Cnw Foods, Inc. v. Davidson

Decision Date26 August 2004
Docket NumberNo. 25953.,25953.
Citation141 S.W.3d 100
PartiesCNW FOODS, INC., d/b/a Food 4 Less, Employer-Appellant, v. Kevin DAVIDSON, Claimant-Respondent, and Division of Employment Security, Respondent.
CourtMissouri Court of Appeals

Todd A. Johnson, Springfield, for appellant CNW Foods, Inc., d/b/a Food 4 Less.

Kevin Davidson, Joplin, pro se.

Division of Employment Security of Jefferson City, did not file a brief, respondent.

JEFFREY W. BATES, Judge.

Employer CNW Foods, Inc. ("CNW"), appeals from an order of the Labor and Industrial Relations Commission ("Commission") finding claimant Kevin Davidson ("Davidson") eligible for unemployment benefits pursuant to Missouri's Employment Security Law, §§ 288.010-.500.1 In two interrelated points of error, CNW claims the Commission's factual finding that Davidson was discharged from his employment is against the overwhelming weight of the evidence and is not supported by sufficient evidence. We affirm.

I. Standard of Review

The parameters of our review of the Commission's order are established by constitutional provision and by statute. Article V, § 18 of the Missouri Constitution directs us to determine whether the Commission's decision is "authorized by law" and whether it is "supported by competent and substantial evidence upon the whole record."2 Pulitzer Publishing Co. v. Labor & Indus. Relations Comm'n, 596 S.W.2d 413, 417 (Mo. banc 1980). The scope of our review is further circumscribed by § 288.210, which states, in pertinent part, as follows:

Upon appeal no additional evidence shall be heard. The findings of the commission as to the facts, if supported by competent and substantial evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the appellate court shall be confined to questions of law. The court, on appeal, may modify, reverse, remand for rehearing, or set aside the decision of the commission on the following grounds and no other: (1) That the commission acted without or in excess of its powers; (2) That the decision was procured by fraud; (3) That the facts found by the commission do not support the award; or (4) That there was no sufficient competent evidence in the record to warrant the making of the award.

In determining whether the Commission's decision is authorized by law, we are not bound by its conclusions of law or its application of law to facts. Shelby v. Hayward Baker, Inc., 128 S.W.3d 164, 165-66 (Mo.App.2004). We independently review such questions without giving any deference to the Commission's conclusions. Miller v. Kansas City Station Corp., 996 S.W.2d 120, 122 (Mo.App.1999); Bunch v. Division of Employment Sec., 965 S.W.2d 874, 877 (Mo.App.1998).

The Commission's factual findings, on the other hand, are treated deferentially. Determining the credibility of witnesses is one of the Commission's functions. Burns v. Labor & Indus. Relations Comm'n, 845 S.W.2d 553, 555 (Mo. banc 1993); England v. Regan Marketing, Inc., 939 S.W.2d 62, 66 (Mo.App.1997). Absent fraud, the Commission's factual findings are conclusive on appeal if they are supported by competent and substantial evidence upon the whole record and are not clearly against the overwhelming weight of the evidence. See Burns, 845 S.W.2d at 554-55; Pulitzer, 596 S.W.2d at 417; Baby-Tenda Corp. v. Hedrick, 50 S.W.3d 369, 377 (Mo.App.2001). When the Commission as the trier of fact has reached one of two possible conclusions from the evidence, this Court will not reach a contrary conclusion even if we could reasonably do so. Clark v. Labor & Indus. Relations Comm'n, 875 S.W.2d 624, 626-27 (Mo.App.1994). If the evidence before the Commission would warrant either of two opposed findings, we are bound by the administrative determination. See Pulitzer, 596 S.W.2d at 417. It is irrelevant that there is evidence to support the contrary finding. Id. at 417.

Although Burns and Pulitzer are still authoritative on the points of law for which they have been cited thus far, one aspect of the standard of review discussions contained therein requires further attention. Each case directs an appellate court to consider the evidence and all reasonable inferences derived therefrom in the light most favorable to the findings and decision of the commission, disregarding all opposing and unfavorable evidence. Burns, 845 S.W.2d at 555; Pulitzer, 596 S.W.2d at 417. We believe this rule should no longer be followed because it is inconsistent with the Supreme Court's more recent pronouncements in Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003), and Lagud v. Kansas City Bd. of Police Comm'rs, 136 S.W.3d 786 (Mo. banc 2004).

