518 S.W.2d 692 | Mo. Ct. App. | 1975
In this proceeding under the Missouri Workmen’s Compensation Law, the referee found the contested issues in favor of Victor R. Smith, the employee, and against Robert W. Plaster, the employer,
For some time prior to February 6, 1969, the date of the alleged accident, claimant Smith had been one of several workmen engaged in construction of a residence for Plaster on the Empire Ranch in Laclede County, Missouri. Claimant, then fifty years of age, was working as a mason, the trade he had followed for more than thirty years. During the forenoon of the above-stated date, he began to experience chest pains and shortness of breath and to feel “quite chilly and real sweaty.” When he continued to suffer “a lot of pain” after lying in a nearby garage for some thirty minutes, he was taken to his home in Lebanon and shortly thereafter to a hospital in Springfield, where the examining physician found that claimant had sustained an acute anterior myocardial infarction, medically explained as the death of muscle tissue in the heart due to occlusion or complete blockage of an artery supplying blood to the heart, and commonly known as a heart attack. The primary issue has been and is whether claimant sustained an “accident” within the statutory meaning of that term.
Claimant’s description of the pouring process was detailed and graphic. “[D]irt will not dig up and down straight or perpendicular . . . the edges of it was sloped back away from these rocks and we would have to dump this concrete very slowly, we couldn’t dump a full bucket of concrete, just as you dump it you had to reach over in a strain and dump this concrete slowly as it would go in behind these rocks, you couldn’t go in very fast because we had lost some walls before [where] the laborers had dumped some concrete . ” In further elaboration as to “just how [he] had to stand in order to dump the concrete in behind the wall,” claimant said “I had to lean over . then you could reach out and dump your five-gallon bucket of concrete around the rock, in behind the rock . ” — “just as you are reaching out almost as far as you can reach [you] turn a five-gallon bucket of concrete over edgewise and let it drip very slow.”
As employer’s counsel here emphasize, claimant readily conceded that during his thirty years as a mason he had “been involved in some pretty heavy work,” ofttimes had raised into place stones weighing as much as one hundred pounds, sometimes had lifted buckets of mortar as high as four feet and dumped the contents behind retaining walls, on “many occasions” had stood “in somewhat awkward position,” and “frequently” had worked on ground “a little bit slanted or unlevel.” But, when pressed by employer’s counsel to agree that “you were standing on more or less level ground and pouring [concrete] into a hole
Although claimant frankly declared that “I’m not for sure the exact time [the chest pain] came on as I was working there, because I was under that strain getting this in there,” he thought the pain started about 10 A.M. More importantly, his activity at the onset of his pain and heart attack was established by the question, “where were you when you had the heart attack,” and his answer, “on the job, we was pourin’ concrete behind some masonry wall that we had laid.”
Dr. Carle H. Schroff, the physician who examined claimant at the hospital in Springfield on the date of his heart attack and thereafter cared for him, testified that in his opinion there was a causal connection between the exertion of claimant in carrying and pouring the concrete and the myocardial infarction. And, the employer’s witness, Dr. Phillip Carr, who examined claimant some fifteen months later, expressed the opinion “that the precipitating factor in [claimant’s] infarction was the exertion he was undergoing” at the time.
In affirming the findings and award of the referee, the Industrial Commission specifically found “that carrying the buckets of raw concrete and slowly pouring the concrete in an extended position was an abnormal strain which caused the employee to suffer a myocardial infarction, thereby suffering an accident within the meaning of Section 287.020(2),” and in support of that finding quoted the judicial holding that “‘[i]f claimant suffers an injury resultant from an “abnormal strain” and while he is engaged in doing something different from his normal working procedure, it is an accident under the Act and compensable.’ ” Herbert v. Sharp Brothers Contracting Co., 467 S.W.2d 105, 108 (Mo.App.1971), where an abnormal strain had resulted in an acute myocardial infarction; Closser v. Fleming Company, 387 S.W.2d 194, 198(4) (Mo.App.1965).
