Court of Appeals of Missouri, Southern District, Second Division
CARRIE CAMPBELL, widow of RICHARD CAMPBELL, Claimant-Respondent,
TREES UNLIMITED, INC., Employer-Appellant, and RICHARD CAMPBELL, deceased, Employee, and FIRSTCOMP INSURANCE COMPANY, Insurer-Appellant.
FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION
BURRELL, P.J.- OPINION AUTHOR
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
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).
no merit in any of these claims, we affirm the award of the
Principles of Review and Governing Law
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).
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.
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.
and Procedural History
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.
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."
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.
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.
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.
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[.]"
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.
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.
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.
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."
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
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.
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
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 ...