Brown v. Hillhaven Convalescent Center, 16235
| Decision Date | 29 August 1989 |
| Docket Number | No. 16235,16235 |
| Parties | Sherry J. BROWN, Employee-Appellant, v. HILLHAVEN CONVALESCENT CENTER, Employer-Respondent, and Ranger Insurance Co., Insurer-Respondent. |
| Court | Missouri Court of Appeals |
Winston V. Buford, Eminence and Milton B. Garber, Fulton, for employee-appellant.
John G. Newberry, Schroff, Glass & Newberry, P.C., Springfield, for employer-respondent.
On October 9, 1985, claimant Sherry J. Brown filed a claim for compensation under the Missouri Worker's Compensation Law against her employer, Hillhaven Convalescent Center. The date of the accident was stated as follows: "Early May 1984, after midnight." The part of the body injured was "low back." The accident was described as follows: The employer's answer generally denied the allegations of the claim.
An evidentiary hearing was held before Chief Administrative Judge James H. Wesley, who found in favor of the employer and its insurer and against the claimant and awarded no compensation. The claimant filed an application for review and the Labor and Industrial Relations Commission affirmed and adopted the award entered by Judge Wesley. Claimant appeals.
Claimant's first point is that the Commission erred in finding that the tank incident "did not cause or aggravate claimant's condition" because that finding is not supported by substantial evidence and is clearly contrary to the overwhelming weight of the evidence. This contention requires review of the evidence in light of the following familiar principles.
On this appeal this court must determine if the award of the Commission is supported by competent and substantial evidence on the whole record. All of the evidence and legitimate inferences therefrom must be viewed in the light most favorable to the award. This court may not substitute its judgment for that of the Commission. The award may be set aside only if there is no substantial and competent evidence to support it or if the findings of the Commission are clearly contrary to the overwhelming weight of the evidence. Conflicts in the evidence are for resolution by the Commission. Blatter v. Mo. Dept. of Social Services, 655 S.W.2d 819, 821[1-3] (Mo.App.1983). This court must disregard any evidence which might support a finding different from that of the Commission, and that is true although a finding of the Commission to the contrary would have been supported by the evidence. Petersen v. Central Pattern Co., 562 S.W.2d 153, 155-156 (Mo.App.1978). The Commission is charged with the responsibility of passing upon the credibility of all the witnesses and may disbelieve testimony of a witness even if no contradictory or impeaching evidence appears. Id.
"The claimant has the burden of proof to establish that she sustained an injury by accident arising out of and in the course of her employment, and that the accident resulted in the alleged injuries." Barnes v. Ford Motor Co., 708 S.W.2d 198, 199 (Mo.App.1986).
Claimant, who was 46 at the time of the evidentiary hearing in 1987, has a complicated medical history. In June 1978, over five years before she was employed by Hillhaven, she had a low back problem diagnosed as a ruptured lumbar disc--L4-right. She underwent an operation described as "subtotal hemilaminectomy, L4 and L5-right with disectomy L4." Following that operation, performed by Dr. McAlhaney, her "main doctor" was Dr. Trotter who, according to claimant, "has been taking care of my heart for years."
Referring to the 1978 operation, the claimant, on direct examination by her counsel, gave the following testimony:
"Q. Were you ever in real pain after your back operation?
A. Yes, sir most of the time I was.
Q. Tell the Judge what aggravated or bring on pain.
A. Would be the--according to the way I lifted, the way I stood, how much I stood or something like that.
Q. What would you do to relieve the pain?
A. I would usually take medication for it."
Claimant's employment with Hillhaven commenced in September 1983 and her last day of work there was May 22, 1984. She was a nurse's aide. Claimant testified that "a short time" before she went to work for Hillhaven she applied to the State of Missouri for unemployment benefits She testified that
Claimant testified that in April 1981 she was hospitalized for low back pain, that Dr. Trotter treated her over the years for low back pain and gave her percodan, "a very strong drug," for her back pain. She said her back pain was so bad that on May 4, 1984, "several weeks before I got hurt," she saw Dr. Trotter and asked him to prescribe percodan because she needed something "to help me with my back because I was working and my back hurt pretty bad." She testified that on May 25, 1984, she saw Dr. Heintz and told him that she had been having back pain for several days and "that was happening at the same time as my divorce from my husband and my emotional upset." She admitted that she might have told Dr. Heintz that her back pain was connected to her marriage and her marriage difficulties. "A lot of it was stress." She said that during this time her husband abused her several times and kicked her several times.
According to the claim, the accident took place in early May 1984 "after midnight." On deposition the claimant testified that the incident took place on May 2, 1984. At the evidentiary hearing she testified that the incident took place on May 22, 1984.
Claimant was admitted to St. John's Regional Health Center in Springfield on May 27, 1984, and remained there until June 14 under the care of Dr. Tsang, who did not testify. On admission she told one doctor that her back pain started "one week ago." She told another doctor on the same day that the back pain started "two weeks ago" and that she last worked at Hillhaven "five days ago."
Claimant testified that, prior to the alleged accident, "I knew I had the bad back and I just favored it." According to claimant, she and a co-worker, whose name she could not recall, close to the time claimant was scheduled to get off work at 7 a.m., went down to the storeroom to get a full bottle of oxygen. Claimant testified that on prior occasions she would use a dolly to move an oxygen tank, but on this occasion she did not do so because she was in a hurry.
Claimant testified,
Claimant testified that at the time of the incident she was not sure whether she cried out or "made any oral or evidence of pain." She said that she and the co-worker went back upstairs and "the RN hooked the tank up and I drove myself home." She said,
Claimant called as her witnesses several employees of Hillhaven, including Don Long, Johanna Clark, Karen Gammill, Lavera Harlan and Nancy Steiner.
Don Long, the administrator at Hillhaven, identified claimant's Exhibit C, which was admitted into evidence. Exhibit C was a memorandum made by Johanna Clark, a registered nurse, based on a conversation she had with claimant on May 26, 1984. Exhibit C reads:
Long also testified that the procedure at Hillhaven was to make a written report of any incident, no...
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