CLEVENGER v. STANDARD STEEL WORKS

SPERRY, Commissioner.

This is an appeal by employer and insurer from a circuit court judgment affirming an award of the Industrial Commission in favor of Claud G. Clevenger, claimant, in the amount of $20 per week for a period of 60 weeks, for a 15% permanent partial disability.

The claim was originally heard, and determined adversely to claimant, by a referee but, on appeal to the whole Commission, that body found for claimant and entered the above award.

Claimant testified to the effect that, while employed by Standard Steel Works as a material handler, he and another man carried a steel pipe 4 inches in diameter and 21 feet in length, on their shoulders, claimant carrying the front end and Watkins, a fellow employee, carrying the rear end, a distance of about 300 feet; that they carried the pipe into a building, the floor of which was littered with pieces of steel and other debris; that after entering the building they shifted the pipe over their heads to their left shoulders; that about the time the shift was being made the pipe came down hard on claimant's shoulder; that he experienced a severe pain in his shoulder, left chest, and heart; that he became very ill and urged Watkins to hurry and set it down; that he then told Watkins that a pain hit him, that it strained him and that he was sick; that he went outside and sat down for a time, then racked angle iron for a time and, later, went to the company first aid station, from which place he was sent home; that the next day he was treated by Dr. Grace for a heart condition; and that his physical condition from that time until the date of the hearing has been bad. He stated that such pipe as was being carried at that time was heavier than any he had previously carried and was ordinarily handled by a mechanical hoister.

Watkins testified that the floor of the building into which the pipe was carried was littered with pieces of steel and other debris; that after they had carried the pipe into the building and at the time they were shifting it to their left shoulders he became off balance; that they were walking and shifting and that was when he got "off balance," that he moved his end of the pipe. That claimant said "Hurry and set it down"; that they set it down and started out of the building and claimant said: "I am sick"; that a pain had hit him, and that it strained him.

Dr. Grace testified to the effect that the treated claimant the next day. He stated that, from examination and treatment, he believed claimant's heart condition was due to the accident. He admitted that on May 23, 1947, he filled out a physician's report for claimant in connection with his claim for insurance under a group health and accident policy and that he did not mention any accident therein; that under "Objective symptoms," he reported "none"; that under "Subjective symptoms" he reported "fast heart and weakness"; that his diagnosis was "heart trouble"; and that he reported that disability should end within 4 weeks of date of onslaught. On August 6, 1947, he filled out "Physician's supplemental report" and stated therein that claimant's then disability was "coronary heart trouble. (Disease)"; and that claimant should be "able to return to work in about 1 month, 1947." Both of said reports were placed in evidence. Dr. Grace stated that there was no particular reason to report claimant's condition as due to an accident, that it could have been from disease or from a blow or strain; that he thought it was from a blow on the shoulder and in the heart area.

It was shown that claimant sent employer a post card, dated May 17, stating that he would be off from work because of illness. Claimant executed a form of claim for benefits under the health and accident insurance policy, above referred to, under date of May 23, 1947, and claimed benefits under the health provision of the policy. He did not mention any accident, and gave "heart disease" as the cause of disability. Under that section of the form denominated: "To be answered if you were injured" he placed "X" marks following each question. He testified to the effect that he would not have been entitled to benefits under the policy for disability caused by accident.

It was shown that claimant's deposition was taken, prior to the hearing, and parts of it were read in evidence. It appears therefrom that he repeatedly stated that nothing unusual occurred at the time of his seizure; that there was no unusual slipping, twisting, or jolting; that he received no blow; and that he did not report to any agent of his employer that he had suffered an accidental injury. However, before signing the deposition, he changed those answers, making such answers harmonize with his testimony at the hearing. He explained the variance in his testimony, as it appeared in his deposition, and as given at the trial, by saying that he had a headache, was nervous, and had taken heart medicine, which made him drowsy.

Insurer and employer offered the testimony of a fellow worker of claimant who stated that claimant told him, prior to April 30, that he had heart trouble, and that he was surprised that the company doctor passed him for employment. The witness stated that he had seen claimant turn blue while working and be compelled to rest because of his physical condition. Claimant contradicted this testimony and offered evidence tending to prove that he was physically strong and healthy prior to April 30, and did heavy work of all kinds; that he had been unable to perform heavy labor since that time.

No question is raised here regarding the extent of claimant's disability, the only question being as to whether it is the result of an accident such as claimant says occurred.

In cases of this kind a reviewing court is authorized to decide whether the Commission could have reasonably made its findings and reached its result, upon consideration of all of the evidence before it. An award can only be set aside by court decision when it is clearly contrary to the overwhelming weight of the evidence. Wood v. Wagner Electric Corporation, 355 Mo. 670, 197 S.W.2d 647, 649. The court cannot substitute its own judgment for that of the Commission. Seabaugh's Dependents v. Garver Lumber Mfg. Co., 355 Mo. 1153, 200 S.W.2d 55, 62.

