Farmer-Cummings v. Future Foam, Inc.
| Decision Date | 13 February 2001 |
| Citation | 44 S.W.3d 830 |
| Parties | (Mo. Banc 2001) . Tracey L. Farmer-Cummings, Appellant, v. Future Foam, Inc., and Personnel Pool of Platte County, Respondents. WD58393 (Consolidated with WD58429) Missouri Court of Appeals Western District Handdown Date: 0 |
| Court | Missouri Supreme Court |
Appeal From: Labor and Industrial Relations
Counsel for Appellant: Kevin David Meyers
Counsel for Respondent: John J. Mohan, Jr., and Maureen T. Shine
Opinion Summary: Tracey Farmer-Cummings appeals from the judgment of the Labor and Industrial Relations Commission (Commission) awarding her permanent partial disability of 80 percent of the body as a whole and future medical benefits in accordance with Missouri's Workers' Compensation statute. The Commission awarded Ms. Cummings 320 weeks of permanent partial disability at $113.33/week ($36,265.60) and undetermined future medical benefits. The Commission further found that Ms. Cummings failed to prove her employer's, Personnel Pool of Platte County's, liability for either past or future temporary total disability benefits or her past medical aid. Ms. Cummings contends that the Commission erred in (1) finding that she was permanently partially disabled rather than permanently totally disabled; (2) finding that she failed to meet her burden of proof regarding Personnel Pool's liability for past medical benefits; and (3) ruling that Personnel Pool was entitled to a subrogation interest in Ms. Cummings' recovery from a third party on her medical malpractice claim.
AFFIRMED IN PART AND REVERSED IN PART.
Division I holds: 1. Where the Commission's determination that Ms. Cummings is permanently partially disabled rather than permanently totally disabled is supported by competent and substantial evidence and is not contrary to the overwhelming weight of the evidence contained in the record, the decision of the Labor and Industrial Commission is affirmed.
2. Where the Commission specifically found that Ms. Cummings' failure to give the requisite written notice to Personnel Pool did not result in prejudice to the employer, the Commission's denial of Ms. Cummings' request for past medical benefits is not supported by the facts found by the Commission.
3. Where Ms. Cummings was awarded compensation by the Commission and will further be awarded past medical benefits on remand, Personnel Pool is entitled to a credit based on Ms. Cummings' settlement with St. Luke's Hospital.
Opinion Vote: AFFIRMED IN PART AND REVERSED IN PART. Breckenridge, P.J., and Howard, J., concur.
Opinion:Tracey Farmer-Cummings appeals from the judgment of the Labor and Industrial Relations Commission (Commission) awarding her permanent partial disability of 80 percent of the body as a whole and future medical benefits in accordance with Missouri's Workers' Compensation statute. The Commission awarded Ms. Cummings 320 weeks of permanent partial disability at $113.33/week ($36,265.60) and undetermined future medical benefits. The Commission further found that Ms. Cummings failed to prove her employer's, Personnel Pool of Platte County's, liability for either past or future temporary total disability benefits or her past medical aid. Ms. Cummings contends that the Commission erred in (1) finding that she was permanently partially disabled rather than permanently totally disabled; (2) finding that she failed to meet her burden of proof regarding Personnel Pool's liability for past medical benefits; and (3) ruling that Personnel Pool was entitled to a subrogation interest in Ms. Cummings' recovery from a third party on her medical malpractice claim. The Commission's award is affirmed in part and reversed in part.
Ms. Cummings is a twenty-eight-year-old woman who has been employed in various jobs since the age of fifteen. Her longest employment tenure at any one company was about a year. Prior to October 1991, Ms. Cummings worked for various restaurants and temporary agencies. In October 1991, Ms. Cummings became a temporary employee of Personnel Pool of Platte County. As a temporary employee she was assigned to work at Future Foam, Inc. At Future Foam, Ms. Cummings cut and glued various foam products to form cushions for boat seats.
Not long after her employment with Future Foam commenced, Ms. Cummings began experiencing symptoms similar to those of a chest cold. The symptoms rapidly progressed until Ms. Cummings began experiencing difficulty breathing and was admitted to a hospital on November 6, 1991. The doctors attributed Ms. Cummings' breathing problems to her previous diagnosis of reactive airway disease. Upon release from the hospital, Ms. Cummings returned to work at Future Foam. After returning to her work environment, Ms. Cummings' symptoms worsened in a matter of hours. She was physically unable to tolerate staying in the Future Foam environment and eventually had to leave work. After this incident, Ms. Cummings never returned to work at Future Foam but continued to work at various jobs until January 1998.
