Lindquist v. Container Corp. of America

537 S.W.2d 676, 1976 Mo. App. LEXIS 2017
CourtMissouri Court of Appeals
DecidedMay 25, 1976
DocketNo. 36983
StatusPublished
Cited by10 cases

This text of 537 S.W.2d 676 (Lindquist v. Container Corp. of America) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lindquist v. Container Corp. of America, 537 S.W.2d 676, 1976 Mo. App. LEXIS 2017 (Mo. Ct. App. 1976).

Opinion

STEWART, Judge.

This is an appeal by Container Corporation of America, the employer, and Travelers Insurance Company, the insurer, in a workmen’s compensation proceeding from a [677]*677judgment of the Circuit Court of St. Louis County which affirmed the final award of the Labor and Industrial Relations Commission of Missouri1 (hereafter called Commission) in favor of James Lindquist, the employee. We affirm.

The word “employer” when used in this opinion will refer to both the employer and the insurer.

The principal question presented upon this appeal is whether there was sufficient and competent evidence to warrant a finding by the Commission that the employee suffered an accident by reason of an unusual or abnormal strain. Employer does not question the nature and extent of the injury.

In our review of this case we cannot substitute our judgment for that of the Commission. The evidence and all reasonable inferences to be drawn therefrom is to be reviewed in the light most favorable to the Commission’s award to determine if it is supported by competent and substantial evidence. Davies v. Carter Carburetor, 429 S.W.2d 738 (Mo.1968); Snowbarger v. M. F. A. Central Co-op, 349 S.W.2d 224 (Mo.1961). With these principles in mind we review the facts.

Employee was employed in the shipping and receiving department of employer. At the time he was injured, he was working in a boxcar loading boxes stacked on a skid or pallet which was sitting on a metal plate which bridged the gap between the loading dock and the boxcar. Each box was approximately eighteen inches long by twelve inches wide and eight or nine inches high and weighed about sixty pounds. The boxes were stacked five high, three rows deep. There were approximately forty boxes on the pallet. Because the pallet covered most of the bridge plate, in order to lift the outermost row, it was necessary for him to reach across the two inner rows. There were no handles on these boxes. They were lifted by placing one hand under the box and by placing the other hand on top of the box. The employee was moving the boxes one tier at a time. Up to the time he was injured he had moved alongside the skid with the boxes. At the time he was injured he had finished unloading most of the third tier and was unloading the back row. He was standing at the right hand comer of the skid, he was working rapidly and without thinking reached diagonally across the skid to the far left hand corner. He was “leaning over as far as [he] could bend over.” As he lifted the box he turned or twisted the wrong way and “something went in his back.” The employee variously described his position at the time as “awkward”; “I stretched too much.” He was using “strength and force and muscle.” In the course of the hearing the employee demonstrated to the referee the position that he was in at the time the injury occurred.

It is now settled that “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 com-pensable. An abnormal strain may, therefore, be classified as an accident even though not preceded or accompanied by a slip or fall.” Crow v. Missouri Implement Tractor Co., 307 S.W.2d 401, 405 (Mo. banc 1957); Merriman v. Gutman Truck Service, 392 S.W.2d 292, 297[10] (Mo.1965).

It was part of the employee’s regular duties to lift boxes like those with which he was working at the time he was injured. The usual method of unloading these boxes was for the employee to move along the skid so that he would be directly in front of the box to be unloaded. The Commission was warranted in finding that, on this occasion, he placed himself in an awkward position; that in reaching diagonally across the skid to reach the box he would have had to flex his trunk, keep his knees straight and extend his arms completely; that he lifted hurriedly; and that this constituted an accident by unexpected or unusual strain.

Employer contests the findings of fact upon the ground that the employee’s testimony at the hearing was so contradictory to [678]*678prehearing statements made by employee as to be self-destructive. The primary basis for this contention is a thirty-three page statement in question and answer form obtained from employee by a representative of the Travelers Insurance Company. This statement was taken about three months after the injury at the office of Container Corporation in the presence of its personnel manager.

We have reviewed this statement and find as employee said of it, that “it is basically correct,” and that it is not so contradictory of employee’s testimony as to be self-destructive.

The employer directs us to a portion of the statement which he contends is contradictory to the testimony respecting employee’s position with respect to the box he was lifting.

“Q. Would this have been on the bottom layer or were you at the second layer?
A. I’d say the second layer.
Q. About the second layer. And were they stacked right next to you; were you standing right next to it?
A. I was standing in front of it.”

The questions and answers are not clear and unequivocal. “It” could refer to a box or the skid upon which “they” [the boxes] were stacked. The credibility of the testimony, the inferences to be drawn from it and the weight to be given it upon the whole record was for the referee and the Commission. Shepard v. Robinson, 451 S.W.2d 329, 335[5-6] (Mo.1970). We cannot say that this portion of the statement read in the light most favorable to the finding of the Commission was destructive of employee’s testimony.

Much the same can be said for another portion of a statement singled out by employer. Although employee had not previously been asked about how he bent over to pick up the box, the following occurred near the end of the statement:

“Q. Now, you said you were bent over at the waist or at the knees or how?
A. Well, you know, I was just bent over.
Q. At the knees and at the waist? A. Right.”

The affirmative answers to the leading questions put to employee cannot be said to be so contradictory to his testimony as to be self-destructive. The testimony at the hearing was re-enforced by a demonstration of the manner in which employee bent which undoubtedly led the referee to the conclusion that “the employee in bending over to reach the particular box described above would have had to flex his trunk, keep his knees straight and extend his arms completely, notwithstanding an alleged contrary statement in Employer and Insurer’s Exhibit 1, page 28.”

We have also reviewed the history as taken by the employer’s physicians who examined and treated employee which read as follows:

“Pt. was lifting a large plate & hurt his back. He states he did not slip or fall

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537 S.W.2d 676, 1976 Mo. App. LEXIS 2017, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lindquist-v-container-corp-of-america-moctapp-1976.