Montgomery v. Missouri Department of Corrections

849 S.W.2d 267, 1993 Mo. App. LEXIS 317, 1993 WL 59362
CourtMissouri Court of Appeals
DecidedMarch 9, 1993
DocketNo. 62247
StatusPublished
Cited by8 cases

This text of 849 S.W.2d 267 (Montgomery v. Missouri Department of Corrections) 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
Montgomery v. Missouri Department of Corrections, 849 S.W.2d 267, 1993 Mo. App. LEXIS 317, 1993 WL 59362 (Mo. Ct. App. 1993).

Opinion

CRAHAN, Judge.

Joseph A. Montgomery (“Employee”) appeals from a decision of the Labor and Industrial Relations Commission (“Commission”) denying compensation on his workers’ compensation claim against his employer, Missouri Department of Corrections and Human Resources (“Employer”). The Commission held that Employee failed to satisfy his burden of proof that he suffered an accident arising out of and in the course of his employment as claimed. Employee maintains that this determination is not supported by substantial and competent evidence and is against the overwhelming weight of the evidence.1 We affirm.

[269]*269On appeal from a decision of the Labor and Industrial Relations Commission, the evidence and reasonable inferences from the evidence must be viewed in the light most favorable to the award. Parker v. Mueller Pipeline, Inc., 807 S.W.2d 518, 520 (Mo.App.1991). It is within the province of the Commission to judge the credibility of witnesses and this court cannot substitute its judgment for that of the Commission. Id. The Commission is free to believe or disbelieve an employee’s testimony, even if uncontradicted. Weeks v. Maple Lawn Nursing Home, 848 S.W.2d 515, (Mo.App. E.D. 1993); Mashbum v. Tri-State Motor Transit Co., 841 S.W.2d 249, 250 (Mo.App. 1992). Only when the award is not supported by substantial evidence or is clearly contrary to the overwhelming weight of the evidence will it be disturbed on appeal. Sellers v. Trans World Airlines, Inc., 752 S.W.2d 413, 415 (Mo.App.1988).

Employee claimed that on August 29, 1989 he was employed as a vehicle patrol officer to guard the perimeter of the Potosí Correctional Center when he was allegedly injured as a result of an accident. Employee claimed that at 11:00 a.m. on that date he was driving an all terrain vehicle (“ATV”) provided by Employer at a high rate of speed in response to a perimeter alarm. Employer’s instructions required Employee to respond to any alarm within one minute. The perimeter path upon which Employee was travelling was a paved surface with sides lined with gravel. According to Employee, he had just reached for his radio to report that there was no one in the perimeter when the ATV rolled and threw him to the pavement. Employee claimed that the shotgun strapped to the side of the ATV prevented it from turning all the way over. Employee testified that he righted the vehicle and, as he drove it back to the garage, he began to experience pain in his back that became so severe he was unable to dismount the ATV.

Employee was taken to Washington Memorial Hospital by ambulance and then transferred to Christian Hospital Northeast, where he remained until September 7, 1990. The hospital concluded that Employee had a focal central disc bulge at the L4-5 level. A physician retained by Employee for purposes of examination opined that (1) Employee was suffering from lumbo sacral sprain with left sciatic neuropathy and central disc herniation at the L4-5 level; (2) this condition was caused by the ATV accident; (3) Employee was temporarily totally disabled since August 29, 1990 and is in need of future medical treatment; and (4) Employee was not faking his injuries.

The Commission found that if the foregoing evidence was isolated and considered alone it would clearly support a finding of an accident. However, the Commission further found that there was overwhelming conflicting evidence which contradicted Employee’s version of what happened. Specifically, Employer offered the testimony of several witnesses whom the Commission expressly found to be credible. Viewed in the light most favorable to the award determination, this evidence together with the reasonable inferences therefrom was as follows.

On August 28, the day prior to the alleged accident, Employee was accompanied on a roving patrol by a fellow guard, Scott Jarvis.2 Jarvis recalled that he and Employee engaged in casual conversation in which Employee read instructions pertaining to operation of the ATV located on the fender of the four-wheeler and observed that they would have to ignore the five mile per hour speed limit if a zone alarm went off. According to Jarvis, Employee concluded his remarks by stating that “if he only had one minute to answer an alarm and had to drive at a high rate of speed the institution would be liable to him if he had an accident and he would own the institution.” Although Jarvis conceded that Employee did not say he was going to have an accident, Jarvis felt compelled to report Employee’s statement to his supervisor af[270]*270ter learning of Employee’s accident the following day.

On the day prior to the alleged accident, Employee also engaged in conversation with Larry Ryan, Sr., the maintenance supervisor for the Potosi Corrections Center, while Employee was checking a vehicle at the prison gate. At that time, Ryan observed that Employee appeared to have a stiff back, was unable to stand erect, walked more slowly than normal and in a stooped position, and appeared to grimace as he checked the vehicle.

At approximately 7:30 a.m. on the morning of the alleged accident, William Fischer, the garage supervisor, observed that Employee was moving very slowly and seemed to turn his whole body rather than his head. According to Mr. Fischer, his encounter with Employee was different and Employee was not his usual self.

At 9:00 a.m. that same morning, about two hours prior to the alleged accident, Alton Thompson, an outer yard officer, observed Employee driving fast in the area where Employee later claimed to have had his accident. According to Thompson, Employee then hit his brakes and came to a sudden stop, sending gravel flying. Employee then looked down at the bike while the motor was running.

Two witnesses, Mr. Fischer and Superintendent Paul Delo, testified concerning their examination of the ATV upon Employee’s return to the garage immediately following the alleged accident. Both testified that there was no sign of any damage to the ATV, although the left front tire was low. There were no scratches on the handlebars, fenders or metal parts of the vehicle and no indication of any leakage of fuel or oil. There were no paint scrapes beyond what might be expected on a vehicle in service for some time. There were some unusual scrapes running in a perpendicular direction from the rim to the outer tread on one of the rear tires but no scrapes going around the tire. Although the shotgun strapped horizontally to the handlebars was allegedly what prevented the vehicle from rolling over completely, there was no damage to any part of the shotgun and no dust or dirt in the barrel of the shotgun. No physical evidence confirming an accident as described by Employee was found at the scene.

Employee’s appearance upon his arrival back at the garage was described as neat and clean except for a dusty area on his pantleg and a small abrasion on his left forearm. Contrary to his testimony at the hearing that he had to push the ATV back upright after his fall, Employee told a coworker that the ATV had righted itself.

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Bluebook (online)
849 S.W.2d 267, 1993 Mo. App. LEXIS 317, 1993 WL 59362, Counsel Stack Legal Research, https://law.counselstack.com/opinion/montgomery-v-missouri-department-of-corrections-moctapp-1993.