McCutchen v. Peoplease Corp.

• Decision Date: 05 May 2006
• Docket Number: No. 27075.,27075.
• Citation: McCutchen v. Peoplease Corp., 195 S.W.3d 421 (Mo. App. 2006)
• Parties: Keith McCUTCHEN, Claimant-Respondent, v. PEOPLEASE CORPORATION and Edwards Transportation Company, Employers-Appellant.
• Court: Missouri Court of Appeals

195 S.W.3d 421

Keith McCUTCHEN, Claimant-Respondent, v. PEOPLEASE CORPORATION and Edwards Transportation Company, Employers-Appellant.

No. 27075.

Missouri Court of Appeals, Southern District, Division Two.

May 5, 2006.

Application for Transfer Denied May 30, 2006.

Mark G.R. Warren, Samantha Anne Harris, Inglish & Monaco, P.C., Jefferson City, for Appellant.

Nancy R. Mogab, Mogab & Hughes Attorneys, P.C., St. Louis, for Respondent.

PHILLIP R. GARRISON, Judge.

Peoplease Corporation ("Peoplease") and Edwards Transportation Company ("Edwards") (collectively referred to as "Employers") appeal the decision of the Labor and Industrial Relations Commission ("the Commission") in favor of Keith McCutchen ("Claimant") for temporary total benefits, compensation for medical treatment, and attorney fees.

From 2000 to 2003 Claimant was employed as a refrigeration mechanic by Edwards, a trucking company.¹ In 2003, Claimant was working as a shop supervisor, which included performing maintenance work on trucks, deciding which trucks to work on, and supervising and assigning tasks to other employees.

On July 14, 2003, Claimant, Claimant's twenty-year-old son, Keith Lee McCutchen ("Son"), Floyd "Butch" Bell ("Bell"), Scott Henry ("Henry"), and David Sterling ("Sterling") were working in the shop at Edwards. Claimant had assigned Son to drive around on a four-wheeler spraying weed killer on weeds growing on the fence rows and parking lot. After lunch, Son told Claimant that "the four-wheeler was messing up on him," and Claimant told him to wash the four-wheeler off, which was muddy, and to take another four-wheeler to finish spraying the weeds.

Son, frustrated at being repeatedly assigned to do what he felt was other employees' jobs, "went off" on Claimant and started cussing at him. Employers and Claimant disagree as to what happened next. Employers maintain that Claimant threw a bolt at Son, while Claimant argues that Son struck first by throwing the bolt at him, hitting Claimant in the lip.

There is no real dispute as to the remaining events. Both sides agree that Claimant told Son "he was fired," and Son reacted by picking up a broken broom handle from the trash can and repeatedly striking Claimant on the right forearm and neck with it, causing Claimant to fall backwards into a stack of tires. When the stick broke Son picked up a lead pipe, which was approximately four foot long and one-and-a-half inches thick, and hit Claimant in the left forearm, puncturing a hole in his arm, which immediately began to bleed. Son then threw a large twelve-inch metal file, hitting Claimant in the stomach. When Claimant pulled his knife out and acted as though he was going to throw it at Son, Son fled and the confrontation ended. Son was fired the following day. No police report was ever filed in connection with this incident.

Henry helped Claimant into the office area and he was able to survey his injuries. Claimant had a knot on his right forearm, and a large, deep hole in his left arm. One of the office secretaries took Claimant to the Ferguson Medical Clinic for treatment. This incident resulted in severe back pain and Claimant required frequent hospital visits and various treatments, which eventually led to him being given a weight restriction of ten pounds and being limited to office work.

Claimant filed a "Claim for Compensation" with the Missouri Division of Workers' Compensation ("the Division") for the injuries he sustained on July 14, 2003, while working for Edwards. Employers filed their answer and a hearing was held before an Administrative Law Judge ("ALJ"). On August 16, 2004, the ALJ entered its findings of facts and conclusions of law denying Claimant's claim.

Claimant filed an application for review with the Commission, which reversed the decision of the ALJ, and remanded the matter to the Division. The Commission found that Claimant was "entitled to, and [E]mployer/insurer shall provide, such future medical aid, including prescriptions and therapy, as may be determined to be necessary to cure and relieve [Claimant's] condition of ill being"; that his claim for temporary total disability from November 7, 2003, thru April 29, 2004, was meritorious; and that Employers were to pay the sum of $523.94 per week for the twenty-five weeks in question. Employers appeal the Commission's award.²

Employers rely on two points of error in this appeal. In Point I, they argue that the evidence established Claimant was the aggressor and therefore his injuries from the altercation were not compensable. In Point II, Employers argue the evidence demonstrated that the conflict was of a private nature and therefore did not have sufficient connection with Claimant's employment to be compensable. We disagree with both and affirm.

