Thompson v. Treasurer of State

• Decision Date: 20 February 2018
• Docket Number: ED 105352
• Citation: Thompson v. Treasurer of State, 545 S.W.3d 890 (Mo. App. 2018)
• Parties: Winifred THOMPSON, Respondent, v. TREASURER OF the State of MISSOURI as Custodian of the Second Injury Fund, Appellant.
• Court: Missouri Court of Appeals

545 S.W.3d 890

Winifred THOMPSON, Respondent,

v.TREASURER OF the State of MISSOURI as Custodian of the Second Injury Fund, Appellant.

ED 105352

Missouri Court of Appeals, Eastern District, DIVISION TWO.

Filed: February 20, 2018

Motion for Rehearing and/or Transfer to Supreme Court Denied March 22, 2018

Application for Transfer Denied May 22, 2018

Robert S. Merlin, Ray B. Marglous, P.C., 7711 Bonhomme, Suite 300, St. Louis, MO 63105, for respondent.

Kristin Frazier, Assistant Attorney General, 815 Olive Street, Suite 2000, St. Louis, MO 63101, for appellant.

OPINION

Lisa P. Page, Presiding JudgeThe Treasurer of the State of Missouri as Custodian of the Second Injury Fund ("Fund") appeals a final award of the Labor and Industrial Relations Commission("Commission") awarding Winifred Thompson("Claimant") workers' compensation benefits.We affirm.

BACKGROUND

Claimant sustained a back injury on July 27, 2006, while walking in the breakroom of her employer, Medi-Plex ("Employer").Claimant was alone in the breakroom at the time of the accident.Claimant’s coworkers, Deborah Vinson and Leanna Robinson, responded to Claimant’s pleas for help shortly after the incident.Officer Jeremy Brown later arrived at the scene and eventually prepared his police report.Claimant subsequently filed a claim for workers' compensation.

Prior to this appeal the parties thoroughly litigated whether Claimant slipped and fell on a wet substance or whether she"just fell."This determination is dispositive as to whether the injury is compensable.None of the three witnesses testified that they observed any foreign substance on the floor, nor was there any mention of a foreign substance in Claimant’s medical records.Additionally, Claimant did not mention any substance on the floor when directly asked by an insurance claims adjustor working for Employer, Ms. Cashin, shortly after the incident and while Claimant was hospitalized.The sole evidence of a foreign substance on the floor was Claimant’s testimony during her deposition in March 2007 and before the Administrative Law Judge ("ALJ") during a July 2015 hearing.

Employer and Claimant settled prior to the second day of the hearing before the ALJ.Therefore, Claimant proceeded only against the Fund.The ALJ denied the claim, finding Claimant failed to establish there was a foreign substance on the floor and, as a result, she did not sustain a compensable injury that arose out of, and in the course of, her employment.The Commission reversed the ALJ’s decision, finding Claimant’s fall compensable because it did arise out of, and in the course of, her employment.Specifically, the Commission found Claimant’s testimony credible that she slipped on a wet substance on the floor.

This appeal follows.

DISCUSSION

In its sole point on appeal, the Fund argues the Commission erred in finding Claimant’s fall compensable because such a finding is not supported by substantial and competent evidence.For the reasons set forth below, we must disagree and affirm the Commission’s decision.

Standard of Review

Article V, Section 18 of the Missouri Constitution provides for judicial review of the Commission's decision to determine whether it is "supported by competent and substantial evidence upon the whole record."MO. CONST. art. V, § 18;see alsoSection 287.495.¹Upon review, this Court may modify, reverse, remand for rehearing, or set aside the decision of the Commission upon the following grounds and no other:

(1) when the Commission has acted without or in excess of its powers;

(2) the decision was procured by fraud;

(3) the facts found by the Commission do not support the decision; or

(4) there was not sufficient competent evidence in the record to warrant the award.

Section 287.495.

Whether the Commission’s decision is supported by competent and substantial evidence is determined by examining the evidence in the context of the whole record.Hampton v. Big Boy Steel Erection , 121 S.W.3d 220, 223(Mo. banc 2003).However, "[t]his Court defers to the Commission on issues involving the credibility of witnesses and the weight given to testimony."Johnson v. Denton Constr. Co. , 911 S.W.2d 286, 288(Mo. banc 1995).Additionally, "findings of fact made by the [C]ommission within its powers shall be conclusive and binding."Section 287.495.1.

"This Court may not substitute its judgment on the evidence, and when the evidence before an administrative body would warrant either of two opposed findings, the reviewing court is bound by the administrative determination, and it is irrelevant that there is supportive evidence for the contrary finding."Hornbeck v. Spectra Painting, Inc. , 370 S.W.3d 624, 629(Mo. banc 2012)(internal quotations omitted).The Commission's findings will not be disturbed unless they are unsupported by competent and substantial evidence on the whole record.Id.The testimony of one witness, even if contradicted by the testimony of other witnesses, may be sufficient competent evidence to support an administrative decision.Morris v. Glenridge Children's Ctr., Inc. , 436 S.W.3d 732, 735(Mo.App. E.D.2014).

Thus, we defer to the Commission on issues concerning credibility and the weight to be given conflicting evidence.Totten v. Treasurer of State,116 S.W.3d 624, 627(Mo.App. E.D.2003).However, we independently review questions of law without deference to the Commission's findings.Id.²

Analysis

The issue before the Commission was whether Claimant’s injury arose out of, and in the course of, her employment, and required a binary determination: if there was no substance on the floor then the injury was not compensable; if there was a substance on the floor then the injury was compensable.The Commission found the latter.

The Fund’s sole point on appeal is that the Commission’s decision was not supported by substantial and competent evidence.Accordingly, we need not decide whether such a hazard existed, but whether there is substantial evidence to support the Commission’s award.The Fund strenuously argues this is the "rare" case when the award is contrary to the overwhelming weight of the evidence.Hampton121 S.W.3d at 223.We respectfully disagree.³

The Commission issued a detailed decision finding Claimant credible and accepting her version of events.The Commission was specifically unpersuaded by Employer’s internal investigation and the testimony of witnesses who arrived after the fall.The Commission was similarly...