Page v. Green

• Decision Date: 31 January 1985
• Docket Number: No. 13615,13615
• Citation: 686 S.W.2d 528
• Parties: Robert Wade PAGE, Jr., Claimant-Appellant, v. L.A. GREEN, d/b/a L.A. Green Seed Company, Employer-Respondent.
• Court: Missouri Court of Appeals

Page 528

686 S.W.2d 528

Robert Wade PAGE, Jr., Claimant-Appellant, v. L.A. GREEN, d/b/a L.A. Green Seed Company, Employer-Respondent.

No. 13615.

Missouri Court of Appeals,

Southern District,

Division One.

Jan. 31, 1985.

Motion for Rehearing and/or Transfer to

Supreme Court Denied

Feb. 19, 1985.

Application to Transfer Denied

April 2, 1985.

James K. Journey, Kelso Journey, Clinton, for claimant-appellant.

Kenneth H. Reid, Michael J. Patton, Turner, Reid, Duncan, Loomer & Patton, P.C., Springfield, for employer-respondent.

PREWITT, Chief Judge.

The Labor and Industrial Relations Commission affirmed the award of an administrative law judge which denied appellant's claim for workers' compensation benefits.

Commissioner William F. Ringer wrote the principal opinion for the Commission. It was concurred in by Commission Chairman Terry C. Allen who also wrote a concurring opinion. Commissioner Herbert L. Ford filed a dissenting opinion. These opinions reflect, as did the findings of Administrative Law Judge Winton G. Tracy, Jr., commendable dedication and meticulous consideration of the law and facts presented. That we reach a contrary result is certainly no indication that the prior decisions were not carefully considered and reasoned.

Appellant suffered permanent total disability when he was injured on respondent's premises at approximately 2:45 a.m. on August 14, 1980. He was alone in one of respondent's buildings at the time. Appellant was regularly employed on those premises from 8:00 a.m. to 5:00 p.m. That he was injured by "accident" as that term is defined in the workers' compensation law is not questioned. The Commission found that it was not an accident "arising out of and in the course of his employment", see § 287.120.1, RSMo 1978, and apparently, by reference to the administrative law judge's findings, adopted his conclusion that appellant was too intoxicated "to perform duties if those duties had arisen out of and in the course of his employment."

The scope of our review is stated in Mo. Const. Art. V, § 18, and § 287.495, RSMo Supp.1982. From them and their predecessors certain well-established principles have developed. Appellate courts review workers' compensation cases in the light most favorable to the award of the Commission and uphold the decision of the Commission if it is supported by competent and substantial evidence. Blissenbach v. General Motors Assembly Div., 650 S.W.2d 8, 11 (Mo.App.1983).

Only when the Commission's award is not supported by substantial evidence or is clearly contrary to the overwhelming weight of the evidence do we disturb it. Bradshaw v. Brown Shoe Co., 660 S.W.2d 390, 392 (Mo.App.1983). However, where the facts on which the decision should turn are not in dispute the award that should be entered becomes a matter of law. Ikerman v. Koch, 580 S.W.2d 273, 278 (Mo. banc 1979).

The Commission is charged with the responsibility of passing upon the credibility of witnesses, and it may disbelieve testimony of a witness though no contradictory or impeaching evidence is introduced. Blissenbach, supra, 650 S.W.2d at 11. A Commission's acceptance or rejection of part of a witness's testimony cannot be disturbed upon review, unless its acceptance or rejection is against the overwhelming weight of the evidence. Id.

Other principles are also applicable in our review. One of the purposes of the Workers' Compensation Act is to relieve the burden of workers incapacitated by injuries from the public and place the burden upon industry. Cox v. Copeland Bros. Constr. Co., 589 S.W.2d 55, 61 (Mo.App.1979). In interpreting the workers' compensation law we resolve all doubts in favor of the employee. Barr v. Vickers, Inc., 648 S.W.2d 577, 580 (Mo.App.1983).

The mandate for liberal construction of the Workers' Compensation Act (§ 287.800, RSMo 1978), means that benefits should be extended to the largest possible class of workers and the denial of those benefits should be decreed to the smallest possible class. Cox, supra, 589 S.W.2d at 61.

Appellant worked as a "warehouse laborer" at respondent's Lockwood, Missouri facility. He said that 90% of his work was hauling raw seed "to the cleaners", apparently referring to respondent's seed cleaning machines. Respondent had two of these machines at its Lockwood location, each in a separate building. Respondent has several buildings at this location and operates its seed cleaning machines 24 hours a day.

