Opinion
No. 6886.
May 26, 1950.
APPEAL FROM THE CIRCUIT COURT, NEWTON COUNTY, THOMAS A. JOHNSON, J.
Norman, Foulke Warten, Joplin, for appellant.
Dale Tourtelot, Joplin, for respondents.
This is an action for Workmen's Compensation. Appellant claimed that he was injured on February 19, 1948, while working for employers, Morrison and Weaver, in dismantling one of the buildings at Camp Crowder, Missouri. The answer to his claim denied that there was an accident or an injury. A hearing was had and on the 4th day of October, 1948, the Referee found against the claimant. His finding of facts was as follows: "I find from all the evidence herein that the condition complained of by employee was not the result of an accident arising out of and in the course of his employment with Lloyd Morrison and J. K. Weaver, as alleged; therefore, compensation must be and the same is hereby denied." This was reviewed by the Industrial Commission and on the 3rd day of January, 1949, they found as follows: "We find from all the evidence that the employee failed to prove that the condition complained of is a result of the alleged accident. Therefore, compensation must be and the same is hereby denied. Affirming on review award dated October 4, 1948."
An appeal was taken to the Circuit Court of Newton County and on the 18th day of June, 1949, the award of the Industrial Commission was affirmed. It is here on appeal.
The sole question in this case is whether the Industrial Commission could have reasonably made its finding and reached its result upon consideration of the evidence before it. We must decide whether its findings "are supported by competent and substantial evidence upon the whole record." Constitution of Mo. 1945, Art. V, Sec. 22 Mo.R.S.A.
In outlining our duty, the Supreme Court, in Banc, in the leading and much cited case of Wood v. Wagner Electric Corporation, 355 Mo. 670, 197 S.W.2d 647, 649, stated the rule. "This does not mean that the reviewing court may substitute its own judgment on the evidence for that of the administrative tribunal. But it does authorize it to decide whether such tribunal could have reasonably made its findings, and reached its result, upon consideration of all of the evidence before it; and to set aside decisions clearly contrary to the overwhelming weight of the evidence. Of course, the reviewing court should adhere to the rule of deference to findings, involving credibility of witnesses, made by those before whom the witnesses gave oral testimony."
In Wamhoff v. Wagner Electric Corporation, 354 Mo. 711, 190 S.W.2d 915, 917, 161 A.L.R. 1454, the Supreme Court, in Banc, in discussing this same question, said: "Further, we must consider the evidence, together with all reasonable inferences to be drawn therefrom, in a light most favorable to support the award. Leilich v. Chevrolet Motor Co., supra, [328 Mo. 112, 40 S.W.2d 601]; Hanley v. Carlo Motor Service Co., Mo.App., 130 S.W.2d 187."
We must therefore review the evidence before the Referee and the Commission.
The claimant testified that on the 19th day of February, 1948, he was employed by Morrison and Weaver at Camp Crowder; that on that day, about 3 or 3:30 in the afternoon, he was engaged in dismantling some joists or trusses in one of the buildings in Camp Crowder. That in endeavoring to properly let a piece of timber that he had dislodged fall to the sub-floor, some 15 feet below, and while he was holding to an upright timber with his right arm, his foot slipped from the truss upon which he was standing and he suffered an injury to his back and hip. He did not fall to the sub-floor below, but caught himself with his right arm, and pulled himself back up with his left. He then descended to the sub-floor and continued working for the remainder of the day. He lived in Joplin to which place he returned that evening. His injury caused considerable sleeplessness and pain during the night, but he went back to work at Camp Crowder the next morning. He testified that after he worked a short time, his injury gave him so much pain, he had to quit and that one of the employees took him and two other employees over to Highway 71 and that his wife drove down from Joplin to pick him up and take him home. That day he went to a doctor, (a Dr. Mahoney, who was not a witness) and the next day, he called his foreman at Camp Crowder and reported the injury. He produced medical testimony (Dr. W. W. Hurst) relative to a disability, that in the opinion of the physician could have been caused by an accident, such as he described.
On the other hand, the employers and insurer produced all but two of the several workmen that were on the job with the claimant at the time he claimed he was injured. Glenn Fenix was a foreman at Camp Crowder and had supervision over the employees dismantling the buildings and the claimant was working under him. He testified that he knew or heard nothing about the injury at the time it was said to have happened, that he was there the next morning when claimant quit and went back home and that claimant told him the reason for quitting and leaving the job was because the weather was cold and too cold to work. Nine men were working on the same job with claimant.
Ray Allen and a man by the name of Davis quit for the same reasons and all of them rode to Joplin in the car that claimant's wife had brought to get them. They had worked probably 30 minutes before they decided it was too cold to proceed further. Glenn Fenix heard nothing of the injury until four or five days later.
