Fitzgerald v. Meyer

820 S.W.2d 633, 1991 Mo. App. LEXIS 1680, 1991 WL 230062
CourtMissouri Court of Appeals
DecidedNovember 12, 1991
DocketNo. 59885
StatusPublished
Cited by6 cases

This text of 820 S.W.2d 633 (Fitzgerald v. Meyer) 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
Fitzgerald v. Meyer, 820 S.W.2d 633, 1991 Mo. App. LEXIS 1680, 1991 WL 230062 (Mo. Ct. App. 1991).

Opinion

KAROHL, Justice.

Employer, Helen Meyer, d/b/a Meyer & Son, and insurer, Auto Owners Insurance Company, appeal worker's compensation award allowing employee compensation under The Workers’ Compensation Law, Chapter 287. The Labor and Industrial Relations Commission affirmed the award of the Administrative Law Judge (ALJ) with a modification increasing part of the award. (Lester L. Watkins, dissenting in part.) All awards, except those for nursing care, are affirmed. The awards for nursing care prior to the date of hearing, January 10, 1990, are reversed. We remand to the Commission for reconsideration of the claim for nursing care after the date of hearing.

The AU found employee, Ronnie Fitzgerald, sustained a serious compensable injury to his left foot on June 1, 1985. The AU also found the accident caused disability relating to back, neck and head complaints, major depression and posttraumatic stress disorder. Fitzgerald was assisting in the removal of a tree stump when his left foot was struck by a backhoe causing crushing injuries to the left foot. The left great toe was amputated by Dr. Barrett K. Holder, an orthopedic surgeon.

The AU recognized employer-insurer paid “some $15,000.00 in benefits” before the hearing. He awarded full disability at the level at the great toe; 50% permanent partial disability to the left foot at the 155 week level; permanent partial disability referable to the spine of 10% of the man as a whole; 15% of the total man as permanent partial psychiatric disability; nursing care for ten weeks after the accident, calculated at $7.50 per hour for fifty-six hours per week; nursing care from August 24, 1985, [635]*635to the date of award, April 3, 1990, calculated at $7.50 per hour for two hours per day; and nursing care at the same rate for two hours per day, seven days per week to the extent necessary in the future.

After a timely application for review, the Commission affirmed all of the awards except it felt constrained to modify and increase the award for nursing services rendered after August 24,1985, because of the decision of the Western District of this court, Jerome v. Farmers Produce Exchange, 797 S.W.2d 565 (Mo.App.1990). The Commission was “inclined to affirm two hours [per day] or reduce the award of nursing services.” However, because of Jerome and the testimony of employee’s wife and expert that nursing services were required eight hours per day, it concluded the two hour figure must be amended to eight hours per day and the award increased to equal $7.50 per hour. The Commission observed there was no evidence of lesser need and no cross-examination of employee’s witnesses about time requirements. Employer-insurer continue to oppose any award for nursing care because employee never requested nursing care before the hearing. They contend the need for home care was not obvious and rely on the fact employee was able to return to work in April 1986. Employee did return to work in May 1986 as a laborer.

At the beginning of the hearing on January 10, 1990, before the AU, it was admitted and agreed employer was operating under the provisions of the Missouri Workers’ Compensation Law on June 1, 1985; employer’s liability was fully insured by Auto Owners Insurance Company; on “June 1, 1985, Ronnie Fitzgerald was an employee of Helen Meyer, etc.”; employee was working under the provisions of the compensation law; “on or about June 1, 1985, Ronnie Fitzgerald sustained an injury by accident arising out of and in the course of his employment”; and notice of injury was given and the claim timely filed under the law. The parties also agreed on employee's average weekly wage and compensation rate. Finally, it was agreed compensation had been paid before the hearing in the amount of $6,913.97 for forty-seven and one seventh weeks and medical had been paid in the amount of $9,050.45. Before accepting testimony, the AU noted a discussion off the record that employee claimed medical provided by the employee himself as a result of the accident. Employer-insurer responded there was no pleading in support of that claim and the announcement at the time of the hearing was “first notice that there was such a claim.”

In light of these stipulations and agreements, we find employer-insurer preliminary claim of error has merit. They claim the Commission erred in affirming a finding of fact of the AU that employer-insurer denied the existence of a covered accident and refused to provide requested medical or home nursing care, past and present, as well as unclaimed and unpled probable future medical requirements because the finding is not supported by the evidence. The finding of the AU that “[t]he employer’s attorney also stated at the time of the hearing that he wished to show accident to be an issue in dispute” is disproven by the record. Although employer’s answer to claim for compensation was in the nature of a general denial, the announcement at trial was employer-insurer agreed employee sustained a covered accident, recognized compensation coverage and furnished all requested medical payments and temporary disability under the compensation law before the hearing. Employee did not request home nursing care, past or future, before the hearing. Hence, there was no refusal to provide such services, if needed, before the hearing.

We find employee, as a matter of law, was not entitled to awards for home nursing care prior to the hearing. The awards for home nursing care services rendered by Joan Marie Meyer, employee’s wife and the daughter of employer Helen Meyer, were allowable only where employer had notice of need for such care or a demand for such care and employer refused, failed or neglected to provide the treatment. Hawkins v. Emerson Elec. Co., 676 S.W.2d 872, 880 (Mo.App.1984). [636]*636Wife is not a health care professional. Employer-insurer acknowledged an obligation and provided employee with all medical care requested. In the absence of a request or demand, employee was not entitled to a reimbursement of award. Section 287.140(9) RSMo Cum.Supp.1990. Nor was there evidence to support a finding employer-insurer waived a statutory right to notice or demand and selection of a needed health care provider. See Stephens v. Crane Trucking, Inc., 446 S.W.2d 772, 779 (Mo.1969). There is no dispute employee left the hospital in June 1985 and lived in the home of Helen Meyer, his employer, until August. In that way employer with the assistance of her daughter furnished home nursing care.

Employee and Joanne Marie Meyer, were married in October, 1985. Thereafter, she rendered services to the date of the hearing which may have been partly those of a nurse and partly those routinely performed by a spouse (i.e. meal preparation). She was not a trained nurse. There was evidence of the reasonable value of nursing services. Employee offered the testimony of an expert who was an attorney and trained nurse. She testified home nursing services were necessary to the time of the hearing and will in the future be required. However, there was no evidence employee was indebted or obligated to pay for past nursing services rendered before the hearing on January 10, 1990. The decisive fact is there was no request for nursing care and consequently, no failure to provide such services after a request where the claim for other medical care was honored.

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Bluebook (online)
820 S.W.2d 633, 1991 Mo. App. LEXIS 1680, 1991 WL 230062, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fitzgerald-v-meyer-moctapp-1991.