Wilson v. Kansas City, 25475

• Decision Date: 03 April 1972
• Docket Number: No. 25475,25475
• Citation: 479 S.W.2d 135
• Parties: James W. WILSON, Jr., Respondent, v. KANSAS CITY, Missouri, Appellant.
• Court: Missouri Court of Appeals

Page 135

479 S.W.2d 135

James W. WILSON, Jr., Respondent, v. KANSAS CITY, Missouri, Appellant.

No. 25475.

Missouri Court of Appeals, Kansas City District.

April 3, 1972.

Aaron A. Wilson, City Counselor, Jack R. Reed, Asst. City Counselor, Kansas City, for appellant.

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

CROSS, Judge.

This case arose upon plaintiff-claimant's claim for workmen's compensation benefits, asserted on the ground that he had sustained back injuries as a result of an unusual and abnormal strain exerted while planting trees as an employee of defendant Kansas City, Missouri. After a hearing, the referee acting on behalf of the Division of Workmen's Compensation made a temporary award of compensation in claimant's favor. Upon review, the Industrial Commission reversed the referee's award and made a final award denying claimant any compensation. Upon appeal by claimant, the circuit court entered judgment reversing the Industrial Commission's final award and remanding the cause to that body for further proceedings. Defendant-employer has appealed to this court.

Claimant's testimony is the only evidence relative to the incident underlying this controversy. In essential substance it is here stated. As an employee of defendant city at the time in question, claimant worked in the 'street tree service'. His duties encompassed tree planting, trimming, and removal--' everything pertaining to trees'. On March 13, 1968, he was working with a tree service crew planting trees along the street curb in the 2600 block of Victor Street. The crew's equipment included a truck which transported the trees ('weighing anywhere from 100 to 300 pounds') to the various planting sites for placement in holes previously dug by machinery. The truck was equipped with a winch and boom--'a big pole on it which was extended'--to lower a tree from the truck to the ground. A man on the truck would tie a rope around the tree and attach it to the boom with a cable, and the boom would be swung out over the hole that was to receive the tree. At that stage of the operation, claimant's position was on the ground, and it was his function to line the tree up and make sure the rope and burlap were cut off the ball of the tree.

Claimant testified that the accident resulting in his injury occurred when he forcibly 'jerked' upon a certain tree that had been lowered off-center and had hung up on the ground at the edge of the planting hole instead of going into the hole as was intended. The tree as described by claimant was twelve or thirteen feet high and approximately three inches in diameter where it joined a ball of dirt wrapped in burlap. The ball of dirt was approximately three feet in diameter. Claimant estimated the total weight of the tree to be 250--300 pounds. As the tree was being lowered in the manner stated, claimant took hold of the cable and jerked it and tried to guide it into the hole, but his effort was unavailing and, as stated, the tree came down off-target and came to rest on the dirt surface at the edge of the hole opposite to the side where claimant was standing. Claimant stated that he then gave the tree a 'pretty hard jerk', with both hands but that it didn't move at all and that when he did so the tree was on 'the fair side of the hole' inasmuch as he was 'jerking it toward myself'; that when he took hold of the tree and so jerked it he had both feet flat on the ground and was in a bent-over position. In a written statement given to defendant's investigator (introduced in evidence by defendant) claimant stated, 'This tree was heavier than I thought and as I jerked it toward me and the hole, evidently I overstrained myself.' As he so jerked the tree he immediately felt a sharp, stabbing pain in his back just below the belt. He continued to 'work with' the tree and finally got it in the hole. He finished the morning's work but after dinner had trouble 'getting up' and his back was hurting 'pretty bad'. He told the foreman and fellow workmen he had hurt his back and didn't know whether he 'could make it the rest of the day or not', but he finished the day. He was 'just barely getting along'. He tried to do his share but couldn't do it because his back was hurting and he couldn't bend over. After he went home from work his pain 'started to getting to where I couldn't bear it so I went to St. Joseph Hospital.' He was admitted there as a patient and remained for treatment three or four days. He was attended, treated and diagnosed by Dr. D. K. Piper, who prescribed surgery as necessary to repair an injured intervertebral disc. Claimant still has a lot of pain in his back. He can't bend over or raise either leg without having pain. He has been able to do little work. Claimant was also examined by Dr. Frank L. Feierabend who testified that he found much clinical evidence of nerve root pressure, that claimant has a protruded intervertebral disc, that he needs hospitalization and myelogram examination, and that he will have to have surgery to recover from his disability. Relative to prior injuries, claimant testified that he had sprained his back ten or twelve years previously and was 'off work' a week on that account, but that he had recovered from that incident and did not have any trouble with his back prior to March 13, 1968.

