Opinion
No. 7051.
May 5, 1952.
APPEAL FROM THE CIRCUIT COURT, SCOTT COUNTY, R. B. OLIVER, III, J.
Robert A. Dempster, Sikeston, for appellant.
Harry C. Blanton, David E. Blanton, Sikeston, for respondent.
This is an appeal by Robert Rogers, an employee of the Sikeston Compress and Warehouse Company, from a judgment of the Circuit Court of Scott County, affirming an award of the Workmen's Compensation Commission, denying compensation.
Appellant, Robert Rogers, filed a claim March 23, 1950, against Sikeston Compress and Warehouse Company, self-insurer, for personal injury to his right ear, right side of his face and right arm paralyzed, which, he claimed, was the result of an accident occurring to him while working in the course of his employment, caused by dust and dirty cotton lodging in his right ear, causing infection. The accident was alleged to have occurred February 14, 1950.
The answer denied there was an accident or an injury within the meaning, terms and conditions of the Workmen's Compensation Act of Missouri, section 287.010 et seq. RSMo 1949, V.A.M.S.
A hearing was had before William L. Ragland, Referee, July 13, 1950, who made an award in favor of claimant, finding employee had a ten per cent permanent partial disability and allowing 40 weeks compensation at $23.06 per week, plus $102 medical aid.
An application for review, before the whole Commission, was filed and the following judgment rendered:
"The above styled case is submitted to the Industrial Commission of Missouri for review of an award of a Referee of the Division of Workmen's Compensation. The Commission, having reviewed the evidence and considered the whole record, finds in favor of the employer and insurer and against the above named employee and awards no compensation on the above captioned claim.
"We find from all the evidence that employee herein failed to prove that his condition complained of is the result of an accidental injury arising out of and in the course of his employment within the meaning of the Workmen's Compensation Law, as alleged. Compensation, therefore, must be and the same is hereby den ies.
"Reversing on review award dated August 15th, 1950."
The evidence shows that claimant was 54 years old; that he was an employee of respondent at the time of the alleged accident and had been for many years, since 1939. His work consisted of handling baled cotton, loading the same on hand truck or trailer in respondent's warehouse. He loaded this cotton by means of iron hooks, by pulling it over on to the truck. Appellant gave this testimony:
"Q. On the Staurday before the Tuesday that you quit did you do the work in the usual manner? I mean did you do the same work you customarily did? A. Yes, sir.
"Q. You didn't have any ill effects? A. No.
"Q. You didn't get hurt on the Saturday before, did you? A. No sir.
"Q. You just worked in the usual manner? A. Yes.
"Q. Did anything unexpected happen that you didn't have happen before, on the Saturday before the Trusday that you left down there? A. This Saturday there was nothing happened.
"Q. On the Monday following, before the Tuesday that you quit, did you work in the usual method, in the ordinary line of work, use the same amount of strength? A. The same strength.
"Q. Yes, you performed your usual work? A. Yes.
"Q. Nothing out of the ordinary happened on Monday you just worked as usual, is that correct? A. Yes, the same work we had been doing before I taken sick.
"Q. You were doing the same work on Tuesday that you had been before? A. Yes.
"Q. But I mean in the period of a days time you would not put any more effort on one day than another? A. Long as I was able.
"Q. Now the place where you were working that was in the storage shed was it? A. Yes."
The witness testified that the pain started on Sunday, while at his home, and continued until Tuesday, ten minutes until two o'clock, when he quit. He gave this testimony:
"Q. You just said you were sick and wanted to go home? A. That's right.
"Q. Now, before your sickness, that you have testified about, you had worked for the Sikeston Compress Company for how long? A. I don't know just exactly how long. Twenty — twenty-five years."
The evidence is undisputed that there was nothing unusual happened during the employment of appellant; that he worked in the warehouse and there were no fans or anything that caused the conditions to be dangerous or that caused the dust and cotton to fly and that there had never been anything happen to the other workmen who worked with him. While at home on Sunday, before the Tuesday, the day on which appellant quit work, he took a severe headache, which continued until appellant quit work, about 2:00 o'clock, Tuesday.
Dr. John R. Sample, M. D., treated appellant. His diagnosis was given in this answer:
"A. He has, definitely, otitis media. (2) He has impairment of hearing due to the involvement of the middle ear. (3) Impairment of equilibrium, due to the involvement of the vestibular apparatus of the inner ear. (4) General weakness, muscle weakness, involving the entire right side."
The doctor testified that he removed a quantity of debris and raw cotton from appellant's ear, which he evidently had gotten in his work for respondent and, it was his opinion, that that caused the injury.