In Crow v. Missouri Implement Tractor Co., 307 S.W.2d 401 (Mo. banc 1957), the Supreme Court of Missouri formulated, adopted and promulgated the so-called unusual or abnormal strain doctrine, an “enlarged concept of accident” which, as appropriately observed by the St. Louis Court of Appeals per Commissioner (formerly Professor) Townsend in Miller v. Lever Brothers Co., 400 S.W.2d 625, 629 (Mo.App.1966), “by-passes any specific consideration of the statutory requirement [in § 287.020(2) defining “accident”] that there must be an unexpected or unforeseen event happening suddenly and violently and, in and of itself, equates abnormal strain to an unexpected or unforeseen event.” Subsequent to Crow, the unusual or abnormal strain doctrine has been recognized in numerous Missouri cases, of which ten are cited in instant claimant’s brief
The issue in Snuggs, as capsuled in the first sentence of the opinion, was “whether job-connected fatigue, tension, anxiety, and stress, extended over a 27 hour period, can be considered an abnormal strain constituting an accident under the Workmen’s Compensation Act.” The determination of the Industrial Commission that it “did not constitute ‘an accident within the meaning of the Missouri Workmen’s Compensation law’ ” [501 S.W.2d at 484] was affirmed by the circuit court. The Missouri Court of Appeals, Kansas City District, held to the contrary and, on transfer, the Supreme Court per Seiler, J., with three judges dissenting, concluded [501 S.W.2d at 485] “that the claimant sustained an accident as a matter of law under the statute [§ 287.-020(2) ]” and the cases cited in the opinion, including Crow and Merriman v. Ben Gutman Truck Service, Inc., 392 S.W.2d 292 (Mo.1965).
In the case before us, the referee in the first instance and the Industrial Commission on review found, as hereinbe-fore noted, that “carrying the buckets of raw concrete and slowly pouring the concrete in an extended position was an abnormal strain which caused the employee to suffer a myocardial infarction, thereby suffering an accident within the meaning of Section 287.020(2).” We need not and do not declare that the quoted finding and the resulting award to the employee were compelled as a matter of law. For, although on judicial review of the findings and award of the Industrial Commission in a workmen’s compensation case the circuit court in the first instance, and this court on further appeal, may determine whether, upon the entire record, the commission reasonably could have made the findings and award under consideration, this does not mean that either court is authorized to substitute its own judgment on the evidence for that of the commission, but rather that a reviewing court may set aside such findings and award only if they are clearly contrary to the overwhelming weight of the evidence, when the evidence in its entirety, including all legitimate inferences reasonably deducible therefrom, is viewed in the light most favorable to such findings and award. Bradshaw v. Richardson Trucks, Inc., 467 S.W.2d 945, 947 (Mo. banc 1971); Brown v. Missouri Lumber Transports, Inc., 456 S.W.2d 306, 307 (Mo.1970); Selvey v. Robertson, 468 S.W.2d 212, 213 (Mo.App.1971). It is immaterial what the findings and conclusion of the circuit court or of this court might have been if sitting as the trier of the facts [Cotton v. Voss Truck Lines, Inc., 392 S.W.2d 428, 434 (Mo.App.1965); Slider v. Brown Shoe Co., 308 S.W.2d 306, 310(6) (Mo.App.1957) ], since on judicial review the inquiry is whether, upon the entire record, the commission reasonably could have made the findings and award under consideration, not whether a contrary conclusion would have been permissible. Dickhaut v. Bilyeu Refrigerated Transport Corp., 441 S.W.2d 54, 58 (Mo.1969); Lathrop v. Tobin-Hamilton Shoe
With regard for the foregoing rules of judicial review and recognition of the current controlling concept of accident as enlarged in Crow and inflated in Snuggs, we are constrained to conclude that on judicial review we must honor and affirm the commission’s finding that claimant Smith sustained an accident within the meaning of § 287.020(2).
Additionally, the employer vigorously insists that in any event this proceeding is barred by § 287.420
In the case at bar, the first written notice of injury was the claim for compensation filed on April 11, 1969, the sixty-fourth day after the date of the alleged accident, so the issue concerning notice became one as to whether or not employer Plaster had actual timely notice or knowledge of a potentially compensable injury on or before Saturday, March 8, 1969, the thirtieth day after the accident on February 6, 1969. Although Plaster himself was not on the construction site on February 6, his employee in charge of construction, Or-vel H. “Slim” Story, was on the site that day, saw claimant Smith lying in the garage that morning, and knew that after “he stayed there about an hour or so . someone took him home.” On direct examination by employer’s counsel, Story initially stated “oh, I can’t remember what he [Smith] said .... he didn’t really say too much of anything to me.” After similarly commenting during cross-examination that “I asked him what was the matter and he didn’t say too much,” Story volunteered that “I thought he just got kinda over-het or something and was sick . ”
Employer Plaster testified, in essence, that within two or three days after February 6, 1969, Story had reported to him that Smith had gone home from work sick and had been taken to the hospital and that “it had been diagnosed as a heart attack.” Of course, employer Plaster also was charged with such notice or knowledge as his trusted employee Story, who had been placed in complete charge of construction, may have had concerning a potentially compensable injury suffered by claimant Smith on that construction job. See Jones v. Purity Textiles Corp., 328 S.W.2d 714, 717(3) (Mo.App.1959); Lawson v. Vendo Co., supra, 353 S.W.2d at 119(7). However, Plaster made no investigation and insisted he “had no reason” to do so, because “never in [his] wildest imagination could [he] consider it to be job oriented . . .” even though he recently had suffered a heart attack himself while at work.