Appellant testified that on August 13, 1980, following the end of his regular work at 5:00 p.m., he left respondent's premises and went to his apartment in Lockwood. He ate, then slept until awakened by his roommate and another person. He stated he drank two beers with them and then because it was hot, went to sleep on a cot in a yard outside his apartment. Early that morning he was awakened by thunder and lightening. There were large doors on one of respondent's buildings, where appellant had deposited seed earlier that day, and he thought the doors might be open. Because he believed it was going to rain and the seed could get wet, appellant said he decided to check on the doors.

Appellant took his roommate's van and drove approximately a mile to respondent's premises. When he arrived, at least two employees of respondent, both "cleaner operators", were working. One cleaner operator was at the building appellant went to and the other operator was in the building where the other cleaning machine was. Closing the doors when necessary was the cleaner operator's responsibility. One of the doors had been left open, and after closing it, appellant moved some empty burlap sacks "out of the way". After he did this he saw "seed running off the cleaner off the top screen." This could cause seed to be wasted. The cleaner operator had left the building and appellant was alone in it.

Appellant said he went up a ladder to the top of the cleaning machine to sweep the seed "back and forth to make it go down through the screens." A broom is kept up there for this purpose. Appellant said doing this would "unclog the machine". Normally, this is the cleaner operator's responsibility. Appellant said as he neared the end of the ladder he reached for a board so he could pull further up. The board was unfastened, and when he grabbed it he fell backwards, approximately 14 feet, to the floor. When the operator returned, he found appellant lying on the floor. Appellant was taken to a hospital by ambulance. The hospital's records show his "[b]lood alcohol level was 232 mg.%."

On at least two occasions appellant had worked for respondent after his regular hours without compensation. One occasion was authorized in advance. On the other, when seen working by a supervisor, he was instructed to punch the time clock.

The appellant and his roommate testified that appellant had several drinks of whiskey following his injury, perhaps trying to account for appellant's blood alcohol content as found at the hospital. The Commission rejected their testimony, stating that it "finds that the claimant's ludicrous explanation for his acute intoxication which explanation was clearly refuted by all the believable evidence causes the claimant's entire testimony to be incredible and unbelievable." It found that it "is only speculation and conjecture as to why the claimant was at the plant when he was injured at approximately 2:45 a.m." Such a determination could be decisive on review, but it is not here.

Appellant's evidence as to his drinking whiskey following the accident was highly suspect and appeared to be manufactured, but even when the appellant's and his witnesses' testimony is removed, the evidence establishes that appellant was seeking to benefit respondent at the time he was injured by doing a chore necessary and usual in its operation.

There was no dispute that appellant was a conscientious employee. After he was found, a loose board which had been on top of the cleaning machine was no longer there, and the broom kept above the machine had fallen down to the catwalk. Appellant was found lying next to the seed cleaning machine and his injuries indicate that he fell a considerable distance.

Respondent's witness, the warehouse manager at the premises, stated that it was in the furtherance of the company's interest to keep the cleaning machine unclogged. Unclogging the machine was the cleaner operator's duty, but if there was no operator "immediately available", the manager said appellant "would have been permitted to do it, but it was not his responsibility." We believe it is inescapeable that at the time he was injured, appellant was intending, perhaps misguidedly, to benefit respondent by unclogging the seed cleaning machine, and any other conclusion is against the overwhelming weight of the evidence.

For intoxication to bar appellant's recovery, there must be evidence that at the time he was injured, appellant was "intoxicated to such an extent that it was impossible for him to physically and mentally engage in his employment." Brown v. Mid-Central Fish Co., 641 S.W.2d 785, 787 (Mo.App.1982). See also Phillips v. Air Reduction Sales Co., 337 Mo. 587, 85 S.W.2d 551 (1935); McCue v. Studebaker Automotive Sales, 389 S.W.2d 408 (Mo.App.1965); Coonce v. Farmers Ins. Exch., 228 S.W.2d 825 (Mo.App.1950); O'Neil v. Fred Evens Motor Sales Co., 160 S.W.2d 775 (Mo.App.1942). We do not find such evidence in the record.

The person appellant and his roommate were drinking beer with said that appellant was "intoxicated that night". She left them at midnight. Appellant and the cleaner operator who saw him just before the accident testified that he was not intoxicated and there is no evidence that he was to the extent required, unless his blood alcohol content establishes that as a matter of law. We believe it does not. The effect of blood alcohol content can vary widely from person to person and from time to time. That it was well over the amount that constitutes prima facie...