Dr. Garland A. Reynolds, a specialist in eye, ear, nose and throat, testified that he examined appellant and found he had a minimal facial paralysis on the right side, some hearing difficulty; that his ear drums were normal; that there was no evidence of infection and his equilibrium perfect; that his diagnosis was Bell's Palsy; that the bones of the mastoid were normal. He testified, in his opinion, that the condition of appellant was not caused by the infection of the ear as described by Dr. Sample. He gave this prognosis as follows:
"A. As far as his Bell's Palsy, it is excellent. In other works he should get well, and in fact he is getting well."
Dr. Wilson J. Ferguson, M.D., stated he examined appellant February 28, 1950. In substance, he stated he found nothing wrong with appellant except bad teeth; that his examination of the ear, nose and throat was negative. He diagnosed appellant's trouble as Bell's Palsy due to "hypertensivie cardiovascular distrubance." He stated there was no ear infection and that it was his opinion that the ear infection, described by Dr. Sample, was not the cause of Bell's Palsy.
Respondent's testimony was to the effect that when appellant returned to work for respondent, some time in 1943, he had to do light work and there were periods of time when he could not work.
Elmo McCurry, testifying for respondent as to where appellant worked, said:
"Q. Is that a warehouse? A. Yes.
"Q. What did you have in it? A. Cotton.
"Q. Is it baled? A. Yes, sir.
"Q. Where he was employed was there any loose cotton flying around there, or lin? A. No.
"Q. Was there any loose bagging flying around in the air? A. No.
"Q. During the weeks preceding this weeks work did he perform his duties in the same way, the same effort in pulling the bales over? A. As far as I could tell.
"Q. Did he at any time ever complain to you he had been hurt or had an accident around there? A. No."
This witness stated there might be a little loose cotton around the warehouse, sometimes, but they had to keep it pretty well picked up because of insurance and then he gave this testimony:
"Q. They don't have any blow fans that would keep the bagging or debris floating around? A. No."
We think the evidence is undisputed that appellant had been working for respondent company, loading cotton out from the warehouse, which was baled, by pulling the bales over on a low truck. This truck was later pulled into the compress room by a tractor. Appellant did not go into the compress room. There were no fans or suction or drafts which would cause the dirt, debris or cotton to strike appellant or the other employees. We think, of course, that in the pulling of the bales of cotton over, appellant would possibly get cotton on his clothing and there probably would be some pieces of cotton fall from the bales on the floor, otherwise there was nothing to indicate any dangerous condition of the work in any manner.
The duty of the appellate court, in reviewing award of the Industrial Commission, is clearly set forth in Diebold v. Great Atlantic Pacific Tea Co., Mo.App., 241 S.W.2d 31, 33. Judge Broaddus, speaking for the court, states:
"The law is now well settled that the reviewing court may not substitute its own judgment on the evidence for that of the Commission; but the 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; and to set aside decisions only when they are clearly contrary to the overwhelming weight of the evidence. Wood v. Wagner Electric Corp., 355 Mo. 670, 197 S.W.2d 647; Seabaugh's Dependents v. Garver Lumber Mfg. Co., 355 Mo. 1153, 200 S.W.2d 55."
In Donzelot v. Park Drug Co., Mo. App., 239 S.W.2d 526, 528, the court stated the law:
"This finding of fact cannot be disturbed unless we are convinced, after considering the whole record, that the Commission could not reasonably have made such finding. We may not set aside a finding of the Commission unless it is clearly contrary to the overwhelming weight of the evidence. * * *"
The same law was declared in Kerby v. Missouri State Highway Commission, Mo. App., 238 S.W.2d 464, 469, and in numerous cases cited therein.
It is the contention of appellant that the Commission erred in finding under all of the evidence that an accident did not occur within the meaning of the Workmen's Compensation Law.
The finding of the Commission was that the evidence failed to prove that the condition of appellant, as complained of, was the result of an accidental injury arising out of and in the course of his employment within the meaning of the Workmen's Compensation Law as alleged.
Under the evidence in this case the Commission might reasonably have found that appellant's condition was not caused by the debris and cotton found by Dr. John R. Sample in appellant's ear. The medical evidence on the part of respondent is to the effect that appellant's trouble was Bell's Palsy and that it was not caused by the condition of appellant's ear as described by Dr. Sample. Dr. Sample gave it as his opinion that, undoubtedly, the injury was caused by this raw cotton, etc., found in appellant's ear, which must have lodged there while at work for respondent. On this point there is clearly conflicting testimony and, under the law, this court cannot say that the Commission could not reasonably have found, as it did, that appellant's condition was not the result of accidental injury arising out of and in the course of his employment within the meaning of the Workmen's Compensation Law.
