Duever v. All Outdoors, Inc.

• Decision Date: 15 May 2012
• Docket Number: No. ED 97596.,ED 97596.
• Parties: Joseph DUEVER, Respondent, v. ALL OUTDOORS, INC., Appellant, and Treasurer of Missouri as Custodian of the Second Injury Fund, Respondent.
• Court: Missouri Court of Appeals

371 S.W.3d 863

Joseph DUEVER, Respondent,

v. ALL OUTDOORS, INC., Appellant,andTreasurer of Missouri as Custodian of the Second Injury Fund, Respondent.

No. ED 97596.

Missouri Court of Appeals,

Eastern District,

Division Two.

May 15, 2012.

John P. Kafoury and Michelle E. Radice, Holtkamp, Liese, Schultz & Hilliker, P.C., St. Louis, MO, for appellant.

Robert D. Arb and John Winston Grantham, Valley Park, MO, for respondent Joseph Duever.

Da–Neil Cunningham, Assistant Attorney General, St. Louis, MO, for respondent Treasurer of MO.

KENNETH M. ROMINES, J.

Facts and Procedural History

This is an appeal from the judgment of the Labor and Industrial Relations Commission(“Commission”) awarding worker's compensation benefits to Respondent Joseph Duever (“Duever”). Finding no error, we affirm the Commission's decision.

Duever is the owner and operator of All Outdoors, Inc. (“Employer”), a landscaping business. During the winter months, Employer provides customers with services such as snow and ice removal. In addition to running the business, Duever performs manual labor along with his employees.

Employer leased a warehouse from Scott Properties, and the lease included access to a parking lot and the specific use of four parking spaces. According to the lease terms, Scott Properties was responsible for ice and snow removal from the parking lot.

On 17 February 2007, Duever arrived at the warehouse for work sometime before 5:00 a.m. At approximately 7:00 a.m., Duever held a safety meeting with several employees to discuss the importance of maintaining tail-lights on company trailers. Duever held the meeting on the parking lot outside the warehouse, during which he demonstrated the proper way to wire the trailer's tail-lights. After the demonstration, Duever began walking back to the shop when he slipped on a patch of black ice, falling on his left shoulder and hitting his head. The employees assisted Duever in getting up and returning to his office. Duever noticed that he could not use his left arm properly.

The following day Duever kept a scheduled appointment with his endocrinologist, Dr. Oiknine, for treatment of Duever's diabetes. In Dr. Oiknine's notes from that appointment, there is no mention of the accident.

On 6 March 2007, orthopedist Frank Thomas evaluated Duever. Dr. Thomas ordered an MRI which revealed tears of the tendons in the left shoulder and arm. On 26 March 2007, Dr. Thomas surgically repaired the tears. Duever underwent post-operative physical therapy but continued to experience pain and diminished use of his left arm and shoulder.

Duever later filed a worker's compensation claim. The Administrative Law Judge (“ALJ”) held hearing on 25 October 2010 during which Duever testified as to the events described above. The ALJ also received into evidence all of Duever's medical records including those from Dr. Oiknine, Dr. Thomas, and two other physicians who examined Duever after the filing of the claim.

On 27 January 2011, the ALJ issued her final award. The ALJ found that Duever's work was the prevailing factor in causing the injury to his left shoulder. The ALJ awarded past medical expenses, future medical care, and permanent partial disability (PPD) benefits.

Employer appealed to the Commission. On 14 October 2011, the Commission affirmed the ALJ's award and decision. Except for a minor provision regarding the specific course of treatment for future medical care, the Commission adopted the ALJ's findings of fact and conclusions of law as its own. Aggrieved, Employer now appeals.

