Jerome v. Farmers Produce Exchange

• Decision Date: 31 December 1991
• Docket Number: No. WD,WD
• Citation: 826 S.W.2d 3
• Parties: Rex Edward JEROME, Appellant-Respondent, v. FARMERS PRODUCE EXCHANGE, Respondent-Appellant. 44597.
• Court: Missouri Court of Appeals

Page 3

826 S.W.2d 3

Rex Edward JEROME, Appellant-Respondent, v. FARMERS PRODUCE EXCHANGE, Respondent-Appellant.

No. WD 44597.

Missouri Court of Appeals,

Western District.

Dec. 31, 1991.

Motion for Rehearing and/or Transfer to

Supreme Court Denied March 3, 1992.

Application to Transfer Denied April 21, 1992.

Edgar S. Carroll and Andrew J. Gelbach, Warrensburg, for appellant-respondent.

John R. Meharry, Cook & Meharry, Kansas City, for respondent-appellant.

Before KENNEDY, P.J., and FENNER and BRECKENRIDGE, JJ.

BRECKENRIDGE, Judge.

Rex Edward Jerome appeals from a workers' compensation award for nursing services of eleven and one-half hours per week. His employer, Farmers Produce Exchange, also appeals from the award. The award in question was made by the Labor and Industrial Relations Commission pursuant to the directive in Jerome v. Farmers Produce Exchange, 797 S.W.2d 565 (Mo.App.1990), in which this court reversed an award made by the Commission and remanded the cause "for reconsideration upon the entire record." Id. at 570.

The award of the Commission is affirmed.

Rex was employed as a truck driver by Farmers in 1981 when the Farmers' truck he was driving overturned. As a result of the accident, Rex was paralyzed from the waist down. Rex's injuries were detailed in the Jerome I opinion, as were the nursing services provided for Rex by his wife, Polly. The Commission found that the nursing services were justified and that Polly was entitled to compensation at a rate of $7 per hour. Id. at 566. Although the record would have supported an award of up to twenty-five hours per week, the Commission awarded compensation based upon one hour per week. Id. at 568. On review, this court found the evidence before the Commission did not support such a figure. The court stated, "[o]nce [the Commission] agreed the nursing duties were justified they were required to base their judgment on the evidence and not their speculative idea of how much time Polly spent in care for Rex." Id.

Upon remand, the Commission awarded compensation for eleven and one-half hours per week of nursing services. The award was computed by using the maximum twenty-five hours per week figure and subtracting the thirteen and one-half hours per week that Polly spent in meal preparation. No new evidence was introduced; the award was made based upon the same evidence the Commission had before it in making its earlier award. In his appeal, Rex Jerome challenges the eleven and one-half hour award, claiming that the Commission erred by not awarding twenty-five hours based upon the decision in Jerome I and because there was not sufficient and competent evidence to support the award of eleven and one-half hours. The employer, on the other hand, claims that the eleven and one-half hour award was based upon speculation and that there is not sufficient competent evidence in the record to warrant the making of the award. The employer claims that the facts found by the Commission do not support a finding that the nursing services were necessary. The employer's contention will be addressed first.

Farmers Produce Exchange is trying to re-litigate an issue conclusively decided in Jerome I, the issue of whether Polly's nursing services were necessary and therefore compensable. In the original action, the Commission found that there was a need for general nursing care "above and beyond the services ordinarily performed by a wife for her husband." This court, in exhaustive detail, enumerated the myriad services performed by Polly to aid Rex and concluded that, "[t]he evidence is clearly overwhelming that Polly spends a great deal of time nursing and caring for her husband Rex." Jerome, 797 S.W.2d at 570. This court did not reject the contention that such care was necessary but instead found that there was no substantiation for the award of one hour per week, finding that, "[i]n view of the totality of the evidence demonstrating the many nursing functions that Polly performed the majority decision was not in conformity with the evidence but was speculative." Id. at 568. The concurring opinion addressed the issue this way:

The order of the Industrial Commission poses as the issue for decision: "whether or not the employee [Jerome] is in need of and entitled to nursing care as the result of his work-related injury." The order decides that Jerome needs such care and that his wife, a certified nurse assistant who regularly performs the service--a species of care above and beyond the kind usually rendered by one spouse to the other--is entitled to compensation for it. The order also decides that Jerome is entitled to compensation for the nursing care at the rate of $7 per hour for one hour each week.

The nature of the nursing care that the husband needs and the wife administers is expressly found in the order of the Industrial Commission and recounted in detail by the principal opinion. It is the same regimen of care that the husband describes and the wife confirms. It is the same regimen of care that the Commission majority finds also from the testimony of the wife, testimony "credible and worthy of belief." It is a kind of needed care, moreover, the Commission determined even as against the contending medical evidence of the employer.

Id. at 570. (Shangler, J. concurring).

Unless there has been a change in the evidence or the issues, the previous holding of the court of appeals is considered the law of the case and effectively concludes any issues decided on remand and upon a subsequent appeal. Gamble v. Hoffman, 732 S.W.2d 890, 895 (Mo. banc 1987). "The decision of an appellate court is the law of the case on all points presented and decided and remains as such throughout all subsequent proceedings both in the trial and the appellate courts and no question decided in the first appeal will be considered in the second." Brooks v. Kunz, 637 S.W.2d 135, 138 (Mo.App.1982). The question of the necessity of nursing services was conclusively and expressly decided in Jerome I. Even were it not so clearly stated, it is necessarily implied, and such is equivalent to expression. Gold Lumber Co. v. Baker, 46 S.W.2d 189, 190 (Mo.App.1932). The employer's points are denied.

Rex Jerome argues that the trial court erred in finding that eleven and one-half hours per week was the correct figure for an award of nursing services. He claims that the only evidence before the Commission was that Polly spent some twenty-five hours assisting Rex and that the award of eleven and one-half hours violated the mandate of this court. Further, Rex asserts that there was not sufficient and competent evidence to support the eleven and...