Gonzales v. Butterball, L. L.C.

• Decision Date: 11 February 2015
• Docket Number: No. SD 33269,SD 33269
• Citation: 457 S.W.3d 363
• Parties: Eleazar Gonzales, Claimant–Respondent, v. Butterball, L.L.C., Employer–Appellant, and Ace American Insurance Company, Insurer–Appellant.
• Court: Missouri Court of Appeals

457 S.W.3d 363

Eleazar Gonzales, Claimant–Respondent

v. Butterball, L.L.C., Employer–AppellantandAce American Insurance Company, Insurer–Appellant.

No. SD 33269

Missouri Court of Appeals, Southern District, Division Two.

Filed February 11, 2015

Attorney for Appellants: Ronald G. Sparlin, of Blanchard, Robertson, Mitchell and Carter, P.C., Joplin, Missouri.

Attorney for Respondent: Jennifer L. Newman, of Newman Law Firm, LLC, Springfield, Missouri.

Opinion

GARY W. LYNCH, J.

Butterball, L.L.C., and Ace American Insurance Company (together “Appellants”) appeal the Labor and Industrial Relations Commission's (“the Commission”) award of workers' compensation benefits to Eleazar Gonzales for an injury to his chest occurring June 26, 2009. In four points, Appellants claim there was not sufficient, competent evidence in the record supporting the award because Gonzales failed to establish that his injury occurred at work; Gonzales did not provide notice to his employer of any work accident; Gonzales did not miss any time from work to justify the award of temporary total disability benefits; and there was no evidence linking Gonzales's medical treatment to his alleged work injury. Because Gonzales concedes that he did not miss any time from work other than part of the day of his injury and there was no evidence in the record to indicate otherwise, we reverse the award of temporary total disability benefits in the amount of $342.03. Finding no merit in Appellant's remaining three points, we affirm the balance of the Commission's award of workers' compensation benefits.

Factual and Procedural Background

Gonzales was born in Guatemala in May 1947 and currently resides in Joplin, Missouri. He reached the third grade in Guatemala and never obtained a GED. Although Gonzales has lived in the United States for approximately twenty years and is a United States citizen, his native language is Spanish; he does not read or write English.

Gonzales began his employment with Butterball in January 2001. At the time of his injury, Gonzales was working in the evisceration department; his responsibilities included picking up and lifting both live and dead turkeys and putting them in canisters, weighing the turkeys, taking the turkeys to the grinding machines, and cleaning the line.

On June 26, 2009, while lifting a turkey weighing approximately eighty pounds, Gonzales felt a pull in his chest. Gonzales immediately notified Cacio Mario, a layman assisting Gonzales's supervisor, who took Gonzales to the infirmary. There, Gonzales was evaluated by the company nurse. Gonzales's supervisor, Mateo, was present during the evaluation and questioned Gonzales as to his injury. After someone called 911, Gonzales was taken by ambulance to McCune Brooks Hospital in Carthage, Missouri, where an interpreter was not immediately available. There, he underwent an EKG and CPK. Gonzales was subsequently transferred to Freeman Hospital in Joplin, where he underwent a cardiac catheterization, which showed Gonzales to have normal coronary arteries with normal LV function. He had not had any previous problems with his chest. Gonzales was prescribed Vicodin for pain.

The following day, Gonzales was provided with an interpreter and, at that time, Gonzales informed his treating physicians that he had been lifting a heavy turkey and attempting to place it on an upper shelf when he experienced a sudden onset of chest pain that worsened with breathing and movement of the ribs. A series of rib and chest x-rays revealed normal results, while a physical examination revealed a slightly swollen area over Gonzales's rib cage; this was determined to be secondary to lifting a heavy turkey. Gonzales was discharged from Freeman Hospital in stable condition the day following his injury with a diagnosis of non-cardiac chest pain with rib pain. The treating physician at Freeman Hospital opined that Gonzales was to remain off work for one week with no lifting more than twenty-five pounds for two weeks. Gonzales did not seek any further medical treatment upon his discharge from the hospital and returned to work full-time at Butterball without missing any scheduled days.

At the request of his attorney, Gonzales was evaluated on June 7, 2010, by Dr. Shane Bennoch. Dr. Bennoch opined that, as a result of lifting the heavy turkey on June 26, 2009, Gonzales sustained a muscle strain to his chest wall. He further opined that Gonzales had achieved maximum medical improvement for his injury and, as Gonzales's chest pain had resolved, there was no permanent disability. According to Dr. Bennoch, the treatment Gonzales received at both hospitals was reasonable and necessary to treat Gonzales's injury.

