Stephens v. Crane Trucking, Inc.
| Decision Date | 10 November 1969 |
| Docket Number | No. 54455,No. 1,54455,1 |
| Citation | 446 S.W.2d 772 |
| Court | Missouri Supreme Court |
| Parties | Wilburn Link STEPHENS, Respondent, v. CRANE TRUCKING, INCORPORATED, Employer-Appellant, and The Fidelity & Casualty Company of New York, Insurer-Appellant |
Jack P. Steinle, Aurora, Paul D. Rittershouse, Daniel, Clampett, Ellis, Rittershouse & Dalton, Springfield, for respondent.
Kenneth H. Reid, Meredith B. Turner, Turner, Reid & Duncan, Springfield, for appellants.
HIGGINS, Commissioner.
Appeal by employer and insurer from judgment affirming award of the Industrial Commission of Missouri on November 13, 1968, which awarded claimant compensation for permanent total disability and directed payment by appellants for nursing care not furnished by them. Appellants concede that claimant is totally and permanently disabled as a result of an accident suffered during the course of his employment and there is no dispute on that portion of the award. The sole dispute is with that portion of the award which ordered compensation to claimant for nursing care rendered claimant by his wife, which has accrued:
(1) During initial 90 days after claimant's injury, December 21
1961, from February 1, 1962, to March 13, 1962, 41
days at $10.00 per day............................................. $ 410.00
(2) Following end of initial 90 days, March 20, 1962, to
initial award of referee, June 18, 1968, 2,280 days at $6.00 per
day................................................................ 13,680.00
(3) Following referee's award to appeal from circuit court
January 6, 1969, 202 days at $6.00 per day......................... 1,212.00
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$15,302.00
Appellants seek to be relieved from this portion of the award and judgment and the amount in dispute thus exceeds $15,000.00
Appellants contend:
I. That the award for nursing services during the first 90 days after injury is not supported by competent and substantial evidence because appellants had no knowledge that claimant was out of the hospital during this period, that he was in need of nursing services, or that claimant's wife was furnishing nursing services; and that appellants had the right to select the parties to provide medical care during that period and the legal effect of claimant's selection of his wife to perform such services was that of obtaining such services at his own expense.
II. That the award for nursing services following the initial 90 days until the referee's award should be set aside because claimant failed to obtain a special order for such services and there is no competent and substantial evidence to support findings that appellants were aware of the need of such services and that the requirement of special order was waived.
III. That the award for nursing services after the referee's award 'for so long as he is in need of nursing * * * and not in any hospital' should be set aside because it is based on speculation, guesswork, surmise and conjecture and not on competent and substantial evidence.
IV. That even if all the award for nursing services be not set aside, the award should be modified to delete allowance for such services after the completion of medical care August 25, 1965, because there is no competent and substantial evidence that any such services have been needed since that date to 'cure and relieve' claimant from effects of his injury.
Behind these contentions are the findings of the referee that claimant should be compensated for nursing services for 41 days during the initial 90 days following the injuries at $10.00 per day, and at $6.00 per day from the date of his award, June 18, 1968, during such time as he is not in any hospital, and of the Industrial Commission 'that the employer and insurer were aware at all times * * * of the physical condition of claimant and the disabling nature of his injuries * * *; that the employer and insurer were aware after the initial 90 day period following the injuries that nursing services were necessary for the proper care and treatment of claimant and that when they failed to provide such services or failed to offer to provide such services after the initial 90 day period * * *, they became liable for the nursing services furnished by claimant's wife which we find were necessary and proper. * * * that as the employer and insurer were aware of the fact that nursing services were necessary for the proper care and treatment of the claimant after the initial 90 day period * * * while additional medical services were being furnished claimant by employer and insurer, the special order required by Section 287.140 RSMo 1959, V.A.M.S., was waived.
'It is therefore ordered that employer and insurer compensate claimant for the nursing services rendered by his wife immediately after the initial 90 day period * * * until the date of the referee's award, June 18, 1968, in the amount of $6.00 per day.
'The award of the referee of June 18, 1968, except as herein amended is hereby affirmed in the manner as set out above.'
This award is not to be set aside upon review if the Industrial Commission could reasonably have made its findings and reached its result on the evidence before it because in reviewing a compensation case the court's duty is 'to determine whether the Commission's award is supported by competent and substantial evidence upon the whole record. Sec. 22, Art. V, Const. of Mo. 1945, V.A.M.S. * * * * * *
Francis v. Sam Miller Motors, Mo., 282 S.W.2d 5, 11--12(1); Bolen v. Wallace, Mo., 338 S.W.2d 73, 75(1).
Contention I attacks the commission's finding that the employer and insurer knew of claimant's disabling injuries and his need of nursing care.
Wilburn Link Stephens sustained his injuries when the truck he was driving for his employer collided with another motor vehicle December 21, 1961. The employer and insurer authorized medical care and treatment for Mr. Stephens and they selected doctors associated with the Smith-Glynn-Callaway Clinic, Springfield, Missouri, who entered him in the Springfield Baptist Hospital as an emergency case in severe shock. His injuries upon admission were diagnosed as: In addition, exploratory surgery December 30, 1961, revealed a 'traumatic perforation of the small bowel.' The first of sixteen reports of the principal doctor, Frank D. Sundstrom, M.D., to the insurer dated January 8, 1962, concerning claimant's injuries, recited the injuries, that 'there appears good hope of his survival,' the certainty of permanent partial disability, and the ultimate diagnosis of permanent and total disability is not disputed. The medical treatment furnished claimant by appellants was accomplished by the doctors selected by them and was continuous from December 21, 1961, to August 25, 1965. The conditions requiring treatment and the treatment given were reported regularly throughout that time to appellants and included and covered four periods of hospitalization: December 21, 1961, to January 31, 1962; March 14, 1962, to April 9, 1962; May 12, 1962, to May 22, 1962; and June 8, 1962, to July 8, 1962. A claims representative of insurer saw Mr. Stephens and his condition at the hospital December 22, 1961, and at his home in the Fall of 1963. He was bedfast on both occasions.
During the first hospitalization of Mr. Stephens December 21, 1961, to January 31, 1962, Mrs. Stephens was with her husband 'around the clock.' She slept on the floor and ate at the hospital cafeteria. She 'fed him, got him ice water, kept cool cloths on his head, attended his vomit pan, lifted him on and off of the bed pan and when he had blood * * * would watch the bottle and go tell the nurse when it was empty and when he was on i.v. fluid * * * would tell them when that was empty and * * * would watch for any swelling where the needle was inserted and go tell the nurses, and watch his catheter tube when he had that in, and his stomach pump, * * * bathed him, helped change the bed, washed his teeth and shaved him * * * massaged his upper shoulders, back rub, shoulder rub, massage * * * helped move him off his bed onto the (surgery) cot, * * * put dressings and...
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