Smith v. Terminal Transfer Co.

• Decision Date: 07 October 1963
• Docket Number: No. 23859,23859
• Citation: 372 S.W.2d 659
• Parties: William W. SMITH, Employee-Appellant, v. TERMINAL TRANSFER COMPANY, Employer-Respondent, and The Travelers Insurance Company, Insurer-Respondent.
• Court: Missouri Court of Appeals

Page 659

372 S.W.2d 659

William W. SMITH, Employee-Appellant, v. TERMINAL TRANSFER COMPANY, Employer-Respondent, and The Travelers Insurance Company, Insurer-Respondent.

No. 23859.

Kansas City Court of Appeals, Missouri.

Oct. 7, 1963.

Terrance W. Imes, Kansas City, for appellant.

Jack B. Robertson, Rogers, Field & Gentry, Kansas City, for respondents.

CROSS, Judge.

This case arose out of a claim for accidental injury benefits under the Workmen's Compensation Law. William W. Smith, the claimant-employee, has appealed from a judgment of the circuit court reversing a final award in his favor in the sum of $4,199.28 entered by the Industrial Commission of Missouri, subject to credit in the sum of $135.00 previously paid to him.

It is claimant's contention that the circuit court should have affirmed the Commission's award because it was supported by substantial competent evidence and was not against the overwhelming weight of the evidence. Instead, claimant complains, the circuit court erroneously disregarded the determinations of fact made by the Commission and reversed the award on its own 'version of the facts'.

In deciding the appeal issues presented it is not the province of this court to weigh the evidence and substitute its judgment thereon for that of the Commission. Our review is limited to determining whether that administrative tribunal could reasonably have made its findings and reached its result upon the evidence before it. If there is competent and substantial evidence upon which to base the award and if such award is not clearly contrary to the law or the overwhelming weight of the credible evidence, we are bound to affirm it. This rule is so axiomatic that no recital of authority for it is necessary. 'The mere statement of the rule necessarily carries the implication of deference to the commission in respect to its findings on disputed questions of fact.' Greer v. Missouri State Highway Department, Mo.App., 362 S.W.2d 773.

In resolving whether the Commission could reasonably have made its findings, this court upon its review of the whole record will look only to the evidence most favorable to the award, together with all reasonable inferences that tend to support it, and will disregard all opposing and unfavorable evidence, '* * * even though the finding of the commission to the contrary would also have been supported by evidence'. Greer v. Missouri State Highway Department, supra, and cases therein cited. In accordance with the foregoing rule, we here set out the facts pertinent to the issues to be decided.

In the year of 1956 claimant entered into employment by respondent Terminal Transfer Company as a truck driver. As a part of his duties he was required to load and unload various merchandise. The record does not reflect the happening of any incident, prior to the date of the alleged accident, bearing on the controversy arising from it. There is no history of any back injury or weakness suffered by claimant or any complaint by him thereof prior to October 3, 1961.

On the named date, in the course of his regular employment, claimant suffered an accidental injury to his back while he and a fellow employee, Tony Contorno, were engaged in the work of unloading sacks of sugar from a railroad car into a truck trailer. The two men were unloading the boxcar by first transferring the sacks of sugar, each of which weighed 60 pounds, onto a 'two-wheeler' hand truck. They were stacking the sugar onto the two-wheeler seven sacks high. There is evidence that loose sugar had 'trickled' out of the sacks onto the boxcar floor and that 'it was slippery on the floor where the sugar was at'. Claimant testified, 'Well, we were unloading the sugar by way of a two-wheeler into the trailer. We were stacking it seven high, and I had the sixth one on and was going to the seventh one when I raised the seventh one up and turned around with it and I slipped on the sugar on the floor and went down against the boxcar, and the sugar (sacks) was just right beside each other, and I fell to them and I had pain in my lower back. * * * I slipped on the floor on the sugar when I was turning around putting it up, the other sack high.' Contorno testified to the effect that claimant 'twisted when he had that sack up in the air'; that he saw claimant fall up against the stack of sugar sacks, and that 'I was standing right by him when he twisted'. Contorno also said, 'and when he twisted I seen him let go of it back up in front of the other ones on top--about shoulder high'. Immediately after claimant slipped, twisted and fell he suffered severe pain in his lower back, which he described as 'excruciating' and as 'a tremendous amount of pain', and told Contorno he had hurt his back. Claimant was unable to continue stacking the sugar sacks and did no more work that day. Contorno finished the job of unloading by himself and drove the truck to the employer's garage where claimant reported to Ray Thompson that he had hurt his back while working in the sugar car. Thompson suggested that claimant see a doctor. Claimant thought maybe it might be a bad sprain and told Thompson he would rather wait and see what it did. He suffered further severe pain that night.

