Pavia v. Smitty's Supermarket

• Citation: 118 S.W.3d 228
• Decision Date: 30 September 2003
• Docket Number: No. 25295.,25295.
• Parties: Patrick PAVIA, Respondent, v. SMITTY'S SUPERMARKET, Appellant.
• Court: Missouri Court of Appeals

118 S.W.3d 228

Patrick PAVIA, Respondent, v. SMITTY'S SUPERMARKET, Appellant.

No. 25295.

Missouri Court of Appeals, Southern District, Division One.

September 30, 2003.

Motion for Rehearing or Transfer Denied October 21, 2003.

Application for Transfer Denied November 25, 2003.

J. Bradley Young, Roberts, Perryman, Bomkamp & Meives, P.C., St. Louis, for appellant.

Matthew J. Sauter, Deeba Sauter Herd, St. Louis, for respondent.

ROBERT S. BARNEY, Presiding Judge.

Appellant, Smitty's Supermarket, ("Appellant") appeals the decision by the Labor and Industrial Relations Commission ("Commission") affirming an award of the Division of Workers' Compensation, as modified. As explained more fully below, in its final award the Commission determined Respondent, Patrick Pavia, ("Claimant") was permanently and totally disabled and awarded him, inter alia, weekly benefits for life, and assessed a 15 percent penalty applicable to all of his benefits arising from Appellant's purported violation of sections 292.020 and 287.120.4.¹

Claimant suffered physical injuries while working for Appellant at its facility in Waynesville, Missouri, on February 25, 1996. At that date he was working as a bagger and was attempting to obtain certain grocery store items, including packages of Kleenex, stacked in the warehouse area of the grocery store. Claimant stood on a wooden pallet and a fellow employee, an assistant manager, lifted the pallet into the air with a forklift. After he reached a height of approximately 15 to 20 feet, Claimant fell off the pallet and onto the floor of the warehouse, where he remained unconscious and unresponsive.

After emergency treatment at a local hospital, Claimant was flown to University Hospital in Columbia, Missouri, where he was diagnosed as having a severe closed head injury, subdural hematoma, subarachnoid hemorrhaging and a cervical spine fracture. A halo placement surgical operation was performed for treatment of his cervical fracture. Claimant remained at the hospital until February 29, 1996, and then was transferred from the neurosurgery intensive care unit to the traumatic brain injury program at Rusk Rehabilitation Center, where Claimant remained until March 22, 1996. He was then enrolled in the Bridge Outpatient Program through the University Hospital receiving full-team rehabilitation, occupational therapy consultation, speech and language pathology consultation, social services consultation, physical therapy, therapeutic recreation, rehabilitation nursing, and ophthalmology consultation during the period April 1, 1996, through May 24, 1996. The Bridge Outpatient Program discharge notes indicated that Claimant continued to display cognitive dysfunction, including distractibility and inattention. He also continued to have difficulty with reading comprehension and mathematic skills. It was recommended that Claimant be scheduled for a full battery of neuropsychological testing in the future.

Claimant filed for workers' compensation benefits. Following a contested hearing, an Administrative Law Judge (ALJ) found, inter alia, that Claimant "suffered a 20% Permanent Partial Disability of the body as a whole at the level of his neck resulting from the C-6 fracture, and a 50% Permanent Partial Disability of the body as a whole referable to [Claimant's] traumatic brain injury" and determined that he was 70 percent permanently disabled. Additionally, the ALJ found that Appellant's assistant manager had failed to utilize an available safety cage when elevating Claimant with a forklift, and that no notice was posted by Appellant warning of the dangers of elevating an employee on the fork lift without using the safety cage. Accordingly, the ALJ determined that Appellant should be assessed a 15 percent penalty, to be added to Claimant's permanent partial disability award for failure to comply with the safety provisions of section 292.020. Following the ALJ's rendition of her decision, Appellant filed its application for review before the Commission.

The Commission modified the ALJ's decision. It determined that Claimant was permanently and totally disabled and awarded him weekly benefits in the amount of $460.00 per week for life, inclusive of a 15 percent penalty awarded pursuant to sections 292.020 and 287.120.4, together with additional monies representing the 15 percent penalty as applied to Claimant's medical expenses and his temporary total disability payments. This appeal follows.

Appellant complains the Commission erred in its award. It maintains there was no substantial evidence supporting the Commission's determination that Claimant was totally disabled and asserts the Commission erred as a matter of law when it failed to follow the statutory calculation process set forth in section 287.250 when the Commission determined Claimant's wage rate. Appellant also complains the Commission erred in awarding penalties pursuant to section 287.120.4 because Claimant failed to present evidence of a violation of this subsection.