There was substantial evidence from which the Commission could have found that an accident occurred. When Watkins became out of balance while carrying his end of the heavy iron pipe, and while they were shifting it, he stated that he moved his end of the pipe. It was at this time, according to Watkins' testimony, that claimant said: "Hurry and set it down"; and they immediately set it down. Thereupon claimant said that he was sick, that a pain hit him, and that it strained him. According to Watkins there is no doubt but that he was very ill.

Claimant stated that while they were carrying the pipe and shifting it, it came down hard on his left shoulder and he experienced a severe pain in his left shoulder, side, and heart.

Dr. Grace testified to the effect that, from his experience as a doctor, and from his examination and treatment of claimant, he believed claimant's heart condition was induced by the accident, and was not merely the result of disease.

Furthermore, there was much evidence tending to prove that claimant had performed manual labor for many years prior to April 30 and that he was then, and had been, unfit to perform such labor since that date.

If the evidence on behalf of claimant, taken at the hearing, be accepted as true, then the Commission could reasonably have found that claimant's disability grew out of an accidental injury received in the course of his employment. Kendrick v. Sheffield Steel Corporation, Mo.App., 166 S.W.2d 590, 593.

However, insurer and employer contend that because of claimant's testimony, given in his deposition, wherein he stated that nothing unusual occurred and that he experienced no blow, slipping, or twisting, prior to his seizure, is so entirely contradictory of his testimony given at the hearing and which tends to support his claim of accidental injury, as to leave the record without substantial evidence in support of the award. We cannot so hold, as a matter of law, because claimant offered an explanation of the reason for his testimony in the deposition being at variance with that given at the hearing; and he did not state, at the hearing, that his testimony given in the deposition was true. It was for the Commission to determine, under all of the circumstances, what effect it would give to the evidence. Fitzgerald v. Thompson, 238 Mo.App. 546, 184 S.W.2d 198, 202; Holmes v. Egy, Mo.App., 202 S.W.2d 87, 91.

It is also urged that the specific facts found by the Commission, as to the manner the injury occurred, do not support the conclusion that claimant was injured by accident arising out of and in the course of his employment.

The Commission made the following specific finding: "Work employee was doing and how accident happened: While carrying a hollow iron pipe which had always been previously handled by mechanical cranes, the weight of said pipe suddenly caused employee to give way beneath such weight causing violent and unexpected shock to his heart and body."

It is said that this finding is similar to to that made by the Commission in Kendrick v. Sheffield Steel Corporation, supra, which was held to be not sufficient to support the Commission's final conclusion that the disability was caused by accident, as that term is defined in Section 3695(b), R.S. Mo. 1939, Mo.R.S.A.

In the Kendrick case, claimant had consistently testified to the effect that he wrenched his back after a piece of channel iron had become jammed and while he was attempting to dislodge and pull it down off of the rack with a hook. These facts, if true, left no room for a finding that the accident occurred as a direct result of the lodgment of the channel iron while he was pulling at it, but established that his back was wrenched after its lodgment. The court held that his injury occurred as a consequence of intentional lifting or pulling, done in a normal and natural manner and in accordance with preconceived design.

There was no evidence in that case, other than the answers of claimant to three questions prepounded to him by counsel, that tended to support any other theory of injury. Those questions were: "Did the other end slip? A. The other end slipped. Q. And threw the weight of the bar on you? A. On me. Q. At the time when you were injured was that when you were stooping over, as Mr. Friedwald said, or when you had a hold on it? A. When I had hold of the piece of steel."

The court held that that isolated bit of testimony, if true, established a situation that would support a finding that the injury was the result of an accident. However, it held that it was the only testimony of the case which tended to support such a finding, that it was at complete variance with all of claimant's other testimony, and that the Commission had, by its above-quoted finding as to how the accident occurred, rejected said testimony as untrue and had accepted as true his other testimony, which established that no accident occurred.

The facts in the case at bar are different from those in the Kendrick case. In that case the court indicated that Kendrick may not have intended his answers to the questions above set forth to establish a different situation from that previously shown to exist by his testimony throughout the entire record; and it held that the Commission necessarily must have disbelieved such testimony in order to make the finding of fact that it made. In the case at bar we cannot say that the finding made by the Commission is completely at variance with and contradictory of plaintiff's evidence, given by himself and Watkins, as to how and when the accident occurred. The force and effect of that testimony was enhanced by the testimony of Dr. Grace, and by other circumstances in the case. In view of all of the evidence, the Commission could have found the ultimate fact that it did find, to-wit: That an accident occurred in the course of claimant's employment, and that claimant's disability grew out of injuries received thereby. Section 3764, R.S.Mo. 1939, Mo.R.S.A.; Murphy v. Wells-Lamont-Smith Corporation, Mo.App., 155 S.W.2d 284, 287.

The judgment should be affirmed.

BOUR, C., concurs.