Standard of Review

We may modify, reverse, remand for rehearing, or set aside the Commission's decision only if it acted without or in excess of its powers; the award was procured by fraud; its findings of fact do not support the award; or there was not sufficient competent evidence in the record to substantiate the award. Miller v. Mo. Hwy & Transp. Comm'n, 287 S.W.3d 671, 672 (Mo. banc 2009) (citing Mo.Rev.Stat. § 287.495.1 (2000)). In the absence of fraud, the findings of fact made by commission within its powers shall be conclusiveand binding. § 287.495.1. We must review the entire record “to determine if it contains sufficient competent and substantial evidence to support the award, i.e., whether the award is contrary to the overwhelming weight of the evidence.” Id. (internal citation and quotation marks omitted). When relevant facts are not disputed, the issue as to whether an accident arose out of and in the course of employment becomes a question of law, which we review de novo. Id.

Discussion

I. Accident in Fact

Employer first challenges the Commission's determination that an accident in fact occurred. We deny the challenge.

An employer is “liable, irrespective of negligence, to furnish compensation under the [Worker's Compensation Law] for personal injury ... of the employee by accident arising out of and in the course of the employee's employment.” Strieker v. Children's Mercy Hospital, 304 S.W.3d 189, 192 (Mo.App. W.D.2010) (citing § 287.120.1). In 2005, the Missouri Legislature amended the definition of “accident” to mean

an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift. An injury is not compensable because work was a triggering or precipitating factor.

§ 287.020.2.

Duever testified that while walking back to the office after the trailer demonstration, he slipped on patch of ice. Following this accident, he lost significant use of his left arm and shoulder. The accompanying medical records show that these injuries were sustained as a result of the fall and that he was treated for the injury. Based on the testimony and medical evidence, the ALJ determined that an accident occurred.

Employer complains that this determination was not supported by the record because Duever did not report the fall to Dr. Oiknine the following day, and at the hearing he could not recall the names of all the employees who witnessed the incident without referring his notes. Employer's argument is a thinly veiled challenge to the weight of the evidence and Duever's credibility as a witness. We give deference to the Commission in these areas. Comeaux v. Convergys Customer Management Group, 310 S.W.3d 759, 762 (Mo.App. E.D.2010). The Commission—by way of the ALJ—thoroughly explained why Duever's testimony regarding the incident was credible despite Employer's concerns.

First, the ALJ noted the Dr. Oiknine was an endocrinologist who treated Duever for diabetes and related conditions. The ALJ stated “[t]he fact that Claimant did not report this injury to a diabetic specialist does not make him a less truthful witness.” As for Duever's inability to recall the names of employees who witnessed the accident, the ALJ noted that many of the employees were “seasonal workers.” The ALJ then stated “I find Claimant testified in a very straight forward and honest manner, and I find Claimant's testimony to be credible. I further find Claimant has met his burden to establish accident.”

We see nothing to suggest the Commission's finding was unsupported by the record or otherwise improper. Quite the opposite, Duever's credible testimony and the relevant medical records directly support the Commission's determination that an accident in fact occurred. Employer's first point is denied.

II. Arising Out of and in the Course of Employment

Employer next challenges the Commission's finding that the “accident arose out of and in the course of [Duever's] employment.” We reject the challenge.

Again, an employer is “liable, irrespective of negligence, to furnish compensation under the [Worker's Compensation Law] for personal injury ... of the employee by accident arising out of and in the course of the employee's employment.” Stricker, 304 S.W.3d at 192. In 2005, the Missouri Legislature also amended our worker's compensation law to narrow the definitions of “injury,” and “arising out of and in the course of.” Id. (citing Miller, 287 S.W.3d at 672–73). “Injury” is now defined as

an injury which has arisen out of and in the course of employment. An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. “The prevailing factor” is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability.

§ 287.020.3(1). An injury will only be deemed to “arise out on and in the course of employment” if:

(a) It is reasonably apparent, upon consideration of all the circumstances that the accident is the prevailing factor in causing the injury; and

(b) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life.

§ 287.020.3(2).

The articulated legislative purpose of the 2005 amendments was to raise the threshold...