Webb v. Norbert Markway Const. Co.

• Decision Date: 11 February 1975
• Docket Number: Nos. 35739 and 35800,s. 35739 and 35800
• Citation: 522 S.W.2d 611
• Parties: Elmer Dee WEBB, Plaintiff-Respondent, v. NORBERT MARKWAY CONSTRUCTION COMPANY and Reliance Insurance Company, Defendants-Appellants. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 611

522 S.W.2d 611

Elmer Dee WEBB, Plaintiff-Respondent, v. NORBERT MARKWAY CONSTRUCTION COMPANY and Reliance Insurance Company, Defendants-Appellants.

Nos. 35739 and 35800.

Missouri Court of Appeals, St. Louis District, Division Three.

Feb. 11, 1975.

Motion for Rehearing or Transfer Denied April 22, 1975.

Application to Transfer Denied June 9, 1975.

Joseph L. Leritz, Kearney, Lerits & Reinert, St. Louis, for defendants-appellants.

Harvey B. Cox, Jr., Cox, Cox & Cox, St. Louis, for plaintiff-respondent.

PER CURIAM:

This is a workmen's compensation proceeding. Norbert Markway Construction Company, the employer, and its insurer, Reliance Insurance Company, appellants, appeal from a judgment order of the Circuit Court of St. Louis County entered July 13, 1973, reversing a final award of the Industrial Commission entered December 18, 1972, which denied compensation to the employee-respondent, Elmer Dee Webb. The Commission in making its award affirmed the award of the referee who also denied compensation to the employee.

The employee made a claim for injuries arising out of an alleged accident on December 16, 1965, when a piece of novaply wood which he was moving slipped from his grip and he exerted 'unusual force and strain.'

The referee made lengthy findings of fact and rulings of law. The referee found that Mr. Webb was presently suffering from 'conversion hysteria' which 'probably' renders him incapable of working and that he is in effect totally and permanently disabled. However, the referee concluded that the employee's condition was not brought about by any specific trauma or accident; that there was no medical causal relationship between the incident occurring on December 16, 1965, when the employee was carrying a heavy piece of novaply wood which allegedly slipped from his grip; that the issue of credibility is a 'major factor in the evaluation of this case'; and that the nature and extent of the total disability should not be the responsibility of the employer and insurer, 'because so much of it is due to long-standing conditions not connected with his work.' The referee concluded that 'the record in this case does include sufficient testimony on behalf of the employee to warrant findings of accident ¹ and causal connection, as well as disability of a permanent and total nature. However, I find this evidence less persuasive than evidence to the contrary introduced by the employer and insurer.'

After the Commission affirmed the award of the referee, the employee, Webb, appealed to the circuit court. The court reversed the final award and found as a matter of law that 'there was not sufficient competent evidence in the record to warrant the making of the award' and that 'under the competent evidence, the Employee-Appellant sustained an accident arising out of and in the course of his employment while handling novaply on December 16, 1965, and a resultant total and permanent disability.'

The employer, Markway, and the insurer, Reliance, appealed. Despite the multifaceted points and contentions raised by the parties on this appeal, the single, overriding issue in this case is whether or not there was substantial competent evidence to support the final award of the Industrial Commission denying compensation to the employee, Elmer Dee Webb.

Our duty on appeal is well settled. On judicial review of a workmen's compensation claim, this court must determine if the award of the Commission is supported by competent and substantial evidence upon the whole record, Mo.Const. Art. V, § 22, V.A.M.S., and all of the evidence and legitimate inferences arising therefrom must be viewed in the light most favorable to the award. We are not at liberty to substitute our own judgment for that of the Commission and may set aside an award only if there is not substantial competent evidence to support the award or if the findings of the Commission are clearly contrary to the overwhelming weight of the evidence. If we conclude that the findings of the Commission are supported by competent and substantial evidence upon the whole record and are not contrary to the overwhelming weight of the evidence, the findings are binding, and matters of credibility and the weight to be given conflicting testimony are for the Commission. Bauer v. Independent Stave Company, 417 S.W.2d 693, 697 (Mo.App.1967); Stegall v. St. Joseph Lead Company, 465 S.W.2d 855, 859--860 (Mo.App.1971); Ousley v. Hawthorn Company, Div. of Kellwood Co., 397 S.W.2d 719, 721 (Mo.App.1965); Schmitz v. Sellers & Marquis Roofing Co., 117 S.W.2d 623, 624 (Mo.App.1938); Roux v. Dugal's Big Star Food Store, 510 S.W.2d 810, 811--812 (Mo.App.1974); Saale v. Alton Brick Company, 508 S.W.2d 243, 246 (Mo.App.1974).

It is only in exceptional circumstances that we may reverse and award of the Commission on the facts. Shepard v. Robinson, 451 S.W.2d 329, 335 (Mo.1970).

After studying the entire lengthy transcript, the briefs, arguments and authorities relied upon by the parties, we are convinced that the award of the Commission denying compensation was supported by competent and substantial evidence upon the whole record and was not contrary to the overwhelming weight of the evidence.

There was substantial and competent evidence that (1) the employee, Mr. Webb, did not sustain an accident within the meaning of § 287.020(2). There was evidence to the effect that the incident and injury came about as originally described by the employee in the histories given to physicians and in the statement he gave to a claims adjuster in the months following the incident with the novaply on December 16, 1965 ² and that his condition was not brought about by the novaply incident. Bauer v. Independent Stave Company, supra; Deffendoll v. Stupp...