Jerome v. Farmers Produce Exchange

• Decision Date: 16 October 1990
• Docket Number: No. WD,WD
• Citation: 797 S.W.2d 565
• Parties: Rex Edward JEROME, Appellant/Respondent, v. FARMERS PRODUCE EXCHANGE, Respondent/Appellant. 42759.
• Court: Missouri Court of Appeals

Page 565

797 S.W.2d 565

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

No. WD 42759.

Missouri Court of Appeals,

Western District.

Oct. 16, 1990.

Edgar S. Carroll & Andrew J. Gelbach, Warrensburg, for appellant/respondent.

John R. Meharry, Kansas City, for respondent/appellant.

Before SHANGLER, P.J., and CLARK and BERREY, JJ.

BERREY, Judge.

This is an appeal pursuant to § 287.495, RSMo 1986. The Labor and Industrial Relations Commission filed its order on November 13, 1989, and appellant, Rex Jerome, filed his appeal on November 28, 1989. On December 7, 1989, the respondent, Farmers Produce Exchange, filed its notice of appeal.

Rex was employed as a truck driver by Farmers in 1981. On December 28, 1981, Rex was driving a Farmers' truck which overturned and as a result Rex was paralyzed from the waist down. His injuries are extensive and permanent. He lost control of his bladder and bowel and lost sensation and movement of his lower extremities. Subsequently, he has been fitted with leg braces and given gait therapy. He has been instructed in the use of a wheelchair. He has learned to take care of his bowel and bladder requirements. In 1986 the Harrington rods, inserted following the accident, were removed from his back.

In 1983 Rex married Polly. They bought a home in Wichita, Kansas, without a lot of steps and doors. The bathroom was modified for Rex. Although Rex became employed by Coleman Company as a design engineer, it was necessary for him to use an electric three-wheel cart to get about the plant and a wheelchair or crutches when he goes out.

He empties his bladder by using a disposable catheter, usually two or three times a day. Because he has experienced numerous urinary tract infections, he is on sulfa continuously.

His wife, Polly, who had worked in the medical field eight or nine years at the time of the hearing, became a qualified medical assistant as determined by the "Board of Examiners of the Registry of the American Medical Technologists" in 1989. She weekly inspects his urine for signs of infections. She packs in the catheter supplies, weighing thirty to forty pounds when delivered. She helps him to his truck in bad weather and steadies him when he is on crutches and walking on wet or slippery pavement. She checks his blood pressure and temperature weekly. Rex has no sensation in his feet or buttocks. Polly checks his buttocks for sores and treats the dry skin with lotion.

Polly cleans him up when he is incontinent and prepares diets to help control his bowel and bladder functions. Due to occasional spasms in his legs, Polly will massage them. She helps him bathe by washing his buttocks and back. Whenever they are out and encounter bathrooms not equipped for the handicapped, Polly assists him. She also handles getting the wheelchair out of the car. When he falls Polly is the one who gets him up. Rex estimates that Polly spends about three hours each weekday and five hours every Saturday and Sunday assisting him. Extensive cross-examination of Rex was aimed chiefly at the amount of time Polly spent assisting him with his medical problems and the time she would spend helping him up, opening doors, getting in and out of restrooms and performing similar duties.

All three commissioners found that Rex was entitled to nursing care as a result of the work related injury and that his wife Polly was entitled to be compensated for this general nursing care at the rate of $7 per hour. Two commissioners, Fischer and Watkins, arrived at the figure of one hour of care per week. Commissioner Fowler dissented in part, finding that Polly should be paid $7 per hour for twenty-one hours care per week.

Rex appeals the judgment as inadequate because all of the competent evidence supported an award for nursing care of at least twenty-one hours per week. The employer cross-appealed alleging there was not sufficient competent evidence to justify the need for nursing care to support the majority's award. The points will be taken up and addressed together.

Before we enter the clouded arena, the majority award with one amount and the dissent with a different award, the scope of review on appeal as governed by § 287.495, RSMo 1986, must be examined. We must critically examine the record. Our review leads to the inescapable conclusion that the commission's award was not based on the sufficient and competent evidence contained in the record, as a whole. This court has the authority under § 287.495, RSMo 1986 to "modify, reverse, remand for rehearing, or set aside" the commission's award on either of the following grounds:

(3) That the facts found by the commission do not support the award;

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

The record is replete with the amount and type of care Polly performs for Rex and to fully set it forth again in this opinion would be redundant. Both the majority and dissent agree that nursing care for Rex is required. They differ as to the amount of time required each week to perform the functions.