We cannot agree with appellant that the Commission could not reasonably have found from the evidence that appellant was not injured as the result of an accident arising out of and in the course of his employment.
There can be no question in our minds that the evidence in this case shows that there was nothing happened in appellant's employment which was abnormal nor was there any unforeseen condition arising more or less suddenly which could be pointed out as a definite and positive factor causing appellant's injury.
In Joyce v. Luse-Stevenson Co., 346 Mo. 58, 139 S.W.2d 918, the question before the court was, was there an accident within the meaning of the term as used in the Compensation Act? On page 920 of 139 S.W.2d of the opinion, the court states the law thus:
"Many cases are to be found in which pneumonia was caused by a sudden traumatic injury to an employee clearly constituting an accident. * * But where, as here, the disease resulted from exposure in the ordinary course of the employee's work, the weight of authority is to the effect that the disease is not compensable. * * *"
In Tindall v. Marshall's U.S. Auto Supply Co., 348 Mo. 1189, 159 S.W.2d 302, cited by appellant, Judge Clark, speaking for the court, upon the question of whether plaintiff's injuries were due to an accident, or a series of accidents, or an occupational disease, made the following statement of law on page 305 of 159 S.W.2d.
"It is sometimes difficult to determine whether an injury is the result of an `accident' within the meaning of our Compensation Act which defines the term `accident' 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 term "injury" and "personal injuries" shall mean only violence to the physical structure of the body and such disease or infection as naturally results therefrom. The said terms shall in no case except as hereinafter provided be construed to include occupational disease in any form, nor shall they be construed to include any contagious or infectious disease contracted during the course of the employment.' * * *
* * * * * *
"In Leilich v. Chevrolet Motor Co., 328 Mo. 112, 40 S.W.2d 601, we held that carbon monoxide poisoning, suffered while changing an automobile tire in a closed garage with the motor running, was an `accident' under the Missouri Workmen's Compensation Act.
* * * * * *
"Plaintiff seems to strongly rely on the case of Joyce v. Luse-Stevenson Co., 346 Mo. 58, 139 S.W.2d 918, 920, in which we held that pneumonia, contracted from working in a damp sub-basement, did not constitute an `accident' under our Compensation Act, because it resulted from exposure in the ordinary course of the employment. We further said that many cases are to be found in which pneumonia was caused by a sudden traumatic injury clearly constituting an accident.
"We think the Joyce case was correctly ruled on its facts, but furnishes no support to plaintiff's theory in the present case. In the Joyce case we said: "The courts of this state have also held that injuries or death caused by excessive heat or excessive cold to which a workman is exposed because of his employment to a greater degree than are the other members of the community are compensable under the Compensation Law. (Citing cases.) On the other hand, in all of these cases there is present some abnormal and unforeseen condition in the employment arising more or less suddenly which can be pointed out as a definite positive factor of the compensated injury or death.' Cases cited by us in that case indicate that if Joyce had contracted disease by being suddenly drenched with cold water we would have held the injury to be the result of a compensable accident. * * *"
The injury in the case at bar, if caused by work in the scope of appellant's employment, was caused by exposure in the ordinary course of employment. There was no impact or anything upon the person of the appellant and the circumstances in which he was employed were the usual circumstances and surroundings and the conditions were the same for him as the other employees and the same as they had been during the course of his employment for many years. There were no abnormal and unforeseen conditions in the employment arising more or less suddenly which can be pointed out as a definite positive factor of the injury. Thus the cases cited by appellant, to-wit: Rinehart v. F. M. Stamper Co., 227 Mo.App. 653, 55 S.W.2d 729; Downey v. Kansas City Gas Co., 338 Mo. 803, 92 S.W.2d 580; Vogt v. Ford Motor Co., Mo.App., 138 S.W.2d 684; Tindall v. Marshall's U.S. Auto Supply Co., 348 Mo. 1189, 159 S.W.2d 302; McKay v. Delico Meat Products Co., 351 Mo. 876, 174 S.W.2d 149; and Leilich v. Chevrolet Motor Co., 328 Mo. 112, 40 S.W.2d 601, are cases where there is present some abnormal and unforeseen condition in the employment arising more or less suddenly which can be pointed out as a definite positive factor of the compensated injury or death.
We find the Commission could reasonably have found from all the evidence before it that appellant's injuries complained of were not the result of an accident arising out of and in the course of employment within the meaning of the Workmen's Compensation Law as alleged.
The award of the Commission and judgment of the trial court affirming the award should be affirmed by this court. It is so ordered.
VANDEVENTER, P. J., and BLAIR, J., concur.