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Campbell v. Trees Unlimited, Inc.

Court of Appeals of Missouri, Southern District, Second Division

September 22, 2016

CARRIE CAMPBELL, widow of RICHARD CAMPBELL, Claimant-Respondent,
v.
TREES UNLIMITED, INC., Employer-Appellant, and RICHARD CAMPBELL, deceased, Employee, and FIRSTCOMP INSURANCE COMPANY, Insurer-Appellant.

         APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

          DON E. BURRELL, P.J.- OPINION AUTHOR

         Appellants Trees Unlimited, Inc. ("Employer") and FirstComp Insurance Company ("Insurer") appeal the final award of the Labor and Industrial Relations Commission ("the Commission") awarding workers' compensation death benefits to Carrie Campbell ("Claimant"), the widow of Richard Campbell ("Employee"). See section 287.020.[1]

         In April 2011, Employee was pronounced dead at the scene of a one-vehicle crash south of Joplin. Employee was the only occupant of the vehicle. Appellants assert the claim is not compensable because the following findings of the Commission were not supported by substantial and competent evidence upon the whole record: (1) "Employee was within the scope and course of employment at the time of" the accident (because the evidence did not show that Employee had arrived at his principal place of employment before the accident occurred); (2) the accident "was the prevailing factor for [Employee's] death" (because no "medical evidence addressed the exact cause of" Employee's death and no evidence established that his death resulted from "a hazard or risk related" to his employment); and (3) the defense of "an idiopathic condition" did not apply (because such a condition precipitating Employee's death was "the only conclusion" that could be reached).

         Finding no merit in any of these claims, we affirm the award of the Commission.

         Applicable Principles of Review and Governing Law

         "We review the Commission's decision to determine whether it is supported by competent and substantial evidence upon the whole record." Kersey v. Autry Morlan, Inc., 388 S.W.3d 644, 648 (Mo. App. S.D. 2013); see also section 287.495.1(4). "'[C]ompetent and substantial evidence' is admissible evidence, to the extent it is believed or taken as true, tending to prove or disprove a material issue." Payne v. Thompson Sales Co., 322 S.W.3d 590, 592 (Mo. App. S.D. 2010). "An award that is contrary to the overwhelming weight of the evidence is, in context, not supported by competent and substantial evidence." Cardwell v. Treasurer of State of Missouri, 249 S.W.3d 902, 906 (Mo. App. E.D. 2008).

         When reviewing a challenge to the sufficiency of the evidence, our task is to decide "whether the Commission could have reasonably made its findings and reached its result after considering all the evidence before it." Kersey, 388 S.W.3d at 648. In accomplishing this task, we defer "to the Commission on issues involving the credibility of witnesses and the weight to be given to their testimony. The Commission is free to believe or disbelieve any evidence." Porter v. RPCS, Inc., 402 S.W.3d 161, 171 (Mo. App. S.D. 2013) (citations omitted). Thus, competing expert witness opinions present a question of fact for the Commission to decide. Roberts v. Mo. Hwy. & Transp. Comm'n, 222 S.W.3d 322, 333 (Mo. App. S.D. 2007). Here, the Commission adopted the findings and decision of the administrative law judge ("ALJ"), which we review as a part of the Commission's final award. Kersey, 388 S.W.3d at 647-48.

         While an employer must provide compensation as provided under Chapter 287 for the "death of the employee by accident arising out of and in the course of the employee's employment, " section 287.120.1, RSMo Cum. Supp. 2010, the claimant bears "the burden of proving all essential elements of his claim." Kersey, 388 S.W.3d at 648. Questions regarding "causation and work-relatedness are questions of fact to be decided by the Commission." Id. at 649.

         Evidentiary and Procedural History

         At a July 2014 evidentiary hearing on the claim, the ALJ received live testimony, deposition transcripts, and various exhibits. The following summary of the evidence relevant to the points on appeal is taken from these materials. At the commencement of the hearing, the ALJ stated as follows the issues to be decided, and the parties' attorneys agreed.

The issues for resolution and the only issues for which evidence will be taken are, one, whether [Employee] sustained an accident which arose out of and in the course and scope of the employment; and, two, whether the accident caused the injuries and disabilities for which benefits are being claimed or whether it was caused by an idiopathic condition.

         Whether the accident presented a hazard of employment that Employee would be equally exposed to outside of his work was not expressly raised to the ALJ as an issue to be decided, and the parties were directed to "confine [their] evidence to the issues presented."