Claimant was discharged from the hospital in Springfield on February 27, 1969. During the evening of February 28, claimant Smith’s wife telephoned Story and inquired of him “about compensation.” Pursuant to Story’s direction that she contact employer Plaster, “within the following week” she called his office at “Empire Gas in Lebanon”;
On the evidence adduced before him, the referee made detailed and comprehensive findings of fact and rulings of law, including a specific finding that employer Plaster “had actual notice of employee’s injury.” On review, the Industrial Commission approved and adopted the referee’s findings of fact and conclusions of law in toto, also declared inter alia “[t]here is competent and substantial evidence that the employer had actual notice of the employee’s accident,” and affirmed the award to claimant Smith.
Able counsel for employer Plaster have filed a comprehensive brief in which they recognize that an employer’s actual timely knowledge of “an accident
Considered with appropriate respect for the previously-stated principles applicable upon judicial review of the findings and award in a workmen’s compensation case, we believe the foregoing findings in this case that the employer had actual notice of the employee’s accident and injury must be accepted here. Although neither the referee nor the commission made a specific finding that employer Plaster was not prejudiced by nonreceipt of a timely written notice, the general finding and award in favor of claimant Smith necessarily implied the finding of every fact necessary to support it, including that of no prejudice [Reichert v. Jerry Reece, Inc., supra, 504 S.W.2d at 188(13); Klopstein v. Schroll House Moving Co., 425 S.W.2d 498, 505(10) (Mo.App.1968) ]; and, upon independent examination and careful consideration of the entire record, we are convinced that the employer was in no wise prejudiced by nonreceipt of a written notice.
Being impelled to the conclusion that the award under attack must be sustained on judicial review, it is the order and judgment of this court that the judgment of the circuit court be set aside and for naught held, and that the cause be remanded to the circuit court with directions to enter judgment affirming the final award of the Industrial Commission.
. The employer’s liability under the Compensation Law was not insured, but there is no complaint here concerning the finding of the referee, affirmed by the Industrial Commission and by the circuit court, that the employer and the employee were under the law.
. “The word ‘accident’ as used in this chapter [287] shall, unless a different meaning is clearly indicated by the context, 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.”
. Merriman v. Ben Gutman Truck Service, Inc., 392 S.W.2d 292 (Mo.1965); Davies v. Carter Carburetor, Division ACF Industries, Inc., 429 S.W.2d 738 (Mo.1968); Williams v. Anderson Air Activities, 319 S.W.2d 61 (Mo.App.1958); Brotherton v. International Shoe Co., 360 S.W.2d 108 (Mo.App.1962); Flippin v. First National Bank of Joplin, 372 S.W.2d 273 (Mo.App.1963); Closser v. Fleming Co., 387 S.W.2d 194 (Mo.App.1965); Miller v. Lever Bros. Co., 400 S.W.2d 625 (Mo.App.1966); Sita v. Falstaff Brewing Corp., 425 S.W.2d 487 (Mo.App.1968); Herbert v. Sharp Bros. Contracting Co., 467 S.W.2d 105 (Mo.App.1971); Wilson v. Kansas City, 479 S.W.2d 135 (Mo.App.1972).
. Baker v. Krey Packing Co., 398 S.W.2d 185 (Mo.App.1965); Mason v. F. W. Strecker Transfer Co., 409 S.W.2d 267 (Mo.App.1966).
. Because of the fact that, in holding the employee in the instant case liad not sustained an accident within the statutory definition, the circuit court, relied upon our ease of Flippin v. First National Bank of Joplin, 372 S.W.2d 273 (Mo.App.1963), we note particularly that the last paragraph of the Snuggs opinion “point[ed] out that to the extent that Flippin ... is not consistent with the view here expressed, it should no longer he followed.” 501 S.W.2d at 486.
. “No proceedings for compensation under this chapter shall be maintained unless written notice of the time, place and nature of the injury, and the name and address of the person injured, have been given to the employer as soon as practicable after the happening thereof but not later than thirty days after the accident, unless the division or the commission finds that there was good cause for failure to give the notice, or that the employer was not prejudiced by failure to receive the notice. No defect or inaccuracy in the notice shall invalidate it unless the commission finds that the employer was in fact misled and prejudiced thereby.”
. Plaster identified himself as president of Empire Gas Corporation of Lebanon, Missouri, whose operations in the LP gas business were conducted in a “large number of states” by and through some 200 corporate subsidiaries.