Schuster v. State Div. of Employment Sec.

• Decision Date: 14 April 1998
• Docket Number: Nos. 72104,72264,s. 72104
• Parties: George SCHUSTER, Claimant/Appellant/Cross-Respondent, v. STATE of Missouri DIVISION OF EMPLOYMENT SECURITY, Employer/Respondent/Cross-Appellant.
• Court: Missouri Court of Appeals

Page 377

972 S.W.2d 377

George SCHUSTER, Claimant/Appellant/Cross-Respondent, v. STATE of Missouri DIVISION OF EMPLOYMENT SECURITY,

Employer/Respondent/Cross-Appellant.

Nos. 72104, 72264.

Missouri Court of Appeals,

Eastern District,

Division Two.

April 14, 1998.

Motion for Rehearing and/or Transfer to

Supreme Court Denied June 4, 1998.

Application for Transfer Denied

Aug. 25, 1998.

Frank J. Lahey, Jr., St. Louis, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Maria Campbell, Scott R. Pool, Asst. Attys. Gen., Jefferson City, for respondent.

JAMES R. DOWD, Judge.

I. Background

George Schuster ("Claimant") was an employee of the Missouri Division of Employment Security ("Employer"). On October 17, 1991, Claimant was severely injured in an automobile accident arising in the course and scope of his employment. The following day he was transferred by ambulance to St. Louis University Medical Center and lapsed into a coma. Claimant was placed on life support and confined to the Intensive Care Unit. Claimant was diagnosed as having suffered a dissection of the right internal carotid artery, resulting in a stroke, causing left side hemiplegia, a fracture of the proximal end of the left tibia and fibula, and various contusions and soft tissue injuries. Ultimately, Claimant regained consciousness and was transferred to St. Mary's Health Center, SSM Rehabilitation Center for long term therapy in January, 1992.

At SSM Rehabilitation Center, Claimant came under the care of Dr. Phuong Nguyen. Dr. Nguyen, a specialist in physical medicine and rehabilitation, supervised Claimant's medical care and therapy. Eventually, Claimant regained some of his speech and was able to comprehend his surroundings and condition.

On March 2, 1992, Claimant was transferred home for further therapy. Home nursing care services were provided to Claimant by Employer. These services were supervised by the Eastern Missouri Rehabilitation Advisory Management ("EMRAM"), a medical case management company. Two shifts of nursing services, comprised of Certified Nursing Assistants (CNAs), were provided in the Schusters' home twenty-one hours a day. These shifts continued until August, 1992.

After a period of time, Claimant was able to sit in a wheelchair and to stand and walk short distances within the home with the aid of a cane. In September, 1992, Claimant's home therapy ended, and he was enrolled as an outpatient for further therapy at SSM Rehabilitation Center. The outpatient therapy took place on weekdays. On days that Claimant went to outpatient therapy, EMRAM arranged for nursing services to be provided from approximately 8:00 p.m. to 8:00 a.m. for the purposes of preparing Claimant for bed, remaining with him during the night, and dressing and preparing him in the morning to go to his therapy sessions. On Saturdays and Sundays, however, Mrs. Schuster provided this care.

The outpatient therapy ended on February 10, 1993 when it was determined that Claimant would derive no additional benefit from it. The home nursing care provided by the CNAs was also discontinued at that time. Even though Mrs. Schuster had resumed full-time employment at the Division of Employment Security, she thereafter took over the daily care of Claimant. The record contains conflicting evidence as to why the nursing care was terminated. Mrs. Schuster claims that Sarah Alsop, the head of EMRAM, denied her repeated requests for continued nursing services. Ms. Alsop testified that she responded to Mrs. Schuster's specific requests for nursing services, but that she believed Mrs. Schuster and the nursing service provider had reached a mutual agreement to end nursing services.

Following his injury, Claimant continued to receive paychecks from Employer. Employer characterizes these payments as "sick leave pay" while Claimant characterizes them as his "regular pay." The checks were identical in every respect to Claimant's regular paychecks. It is unclear whether Claimant actually elected to receive sick leave pay or whether it was erroneously provided by Employer. Apparently Mrs. Schuster did not question why Claimant was still receiving his regular paychecks even though Claimant was no longer working, and instead accepted and cashed the checks. On December 31, 1992, Claimant retired and received no further checks from Employer.

