Hall v. Fru Con Construction Corp.

46 S.W.3d 30, 2001 Mo. App. LEXIS 518, 2001 WL 290918
CourtMissouri Court of Appeals
DecidedMarch 27, 2001
DocketNo. ED 78355
StatusPublished
Cited by5 cases

This text of 46 S.W.3d 30 (Hall v. Fru Con Construction Corp.) 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
Hall v. Fru Con Construction Corp., 46 S.W.3d 30, 2001 Mo. App. LEXIS 518, 2001 WL 290918 (Mo. Ct. App. 2001).

Opinion

CLIFFORD H. AHRENS, Judge.

Fru Con Construction Corp. (“employer”) appeals the judgment of the Labor and Industrial Relations Commission (“Commission”) awarding Kenneth Hall (“employee”) permanent total disability benefits, past nursing care, future medical and nursing care, and home modifications. The Commission affirmed the Administrative Law Judge’s (“ALJ”) decision, but clarified the decision regarding modifications required to employee’s home. We affirm.

Employee was employed as a truck driver for employer since the early 1970’s. On September 9, 1994, employee was injured while unloading a trailer for employer. A pipe weighing approximately one thousand pounds rolled off the trailer and struck employee in the back. Employee sustained a transection of his spinal cord resulting in complete and total thoracic paraplegia with total paralysis of his lower extremities, loss of sensation below his ribs, loss of sexual function, and loss of control of his urine and bowel functions. He remained hospitalized until November 1994.

In May 1995, employee returned to work for employer working four hours per day as a dispatcher. In July 1995, employee returned to full-time duty performing various tasks around the office. In July 1998, [32]*32employee was laid off and has not worked since that time.

“This court may modify, reverse, remand for rehearing, or set aside an award or decision of the Commission only if the Commission’s actions were unauthorized by law, in excess of its authority, fraudulent, unsupported by the facts as found by the Commission, or unsupported by competent evidence on the whole record.” Mann v. Varney Constr., 23 S.W.3d 231, 232 (Mo.App.2000); section 287.495 RSMo (Supp.1999) 1

In its first point on appeal, employer claims the Commission erred in entering an award for past nursing care costs. Employer alleges that (1) no past nursing care costs were requested by employee at the hearing and the issue was not presented as one in dispute by the ALJ; (2) no facts were presented to support that employer had notice of employee’s need for nursing care or that employee ever demanded nursing care; and (3) no evidence was presented by employee to show the time spent by wife for nursing care, the reasonable expense for such care, or the duties performed by wife.

Employee’s claim for compensation pleaded injury to his neck, back, arms, legs, body, and paraplegia. The exact nature of any permanent injury was to be determined. He asked for compensation to be determined “as per [the] act.” At the beginning of the hearing the court set out the issues in dispute for the parties:

THE COURT: It is my understanding that the issues for resolution at this hearing are; one, future medical care and/or nursing care; two, nature and extent of temporary total disability representing a possible underpayment of TTD benefits; and three, nature and extent of either permanent partial disability or permanent total disability ... Do you agree with what I’ve dictated for the record?
MR. GREGORY: I do on behalf of the employee, Judge.
THE COURT: Mr. Billmeyer, do you agree with what I’ve dictated for the record?
MR. BILLMEYER: Yes, ma’am, on behalf of the insurer and we will.

Employer’s claim that past nursing care was not requested by the employee at the hearing and was not presented as one in dispute by the ALJ fails. Initially, the statement of the disputed issues by the ALJ indicated nursing care as an issue in dispute. After the deposition of Barbara Barrett, R.N. (“Nurse Barrett”), where she indicated that employee was presently in need of nursing care, which had previously been performed by his wife, employer was aware past nursing care was a disputed issue. During cross-examination of Nurse Barrett by employer’s attorney, she was asked specifically about past nursing care performed by employee’s wife. Nurse Barrett testified that employee’s wife had been providing the services needed by employee. Competent evidence supports that past nursing care was a disputed issue at the hearing.

Employer next claims that no notice was given to employer of employee’s need for past nursing care. 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.1998). Although employee never specifically requested nursing care from employer, the facts indicate that [33]*33employer had notice of employee’s need for nursing care. Employee spent approximately three months in the hospital following the accident, which left him paralyzed. Upon release from the hospital, Dr. Sohn indicated in his report that employee had become independent in many daily activities but required moderate or standby assistance in other areas including floor transfers, bed mobility and transfers, car transfers, and curb navigation. Employer also was aware of the accommodations that had to be made for him at work and the limitations and assistance he needed in daily activities. Competent evidence supports a finding that employer had notice of the need for nursing care.

Employer also claims that no evidence was presented by employee to show the time spent by wife for nursing care, the reasonable expense for such care, or the duties performed by wife. As stated in the ALJ’s finding’s of fact and rulings of law, the Commission’s award for past nursing care was based on Nurse Barrett’s testimony as to the amount of time spent daily by wife assisting in non-spousal duties and the charges for these types of services. Nurse Barrett indicated that employee needs assistance for showering, dressing, meals, cooking, laundry, and housekeeping. Four hours per day would be required for these services, costing approximately $15.00 per hour. Employee also needs assistance getting into bed at night, requiring an additional hour of services, costing approximately $45.00.

We find competent evidence supports the award of past nursing care for wife’s services. Point denied.

In its second point on appeal, employer argues the Commission erred because substantial evidence does not support the award for future nursing care. We find that competent evidence supports the Commission’s award of future nursing care. In adopting the ALJ’s findings, the Commission found the testimony of Nurse Barrett and Dr. Sohn “unrebuttable and credible.” Nurse Barrett indicated that employee’s wife assists employee in showering, dressing, meals, cooking, laundry, housekeeping, exercising, and getting into bed at night. Dr. Sohn testified that employee’s wife was doing a stretching program with employee to relieve spasms in his legs. In addition, Dr. Sohn testified that employee could be independent in cooking, laundry, showering and shopping only if he had accessible facilities. The record indicates employee’s home is not accessible to allow for his independence. The types of duties performed by employee’s wife are beyond that of spousal duties and are compensable. Breckle, 980 S.W.2d at 194. Based on the testimony of Nurse Barrett and Dr. Sohn, competent and substantial evidence supports the award of future nursing care. Point denied.

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Bluebook (online)
46 S.W.3d 30, 2001 Mo. App. LEXIS 518, 2001 WL 290918, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hall-v-fru-con-construction-corp-moctapp-2001.