Brookman v. Henry Transp.

• Decision Date: 28 May 1996
• Docket Number: No. 68837,68837
• Citation: 924 S.W.2d 286
• Parties: Terry BROOKMAN, Employee/Respondent, v. HENRY TRANSPORTATION, Employer/Appellant, and Advantage Financial Group, Inc., Employer/Appellant.
• Court: Missouri Court of Appeals

Page 286

924 S.W.2d 286

Terry BROOKMAN, Employee/Respondent, v. HENRY TRANSPORTATION, Employer/Appellant, and Advantage Financial Group, Inc., Employer/Appellant.

No. 68837.

Missouri Court of Appeals,

Eastern District,

Division Three.

May 28, 1996.

Terrance L. Farris, L. Joseph Garr, Clayton, for appellants.

Robert H. Sihnhold, Lawrence Joseph Fleming, St. Louis, for respondent.

RHODES RUSSELL, Judge.

Henry Transportation and Advantage Financial Group ("Advantage") appeal from a Labor and Industrial Relations Commission's award in favor of Terry Brookman ("Employee"). We affirm.

In June 1991 Employee was hired to repair truck trailers for Henry Transportation in St. Louis County. Henry Transportation, a corporation solely owned by Herbert W. Henry, had entered into an agreement to "lease" employees from Advantage. As a result of this agreement all employees of Henry Transportation, including the owner, were paid by Advantage. Employee testified that he was never informed that Advantage was his employer, although he was aware that Advantage issued his paycheck.

On July 31, 1991, Employee, while performing work for Henry Transportation, was injured when the ladder he was standing on fell from under him. Employee immediately informed his supervisor that his leg, shoulder, and arm were hurt, but he did not receive medical attention that day and continued to work. The next day Henry Transportation sent Employee to the St. Louis Industrial Clinic, who in turn sent him to Dr. John Arnot, an orthopedist. Employee was treated by Dr. Arnot five or six times. Dr. Arnot advised Employee that he was capable of returning to light duty on September 6, 1991. That advice was reiterated on September 27, 1991 and October 2, 1991. Employee did return to do some light work for Henry Transportation in October 1991, mostly sweeping floors. On October 23, 1991, Employee was referred to Dr. Weise, another orthopedist. Dr. Weise concluded that Employee was able to return to work without restrictions, but did recommend that he have another MRI taken and that he come back for further evaluation. Employee, however, disagreed and did not return to either full or light duty with Henry Transportation. ¹ Thereafter, no further medical treatment was provided. After his employment relationship with Henry Transportation ended, Employee took on some independent remodelling and construction work and briefly worked as a telemarketer.

On October 31, 1991, Employee filed a claim for compensation against Henry Transportation. Employee later filed a combined claim against both Henry Transportation and Advantage. The hearing on the temporary award was held on October 23, 1992. The administrative law judge found that Employee was injured in an accident arising out of and in the course of his employment with Henry Transportation. Employee was awarded temporary total disability benefits from July 31, 1991 to October 23, 1992, less the two weeks in October 1991 when he had worked light duty for Henry Transportation and the four weeks he performed remodelling services. The total amount of the award was $12,522.80 for temporary total disability ("TTD") and $8,085.60 for medical expenses. The TTD award was appealed to the Labor and Industrial Relations Commission which affirmed the temporary award and determined that Advantage was also an employer of Employee. ²

On December 9, 1994, the ALJ issued a final award. The ALJ found a 30% permanent partial disability ("PPD") of the right shoulder, a 30% PPD of the left knee, and a 10% PPD for the body as a whole related to the lower back. Employee was awarded $205.36 per week for 173.36 weeks for a total of $35,601.21. The ALJ also doubled the unpaid temporary award previously issued to $35,777.24, pursuant to § 287.510 RSMo 1994. The total award entered against Employers was $71,378.45. The ALJ found that the Second Injury Fund was liable for $9,064.55 (31.26 weeks at the rate of $205.36 plus $2,645.00 for medical expenses). The Labor and Industrial Relations Commission ("Commission") affirmed the ALJ's decision as to Employer's liability on July 11, 1995. ³ This appeal by Employers now follows.

In their first point on appeal, Employers argue that the Commission lacked authority to enter an award since Employee had elected to file a suit for personal injuries in the Circuit Court of St. Louis County. When an employee is injured in the course of his employment and the employer lacks workers' compensation insurance, the employee is entitled to pursue either an action under the workers' compensation laws or an action for personal injuries in the circuit court. § 287.280 RSMo 1994. It is only after an employee receives something of value on a claim or pursues an action to final judgment that the employee is then precluded from pursuing the other inconsistent remedy. Brookman v. Henry Transportation, 886 S.W.2d 213, 215 (Mo.App.1994). ⁴

In the present case both employers lacked workers' compensation insurance, therefore giving Employee the option to pursue either remedy. Employers now argue that Employee has already elected his circuit court remedy, preventing him from pursuing a workers' compensation claim. Employers do not, however, allege that there has been a final judgment in the civil case or that Employee has received something of value, nor does the record reveal a final judgment or award. Therefore, there has not yet been a binding election of remedies. The Commission had authority to enter a disability award. Point denied.

In the second point on appeal, Employers argue that the Commission erred in awarding Employee TTD benefits between July 31, 1991, and October 23, 1992. Specifically, they contend that there was no substantial evidence indicating that Employee was temporarily totally disabled during the period. TTD benefits are intended to cover healing periods and are unwarranted beyond the point at which the employee is capable of returning to work. Phelps v. Jeff Wolk Const. Co., 803 S.W.2d 641, 645 (Mo.App.1991). Temporary awards are not intended to compensate the Employee after the condition has reached the point where further progress is not expected. Williams v. Pillsbury Co. 694 S.W.2d 488, 489 (Mo.App.1985). The pivotal question in determining whether an employee is totally disabled is whether any employer, in the usual course of business, would reasonably be expected to employ the claimant in his present physical condition. Thornton v. Haas Bakery, 858 S.W.2d 831, 834 (Mo.App.1993).

Our review of the Commission's decision is limited to questions of law. § 287.495.1 RSMo 1994. We may reverse the Commission's findings only upon finding:

(1) That the commission acted without or in excess of its powers;

(2) That the award was procured by fraud;

(3) That the facts found by the commission do not support the award;

(4) That there was not sufficient competent evidence in the record to warrant the making of the award.

Johnson v. Evans & Dixon, 861 S.W.2d 633, 635 (Mo.App.1993). In reviewing the record, we examine the evidence in the light most favorable to the finding, disregarding evidence which might support findings different than those found by the Commission. Bergmeyer v. Queen's Supermarkets, 878 S.W.2d 60, 61 (Mo.App.1994).

Employers argue that the TTD award entered in favor of Employee was against the overwhelming weight of the evidence and that there...