSON, Judge.

This is an appeal from a judgment of the Circuit Court of the City of St. Louis, affirming an award of the Industrial Commission of Missouri denying compensation to claimant, Philip Miranda, on his claim for workmen's compensation benefits against his employer, American Refrigerator Transit Company and its insurance carrier, Travelers Insurance Company.

The claim filed by appellant with the commission alleged the date of the accident as August 24, 1961; that the part of the body injured was the 'middle of lower back and pain in the hips, and swelling of feet and legs;' and that the accident happened when 'claimant was picking up angle iron from a hoister when his foot slipped and he felt severe pain in the lower back.'

The Employer and Insurer filed an answer which admitted that claimant was an employee of American Refrigerator Transit or about August 24, 1961; that all liability of said employer was insured by Travelers Insurance Company; and that the employer and employee were operating under and subject to the terms and conditions of the Missouri Workmen's Compensation Law. These allegations were followed by a general denial of each and every allegation contained in the claim not admitted in said answer.

The matter came on for hearing before a referee of the commission and on February 9, 1962, resulted in a temporary or partial award in favor of claimant, which provided for the payment of $679.50 for medical aid furnished the employee and not furnished by the employer or insurer, and compensation in the sum of $45.00 per week for temporary total disability for a period of 22 5/7 weeks beginning August 25, 1961. The case was by the terms of the award reset for further hearing on June 25, 1962. It also provided that in the meantime medical treatment should be provided as required and compensation paid at the rate of $45 per week for all temporary total disability suffered by claimant in the meantime as a result of said back injury. The referee's finding with respect to accident and injury therefrom was 'that on August 24, 1961, Philip Miranda, while in the employ of American Refrigerator Transit Company, was bending over to pick up some material and one of his feet slipped causing injury to his back.'

On February 14, 1962, the Employer and Insurer filed an application with the Industrial Commission for review of the findings and award of the Referee by the full commission. The Commission thereafter reversed the award of the Referee, stating in its Final Award Denying Compensation, that, '(t)he Commission finds from all the evidence that employee did not suffer the accident described in his direct testimony herein. In so holding, we find persuasive the discrepancies between the testimony of employee himself and the testimony of Croner, his purported eye witness, as well as discrepancies between the testimony of both employee and Croner, and that of Hanasek, also present. Among the various discrepancies noted were the varying descriptions of the locations of these three persons at the time of the purported accident. We are particularly convinced that if employee was, in fact, at the side of the machine (as he repeatedly testified), then Croner could not have seen the alleged slipping of employee's foot upon the railroad rail (or pipe). We find further persuasive employee's failure to report the incident as testified to upon the stand to his superiors and to his doctors at any time prior to the hearing of this cause.

'But even if employee had, in fact, suffered an accident as contended, we are far from convinced that the present disability from which employee suffers is a result thereof. Employee was very evasive and contradictory in testifying to his prior back condition. At one place he says he had suffered low back pain only once before, and then for a brief period of time. While it is true that he does, upon cross-examination, recede somewhat from this position, even there he attempts to minimize these prior episodes. However, the testimony of Dr. Lembeck as to the contents of the records of the Missouri Pacific Employee's Hospital, uncontradicted, convinces us that employee had suffered almost continuous low back pain since the year 1953. He had been to the hospital many times as an out patient for treatment, therapy, and examination for low back pain, some of the courses of treatment running for many months. We find and believe that employee has failed to sustain his burden of proof as to what part of his present disability, if any, results from the purported accident involved in this claim.'

From the final award of the commission denying compensation, claimant in due course appealed to the Circuit Court. The latter as heretofore stated affirmed, and from the judgment of affirmance the appeal to this Court was taken.

Appellant contends that the Circuit Court erred in sustaining the award of the Industrial Commission in that (1) The award could not have reasonably been made upon the whole record, (2) The award was contrary to the overwhelming weight of the evidence, (3) The award was not supported by sufficient and competent evidence, (4) The commission in making its award did not give due consideration to the referee's finding and award.

Philip Miranda, claimant, was forty years of age. He had been employed at the time of the alleged accident and injury by the American Refrigerator Transit Company for almost fourteen years. He testified that he was a carman helper. He was, on August 24, 1961, the date of his alleged injury, operating a material hauling truck called a hoister, or fork lift. This vehicle was designed to be operated between the rails of railroad tracks. In the front of the vehicle is a platform, referred to sometimes in the testimony as a 'pallet,' on which material being transported was carried. The hoister had four wheels, two in front and two in the rear. The front wheels were located immediately behind the platform. The platform and the body of the hoister were only a few inches from the ground. The driver's seat was located inside the hoister and on the left side thereof.

Just prior to the alleged accident, claimant had driven the hoister along a railroad track in the employer's car-shop yards to an area where Croner and Hanasek were working on the repair of a railroad refrigerator car. The hoister was loaded with material for use in said repairs. Claimant referred to this material as 'reservoir angle irons.'

These angle irons were 4 X 4 and slightly over 36 inches long. The hoister, according to Miranda's testimony was stopped opposite to where Croner and Hanasek were. He also stated that he stepped off the hoister on the left side; that Croner and Hanasek were on the right side of the hoister when he stepped down; that he went forward to unload the material; that it takes more than two men to lift a reservoir angle iron; that he bent over to take hold of the material and his left foot slipped on a piece of pipe which was beside the track; that Mr. Hanasek was on the opposite side of the hoister and also bent down to pick up the other end of the angle iron; that Croner was to the left of Hanasek, the two men being side by side; that he (claimant) was at about the middle of the pallet when he bent over; that when he slipped he experienced great pain in the lower portion of his back which felt like something had snapped; that he grabbed onto the hoister; that the pain was so intense, he broke out in a sweat and cried; that when the pain struck his hands had not reached the angle iron; that his foot slipped about a foot; that he stayed in a bent over position for about thirty minutes; that he refused assistance offered by his co-employees, and when he was able to straighten up, he picked up pieces of a pipe and put them into his pocket; that he then continued working that afternoon; but thereafter, reported to the office that his back was hurt and was sent to the Missouri Pacific Employee's Association Hospital. Claimant in one part of his testimony stated that he told Hanasek, Mr. Croner and his foreman that he was hurt, but did not tell them how he was injured; that he never told anyone out there, including his foreman, that he had slipped on a pipe. Later on in his examination, he stated he told Croner he thought he had slipped on some pipes, and showed him the pipes. Claimant remained a patient at the hospital or of its medical staff from the time he entered the hospital until the hearing before the Referee, January 25, 1962. His treatment during this time was for discomfort in his back. He has not been employed since August 24, 1961. Claimant testified that the doctors at the hospital told him not to go back to work.

Claimant further testified that he told the clerk who took his statement that he slipped, but did not tell him he slipped on the pipe. Respondent's witness, Richard Sale, the clerk, who took the statement testified that Miranda came into the office and said he stooped over and froze in that position; that he made a record of it; that the record made was, 'August 24, P. Miranda, Carman helper, thirty-nine, bending over to pick up a piece of reservoir angle and didn't pick it up, back ached and had to hold on to the wrought-iron hoister.' Nothing was said in...

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    ...of Hannibal, 283 S.W.2d 909, 913 (Mo.App.1955); Carriker v. Lindsey, 313 S.W.2d 43, 44 (Mo.App.1958); Miranda v. American Refrigerator Transit Co., 392 S.W.2d 413, 419 (Mo.App.1965). The question of the deference to be given the finding of the referee and the finding of the Commission, when......
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