After leaving Future Foam, Ms. Cummings continued to experience respiratory problems. She sought medical treatment and was hospitalized for her respiratory problems on a number of occasions. In May 1992, after again being admitted to a hospital, Ms. Cummings condition was diagnosed as asthmatic. Ms. Cummings' respiratory problems continued.
In January 1993, Ms. Cummings filed a claim, based on her respiratory problems, with the Division of Workers' Compensation against Future Foam and later amended that claim to include Personnel Pool. A hearing on the matter was held before an administrative law judge in February 1999. Both Future Foam and Ms. Cummings sought review of the administrative law judge's decision by the full Commission. The Commission reviewed the matter and entered its final award on February 22, 2000, which affirmed the administrative law judge's decision that Personnel Pool, as Ms. Cummings' employer, is liable for Ms. Cummings occupational disease and ordered it to pay $36,265.60 in permanent partial disability benefits and future medical benefits, subject to a $50,000 credit against Ms. Cummings recovery in her third party medical malpractice action. Additionally, the Commission affirmed the administrative law judge's decision that Ms. Cummings failed to prove either her employer's, Personnel Pool's, liability for past or future temporary total disability benefits or her past medical aid. The Commission further found, and accordingly amended the administrative law judge's award, that Future Foam was Ms. Cummings' statutory employer and, therefore, not liable for Ms. Cummings' injuries. This appeal followed.
"The award of the Commission is reviewed using a two-step evidentiary evaluation process to determine whether the Commission could have reasonably made its findings and award upon consideration of all the evidence before it." Hunsicker v. J.C. Industries, Inc., 952 S.W.2d 376, 380 (Mo. App. W.D. 1997). The reviewing court examines the record together with all reasonable inferences to be drawn from the evidence therein, in the light most favorable to the findings and award of the Commission, to determine whether they are supported by substantial and competent evidence. Id. If the court finds that the findings and award of the Commission are supported by substantial and competent evidence, the reviewing court must then determine whether the Commission's findings and award were nevertheless contrary to the overwhelming weight of the evidence contained in the whole record before the Commission. Id. The Commission is the sole judge of the credibility of the witnesses, and thus the reviewing court is bound by the Commission's determinations of credibility. Bruflat v. Mister Guy, Inc., 933 S.W.2d 829, 835 (Mo. App. W.D. 1996). "Decisions that are clearly interpretations or applications of law, rather than determinations of fact, are reviewed for correctness without deference to the Commission's judgment." Hunsicker, 952 S.W.2d at 380.
In her first point on appeal, Ms. Cummings contends that the Commission erred in finding that she was permanently partially disabled rather than permanently totally disabled. Specifically, Ms. Cummings asserts that the Commission's finding was not based upon the substantial evidence in the record as a whole and was contrary to the overwhelming weight of that evidence because the overwhelming weight of the evidence supports her claim that she was permanently and totally disabled by the occupational disease.
Under the Missouri Workers' Compensation Act, the claimant who alleges permanent disability must adduce medical evidence that demonstrates with reasonable certainty that the claimed disability is permanent. Cochran v. Industrial Fuels & Resources, Inc., 995 S.W.2d 489, 497 (Mo. App. S.D. 1999). "Total disability" is the "inability to return to any employment and not merely [the] inability to return to the employment in which the employee was engaged at the time of the accident." Section 287.020(7) (emphasis added). "Any employment" means any reasonable or normal employment or occupation. Reves v. Kindell's Mercantile Co., Inc., 793 S.W.2d 917, 920 (Mo. App. S.D. 1990). The test for permanent total disability is whether Ms. Cummings is able to competently compete in the open labor market given her condition. Messex v. Sachs Elec. Co., 989 S.W.2d 206, 210 (Mo. App. E.D. 1999). The pertinent consideration in this test is the determination of whether any employer in the usual course of business would reasonably be expected to employ Ms. Cummings in her present physical condition. Carlson v. Plant Farm, 952 S.W.2d 369, 373 (Mo. App. W.D. 1997).
The Commission's determination that Ms. Cummings is permanently partially disabled rather than permanently totally...
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