Jordan v. D & L Custom Wood Products, 16199

• Decision Date: 04 April 1989
• Docket Number: No. 16199,16199
• Parties: Darin B. JORDAN, Appellant, v. D & L CUSTOM WOOD PRODUCTS and Treasurer of Missouri, as Custodian of Second Injury Fund, Respondents.
• Court: Missouri Court of Appeals

Page 378

767 S.W.2d 378

Darin B. JORDAN, Appellant, v. D & L CUSTOM WOOD PRODUCTS and Treasurer of Missouri, as Custodian of Second Injury Fund, Respondents.

No. 16199.

Missouri Court of Appeals,

Southern District,

Division One.

April 4, 1989.

Winston V. Buford, Eminence, and Milton B. Garber, Fulton, for appellant.

Pete E. Carter, Pearson & Carter, St. James, for respondent D & L Custom Wood Products.

Cynthia L. Turley, Rolla, for respondent Treasurer of Missouri, as Custodian of Second Injury Fund.

CROW, Presiding Judge.

Darin B. Jordan ("claimant") appeals from a final award denying compensation by The Labor and Industrial Relations Commission of Missouri ("Commission") in a proceeding under The Workers' Compensation Law, chapter 287, RSMo 1986. The Commission, affirming (by a two-to-one vote) an award of an administrative law judge ("ALJ") of the Division of Workers' Compensation, denied compensation on the ground that at the time of claimant's accident, April 6, 1987, his employer, D & L Custom Wood Products ("D & L"), a partnership, had only four employees and was consequently not subject to The Workers' Compensation Law by reason of § 287.090, RSMo 1986, which provides:

"1. Chapter 287 shall not apply to:

(1) ....

(2) Any employment ... wherein the employer has no more than four employees; provided, that no worker who is a member of the employer's family by marriage or consanguinity shall be included in the total number of employees of such employer for purposes of this subdivision;

...."

D & L concedes it had four employees on the date of the accident: claimant, William Dudley Raulston, James Powell and Robert Birdsong. The sole issue before the ALJ, and thereafter before the Commission, was whether, on the date of the accident, one David Rostron, a teenage nephew of Gilbert L. Durham, one of the partners in D & L, was also an employee of D & L. On that issue the ALJ's award contained these findings:

"It is my opinion at the time of the accident in question that the employer only had four employees, and therefore was not subject to the workers' compensation law.

There is sufficient evidence in the record to make a finding that David Rostron was, in fact, employed by the employer prior to the accident in question or to make a finding that David Rostron was not hired until after the accident in question. Where oral testimony presents two conflicting and diametrically opposed views, then findings must be based on the balance of the evidence contained in the record. The payroll records, as submitted by the employer, help provide sufficient information so as to make a determination that David Rostron did not receive any payroll checks. The payroll checks were issued to the employees in consecutive numerical sequence. The records submitted show that the check number preceding the first payroll check issued and the check number subsequent to the last payroll check issued were not for payroll expenses. Based on this fact and the testimony of Gilbert Durham and Gary Lay, it is my opinion that David Rostron was not employed by the employer prior to the accident in question."

Gary Lay mentioned in the ALJ's findings is a partner in D & L.

The final award adopted by two of the three Commissioners held that the ALJ's award was supported by competent and substantial evidence. The ALJ's award was made a part of the Commission's award.

Claimant's brief presents two points. The first is:

"The ... Commission erred in holding that the employer had only four employees on the date of the accident and was, therefore, not subject to the [Workers' Compensation] Act because the subsidiary holding that 'David Rostron was not employed by the employer prior to the accident in question' was not supported by sufficient competent evidence upon the whole record."

The scope of our review is established by § 287.495.1, RSMo 1986, which provides:

"... Upon appeal no additional evidence shall be heard and, in the absence of fraud, the findings of fact made by the commission within its powers shall be conclusive and binding. The 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:

(1) That the commission acted without or in excess of its powers;

(2) That the award was procured by fraud;

(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."

We review the Commission's award, not that of the ALJ. Richardson v. Falcon Products, Inc., 739 S.W.2d 596, 597 (Mo.App.1987); Swillum v. Empire Gas Transport, Inc., 698 S.W.2d 921, 923 (Mo.App.1985). The Commission's award may be overturned only if it is not supported by substantial evidence or if it is clearly contrary to the overwhelming weight of the evidence. Johnson v. City of Duenweg Fire Department, 735 S.W.2d 364, 366 (Mo. banc 1987). Consequently, our duty is to determine from the record as a whole whether the Commission could reasonably have made its findings and award, reviewing the record in the light most favorable to the findings of the Commission. Id. at 366. The Commission 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, 125-26 (Mo. banc 1965); Smith v. Ozark Lead Co., 741 S.W.2d 802, 812 (Mo.App.1987). If the competent evidence or permissible inferences are conflicting the choice rests with the Commission and is binding upon us. Davis v. Roadway Express, Inc., 764 S.W.2d 145, 152 (Mo.App.1989); Katzenberger v. Gill, 690 S.W.2d 473, 475 (Mo.App.1985); Springett v. St. Louis Independent Packing Co., 431 S.W.2d 698, 700 (Mo.App.1968).

Claimant presented four witnesses: himself, his father, and D & L...