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 whiсh 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,
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 above-captioned 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 remanding 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 thе 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
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.,
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 оf 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 enunciated in Crow v. Missouri Implement Tractor Company, Mo.Sup.,
“where an employee’s injury is the result of an unusual or abnormal strain arising out of and in the course of his employment, the injury is compensable. An abnormal strain may, therefore, be classified as an accident even though not preceded or accompanied by a slip or a fall.”
Earlier cases holding to the contrary were specifically overruled.
The Crow case was followed by Williams v. Anderson Air Activities, Mo.App.,
“Our interpretation of the Crow case, when it is placed alongside the Blair case (State ex rel. United Transports, Inc. v. Blair, (en banc),352 Mo. 1091 ,180 S.W.2d 737 ) is that where an employee suffers an unexpеcted and abnormal strain (at least while he is engaged in doing something beyond and different from his normal routine) and, as a result thereof, sustains an injury which is not the result of orderly natural causes, the injury is an accident within the meaning of sec. 287.020(2). The abnormal strain is the event and the injury is the result. The unexpectedness lies in the fact that force produces more strain than the employee has contemplated. This is true even though the force which caused the abnormal strain comes entirely from the physical exertion rather than from sources external to the body.” (Italics ours.)
In Brotherton v. International Shoe Company, Mo.App.,
“We now conclude that the unexpected and abnormal strain is the important event. This will usually result from the doing of the work in an ‘abnormal manner’ or in doing work which is not routine, but it is not necessarily so.”
The factual aspects of the instant case are strikingly paralleled in Merriman v. Ben Gutman Truck Service Inc., Mo.Sup.,
Defendant city’s attack upon the sufficiency of claimant’s evidence to establish that the occurrence therein described was not an accident is thus summarized in his sole point thereto directed: “Respondent did not prove that the alleged strain was abnormal and that it occurred when his working procedure had deviated from the usual routine.”
We recognize that claimant had the incumbent burden to establish that he sustained an unexpected and abnormal strain as a result of physical effort exerted in excess of that normally required in the performance of his routine duties. However, in resolving whether that burden was satisfied, it is not important that claimant may be said to have been engaged generally in his routine occupational duties incident to the planting of trees at the time in question, аnd in that sense was not engaged in an abnormal activity. We are in agreement with the Springfield Court of Appeals when it states in Brotherton v. International Shoe Company,
The acutely critical question is whether the strain (meaning the application of effort or force) which injured claimant was in excess of that which he anticipated he would exert. Such is our view of the essential criterion of whether an abnormal strain resulted, under the doctrine promulgated by Crow. See Williams v. Anderson Air Activities, Inc., supra, Merriman v. Ben Gutman, supra. In determining that question, proof that claimаnt was “doing something beyond and different from his normal routine” in the application of his strength would be strongly persuasive that the resulting strain was unexpected in that it was more than he intended and consequently abnormal. That proof is readily extracted from the record of claimant’s testimony by comparing his routine duties with his activity and effort exerted at the time of the specific incident described. This, because “any theory оf abnormal strain necessarily involves a consideration of the degree of physical exertion.” Withers v. Midwest Footwear, Inc., Mo.App.,
It is apparent from claimant’s evidence that his normal role in the tree planting operation did not involve lifting the total, dead weight of the tree(s). The apparen-cy derives from the very fact that machinery and power were furnished for that purpose (certainly a well-conceived method for bearing weights up to 300 pounds). Claimant’s only assigned duty (other than removing the burlap from the tree ball) was to “line the trees up”, a function performed by standing on the ground next to the hole, waiting for the cable-suspended tree “to swing around the side of the truck so I could get ahold of it (or the cable) and guide it to the hole in the ground.”
Claimant’s abnormal activity beyond and different from his normal routine arose by reason of the boom operator’s error in lowering the tree onto the ground surface instead of in the hole (despite claimant’s efforts to guide it into the hole by jerking on the cable as it descended). Whether or not the boom operator should have retracted the tree and repeated the process correctly is not before us. Claimant assumed the burden the machine had abandoned and became the power source to dislodge and lower a two hundred fifty-three hundred pound tree by body strength alone. That kind of effort certainly entails “doing something beyond and different from his normal routine” and constitutes an abnormal activity, as contrasted with his usual, normal routine guidance of the tree by merely pulling on the cable that supported it as it was lowered into the hole by motive power.
Was the strain thus exerted abnormal and unexpected? The nature and manner of claimant’s exertions after the tree hung up bear great weight on that question, and favor an affirmative answer. A highly persuasive factor in the determination is the disadvantageous physical posture of claimant when he gave the final jerk to move the tree. As in the case of the claimant in Merriman v. Ben Gutman Truck Service, Inc., supra, claimant here was in “an extended position with his body which placed him completely out оf a normal, usual or routine lifting position” — at least with respect to the massive weight here concerned. Standing on one side of the hole, he had to reach across its width (assumably to a distance of at least two and one-half to three feet) in order to pull or “jerk” the tree. Thus positioned with his feet and legs behind his lifting center instead of resting under it as a fulcrum or supporting base, his pull or jerk of the tree was necessarily with his shoulders, arms and back. Unwilling to disregard well-known physical facts, we believe it to be within common knowledge that moving heavy weight while in the described posi
The claimant described his effort to move the tree from off the ground into the hole as “a great big jerk” which failed to move the tree because “it caught on the side”, and “hung up on the dirt”. He gave it a “pretty hard jerk”. When he “jerked on the cable” he felt a “sharp, stabbing pain” in his lower back. Claimant’s written statement voluntarily introduced in evidence by the city, furnishes additional substantial evidence, of especial probative value, that his strain was both abnormal and unexpected. We refer to the previously quoted excerpt wherein claimant said, “This tree was heavier than I thought and as I jerked it toward me and the hole, evidently I overstrained myself.” In the first place, that evidence establishes the degree of stress and effort exerted by claimant. The word “overstrain” is one of common meaning. As a verb, its definition by Webster’s New International Dictionary 2nd Edition (Merriam) is “strain to excess”. The 3rd Edition of the same lexicon dеfines “overstrain” as “To subject to excessive strain; to load until the stress exceeds the elastic limit — to subject oneself to excessive strain.” Certainly, the word bears no connotation of “normal”, “usual” or “routine”. Secondly, claimant’s assertion that “the tree was heavier than I thought”, understood in context with his statement that he “overstrained himself” establishes that he exerted more strength than he had anticipated was nеcessary.
From all the evidence we have reviewed touching the question, it must be concluded, as stated in Merriman v. Ben Gutman Truck Service, Inc., supra, “The strain was thus abnormal; was unexpected in that it was more strain than claimant anticipated he would exert, and hence was an accident.” Therefore, the Commission erred in its conclusion of law to the contrary.
It appears from the text of the Commission’s order that its conclusion of law was based upon only one cited authority, the decision of this court in Closser v. Fleming Company, Mo.App.,
In the Flippin case, an employee’s death from a heart attack after shoveling snow from an extensive sidewalk area was held not accidental. The court held there was no basis for concluding that the employee was subjected to any unusual or abnormal strain, since there was no evidence of any sort to show the manner of claimant’s work on the occasion preceding his death.
The judgment of the circuit court reversing and remanding the cause for further proceedings is hereby affirmed.