We must review the record in the light most favorable to the commission's finding. Nelson v. Consolidated Housing Development and Management Company, Inc., 750 S.W.2d 144, 148-49 (Mo.App.1988); Swillum v. Empire Gas Transport, Inc., 698 S.W.2d 921, 925 (Mo.App.1985). We reverse the commission's award only when that award is not supported by substantial evidence. We will disturb it only if it is clearly contrary to the overwhelming evidence. Gee v. Bell Pest Control, 795 S.W.2d 532, 535-36 (Mo.App.W.D.1990).

We are mindful of the caveat expressed in Wolfgeher v. Wagner Cartage Service, Inc., 646 S.W.2d 781, 783 (Mo. banc 1983), which reminds us that, "[t]he fundamental purpose of the Workers' Compensation Law is to place upon industry the losses sustained by employees resulting from injuries arising out of and in the course of employment." Furthermore, § 287.800, RSMo 1986, advises one and all that the Workers' Compensation Law is to "be liberally construed with a view to the public welfare."

In the commission's order of November 13, 1989, they acknowledged Brollier v. Van Alstine, 236 Mo.App. 1233, 163 S.W.2d 109, 115 (1942), by holding that the statutory terms "cure" and "relieve" "should be interpreted as meaning giving comfort, aid, help and ease in his suffering." The commission reiterated that terms in § 287.140 should be given their usual meaning and the statute should be liberally construed.

The commission found:

Mrs. Jerome also checks and keeps track of the claimant's vital signs; examines the claimant for pressure sores; adjusts the claimant's diet as necessary to assist the claimant with proper bowel function; massages cramps and spasms the claimant experiences in his back and legs; and assists claimant in instances where bathroom facilities are not handicap accessible.

Although the claimant stated that he was able to check his buttocks for pressure sores with the use of a hand mirror prior to getting married, the claimant's wife testified that while she had seen the claimant attempt to check his buttocks by using a hand mirror, he was not able to do so successfully. Further, based on her seven years experience in the medical field, the claimant's wife testified that she had never seen anyone in the claimant's condition be able to successfully check his own buttocks for pressure sores simply by using a hand mirror. While the claimant may have felt he was capable of performing such a task, we find his wife's testimony to be credible and worthy of belief. It is the Commission that is the sole judge of the weight of the evidence and the credibility of the witnesses. Welborn v. Southern Equipment Co., 395 S.W.2d 119 (Mo. banc 1965).

The examining doctor for the employer found Rex had no "medical need" for nursing care but this opinion was rejected by the commission. The commission held that:

While the doctor may not feel the care being rendered the claimant is "medically" necessary, we conclude that the evidence shows the claimant does require general nursing care above and beyond the services ordinarily performed by a wife for her husband. Stephens v. Crane Trucking, Inc., 446 S.W.2d 772 (Mo.1969).

The commission found that $7 per hour was a reasonable rate of compensation for those nursing duties.

Farmers offered only the deposition of Dr. James Zarr, and, as the majority of the commissioners noted, his opinion was based upon Rex's responses to his questions and a "quick examination." Zarr found Rex had no "medical need" for nursing care. Zarr did opine that Polly was "performing the duties described to him." The controversy is over the number of hours per week that Polly performs necessary care for Rex. The majority holds that even though the doctor may feel the care being rendered Rex by Polly is not "medically" necessary, the "evidence shows the claimant does require general nursing care above and beyond the services ordinarily performed by a wife for her husband."

It is well recognized that an award based on speculation and guesswork cannot stand. Brown v. R.J. Brown Co., 351 Mo 557, 172 S.W.2d 645 (1943). In 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. Stephens v. Crane Trucking, Inc., 446 S.W.2d 772, 781 (Mo.1969). In Stephens, the wife of the injured employee performed many of the same services that Rex's wife performs for him. Id. at 776. The court found "factual support of the award for future nursing services 'above and beyond the services ordinarily performed by a wife.' " Id. at 781. She was awarded $15,302 for her services based upon rates of $10 and $6 per day. Id. at 773.

Rex testified that Polly aided him from fifteen minutes to thirty minutes each weekday morning and two and one-half hours each...