George-Brewer v. Pen Mar Southwest

• Decision Date: 03 November 1998
• Docket Number: No. WD,R,GEORGE-BREWE,WD
• Citation: 980 S.W.2d 147
• Parties: Pattiespondent, v. PEN MAR SOUTHWEST, Appellant. 55494.
• Court: Missouri Court of Appeals

Page 147

980 S.W.2d 147

Patti GEORGE-BREWER, Respondent, v. PEN MAR SOUTHWEST, Appellant.

No. WD 55494.

Missouri Court of Appeals,

Western District.

Nov. 3, 1998.

Rehearing Denied Dec. 22, 1998.

David Mandelbaum, Kansas City, for Appellant.

Donald Moore, Blue Springs, for Respondent.

HANNA, Judge.

The employer, Pen Mar Southwest, appeals from a final award of permanent partial disability and past medical expenses entered by the Labor and Industrial Relations Commission. ¹ On appeal, the employer raises three issues regarding the sufficiency of the evidence and a fourth procedural claim. We affirm the commission's decision.

Pen Mar is a brokerage firm for nonfood items. Mike Greenhaw is one of the employer's principals. In January 1992, Brewer was hired by Greenhaw to work as a full-time sales representative in the Kansas City area. Three months after Brewer was hired, she traveled to Pen Mar's headquarters in Dallas to attend an employment meeting. At that time, she was introduced to six other sales representatives that were "just like she was." Pen Mar's two principals and their two secretaries also attended the employment meeting.

On or around July 26, 1992, Brewer slipped and fell in her basement. She landed on her side and experienced pain in her back. Brewer saw a nurse practitioner that afternoon and was prescribed muscle relaxers. Both parties agree that this injury was not work-related and not compensable.

Subsequently, on September 15, 1992, Brewer slipped after leaving a grocery store with which she had a business relationship. She slipped in some water on the curb and landed on her tailbone. Brewer experienced significant pain in her back and both legs. Following the accident, she was unable to get out of a car and unable to walk without pain. On or around September 30, 1992, she called Greenhaw and notified him of the accident at the grocery store. Both parties agree that this fall was work-related.

On or around November 2, 1992, Brewer went to see her primary physician, Dr. Goldman, because the pain in her back persisted. Goldman referred Brewer to Dr. Larry Glaser, an orthopedic surgeon. Dr. Glaser obtained a CT scan showing a large central and right-sided herniated disc at L5, S1. On November 12, 1992, Brewer underwent a lumbar hemilaminectomy and disc excision. After the surgery, Brewer followed up with Dr. Glaser for a period of six weeks. She was unable to work during that time, however, Pen Mar continued to pay her salary. Brewer returned to work in early 1993.

Following surgery, Brewer continued to experience pain in her lower back and right leg. Brewer was also having difficulty lifting, bending, and stooping. On October 31, 1991, at the request of her attorney, Dr. J. Michael Smith examined Brewer. Dr. Smith rated Brewer's permanent partial disability at between 20 and 25 percent of her body as a whole.

On March 22, 1993, Brewer filed a claim for workers' compensation insurance benefits. An administrative law judge heard the evidence and determined that Brewer failed to meet her burden of proof that Pen Mar was an employer with five or more employees and, therefore, denied compensation. The commission, with a dissent, reversed the ALJ's decision and awarded Brewer benefits. The commission concluded that Brewer had a 20 percent permanent partial disability attributable to the September 1992 fall at the grocery store. Specifically, the commission found:

Claimant offered the medical report of Dr. J. Michael Smith. That report was admissible pursuant to § 287.210.7, RSMo 1994. ² Dr. Smith determined that claimant has "between 20 and 25 percent permanent partial disability to the body as a whole." The Commission is not bound by the percentage of disability estimated by medical experts. Considering the evidence presented, we believe that claimant has permanent partial disability of 20% of the body as a whole referable to her low back as a result of the September 15, 1992, work-related injury. Employer is liable for compensating claimant for that permanent partial disability.