In Hampton, the Supreme Court reviewed the commission's decision in a worker's compensation case. There, the standard of review as to the commission's factual findings was governed by Mo. Const. art. V, § 18 and RSMo § 287.495.1. In our view, § 287.495.1 and § 288.210 are virtually identical to one another. The Supreme Court held that, "[t]here is nothing in the constitution or section 287.495.1 that requires a reviewing court to view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the award." Hampton, 121 S.W.3d at 223.

In Lagud, the Supreme Court reviewed an administrative decision of the Kansas City Board of Police Commissioners. The standard of review for the Board's factual findings was governed by Mo. Const. art. V, § 18 and RSMo § 536.140.2. In our view, § 536.140.2 and § 288.210 are substantially similar because § 536.140.2(3) requires an appellate court to determine whether the administrative agency's decision "[i]s unsupported by competent and substantial evidence upon the whole record[.]" Citing Hampton, the Supreme Court held that a reviewing court must consider the whole record in determining whether there is sufficient, competent and substantial evidence to support the agency's decision. Lagud, 136 S.W.3d at 791. In so holding, the Court overruled prior contrary precedent:

This Court must look to the whole record in reviewing the Board's decision, not merely at that evidence that supports its decision. To the extent prior cases instruct that on appeal the evidence should be viewed in the light most favorable to the decision of the agency, they should no longer be followed.

Id. Therefore, we will consider the whole record in deciding whether the Commission's decision is supported by competent and substantial evidence. Lagud, 136 S.W.3d at 791; Hampton, 121 S.W.3d at 223.

II. Statement of Facts and Procedural History

On November 18, 2001, Davidson was hired by CNW to work at its Food 4 Less store in Joplin, Missouri. He worked 32 to 36 hours per week and was considered a full-time employee. Since CNW employed 70 people at its Joplin store, it was subject to the requirements of the federal Family and Medical Leave Act ("FMLA"), 29 U.S.C.A. §§ 2601-2654 (West 1998).

In March 2003, Davidson was working in the meat room as a wrapper and stocker. He was making $7.30 per hour at this job. His immediate supervisor was Gene Lawless. Davidson's duties in the meat room included lifting 80 pound boxes of meat. Davidson worked his normal shift on March 5th, and he was off work the next day.

On March 7th, Davidson was involved in a nonwork-related bicycle accident and tore a muscle in his shoulder. Because of that injury, he was not able to perform his duties in the meat room. He notified CNW of his injury and was told that he could return to work once he had obtained a full release from his physician. In the meantime, Davidson was placed on extended leave while he recuperated. Davidson asked whether he could work with his arm in a sling, but Lawless would not let Davidson do so because there was not much work he could do in the meat room in that condition. Although Davidson was not able to work, he was not taken off the work schedule. Lawless "just worked the schedule around [Davidson]" while he recovered.

Davidson was released to return to light-duty work on March 11, 2003, subject to the restriction that he not lift more than 30 pounds for two weeks. Davidson took this to office manager Jerri Renfrow ("Renfrow"), but she told him he could not return to work at Food 4 Less until he received a full release from his doctor. On March 26, 2003, Davidson was released by his doctor to work "as tolerated." He took this release to Food 4 Less, but he was not permitted to return to work since it was not a full release. During a conversation on this date with Renfrow and Lawless, Davidson was asked if he was able to lift 80 pounds. He reported that he was not yet able to lift even 40 pounds. Davidson asked for additional time off to recuperate, which was granted.

Davidson was on the schedule to work on March 30th. That morning, Davidson called CNW and spoke to Renfrow. During that conversation, Davidson told her that "because he had had this type of injury before and he knew what the healing process was that he did not feel like that he was physically able to do that job then at that time. That he wanted to give it a little bit more of healing time." Davidson then discussed his request for additional time off with Lawless. He responded by telling Davidson that he would have to be replaced. Davidson asked if there was other work he could do, but Lawless said there was none available. Thus, despite Davidson's request for additional medical leave to recuperate, he was terminated by CNW on March 30th.

On April 12, 2003, CNW hired another employee to replace Davidson in the meat room. On April 21, 2003, Davidson received a full release from his doctor to return to work and other activities without restrictions.

Davidson filed an initial claim for unemployment benefits on March 12, 2003. On March 14, 2003, Renfrow filed a wage information form with the Division of Employment Security ("Division") which stated that Davidson was "beginning an extended leave" starting March 6,...

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