McCormack v. Stewart Enterprises, Inc.

• Decision Date: 28 November 1995
• Citation: 916 S.W.2d 219
• Parties: Lindell McCORMACK, Employee-Respondent, v. STEWART ENTERPRISES, INC., Employer-Appellant, and St. Paul Fire and Marine Insurance Company, Insurer. WD 50933.
• Court: Missouri Court of Appeals

Page 219

916 S.W.2d 219

Lindell McCORMACK, Employee-Respondent, v. STEWART ENTERPRISES, INC., Employer-Appellant and St. Paul Fire and Marine Insurance Company, Insurer.

WD 50933.

Missouri Court of Appeals Western District.

Nov. 28, 1995.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Jan. 30, 1996.

Application to Transfer Denied

March 26, 1996.

William F. Ringer, Kansas City, for appellant.

William H. McDonald, William H. McDonald & Associates, Raymond E. Whiteaker, John E. Price, Whiteaker & Wilson, P.C., Springfield, for respondent.

Before BRECKENRIDGE, P.J., and ULRICH and LAURA DENVIR STITH, JJ.

ULRICH, Judge.

Stewart Enterprises, Inc. (Stewart Enterprises) and St. Paul Fire and Marine Insurance Company (St. Paul), collectively "employer," appeal the Missouri Labor and Industrial Relations Commissions' award in favor of Lindell G. McCormack. The Commission's final award allowed compensation and affirmed the award of the Administrative Law Judge. The Administrative Law Judge found Lindell McCormack permanently totally disabled (section 287.200, RSMo 1986) and entitled to receive workers' compensation benefits as prescribed by the Worker's Compensation Act; found employer responsible and "liable for past and future medical bills, including nursing expenses," and ordered employer to reimburse Lindell McCormack medical expenses accrued as of the date of the hearing in the amount of $359,443.68; found employer liable for past temporary total disability benefits; found total disability at $102.56 per week from and including August 30, 1991; found employer is "entitled to subrogate $579,198.56, its share of the third-party recovery to its liability for future disability"; and found that employer "is not entitled to subrogate its liability for past or future medical expenses." Employer contests the Commission's findings that 1) Lindell McCormack's injury was sustained in an accident arising out of and in the course of employment, and 2) the employer was not entitled to a credit or a right of subrogation to a third party recovery under Section 287.150 RSMo. The Commission's award is affirmed in part and reversed in part.

On August 29, 1991, Lindell McCormack, working with his father, Marion McCormack, a brother, and owner of Stewart Enterprises, Ray Stewart, began making asphalt repairs to Stewart Enterprises' premises. The day was hot and humid with temperatures in the 80's, and the humidity was 93%.

The workmen began the day by preparing the parking lot for incoming asphalt. The 225 degree asphalt arrived by the truckload. Marion McCormack and Ray Stewart operated a compactor and backhoe while Lindell McCormack and his brother worked on the ground with hand tools. The backhoe made smaller piles of the asphalt dumped by the truckload, and Lindell and his brother then placed the hot asphalt from the piles into potholes with shovels and rakes. The compactor was driven over the filled in potholes to compress the asphalt.

Ray Stewart left at noon, and the others stayed to complete the job. The work was fast paced, and Lindell McCormack did not take a lunch break. At approximately 2:00 p.m., Lindell stopped working on the ground and began to operate the compactor. After operating the compactor for less than an hour, Lindell fell from the moving compactor. Lindell testified that he was sitting on the seat of the compactor with one hand on the steering wheel while he turned to look over his shoulder to see if the area he had just compressed needed another pass with the compactor. He became dizzy or disoriented and turned to place both hands on the steering wheel. That was the last thing he remembered until he heard someone state, "here comes the ambulance."

Marion McCormack and other people at the scene moved Lindell to a shaded area and used wet towels and ice in an attempt to cool him. He was transported by ambulance to Community Hospital in Fulton and was then transferred to UMC--Columbia Medical Center. Lindell McCormack had experienced a spinal cord injury rendering him a permanent quadriplegic.

The parties stipulate that Lindell was working for Stewart Enterprises, the employer was operating under the provisions of the Missouri Workers' Compensation Law, and the employer was fully insured.

A hearing was conducted before an Administrative Law Judge (ALJ) on July 7, 1994. The Labor and Industrial Relations Commission affirmed and adopted the award on March 9, 1995. The award found that the injury arose from an accident occurring in the course of employment; the employer was responsible and liable for past and future medical bills, past temporary total disability benefits, nursing care, both past and future; and that the employer is entitled to subrogate $579,198.56, its share of the third party recovery to its liability, for future disability payments but not for past and future medical expenses.