Harry (Pete) Ames testified that he lived at Joplin, was working at Camp Crowder and was working under Fenix as foreman, that he was there the day that claimant, Davis and Allen quit the job and that claimant gave his reason for quitting, after he had worked probably 30 minutes, that it was just too cold to work. Ames did not hear that there had been an accident or that claimant was injured until several days later. Claimant made no complaint the morning he left. However, sometime previously, he had complained about his back and shoulder hurting him.
Jay Fenix was also working the day that claimant quit his job and was there when he left and saw him leave with Ray Allen and another. He heard no complaint about, nor saw any accident or injury.
Charles Daniels, who lived in Joplin was also working at Camp Crowder, was there the day claimant quit his job but was working in another crew and no complaint was made to him about any accident.
Jack Daniels was employed at Camp Crowder about that time, working on the same job with claimant. He was a brother-in-law of claimant and had heard nothing about any injury while he was working on the job.
Charlie Cummings was also working at Camp Crowder at the time, in the same crew with claimant. He was there when claimant and the others quit their job and heard claimant say it was too cold to work but never did hear him complain of an injury.
Gene Divine was working at Camp Crowder the day that claimant and the others quit because of the cold. He saw them leave and heard claimant say it was too cold to work and that was why he left. Witness testified that it was a terribly cold day. He had never heard claimant make any complaint that he was injured while working on the job.
Employer J. K. Weaver testified that sometime after the alleged injury, at night time, claimant called him on the telephone and told him he had been injured two or three days before. He said the instructions of the Company to their foreman and to their men, were that they immediately report any accident.
Roy Robert Allen testified by deposition. He was working with claimant at the time of the alleged accident and in the same crew with claimant. He never heard anything said about an injury having been sustained but distinctly remembered the day that he, one Davis, and claimant quit working because the weather was too cold. He testified that claimant called his wife at Joplin and she came after them and that they rode from near Camp Crowder to Joplin in claimant's wife's car. That evening after they had arrived in Joplin, he saw claimant loading his dogs in his car. Claimant never did state to Allen that he had had an accident or suffered an injury and Allen never heard of it until a week afterward.
Pete Ames drove Allen, Davis and claimant over to Highway 71 and they stayed in a grocery store until claimant's wife came after them about 10 o'clock. Claimant never did come back to Camp Crowder to work.
Dr. B. E. DeTar, testifying for the employer and insurer, stated that on July 7, 1948, he examined claimant, who was complaining of pain in his back but that he could find nothing to cause his pains complained of. He found some evidence of an old injury to the 10th and 11th dorsal vertebrae. The summarization of his examination was as follows: "There is evidence of a former injury to the low dorsal vertebrae, otherwise, there are no objective findings present that might be the result of injury to account for this man's complaints, the findings being all subjective in character. He does have an unstable low back which, when subjected to undue strain or weight bearing or twisting, might result in complaints of pain; however this would be temporary in character."
It was his opinion that the plaintiff was able to work. He testified: "This man has an unstable low back but there is no displacement of his vertebrae, no decreased width in the intervertebral spaces, and no evidence of any subluxation and no evidence of injury to the bony structure; so, as I said before, I see no evidence, rather can make no objective findings to account for it."
The Doctor testified that as far as his objective findings were concerned, it was his opinion that the claimant was able to do physical work, but if what claimant said about it (subjective symptoms) were true, then he would have distress in lifting.
Reviewing this evidence as a whole, the Referee and the Commission no doubt thought it exceedingly strange that none of claimant's fellow workmen saw or knew anything about an accident. Furthermore, it must have appeared very unusual to them that the claimant did not complain if he had an accident and suffered an injury as contended by him. Although others were working with and near him, no one saw it and no one heard about it for sometime after it is said to have happened. Another thing, while claimant testified he quit the next morning because of his injury, it was certainly extraordinary conduct on his part to fail to mention it to some of his fellow workmen or to his foreman when he had the opportunity. Instead, practically all of them testified that he said he quit the job because it was too cold to work. Two other men left with him for the same reason. A man injured, as claimant says he was, would not likely be loading his dogs into his car the evening of the day he went home because of the injury. Then there is irreconcilable conflict in the medical testimony. While claimant's physician, (Dr. Hurst) testified to an ailment or injury that could have been caused by the accident described by claimant, another physician (Dr. DeTar) testifying for the employer and insurer, claims to have made a thorough investigation, and found nothing particularly wrong with claimant that would prevent him from doing physical labor. We think the evidence preponderated in favor of the employer and insurer and that the award of the Commission was reasonably reached and was supported by competent and substantial evidence upon the whole record.
The judgment of the circuit court, affirming the findings of the Commission, should be affirmed. It is so ordered.
BLAIR and McDOWELL, JJ., concur.