Claimant returned to work the next morning. His back was then hurting him 'pretty bad' and he so informed John Bunton, the warehouse superintendent, who assigned him a job to pick up and deliver a load which was to be handled by fork lifts and which required no lifting. Upon delivering the load claimant backed his truck to a freight dock and undertook to place a 'bridge' from the truck to the dock. He bent over, got hold of the bridge, and started to lift it, but was unable to do so because he felt a tremendous amount of pain in his back which he described as the same excruciating pain he had felt the day before and the night before also. He did no more work that day and either Ray Thompson or John Bunton, the warehouse superintendent, sent him to Dr. Johnson, the company physician.

Dr. Johnson treated claimant with heat for a week or two, but he got no better, kept having pain and couldn't go back to work. With the consent of the insurance adjuster, claimant went to Dr. Hodge, who put him in the North Kansas City Hospital as an emergency patient and placed him in traction for about two weeks. While in the hospital claimant was examined and diagnosed by Dr. Workman, who testified on his behalf. After his release he still continued to suffer severe pain in the lower lumber region, but returned to work about November 26, 1961. Terminal discharged claimant on December 13, 1961. Although at the time of the hearing claimant was re-employed, he continued to have back and leg pain which caused him loss of time from work.

Claimant's medical witness, Dr. Workman, examined and diagnosed claimant at the hospital on October 15, 1961, and subsequently at his office on October 27, 1961, March 17, 1962 and June 22, 1962, the latter date being four days before the referee's hearing. Dr. Workman's findings in respect to claimant's condition of disability, as narrated in evidence, include: no pathology of the spine shown by X-rays; back and leg pain; limitation of motion in the lumbar spine; lumbar muscle spasm; positive straight leg raising test; atrophy of the right calf; decreased ankle jerk on the right; numbness of the right foot; tenderness in the lumbo-sacral area and pain on forward and lateral bending. In the opinion of Dr. Workman claimant has a herniation of a spinal disc at the L-5, S-1 level, with compression of the nerve root, and that condition is the cause of claimant's disability. The doctor stated that a herniated disc is not shown by X-rays but that a myelogram is very helpful in confirming such condition. He recommends the performance of a myelogram and surgical operation on claimant in the nature of a spinal fusion if he is to continue to do heavy manual labor. Dr. Workman testified that in his opinion plaintiff's present disability without treatment by surgery was approximately 30 per cent of his body as a whole.

The witness also stated it was his opinion that the accident which occurred on October 3, 1961, when claimant was loading sugar, could have caused the condition found in his back, and could have caused the herniated disc, and that the disc could be injured more by lifting something else later. On cross examination Dr. Workman also testified that the incident of October 4th which happened when claimant bent down to pick up the 'bridge' could have caused the disc 'to protrude (initially) or protrude further', but that he had no way of 'dating' the disc injury except by what the patient told him.

Replying to questions as to the cause of a herniated disc injury, Dr. Workman testified in part as follows:

'A I actually don't know what particular mechanisms are most likely to produce a herniated disc. Many patients give different stories about what precipitated it. One of my patients bent over to tie his shoe. So it doesn't require severe force to produce a herniated disc. Any force at all might produce it'.

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'A Well, we think that the mechanism of disc production is probably a force that is exerted to an abnormal disc in flexion, but you are asking me the effective twist danger imposed upon bending, and I don't know the answer'.

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'A There is lots we don't know about the mechanism of the lumbar spine'.

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'A I would hesitate to say that. (That bending forward and leaning over was the only producing cause of disc herniation). I don't think anybody knows. What doctors get about the producing mechanism is simply what patients tell us. It is impossible to--there is no way to get a strain gauge in the disc space to analyze it'.

The employer also produced one medical witness, Dr. William H. Duncan, who diagnosed claimant's condition as 'a ligamentous and muscular sprain of the lower back area with symptoms and findings...