I. INJURY AROSE OUT OF THE COURSE AND SCOPE OF EMPLOYMENT

Employer's first point on appeal claims error in the administrative law judge's finding, adopted by the Commission, that the injury incurred by Lindell arose out of and in the course of his employment with Stewart Enterprises. The Commission's decision will be upheld unless it is unsupported by competent and substantial evidence on the record as a whole or erroneously applies the law. Sommer v. Sommer & Hartstein, 888 S.W.2d 398, 399 (Mo.App.1994). In reviewing the record, the evidence is considered in the light most favorable to the Commission's award. Pullum v. Hudson Foods, Inc., 871 S.W.2d 94, 96 (Mo.App.1994). This court will not substitute its judgment for the Commission's simply because this court would have made a different initial conclusion. Hunsperger v. Poole Truck Lines, Inc., 886 S.W.2d 656, 658 (Mo.App.1994).

The focus of appellant's argument is that Lindell McCormack suffered an idiopathic seizure that resulted in his injury and that heat related trauma did not precipitate his injury. Evidence was presented by the employer in the form of Dr. Daniel Phillips and Dr. Patrick Hogan's depositions. The physicians opined that Lindell McCormack experienced an idiopathic seizure resulting in unconsciousness and his fall. Their testimony, thus, refutes the theory that Lindell experienced a heat related disorder that rendered him unconscious. However, evidence also indicated that Lindell's unconsciousness was a result of heat distress. Dr. Colapinto, Lindell's treating physician, testified that his patient's injuries were precipitated by heat exhaustion causing him to fall and sustain injury. The commission's responsibilities include determining the credibility of witnesses, and it may disbelieve testimony of a witness even if uncontradicted. Pullum, 871 S.W.2d at 96. Thus, when conflicting medical theories are presented by competent evidence to the Commission, its determination that one theory is correct is binding on this court. Sommer, 888 S.W.2d at 399.

The cause of Lindell McCormack's unconsciousness is not critical to determining whether the incident that caused his injuries arose out of and in the course of his employment. The findings of the Commission, although determining that Lindell fainted due to the existing heat conditions while employed, more importantly concluded that the injury he sustained was due to his falling from the compactor.

For the employer to be liable, injuries must occur by an accident arising out of and in the course of employment. § 287.120.1, RSMo (1993). An accident arises out of the course of employment when there is a causal connection between the condition under which the work is performed and the resulting injury. ¹ Cherry v. Powdered Coatings, Insurance Co. of North America, 897 S.W.2d 664 (Mo.App.1995). The proper test of causal connection is whether the conditions of employment caused or contributed to cause the accident. Clancy v. Armor Elevator Company, 899 S.W.2d 123 (Mo.App.1995); Alexander v. D.L. Sitton Motor Lines, 851 S.W.2d 525, 528 (Mo. banc 1993).

The court in Alexander held that a causal connection was established if the conditions of the work place contributed to the accident even if the precipitating cause was idiopathic. Id. In Alexander, an employee fell from a platform approximately 4 1/2 feet high after becoming dizzy. Although the dizzy spell was idiopathic the subsequent fall arose out of the employment and was compensable since the condition of employment, being on the platform, contributed to the injuries. Id. Similarly in Clancy, the employee was repairing an elevator when he experienced pain. He began to descend a flight of metal stairs when he slipped and injured his hip and leg. The injury was compensable because the use of the stairs was due to a condition of employment of the elevator repairman. Clancy, 899 S.W.2d 123.

A situation similar to Alexander and Clancy exists in this case. Both Alexander and Clancy are instructive. The precipitating cause of Lindell McCormack's fall, whether an idiopathic seizure or heat exhaustion, is not determinative of the legal issue. The significance of Lindell's unconsciousness is that it caused him to fall from the compactor. Evidence was admitted by employer's two expert witnesses that the main factor resulting in employee's injury was his failure to employ protective mechanisms to avoid serious injury because he was unconscious. The evidence showed that the compactor roller was at least 4 feet from the ground. The injuries sustained by Lindell McCormack resulted from his fall from the compactor. Mr. McCormack was on the compactor as part of his employment. What precipitated his fall is immaterial. The fall from the compactor contributed to his spinal injury. Therefore, the accident arose out of the course of McCormack's employment and is compensable. Point I is denied.

II. SUBROGATION CLAIM

Employer claims as its second point on appeal that the Commission erred in finding the employer was not entitled to receive...