On September 22, 1993, Claimant filed a claim for compensation. A hearing on this claim was held before the Division of Workers' Compensation on July 13, 1995. On October 17, 1995, the ALJ issued the following findings relevant to this appeal. The ALJ found that Employer was entitled to a credit for the payments it made to Claimant from October 17, 1991 to December 31, 1992 and that therefore Claimant was not entitled to temporary total disability benefits for that period. The ALJ also found that although Claimant was injured on October 17, 1991, he was not permanently totally disabled until November 24, 1993, the date Dr. Nguyen so stated in his report. The ALJ awarded Claimant interest on the total temporary and permanent total disability benefits in the amount of $3,923.07 for the period ending November 21, 1994. The ALJ determined that Claimant was not entitled to additional compensation on the basis of disfigurement pursuant to section 287.190(4) RSMo. ^* The ALJ further found that Employer was a self-insured for the purposes of the Workers' Compensation Law and therefore denied Claimant's request that his future permanent total disability benefits be commuted. The ALJ concluded that Mrs. Schuster was entitled to reimbursement for nursing services she provided for Claimant. The ALJ ordered Employer to provide future nursing care for nine hours each day that Mrs. Schuster works, and to reimburse Claimant for the time Mrs. Schuster provides nursing care.

On appeal, the Labor and Industrial Relations Commission ("Commission") affirmed the findings of the ALJ in part and reversed in part. Although the Commission agreed with the ALJ that Employer was an authorized self-insurer and that commutation of Claimant's award should not be ordered, it provided alternate reasons for its decision. According to the Commission, allowing a commutation would not further the purpose of section 287.280 RSMo because there is no danger that state employees will not be compensated in the same manner in which wages are ordinarily paid. The Commission also believed that applying the penalty provision in section 287.280 would be inappropriate because Employer attempted to comply with the law. With respect to the interest due on the award, the Commission reversed the ALJ's finding that Employer was liable for interest from January 1, 1993 to November 21, 1994. The Commission concluded that the state is not responsible for interest during that period because the award was issued after November 21, 1994. In all other respects relevant to this appeal, the Commission adopted the decision of the ALJ.

In the present appeal, Claimant contends that the Commission erred in: (1) finding that he was not permanently and totally disabled until November 24, 1993; (2) finding that he was not entitled to disability payments from the date of the accident until January 1, 1993; (3) denying interest on his total temporary disability award for the period of January 1, 1993 to November 21, 1994; (4) finding that he was not disfigured as a result of the injuries he sustained in the accident; (5) finding that Employer was an authorized self-insured; and (6) not commuting his award of compensation. Employer raises two points on its cross-appeal: (1) the Commission erred in finding that Mrs. Schuster was entitled to reimbursement for nursing services she provided to Claimant from February 11, 1993 through September 29, 1995; and (2) the Commission's award of future nursing services violates the Workers' Compensation Law by depriving the state of its right to select the licensed health care provider. We affirm in part and reverse and remand in part.

II. Standard of Review

The court in Cook v. Sunnen Products Corp., 937 S.W.2d 221 (Mo.App. E.D.1996) set forth the standard governing appellate review of a Commission decision:

[T]his court can disturb the Commission's decision only if there is no competent and substantial evidence to support the Commission's award or, in the alternative, such evidence is clearly contrary to the overwhelming weight of the evidence. If this does not exist, then we must affirm. In reviewing the decision, we must examine the entire record. In so doing, we must liberally construe all provisions of the Workers' Compensation Act to resolve all doubts in favor of the employee.

Cook, 937 S.W.2d at 224. When an issue decided by the Commission involves a question of law, appellate review is de novo. Id. (citing West v. Posten Construction Co., 804 S.W.2d 743, 744 (Mo. banc 1991)).

III. Claimant's Appeal

A. Date of Disability

Claimant alleges that the Commission's decision that he is only entitled to total permanent disability benefits beginning on November 24, 1993 is a question of law, and that it is clearly erroneous. We hold that the determination of the date on which an employee becomes permanently and totally disabled is a question of fact, and the burden of establishing permanent and total disability is upon the Claimant. See Robinson v. St. Louis Sch. Dist., 928 S.W.2d 410, 412 (Mo.App. E.D.1996).

Benefits for temporary total disability are paid during the "healing period." See, e.g., Vinson v. Curators of Univ. of Missouri, 822 S.W.2d 504, 508 (Mo.App. E.D.1991); Phelps v. Jeff Wolk Constr. Co., 803 S.W.2d 641, 645 (Mo.App. E.D.1991); Williams v. Pillsbury Co., 694 S.W.2d 488, 489 (Mo.App. E.D.1985). Temporary total disability compensation is paid until the employee can return to work, his condition stabilizes, or he has reached a point where further progress is not expected. Minnick v. South Metro Fire Protection Dist., 926 S.W.2d 906, 909 (Mo.App....