Gonzales's medical bills for treatment incurred as a result of his chest pain on June 26, 2009, total $19,655.91. Appellants have not paid any of Gonzales's medical expenses.

Gonzales filed for workers' compensation benefits as a result of his injury incurred on June 26, 2009, and a final hearing was held before an Administrative Law Judge (“ALJ”) on April 2, 2013. In her final award, issued August 16, 2013, the ALJ concluded that Gonzales sustained an accident in the course and scope of his employment on June 26, 2009; the ALJ expressly based her decision on “the medical records, Dr. Bennoch's testimony, and [Gonzales's] testimony[.]” Appellants were ordered to pay $19,655.91 in medical expenses and $342.03 in past temporary total disability benefits for one week of missed work. Appellants filed an appeal with the Commission, which affirmed the ALJ's decision in favor of Gonzalez and incorporated the ALJ's decision into its award. This appeal followed.

Standard of Review

Our review on appeal is governed by section 287.495 and Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222 (Mo. banc 2003), which state that a

court, on appeal, shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other:

That the [C]ommission acted without or in excess of its powers;

That the award was procured by fraud;

That the facts found by the [C]ommission do not support the award;

That there was not sufficient competent evidence in the record to warrant the making of the award.

We review the Commission's findings and award. Clayton v. Langco Tool & Plastics, Inc., 221 S.W.3d 490, 491 (Mo.App.2007). Where, as here, the Commission incorporates the ALJ's findings and award into its final award, we consider the ALJ's findings and award as the Commission's findings and award. Id. Moreover, the Missouri constitution, article V, section 18, provides that our review of the underlying award is limited to a determination of whether the award is “supported by competent and substantial evidence upon the whole record.” Such a “standard is not met if the award is contrary to the overwhelming weight of the evidence.” Wagner v. Harbert Yeargin Constr. Co., 145 S.W.3d 511, 513 (Mo.App.2004).

It is not our responsibility to re-weigh the evidence before the Commission; rather, we defer to the findings of the Commission as they relate to the credibility of witnesses and the weight to be given a witness's testimony. Hornbeck v. Spectra Painting, Inc., 370 S.W.3d 624, 629 (Mo. banc 2012). This includes the credibility of medical experts and conflicting medical theories. Armstrong v. Tetra Pa k , Inc., 391 S.W.3d 466, 470–71 (Mo.App.2012). Consequently, although we review questions of law de novo, we will not substitute our own judgment on issues of fact where the Commission has acted within its authority, even if this court would have reached a different conclusion. Underwood v. High Road Indus., LLC, 369 S.W.3d 59, 66 (Mo.App.2012).

Discussion

Appellants present four points relied on for our review. We address them out of order by considering the first, second, and fourth points together and then considering the third point.

Sufficient Evidence in Record Supporting Award

In their first, second, and fourth points, Appellants contend that the Commission's award was against the overwhelming weight of the evidence in that the record before the Commission was devoid of any evidence demonstrating that Gonzales suffered a work-related injury, that Gonzales provided Butterball with the requisite statutory notice for any such injury, and that Gonzales's treatment for which he seeks payment was related to any alleged work-related injury. Appellants are incorrect.

A successful against-the-weight-of-the-evidence challenge will complete four steps:

1. Identify a factual proposition needed to sustain the result;

2. Marshal all record evidence supporting that proposition;

3. Marshal contrary evidence of record, subject to the factfinder's credibility determinations, explicit or implicit; and

4. Prove, in light of the whole record, that the step 2 evidence and its reasonable inferences are so non-probative that no reasonable mind could believe the proposition.

Jordan v. USF Holland Motor Freight, Inc., 383 S.W.3d 93, 95 (Mo.App.2012) (citing Stewart v. Sidio, 358 S.W.3d 524, 527–28 (Mo.App.2012) ; Houston v. Crider, 317 S.W.3d 178, 187 (Mo.App.2010) ). Appellants completely fail to address the second step in each of these three points, ignoring any evidence in the record supporting the Commission's findings, and, in addressing the third step, ignore the Commission's credibility determinations.

Section 287.140.1 provides, in relevant part, that

[T]he employee shall receive and the employer shall provide such medical surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines as may reasonably be required after the injury or disability, to cure and relieve the effects of the work injury.

“Injury” is “defined to be 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.” Section 287.020.3(1). An “acci...