Reese v. Coleman

• Decision Date: 07 April 1999
• Docket Number: No. 22567,22567
• Citation: 990 S.W.2d 195
• Parties: Steve REESE, Claimant-Respondent, v. Kevin COLEMAN, d/b/a Immaculate Contracting Services, Appellant.
• Court: Missouri Court of Appeals

Page 195

990 S.W.2d 195

Steve REESE, Claimant-Respondent, v. Kevin COLEMAN, d/b/a Immaculate Contracting Services, Appellant.

No. 22567.

Missouri Court of Appeals,

Southern District,

Division One.

April 7, 1999.

Jack Hoke, Springfield, for appellant.

Jerry A. Harmison, Daniel R. Wichmer, Miller & Sanford, P.C., for respondent.

JOHN E. PARRISH, Judge.

Kevin Coleman, d/b/a Immaculate Contracting Services (ICS), ¹ appeals an award by the Labor and Industrial Relations Commission (the commission) of workers' compensation benefits to Steve Reese (claimant). This court affirms in part; reverses in part and remands with directions.

Appellate review of an award of workers' compensation benefits by the commission is a two-step process.

The record is examined, considering the evidence adduced together with all reasonable inferences that may be drawn therefrom in the light most favorable to the findings and award, to determine if the findings and award are supported by substantial evidence. If so, the record is reviewed to determine if the findings and award, even though supported by some competent and substantial evidence, were nevertheless clearly contrary to the overwhelming weight of the evidence that was before the commission.

Bridges v. Reliable Chevrolet, Inc., 940 S.W.2d 51, 53 (Mo.App.1997). The commission judges credibility of witnesses. Pendergrass v. Killian Const. Co., 891 S.W.2d 166, 167 (Mo.App.1995).

The commission affirmed and adopted the award and decision of the Administrative Law Judge. The Administrative Law Judge's award and decision was incorporated in and made part of the commission's award. ² It is based on the following facts.

Claimant was employed by ICS. On October 8, 1994, his responsibilities included performing janitorial work at three facilities in Springfield, Missouri, a U.S. Post Office facility on Jefferson Street, the Chinese Chef Restaurant on South Campbell Avenue, and a U.S. Post Office annex on South Campbell.

Claimant had completed his work at the U.S. Post Office on Jefferson. He went to the restaurant where he cleaned the restroom area and the dining area. He swept the floor in the kitchen. He was preparing to mop the floors by putting chemicals in a bucket of water. As he filled the bucket, he spilled a liquid chemical, a heavy degreaser, into his right shoe. About 10 minutes later his right foot began to burn and feel too tight for his shoe. He finished his work at the restaurant and, before leaving, took off his shoe and sock. He saw what he described as a "big black spot" on his foot where he had spilled the chemical. He put his sock and shoe back on and went to the post office annex. It was located about 9 blocks from the restaurant.

Claimant's foot continued hurting. He showed a man and woman at the post office annex the burn on his foot, then paged Mr. Coleman by telephone. Mr. Coleman returned claimant's call and learned that claimant had sustained a burn and could not complete work at the post office annex.

Claimant went to a hospital emergency room. The wound on his foot was cleansed and a dressing was applied. Claimant received a tetanus shot. A physician who diagnosed a "[m]ild secondary degree burn from chemical burns of the right ankle" examined him. Tylenol No. 3 was prescribed for pain. A follow-up examination was scheduled for October 9.

Claimant returned to the emergency room October 9. His wound was soaked and scrubbed with Hibiclens and saline. Whirlpool treatments were prescribed. They were to be followed by burn dressings with Silvadene. Claimant was excused from work. Claimant was examined again October 10 after which he was referred to a surgeon, Dr. A.A. Ancheta. Claimant received whirlpool and other treatments at the hospital until October 26.

Dr. Ancheta examined claimant on October 14 and 21. Dr. Ancheta did not change the conservative treatment claimant was receiving. Claimant's employer, Mr. Coleman, accompanied claimant when he visited Dr. Ancheta. Mr. Coleman directed claimant to consult Dr. Vincent A. Previti for a second opinion.

Claimant consulted Dr. Previti. Mr. Coleman accompanied claimant on his visit to Dr. Previti. Dr. Previti suggested a skin graft. Mr. Coleman then wanted claimant to consult Dr. Paff.