In reviewing the Commission's decision we are constrained by Section 287.495.1³ which states in pertinent part:

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 power;

(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.

Absent fraud, the factual findings of the Commission are conclusive and binding on us. Ming v. General Motors Corp., 130 S.W.3d 665, 667 (Mo.App. E.D.2004.) As no fraud is alleged in this case, our review "is limited simply to whether the facts found by the Commission `support the award' and whether there was `sufficient competent evidence to warrant the making of the award.'" Rono v. Famous Barr, 91 S.W.3d 688, 691 (Mo.App. E.D.2002) (overruled on other grounds by Hampton, 121 S.W.3d at 223).

When the Commission affirms or adopts the findings of the ALJ, we review those findings as adopted. Shipp v. Treasurer of State, 99 S.W.3d 44, 50 (Mo.App. E.D.2003) (overruled on other grounds by Hampton, 121 S.W.3d at 223). However, when the Commission has reversed the ALJ, as was done in this case, we examine the whole record and we will uphold the Commission's decision if it is supported by sufficient competent and substantial evidence. See Hampton, 121 S.W.3d at 222-23. Although rare, this standard is not met when "the award is contrary to the overwhelming weight of the evidence." Id. at 223.

In Point I, Employers argue that Claimant, not Son, was the initial aggressor and therefore is not entitled to workers' compensation benefits. In order for an injury to be compensable it must be considered an "accident arising out of and in the course of the employee's employment." Section 287.120.1. The statute defines "accident" as including, "but not be limited to, injury or death of the employee caused by the unprovoked violence or assault against the employee." Section 287.120.1.

Therefore, if the assault was provoked by the claimant he is not entitled to benefits under the workers' compensation statute. Van Black v. Trio Masonry, Inc., 986 S.W.2d 200, 203 (Mo.App. W.D.1999) (overruled on other grounds by Hampton, 121 S.W.3d at 223). The claimant does not need to actually strike his assailant first to be considered the initial aggressor. Id. at 202. Furthermore, an employee reacting violently to a verbal assault can be considered as the initial aggressor. Id.

Essentially the issue before us is one of witness credibility. Claimant and Son both testified that Son threw the bolt at Claimant, which escalated the situation from a verbal disagreement into a physical altercation. On the other hand, Bell testified that he witnessed Claimant throw the bolt which struck Son in the head. Sterling testified that Son told him immediately following the fight, that Claimant "hit him first." Henry also testified that Son told him that Claimant had "hit him in the head," although Henry did not state when during the altercation this occurred.⁴ Bell, Henry, and Sterling all testified to noticing blood coming from Son's head, which Son explained as resulting from a scratch he received when the stick he struck Claimant with broke in his hands. In reversing the ALJ, the Commission stated:

[W]e find the testimony of [Claimant] and [Son] to be the more comprehensive. We accept the incident as related by [Claimant] and [Son]. We accept [S]on's explanation as to the reason he attacked [Claimant].

Employers argue, citing Davis v. Research Medical Center, 903 S.W.2d 557, 570-571 (Mo.App. W.D.1995) (overruled by Hampton, 121 S.W.3d at 223), that when the Commission overrules the ALJ based upon its determination as to the credibility of the witnesses, we should give the ALJ's determination "due deference." However, after Davis, the Missouri Supreme Court decided Hampton, in which it upheld the Commission's reversal of an ALJ's ruling based upon the Commission's contrary credibility determination. Hampton, 121 S.W.3d at 223-224. The Court did not defer to the ALJ's determination in that case, nor did it address that portion of Davis. Rather, the Hampton court sought to simplify the standard of review in cases in which the Commission came to a different conclusion than the ALJ by stating that in this context, appellate courts are simply to consider whether, in light of the whole record, there is sufficient competent and substantial evidence to support the Commission's award. Id. at 223.

As noted above Claimant and Son testified that Son threw the bolt which escalated the situation. This is sufficient evidence to support the Commission's finding that Claimant was injured in an unprovoked assault. Only Bell testified that he saw Claimant throw the bolt, hitting Son in the head. Sterling testified that Son told him Claimant had hit him first and Henry simply testified that Son told him Claimant hit him in the head, without explaining when it occurred. Neither Sterling or Henry...