Hatter v. Cleaning Service Co.

• Decision Date: 03 September 1991
• Docket Number: No. WD,WD
• Citation: 814 S.W.2d 951
• Parties: Charles W. HATTER, Jr., Respondent, v. CLEANING SERVICE COMPANY, and St. Paul Insurance Companies, Appellants. 44122.
• Court: Missouri Court of Appeals

Page 951

814 S.W.2d 951

Charles W. HATTER, Jr., Respondent, v. CLEANING SERVICE COMPANY and St. Paul Insurance Companies, Appellants.

No. WD 44122.

Missouri Court of Appeals Western District.

Sept. 3, 1991.

Edward L. Weiss, St. Louis, for appellants.

Charles A. Powell, Jr., Macon, for respondent.

Before FENNER, P.J., and TURNAGE and ULRICH, JJ.

ULRICH, Judge.

The Cleaning Service Company (Employer) and St. Paul Insurance Companies (Insurer) appeal the Labor and Industrial Relations Commission's (Commission) decision awarding the employee, Charles W. Hatter, compensation for injuries he sustained. In its appeal, Employer contends that the Commission erred in finding that Mr. Hatter suffers from a ten percent permanent partial disability, in awarding temporary total disability for the periods between April 26 through May 5, 1985, and May 7 through May 12, 1985, and finally, in ordering Employer to reimburse Mr. Hatter for medical bills. Mr. Hatter cross appeals, contending that the Commission's limitation of the temporary total disability to two weeks was erroneous. The Commission's decision is affirmed.

Mr. Hatter's lower back was injured on April 24, 1985, when he slipped and fell as he was working in behalf of his employer to clean a cattle slaughtering plant. Mr. Hatter continued to work and completed his shift. The following day, while performing his duties, Mr. Hatter splashed cleaning fluid into his eyes. He flushed his eyes with emergency eye wash. Mr. Hatter was taken to a hospital by his supervisor, where he received medical attention, and he did not work the following week as instructed by Employer's doctor.

Upon returning to work on May 6, 1985, Mr. Hatter experienced pain in his back while performing his duties. He was admitted to a hospital for nonsurgical treatment. Mr. Hatter was released from the hospital on May 12, 1985, at his own request, and has since been unable to perform his usual work. He has performed limited clerical duties for an auto auction since November 1985.

Following a hearing, the administrative law judge (ALJ) of the Division of Workers' Compensation determined that Mr. Hatter's back was injured prior to May 6, 1985, in an incident unrelated to his employment. The ALJ further found that Mr. Hatter did not sustain an accident on May 6th. The ALJ concluded that the Employer was not liable for any further medical expenses and that Mr. Hatter only sustained 4/7th of one week of temporary total disability for his two injuries in April. The ALJ also ruled that Mr. Hatter did not suffer permanent partial disability from his work related activities.

Mr. Hatter applied to the Labor and Industrial Relations Commission for review of the ALJ's decision. The Commission determined that Mr. Hatter should receive temporary total disability compensation for April 26th through May 5th, and from May 7th through May 12th. The Commission further awarded Mr. Hatter ten percent permanent partial disability for his work related injuries and ordered Mr. Hatter to be recompensed for his medical expenses.

On appeal, Employer contends that the Commission erred in awarding Mr. Hatter temporary total disability, permanent partial disability and medical expenses because (I) the Commission's awards are not supported by sufficient, competent evidence on the whole record and are against the overwhelming weight of the evidence; (II) the Commission erred in not giving great weight to the ALJ's findings of fact and law, particularly as to the credibility of the witnesses' testimony; and (III) the Commission should not have heard any additional evidence not presented at the ALJ hearing. In his appeal, Mr. Hatter contends that (IV) the Commission erred by allowing an insufficient temporary total disability award.

This court will not disturb the Commission's findings except when the record indicates that there is not substantial and competent evidence to support the findings, or if the Commission's decision is clearly contrary to the overwhelming weight of the evidence. Jones v. Jefferson City School Dist., 801 S.W.2d 486, 488 (Mo.App.1990). The evidence, and any legitimate inferences from such evidence, must be viewed in the light most favorable to the Commission's decision. Id. This court may not substitute its judgment for that of the Commission's, and great deference must be given to the Commission's resolution of conflicts in evidence. Id.

I.

The Employer contends that the Commission's award is not supported by sufficient, competent evidence, and that it is against the overwhelming weight of the evidence. The Employer relies upon surveillance film of Mr. Hatter performing physical activity after he sustained the injuries, taken by its investigator, and upon the reports of Drs. Shin, Wayne, and Abernathie.

Surveillance films of Mr. Hatter were taken surreptitiously by an investigator hired by Employer. Employer argues that the surveillance photographs and films, which illustrate Mr. Hatter engaged in a variety of physical activities over a two-day period, as well as the testimonial evidence at the Commission and ALJ hearing, should preclude any temporary total disability award.

The Commission accepted the ALJ's assessment of the surveillance films and photographs as proof demonstrating Mr. Hatter's ability to perform work. The Commission denied temporary total disability except for the two weeks in which Mr. Hatter was unable to work due to his eye injury (April 26 to May 5) and except for the period of time that he was in the hospital (May 7 to May 12). The record discloses that Mr. Hatter was instructed by the company physician, Dr. Shin, to refrain from working for a week following the injury to his eyes on April 25, 1985. Mr. Hatter was treated nonsurgically in the hospital, by Dr. Shin, from May 6 to May 12, 1985, for the injury he sustained while working on May 6th. The Commission's function is to review the evidence and resolve any evidentiary conflicts that might arise, such as in the present case. Id. The Commission's findings and resolution of conflicting evidence will not be disturbed if it is supported by substantial and competent evidence. Id. Thus, since the record includes evidence to support the Commission's finding of temporary total disability, the temporary disability award is affirmed.

Employer also urges reversal of the Commission's award to Mr. Hatter for ten percent permanent partial disability attributable to Mr. Hatter's back injury. In support of its argument, the Employer refers to the following relevant evidence: the photographs and films of Mr. Hatter performing various physical activities after the injury occurred; Dr. Wayne's medical report which gave the employee a rating of 0% permanent partial disability; and Dr. Abernathie's medical report, which states that he does not substantiate Mr. Hatter's complaints of severe pain. However, the record supports by substantial and competent evidence the Commission's award of a ten percent permanent partial disability. The Commission accepted Dr. Abernathie's medical diagnosis that Mr. Hatter suffers ten percent permanent partial disability.

The Commission is not bound to Dr. Wayne's medical diagnosis. The Commission has discretion to disbelieve the medical testimony of witnesses. Jones, 801 S.W.2d at 490. The Commission rejected Dr. Wayne's diagnosis and accepted Dr. Abernathie's permanent partial disability rating, which "is a finding of fact within the unique province of the Commission." Id. at 489. This court will not substitute its judgment for that of the Commission's, even if this court would have drawn a different conclusion from the evidence. Id. Furthermore, any evidence which may lend support to a different finding than that of the Commission's must be disregarded. Hutchinson v. Tri-State Motor Transit Co., 721 S.W.2d 158, 161 (Mo.App.1986). The Commission's ten percent permanent partial disability award is supported by competent, substantial evidence and is not against the overwhelming weight of the evidence.

The last argument raised in appellant's first point on appeal asserts that compensation for medical bills should not have been granted since the bills were not proven to be causally linked to any job-related injuries. However, the record illustrates that the medical bills were incurred as a result of injuries Mr. Hatter sustained while performing his employment duties. Mr. Hatter testified that he sustained injuries resulting from accidents that occurred on April 24, 25,...