On October 26, 1994, claimant was examined by Dr. Paff. Mr. Coleman accompanied claimant and sat in on the examination. Claimant provided Dr. Paff with a history of the incident that produced his injury. Mr. Coleman was present when this occurred. The history that appears in claimant's records from Dr. Paff's office is consistent with the facts as found by the commission. Dr. Paff did not believe a skin graft was required. He expressed the opinion that claimant should continue with the conservative treatment that had been prescribed. However, he sought a consultation from Dr. Gaska. Dr. Gaska examined plaintiff. Dr. Gaska did not recommend that claimant continue with the treatments he had been receiving.

Claimant's treatment was managed by Dr. Paff from October 26, 1994, through January 25, 1995. Dr. Paff provided ICS with reports to the employer during that time. Those reports identified claimant's injury as being work-related. Dr. Paff submitted billings to ICS for the medical care he provided claimant. Dr. Paff dismissed claimant from his care on January 25. Dr. Paff was prepared to issue a disability rating at that time but was advised by Mr. Coleman not to issue a rating. On that date, Mr. Coleman advised Dr. Paff he was denying liability.

ICS was ordered to pay medical expenses in the amount of $1,593.05, permanent partial disability compensation of $2,325.00 representing 23.25 weeks at the compensation rate of $100.00 per week. ICS was found to have unreasonably refused to provide necessary medical care and disability compensation and ordered to pay an additional $1,636.47 for costs and attorney fees.

ICS's first point on appeal asserts that the commission's award in favor of claimant is "clearly contrary to the overwhelming weight of the evidence because all of the evidence in the record and the testimony of [the witnesses for ICS] clearly and unequivoqally [sic] shows that the claimant could not have sustained the injury alleged at the time and in the manner alleged...."

Kevin Coleman testified that claimant told him his injury was sustained at home when claimant and his wife were making tamales; that it was caused by a grease spill. Mr. Coleman also testified that on the day of the injury claimant had not been assigned to clean the restaurant where claimant reported the injury occurred. However, Mr. Coleman had no business records that reflected what employee was assigned to clean the restaurant on the day of the injury. One other witness, a former employee of ICS and a friend of Mr. Coleman, testified he had responsibility for cleaning the restaurant the day of the injury and had cleaned the restaurant on that date. Another witness, a post office employee, testified that claimant showed her the burn he sustained. She testified concerning whether he was wearing two tennis shoes the day when the injury was supposed to have occurred, or one shoe and a sock or slipper on the foot that was injured. She also testified that she was uncertain what day or days she saw claimant wearing one shoe and a slipper on the other foot rather than two shoes; whether it was on the day claimant reported his injury occurred or on a later day when he was working at the post office.

The administrative law judge addressed the testimony of ICS's witnesses in the findings and conclusions that were adopted by the commission and made part of its award:

The employer [i.e., Mr. Coleman], however, implicitly suggests that the claimant is perpetrating a fraud in asserting he sustained a work-related injury on October 8, 1994. The employer contends that [claimant] did not provide any janitorial service at Chinese Chef on October 8, 1994, and supports his testimony with that of Mr. Dodge. Further, the employer indicates that the burn experienced by [claimant] occurred while he was cooking tamales with his wife at home. The employer does not offer any proof of this latter allegation independent of his own testimony.

Also, the employer offered the testimony [of the post office employee] in seeking to contradict the testimony of [claimant]. Yet, I find the testimony of [her] as being equally if not more supportive of [claimant].

Accordingly, I am unable to reconcile the differences between the testimonies of Chris Dodge and Kevin Coleman with the testimony of [claimant], and find in favor of the [claimant]. In light of the benefit of having personally examined and viewed the witnesses, I find the claimant, Steve Reese, to be very credible and persuasive. I accept as true the testimony of [claimant].

The findings and conclusions state that Mr. Coleman's testimony was not consistent with the medical records. It observes that Mr. Coleman told medical personnel that he was denying liability because the injury occurred at the YMCA; that Mr. Coleman made no mention of a claim that claimant suffered a grease spill while cooking tamales.

The decision of whether to accept or reject testimony is to be made by the commission. Pendergrass, 891 S.W.2d at 167. The facts found by the commission are binding on this court so long as those facts are supported by substantial evidence and are not contrary to the overwhelming evidence that was before the commission. Bridges, 940 S.W.2d at 53. The commission may base its findings and award solely on the testimony of a claimant. Pendergrass, supra, at 168.

This court's review reveals no misstatement in the commission's award concerning the evidence that was adduced. The commission's award is supported by substantial evidence. It is not contrary to the overwhelming evidence the commission had before it. Point I is denied.

Point II is directed to the commission's award to claimant of an amount for...