Hoffman v. Mayberry Bros. Construction

904 S.W.2d 572, 1995 Mo. App. LEXIS 1403, 1995 WL 464779
CourtMissouri Court of Appeals
DecidedAugust 3, 1995
DocketNo. 20083
StatusPublished
Cited by2 cases

This text of 904 S.W.2d 572 (Hoffman v. Mayberry Bros. Construction) 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
Hoffman v. Mayberry Bros. Construction, 904 S.W.2d 572, 1995 Mo. App. LEXIS 1403, 1995 WL 464779 (Mo. Ct. App. 1995).

Opinion

PARRISH, Judge.

Mayberry Brothers Construction (Mayber-ry) and Allied Insurance Co. (Allied) appeal a workers’ compensation award to Ethel Hoffman, surviving spouse and dependent of Fred Hoffman, deceased. Mr. Hoffman was an employee of Mayberry.

The Labor & Industrial Relations Commission (the Commission) found Mr. Hoffman died as a result of an injury by accident that arose out of and in the course and scope of his employment by Mayberry. Mayberry and Allied contend the evidence presented failed to establish that the cause of Mr. Hoffman’s death was an industrial accident; that the Commission’s award is contrary to the overwhelming weight of evidence. This court affirms the award of the Commission.

Evidence presented to the Commission is considered in the light most favorable to the award. Hinton v. National Lock Corp., 879 S.W.2d 713, 716 (Mo.App.1994). Evidence that would support a different finding is disregarded. Id

Mr. Hoffman was a carpenter employed by Mayberry. On March 15, 1989, and for several weeks before that date, he worked on a construction project referred to as the Sitton residence. The residence was a 10,000 square foot structure. It included a swimming pool in a 2,500 square foot enclosure. The ceiling of the swimming pool enclosure was constructed of individual redwood planks. The ceiling was vaulted with its highest point over the swimming pool.

Scaffolding was erected from the floor of the swimming pool for purposes of completing the ceiling. The scaffolding had been in the swimming pool enclosure for about three months. It was rented. It was to be picked up March 15, 1989, the date of the incident that is the basis of the Commission’s award.

During the course of the construction at the Sitton residence, Mr. Hoffman had [573]*573worked on the scaffolding installing the redwood planks on the ceiling. In order to install the redwood planks, he had to hold a plank in one hand and nail it to the overhead structure with a twenty-pound nail gun he held in his other hand.

On March 14, the construction crew began taking down the scaffolding. However, most of it was still standing the morning of March 15. A few boards had to be installed before the remaining scaffolding could be removed.

On the morning of March 15, Mr. Hoffman installed some of the remaining boards on the ceiling. After that, he helped tear down the scaffolding.

Brian Kuehn, one of Mayberry’s workers, described how the scaffolding was taken down. He was asked the following questions and gave the following answers.

Q. And in taking down this scaffolding, what did you do?
A We would be up on the scaffolding handing down the scaffolding planks and then we would take loose the cross-bars and then lift up the scaffolding and hand it down.
Q. Who were you handing it to?
A Some to Terry, some to Fred [Hoffman] and Charlie and I were up on the scaffolding most of the time, I believe.
Q. And how many pieces had you knocked down that day?
A. Probably about half of them. How many did we have that day?
Q. Do you recall?
A Several.
Q. —whether you had two to three hundred pieces?
A I would say that would be close.
[[Image here]]
Q. Now, when Fred [Hoffman] and Terry would take the scaffolding and put it in the garage, how far would they have to move it?
A Depending on where the scaffold was set up, it could be from ten feet to thirty, forty.
Q. And did this go on all morning long?
A Yes.
[[Image here]]
Q. And with reference to the weights of this — this scaffolding, you gave me ranges of anywhere from twenty to some weighing fifty to sixty,—
A Uh-huh.
Q. —is that correct?
A Yes.

Mr. Kuehn testified that the work they did the morning of March 15 was different from the type of work they usually did. He was asked if the work necessary to remove the scaffolding was “a lot different, lot harder?” He answered that it was; that “[i]t was tough work.”

The workers had taken a 15-minute coffee break during the morning. They took a 45-minute lunch break. After lunch they “started carrying the stuff again.” About ten minutes later, Mr. Hoffman complained of a severe headache. Someone told him to sit down. Two or three minutes later Mr. Hoffman began “[s]haking around and kind of slobbering a little and [became] incoherent.” He was disoriented and confused; then he lost consciousness.

After a short time, Mr. Hoffman regained consciousness. An ambulance was called and he was taken to a hospital.

Mr. Hoffman had a brain aneurysm. An intracranial catheter was surgically implanted the day he was taken to the hospital. The following day, a craniotomy was performed to repair the aneurysm. He died that evening.

The surgery was performed by Arthur S. Daus, M.D., a neurosurgeon. Dr. Daus testified that the cause of death was a ruptured aneurysm. He described the aneurysm as “a dilated weak spot on an arterial blood vessel in the brain.” He compared it to “a weak spot on an inner tube.” He explained that some people with aneurysms go through life without experiencing problems. In others, aneurysms rupture. One of the causes for aneurysms rupturing is physical stress, “any sort occurring at work or recreation.”

Dr. Daus acknowledged that Mr. Hoffman’s aneurysm was not caused by his employment. He stated the opinion, however, [574]*574that the work Mr. Hoffman performed the day he was hospitalized produced stress that caused the aneurysm to rupture; that the condition was work-related. He was asked, “[I]s it your opinion with reasonable medical certainty that this patient [Mr. Hoffman], ... had an acute transient hypertensive event caused by that work leading to a rupture of the aneurysm causing his death?” He answered, “Yes.”

Another physician, Aly Mohsen, M.D., stated the opinion that Mr. Hoffman’s death resulted from the work he did causing the aneurysm to rupture.

A third physician, Dr. Ditmore, a neurosurgeon, testified for Mayberry. Dr. Dit-more gave the opinion that the rupture of the aneuiysm was not produced by Mr. Hoffman’s work activities.

The Commission found that Mr. Hoffman's death was produced by an accident sustained in the course of employment. It adopted findings of the administrative law judge that relied on the testimony of Dr. Daus.

Mayberry and Allied base their appeal on § 287.495.1(4), RSMo 1994. It provides:

... Upon appeal ..., in the absence of fraud, the findings of fact made by the commission within its powers shall be conclusive and binding. The court, on appeal, shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other:

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Bluebook (online)
904 S.W.2d 572, 1995 Mo. App. LEXIS 1403, 1995 WL 464779, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hoffman-v-mayberry-bros-construction-moctapp-1995.