Defendant adduced no direct evidence to contradict claimant's narrative of the occurrence claimed to have caused his injury. The posture assumed by defendant in this case is that no such incident 'occurred at all.' Defendant's evidence is limited to testimony and matter of record calculated to disparage claimant's credibility and the consequent verity of his account of the event in question.

The Industrial Commission's order denying compensation reads, in pertinent part, as follows:

'* * * The Commission, * * * awards no compensation on the abovecaptioned claim for the reason that employee has failed to show that the strain incurred on March 13, 1968, was abnormal and that it occurred when the employee's working procedure was deviated from the usual routine. The incident described by employee wherein his back was injured does not constitute an accident within the meaning of the Missouri Workmen's Compensation Act, as he has shown only that the injury, not the strain, was unexpected and unforeseen. Closser v. Fleming Company, 387 S.W.2d 194 (Mo.App.1964).'

The judgment of the circuit court reversing the Industrial Commission's award and remaining the cause for further proceedings is based on the following quoted findings entered of record:

'* * * (T)he court * * * finds that the Industrial Commission's award was not based on a disbelief of the facts of the employee's claim, but rather their ruling was based on a conclusion of law that under the facts of the case the incident described did not constitute an accident under Missouri Workmen's Compensation Act. Having so concluded, the court finds that the final award of the Industrial Commission of Missouri should be reversed.'

The ultimate question for this review is whether the Industrial Commission committed error in ruling, as a matter of law, that 'the incident described by employee does not constitute an accident within the meaning of V.A.M.S. Sec. 287.020(2).' That issue comes to this court without any finding by the Industrial Commission relative to the truth or falsity of claimant's evidence, or the existence or non-existence of facts thereby sought to be established. Instead, as the trial court has correctly stated and as clearly appears from the text of the final award, the commission has assumed, but not determined, that facts existed as 'described' by claimant, and, on the basis of those assumed facts, concluded as a matter of law that claimant did not suffer a compensable accident. Defendant concedes that the Commission did not determine the matter of claimant's credibility, but now insists there was ample evidence in the record for this court to rule that the Commission was justified in denying compensation on the issue of credibility alone. This we decline to do, since original fact finding is not included as a function in our review of workmen's compensation decisions.

Inasmuch as the Commission's award was not based upon disbelief of facts testified to by plaintiff, but was based 'on an interpretation of the law, or the legal conclusion to be drawn from the evidence, or the application of the law to the facts, this court is not thereby bound.' Brotherton v. International Shoe Company, Mo.App., 360 S.W.2d 108; Williams v. Anderson Air Activities, Mo.App., 319 S.W.2d 61. Furthermore where, as in this case, the claimant's evidence as to the facts and circumstances of the occurrence in question is not disputed, 'the award that should be entered by the Industrial Commission becomes a question of law and the Commission's conclusions are not binding on the appellate court.' Merriman v. Ben Gutman Truck Service, Inc., Mo., 392 S.W.2d 292. Also see Corp. v. Joplin Cement Co., Mo.Sup., 337 S.W.2d 252. Hence the Commission's award in this case falls within our province of review and correction. Williams v. Anderson Air Activities, Mo.App., 319 S.W.2d 61.

In effect, the Commission has concluded and ruled that claimant's evidence (i.e., his 'description of the incident wherein his back was injured') does not permit of reasonable inference that he sustained an unusual or abnormal strain and thereby suffered an 'accident' as defined by V.A.M.S. Sec. 287.020(2) in this language: 'The word 'accident' * * * shall * * * be construed to mean an unexpected or unforeseen event happening suddenly and violently, with or without human fault and producing at the time objective symptoms of an injury.' The resulting issue for our consideration is whether the Commission erred in thus ruling that claimant's evidence was legally insufficient to establish his claim.

Disposition of this appeal will be governed by principles first...