         Claimant testified that she had been married to Employee for "[a]lmost 35 years[, ]" and they lived in Carthage. Employee started Employer as a wholesale lumber business in 1986, and at the time of the accident, Employer was located in Joplin on FF Highway. Another employee, William Griffiths, testified that he had worked for Employer for about 24 years, and Employee was both the boss and a salesperson for Employer. Employee was "generally a healthy guy" who had not complained about chest pains or heart problems.

         In 2007, both Employee and Claimant had a "noninvasive" angiogram at a local hospital because Employee was on the hospital board, and board members were given an opportunity to be tested on what was then a new piece of equipment. Claimant did not know of any heart problems or history of strokes for Employee. Employee's last doctor appointment was in January 2010, and Claimant had not observed any change in Employee's health since that time. Employee had high cholesterol, but medicine was not prescribed to treat it. Claimant did not know Employee to have dizzy or fainting "spells[.]" Employee was physically active in gardening, golfing, and hunting.

         Employee kept regular work hours, and at "around 8:30, 8:45, " he would go to "the post office in Carthage" to collect Employer's mail and then go on to work. Occasionally, Employee played golf during the work week with a customer or at a sponsored charity event, and he sometimes attended a board meeting. If Employee "was going to take time off and do something other than work" it was "his custom and practice" to tell Claimant.

         Mr. Griffiths testified that Employer purchased lumber from "mills all over the country" to sell to other businesses within about a 2-hour driving or 120-150 mile radius of Joplin, including businesses south of Joplin, through Neosho, and into northwest Arkansas. Employee did "research out of the office related to competitors[, ]" and he visited customers and potential customers. Mr. Griffiths was familiar with Employee's routine, which was to work primarily from 9:00 a.m. to 5:00 p.m., Monday through Friday, and it was uncommon for Employee "to take personal time off during the workday . . . . unless it was an event" such as "a Chamber of Commerce golf outing" or something else that was "known." Employee commonly traveled away from the office for work and went into the office "at some point each day." It was not "unusual for [Employee] to work out of the office in the morning and then come in to the office around midday or in the afternoon[.]"

         Employee drove an Employer-owned Ford F-150 truck ("the truck") for his work. Employer paid the taxes, insurance, maintenance, and gas for the truck. Employee drove a "Lariat" truck as his personal vehicle.

         During the work day, Employee "call[ed] on customers[, ]" drove "by lumberyards to see what they were buying[, ]" and offered deals on lumber to customers. Mr. Griffiths also expected Employee to have business phone calls with a lumber supplier. If Employee was away from the office in the morning, he would call Mr. Griffiths to get information about the bank balances for the day and other business matters. It was uncommon for Employee to call in such a manner for personal reasons.

         Employee and Claimant owned a farm southeast of Employer's office. When Employee traveled north from Neosho to the farm, he would "always go on 59 Highway North" instead of Highway 71. Claimant knew of no reason why Employee would have gone to the farm on the day of the accident. The couple also owned about 1, 100 acres with another couple near Bull Shoals Lake ("the lake property"). To get there, they would have used Interstate Highway 44 and Highway 65.

         Claimant recalled that she and Employee were interested in selling the lake property, and there had been some discussions with a developer about his interest in developing some of that property. The developer was regarded as "a prospective customer" because Employer "could have sold lots and lots of lumber and building materials to [the developer for] his development of the piece of property."

         Mr. Griffiths and Employee played 18 holes of golf on the Saturday before the Monday accident. They did not use a cart, and Employee did not complain at any point about not feeling well.

         On the morning of the accident, Claimant left home around 6:30 a.m. to babysit her granddaughter at the child's home, which was in Carthage. Claimant then called Employee and asked him to drop off some juice for their granddaughter as it was right "on his way to the post office." Employee brought the juice by at around 8:30 or 8:45 and visited for "10 or 15 minutes" before leaving. Nothing seemed unusual about his health and nothing unusual happened.

         Claimant identified calls in telephone records from the day of the accident made between Employee's phone and her phone, as well as one 9:10 a.m. call involving Employee's sister's telephone. Employee was not playing golf that day because his clubs were in the garage. Claimant testified that Employee did not have any family or friends in the area of the accident. She could not "think of any reason other than business reasons that would explain [Employee's] presence on a Monday morning, during normal work hours, about 7 miles from his business office[.]" It "would have been very, very uncommon" for Employee to "just take the morning off and goof off[.]"

         Mr. Griffiths testified that on the morning of the accident, Employee had not mentioned "any personal activity or errands that he was going to do that day[.]" If Employee was going to do something "like play golf during the weekday or some other personal activity, " he would normally inform Mr. Griffiths in ...


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