 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Compton v. Rinehart's Meat Processing2/19/2004
ed on 8 hours a day, 7 days a week for a total of $215,400 in past expenses, and $8.00 per hour commencing January 30, 2002 into the future as long as Claimant's Wife provided the service. The court also found Claimant to be totally and permanently disabled.
Employer challenges the award of nursing expenses on two grounds: first, a legal basis that no notice was given to Employer thus barring the past award of nursing expenses and, second, a factual basis supporting the need of an award. We find merit to Employer's first and second points. Employer challenges the award of permanent and total disability on the basis that it is not supported by substantial, competent, or credible evidence. Although Employer fails to provide an adequate point relied on in that Employer fails to state why, in the context of the case, the legal reasons support his claim of reversible error, we have reviewed the record ex gratia and find no error.
We review the record to determine if it contains sufficient competent and substantial evidence to support the award, i.e., whether the award is contrary to the overwhelming weight of the evidence. Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003). Whether the award is supported by competent and substantial evidence is judged by examining the whole record, and an award that is contrary to the overwhelming weight of the evidence is, in context, not supported by competent and substantial evidence. Id.
Employer cites to several cases for the proposition that past nursing care is appropriate only when the employer has notice of the employee's need for such care or when the employee has demanded care and the employer refused, failed, or neglected to provide care. Employer correctly states the general rule. 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. E.D. 1998). The question of constructive notice occurs when the employer may not have been given actual written or verbal notice that nursing services are being requested. For instance, in Hall v. Fru Con Const. Corp . , 46 S.W.3d 30 (Mo. App. E.D. 2001), although the employee had never specifically requested nursing care from his employer, the fact that he was a paraplegic, had spent approximately three months in the hospital, and his doctor reported that the employee required moderate or stand-by assistance in floor transfers, bed mobility and transfers, car transfers, and curb navigation, along with special accommodation in work and daily activities supported a finding that employer had notice that nursing assistance was needed. Id. at 32-33.
There is no question that, in the case before us, no formal, direct notice was given to the Employer prior to the final hearing that past nursing services performed by the Wife would be requested. We must examine the facts of this case to determine whether the Employer had constructive notice. A review of cases in which courts found constructive notice is helpful in making this determination.
As noted supra, in Hall , constructive notice was found due to the severe injuries to the claimant. The court found that the company had notice as early as the time a nurse was deposed. The nurse testified as to her knowledge of the nursing needs of the paraplegic claimant, which were being provided by claimant's wife. In Hall , there was significant testimony concerning the assistance, which was provided to the claimant.
Likewise, in Stephens v. Crane Trucking, Inc ., 446 S.W.2d 772 (Mo. 1969), our S
Page 1 2 3 4 5 6 7 Missouri Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|