Compton v. Rinehart's Meat Processing

130 S.W.3d 684, 2004 Mo. App. LEXIS 219, 2004 WL 308148
CourtMissouri Court of Appeals
DecidedFebruary 19, 2004
DocketNo. 25566
StatusPublished

This text of 130 S.W.3d 684 (Compton v. Rinehart's Meat Processing) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Compton v. Rinehart's Meat Processing, 130 S.W.3d 684, 2004 Mo. App. LEXIS 219, 2004 WL 308148 (Mo. Ct. App. 2004).

Opinion

PER CURIAM.

In this appeal by Rinehart’s Meat Processing (“Employer”) of an award of workers’ compensation benefits, to David L. Compton (“Claimant”) for injuries sustained by him on October 19, 1990, Employer challenges the award of past and future nursing services and the finding of total permanent disability. We affirm in part, reverse in part, and remand for fur[686]*686ther proceedings consistent with this opinion.

On October 19, 1990, Claimant was employed by Employer when he reported that an injury to his leg had occurred when he cut his leg while unloading meat inside a trailer. Initially, Claimant felt it was but a scratch and treated it by cleaning it with alcohol; however, he soon noticed redness and soreness around the wound and swelling of his right leg. He was admitted to the emergency room where he stayed for nine days for treatment of an infection. At the time of the injury, Claimant weighed approximately three-hundred-fifty pounds but had never been diagnosed with high blood pressure or diabetes nor had his morbid obesity caused any work-related disability. Claimant returned to work for approximately two-and-one-half months but his right leg became swollen and sore; ultimately, Claimant was referred to an infectious disease specialist who diagnosed chronic recurrent cellulitis and chronic lymphedema. His treating physician recommended further evaluation for a weight loss program, as Claimant’s weight complicated both his healing and his ability to function.

Employer and its insurer denied Claimant’s claim and refused additional benefits; therefore, two emergency hearings were held prior to the final hearing, which was held on January 10, 2002. The first temporary hearing was conducted on November 9, 1993, at which employer was held liable for past medical expenses in the amount of $120.65, future medical treatment in the form of compressive stockings and oral antibiotics with no further obligations, including no past temporary total disability benefits or any additional temporary total disability benefits: There was no request for compensation for -nursing services being provided by Claimant’s wife (“Wife”) at the first hearing. The second emergency hearing was conducted on May 21, 1996, where Employer was liable for a portion of past medical expenses, future medical care, temporary total disability from July 7, 1994 and continuing but with no determination of the nature and extent of permanent disability. . Again, there was no formal request by Claimant for compensation for nursing services provided by his Wife.

At the final hearing, from which this appeal stems, the issues were identified as the obligations of Employer to pay for past and future mileage expenses, past and future nursing expenses, the necessity of future medical care, and the nature and extent of any permanent disabilities. At this hearing, Claimant requested compensation for the assistance his Wife had been providing since the accident, including time spent assisting him with putting on his Jobst stockings and preparing his leg to put on the stockings by applying ointment on any places with tearing, sores, or lesions. Additionally, she claimed time assisting Claimant with his leg exercises, washing his Jobst stockings, rubbing Claimant’s leg, preparing a hot bath to help relieve any leg pain, checking vital signs in the morning and at bedtime, and cooking meals. The court awarded past and future nursing expenses from April 1, 1991 to the date of the hearing at a rate of $7.50 per hour for 56 hours per week, based on 8 hours a day, 7 days a week for a total of $215,400 in past expenses, and $8.00 per hour commencing January 30, 2002 into the future as long as Claimant’s Wife provided the service. The court also found Claimant to be totally and permanently disabled.

Employer challenges the award of nursing expenses on two grounds: first, a legal basis that no notice was given to Employer thus barring the past award of nursing expenses and, second, a factual basis sup[687]*687porting the need of an award. We find merit to Employer’s first and second points. Employer challenges the award of permanent and total disability on the basis that it is not supported by substantial, competent, or credible evidence. Although Employer fails to provide an adequate point relied on in that Employer fails to state why, in the context of the case, the legal reasons support his claim of reversible error,1 we have reviewed the record ex gratia and find no error.

We review the record to determine if it contains sufficient competent and substantial evidence to support the award, i.e., whether the award is contrary to the overwhelming weight of the evidence. Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003). Whether the award is supported by competent and substantial evidence is judged by examining the whole record, and an award that is contrary to the overwhelming weight of the evidence is, in context, not supported by competent and substantial evidence. Id.

Employer cites to several cases for the proposition that past nursing care is appropriate only when the employer has notice of the employee’s need for such care or when the employee has demanded care and the employer refused, failed, or neglected to provide care. Employer correctly states the general rule. An award for past nursing care is allowable only when the employer had notice of the employee’s need for such care or when the employee demanded care and the employer refused, failed, or neglected to provide the care. Breckle v. Hawk’s Nest, Inc., 980 S.W.2d 192, 194 (Mo.App. E.D.1998).2 The question of constructive notice occurs when the employer may not have been given actual written or verbal notice that nursing services are being requested. For instance, in Hall v. Fru Con Const. Corp., 46 S.W.3d 30 (Mo.App. E.D.2001), although the employee had never specifically requested nursing care from his employer, the fact that he was a paraplegic, had spent approximately three months in the hospital, and his doctor reported that the employee required moderate or stand-by assistance in floor transfers, bed mobility and transfers, car transfers, and curb navigation, along with special accommodation in work and daily activities supported a finding that employer had notice that nursing assistance was needed. Id. at 32-33.

There is no question that, in the case before us, no formal, direct notice was given to the Employer prior to the final hearing that past nursing services performed by the Wife would be requested. We must examine the facts of this case to determine whether the Employer had constructive notice. A review of cases in which courts found constructive notice is helpful in making this determination.

As noted supra, in Hall, constructive notice was found due to the severe injuries to the claimant. The court found that the company had notice as early as the time a [688]*688nurse was deposed. The nurse testified as to her knowledge of the nursing needs of the paraplegic claimant, which were being provided by claimant’s wife. In Hall, there was significant testimony concerning the assistance, which was provided to the claimant.

Likewise, in Stephens v. Crane Trucking, Inc.,

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Related

Breckle v. Hawk's Nest, Inc.
980 S.W.2d 192 (Missouri Court of Appeals, 1998)
Hampton v. Big Boy Steel Erection
121 S.W.3d 220 (Supreme Court of Missouri, 2003)
Stephens v. Crane Trucking, Incorporated
446 S.W.2d 772 (Supreme Court of Missouri, 1969)
Vaught v. Vaughts, Inc./Southern Missouri Construction
938 S.W.2d 931 (Missouri Court of Appeals, 1997)
Jerome v. Farmers Produce Exchange
797 S.W.2d 565 (Missouri Court of Appeals, 1990)
Fitzgerald v. Meyer
820 S.W.2d 633 (Missouri Court of Appeals, 1991)
Hall v. Fru Con Construction Corp.
46 S.W.3d 30 (Missouri Court of Appeals, 2001)

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Bluebook (online)
130 S.W.3d 684, 2004 Mo. App. LEXIS 219, 2004 WL 308148, Counsel Stack Legal Research, https://law.counselstack.com/opinion/compton-v-rineharts-meat-processing-moctapp-2004.