It could be said this case poses the question, “Just how many beers can a man handle?”
The employee, Michael Sita, a beer truck driver, got a $5,555 workmen’s compensation award for permanent baсk injuries brought on by an abnormal strain while lifting five cases of beer up to a three-foot platform. The Industrial Commission and the Circuit Court upheld the award. The employer, Falstaff Brewing Corporation, and its insurer, Hartfоrd Accident and Indemnity Company, appeal, contending there was no “accident” — and even if so, no causal connection with the disability. Bearing in mind our respective roles —that the Commission determinеs the credibility of witnesses and the weight of evidence, and we determine only questions of. law — we state the evidence consistent with the award.
Mr. Sita, 59, had worked ten years for Falstaff delivering beer to its retail сustomers. He usually moved beer from the beer truck by loading five 40-lb. cases onto a two-wheeled, 70-lb. hand truck and wheeling it to the customer’s stockroom. This time he had an order to deliver fifteen cases to a tavern in St. Louis County. On the street side of the tavern there was a parking area and a platform, or dock, atop a retaining wall. Thus, the floor level of the tavern was about three feet higher than the рarking area. Mr. Sita tried to park his truck alongside the dock so he could move the beer cases directly from his beer truck to the top of the dock. That was how he had delivered beer to the tavern before. But on this day three parked cars were in his way. He found an open space between the cars where a foot-high stone block, or step, rested on the ground against the dock. Mr. Sita picked this as his route of delivery. He took five cases off the beer truck, stacked them on the hand truck, and then wheeled it over against the dock and stepped up on top of the dock. He bent ovеr from the waist, grabbed the handles of the hand truck, and with his legs straight and stiff pulled up and back toward himself. He got the loaded hand truck up onto the stone block and set himself for the next pull, at least two feet up from the stone step to the dock. He tried but “just didn’t make it.” Asked why, Mr. Sita said: “Just strained too much. I didn’t make it. I set it back, then tried it again. That was it. That was the end of the day for me.” He explained: “I couldn’t do any more. Pain hit me in the back and that was it.” As to this being an unusual incident, Mr. Sita said he had often pulled a loaded hand truck up over ordinary steps, say eight or ten inches high, but never before did he have to bend over so low or pull it straight up as high as this time.
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Falstaff and Hartford first contend this evidence does not show a com-pensable accident. They base this argument on “contradicting and conflicting” parts of Mr. Sita’s testimony. We will deal with that later. We must consider the evidence in a light consistent with the award. (Cross v. Crabtree, Mo.App.,
In opposition to this finding, Falstaff and Hartford cite Hall v. Mid-Continent Mfg. Co., Mo.App.,
The main thrust of appellants’ argument is that since the claimant’s testimony was contradictory and conflicting, it was self-destructive; hence, there was no substantial evidence left to support a finding of abnormal strain. Appellants rely on the general rule that a fact cannot be proved by the contradictory testimony of a witness, They would broaden this rule to embrace every рart of a witness’s testimony when he contradicts himself on any fact. That is not the law. Appellants quote from Foerstel v. St. Louis Public Service Co., Mo.App.,
Their charge оf contradictions by Mr. Sita concerns the heights of the step and the dock, and also whether he was hurt on the first or last of three trips up the dock on the day of his injury. About the dock, Mr. Sita first estimated it was at least fоrty inches high. On cross-examination he said he was “guessing” about the height, that the first step might have been only twelve inches or less and that from the step up to the dock might also have been twelve inches. He also admitted that in a previous tape-recorded statement he had described the first step as “ordinary high.” Mr. Sita explained he had never measured these heights and had not seen them for almost *490 two years after his injury. He was certain, however, that he had never before tried to lift a loaded hand truck as high as he did this time. Further, when cross-examined about how many loads of beer he delivered to the tavern on the day he was hurt, Mr. Sita first said there were three 5-case loads and he was injured while moving the third load. Later he recalled it was the first load. Still later he said he was confused and did not remember which load it was.
We cоnclude that this contradictory testimony did not destroy an essential element of claimant’s case. The issue was whether he suffered an abnormal strain. Regardless of the precise heights of the step and thе dock, each was higher than the usual objects over which Mr. Sita usually lifted his loaded hand truck — and this lift required more-than-usual physical exertion, applied from an abnormal, bent-over position. This is also true of appellants’ argument about whether Mr. Sita was injured on the first or third trip. This does not affect the essential element of the occurrence being unusual. There was substantial evidence that in ten years at this work Mr. Sita had never before performed such strenuous lifting.
These contradictions in Mr. Sita’s testimony could affect his credibility. That, however, is considered only by the Industrial Commission, not by this court. Merriman v. Ben Gutman Truck Service, Inc., supra, at
We conclude, thеrefore, that there was substantial evidence to support the Industrial Commission’s finding that the claimant “sustained an unexpected and unusual strain constituting an accident.”
For their last point appellants cоntend there was no evidence to link Mr. Sita’s accident with his disability, that the evidence merely showed his disability could have resulted either from the accident or from natural causes. Appellants rely on Welker v. MFA Central Co-op., Mo.App.,
Appellants base their argument on two answers given by claimant’s physician concerning causation. On direct examination Dr. William A. Stephens said Mr. Sitа’s injury could have caused his disability. On cross-examination he also said such disability could occur without an accident. But appellants overlook two important factors. First, the evidence was that Mr. Sita’s аccident did produce his disability. This, because Dr. Stephens testified that the disability “resulted” from the accident.
Further, Mr. Sita had testified that as he tried to lift the load from the step up to the dock he had sudden pain — likе an electric shock — just below his belt line. He made no more deliveries that day. The next morning his pain was so severe he could not get out of bed. After a few weeks of continuous, conservative mediсal treatment he was hospitalized for diagnosis, including a myelogram; still later he returned for a laminectomy, to remove a vertebral spur impinging on a spinal nerve. He is still unable to work. The sudden onset of this pain and disability, and its continuous persistence, was substantial evidence of causation even without expert medical opinion of causation. And that is the second factor appellants havе overlooked. Smith v.
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American Car & Foundry Div., etc., supra, at 368 S.W.2d loc. cit. 521; Bertram v. Wunning, Mo.App.,
Since the award to claimant was supported by substantial competent evidence, the judgment of the Circuit Court is affirmed.
PER CURIAM.
The foregoing opinion of CLEMENS, G, is adopted as the opinion of this court. Accordingly, judgment is affirmed.