Section 287.495.1, RSMo 2000, governs our review. It sets out, 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 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.

§ 287.495.1, RSMo 2000; see Rono v. Famous Barr, 91 S.W.3d 688, 691 (Mo.App. 2002).

When reviewing the sufficiency of the evidence, the Court is limited to determining whether the Commission's award is supported by competent and substantial evidence on the whole record. The evidence and inferences are reviewed in the light most favorable to the award, and the Commission's findings will be set aside only when they are clearly contrary to the overwhelming weight of the evidence. Akers v. Warson Garden Apts., 961 S.W.2d 50, 52-53 (Mo. banc 1998); Curry v. Ozarks Elec. Corp., 39 S.W.3d 494, 495 (Mo. banc 2001); Chatmon v. St. Charles County Ambulance Dist., 55 S.W.3d 451, 455 (Mo.App.2001).²

"The Commission reviews the record, and, where appropriate, it will also determine the credibility of witnesses and the weight of their testimony, resolve any conflicts in the evidence, and reach its own conclusions on factual issues independent of the ALJ." Shaw v. Scott, 49 S.W.3d 720, 728 (Mo.App.2001).³ "[A]n ALJ's final award is not `final' when review by the Commission is sought. An ALJ's final award is not `final' because it remains tentative, provisional, contingent, and subject to revision by the Commission." Id.

Commission "[d]ecisions that are interpretations or applications of law, rather than determinations of fact, are reviewed for correctness without deference to the Commission's judgment." Maxon v. Leggett & Platt, 9 S.W.3d 725, 729 (Mo. App.2000).

"The workers compensation law should be construed liberally to further the goal of placing upon industry the losses sustained by employees from work-related injuries." Goerlich v. TPF, Inc., 85 S.W.3d 724, 730 (Mo.App.2002). "Thus, `any question as to the right of an employee to compensation must be resolved in favor of the injured employee.'" Id. (quoting Brenneisen v. Leach's Standard Serv. Station, 806 S.W.2d 443, 445 (Mo. App.1991)).

In Appellant's first point, Appellant maintains the Commission erred as a "matter of law in its decision to modify the decision of the of the [ALJ] and award permanent total disability in that the decision was not supported by substantial evidence because no doctor, no vocational expert, nor even the employee testified that the employee was permanently and totally disabled."

We note that the term "total disability" is "defined as the inability to return to any employment and not merely the inability to return to the employment in which the employee was engaged at the time of the accident." Sullivan v. Masters Jackson Paving Co., 35 S.W.3d 879, 884 (Mo.App.2001); § 287.020.7. "It does not require that the claimant be completely inactive or inert." Sifferman v. Sears Roebuck and Co., 906 S.W.2d 823, 826 (Mo.App.1995); see also Brookman v. Henry Transp., 924 S.W.2d 286, 290 (Mo. App.1996); Reiner v. Treasurer, State of Missouri, 837 S.W.2d 363, 367 (Mo.App. 1992).

"To determine if claimant is totally disabled, the central question is whether, in the ordinary course of business, any employer would reasonably be expected to hire claimant in his present physical condition." Ransburg v. Great Plains Drilling, 22 S.W.3d 726, 732 (Mo.App.2000); see also Massey v. Missouri Butcher & Cafe Supply, 890 S.W.2d 761, 763 (Mo.App. 1995).

"The `extent and percentage of disability is a finding of fact within the special province of the Industrial Commission.' " Eimer v. Bd. of Police Comm'rs, 895 S.W.2d 117, 120 (Mo.App.1995) (quoting Fogelsong v. Banquet Foods Corp., 526 S.W.2d 886, 892 (Mo.App.1975)). "The Commission may consider all of the evidence, including the testimony of the claimant, and draw all reasonable inferences in arriving at the percentage of disability." Sifferman, 906 S.W.2d at 826.

"The testimony of ... lay witnesses as to facts within the realm of lay understanding can constitute substantial evidence of the nature, cause, and extent of the disability, especially when taken in connection with, or where supported by, some medical evidence." Eimer, 895 S.W.2d at 120; Ransburg, 22 S.W.3d at 732.

"The Commission is not bound by the expert's exact percentages and is free to find a disability rating higher or lower than that expressed in medical testimony." Sifferman, 906 S.W.2d at 826; Buskuehl v. The Doe Run Co., 68 S.W.3d 535, 540 (Mo.App.2001). "The acceptance or rejection of medical evidence is for the Commission." Sullivan, 35 S.W.3d at 884-85. "The...