Our standard of review in a workers' compensation case is well defined. See Davis v. Research Medical Center, 903 S.W.2d 557, 560-61 (Mo.App.1995). In determining the sufficiency of the evidence, we review all evidence and inferences in a light most favorable to the commission's award. Cahall v. Riddle Trucking, Inc., 956 S.W.2d 315, 317 (Mo.App.1997). We will overturn the commission's decision only if it is unsupported by substantial evidence or clearly contrary to the overwhelming weight of the evidence. Landers v. Chrysler Corp., 963 S.W.2d 275, 279 (Mo.App.1997). Where issues involve matters of law, however, we will review the issue independently. Kintz v. Schnucks Markets, Inc., 889 S.W.2d 121, 123 (Mo.App.1994).

In its first point, Pen Mar contends that Brewer failed to present any substantial and competent evidence to establish that the employer had five employees and, therefore, is subject to the Workers' Compensation Act. ³ Pen Mar correctly notes that the determination of whether a claimant has met her burden of proving a material element of her claim is a question of law and, therefore, the court should review this question de novo. West v. Posten Const. Co., 804 S.W.2d 743, 744 (Mo. banc 1991).

In a workers' compensation case, the claimant carries the burden of proving all material elements of their claim. C.W. Mathia v. Contract Freighters, Inc., 929 S.W.2d 271, 276 (Mo.App.1996). The claimant does not, however, have to establish the elements of her case on the basis of absolute certainty. Tate v. Southwestern Bell Telephone Co., 715 S.W.2d 326, 329 (Mo.App.1986). It is sufficient if the claimant shows them by reasonable probability. Id. Reasonable probability is founded on reason and experience which inclines the mind to believe but leaves room for doubt. Id.See also Meilves v. Morris, 422 S.W.2d 335, 338-39 (Mo.1968)(holding that a claimant who did not "offer the slightest bit of evidence on a controlling issue" failed to produce substantial evidence establishing her claim).

In the present case, Brewer testified that she was employed as a sales representative with Pen Mar. She was introduced to six other sales representatives and two secretaries while attending an employment meeting at the corporate headquarters in Dallas, Texas. Finally, Brewer testified that she had met the employer's two principals. The employer did not present any evidence to the contrary. Thus, the record contains no evidence suggesting that Pen Mar had fewer than five employees.

Brewer has met her burden of proving that the employer had at least five employees. Brewer's sworn testimony, left unrefuted, compels the conclusion that Mr. Greenhaw, the two secretaries, and the six sales representatives were employees of the corporation. Thus, there is substantial and competent evidence in the record showing that Pen Mar is subject to Missouri's workers' compensation laws. Point denied.

Pen Mar next claims that Brewer failed to establish that her permanent partial disability resulted from her September fall, as opposed to her July fall. Brewer's case rests on Dr. Smith's written rating report and her own testimony. In his report, Dr. Smith concluded:

Ms. Brewer sustained a contusion to her low back as the result of a fall which occurred while she was working as a sales representative with PenMar Southwest of Dallas, Texas. She developed low back pain and pain in both legs. The pain became more right-sided. She had a CT scan which revealed a herniated disc at L-5, S-1 level and she subsequently underwent a hemilaminectomy and disc excision at L-5, S-1.... The lumbosacral spine is rated between 20 and 25 percent permanent partial disability to the body as a whole.

At the hearing, Brewer testified that she experienced some minor pain in her back in July 1992, but after the September 1992 fall, the pain was more severe. Her testimony was:

Q: You had prior back problems before this fall on September 15, hadn't you?

A: Uh-huh, yes.

Q: In fact, before you had visited Dr. Goldman's office a few days before for back pain?

A: Yes.

Q: Okay. What kind of pain were you experiencing in your back before the fall on the 15th?

A: I just had felt some strain in my back when I would bend down and pick some things up. I mean it wasn't a major thing, but I felt a little bit of a strain when I would bend over and since I did a lot of lifting in my job, I thought I would go and have it checked out.

...

Q: Okay. Did something happen in July of '92, a slip or fall or something that caused the pain?

A: Nothing that I know of happened to cause the pain. I did slip in the basement, but it wasn't related to that pain.

Q: You slipped in the basement?

A: Right, on my side.

...

Q: Can you describe the difference in the pain you had in your back prior to the [September] injury versus after the injury?

A: Well, prior to the injury, it was like almost like a pulled muscle in my back. After the injury, I...