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Compton v. Rinehart's Meat Processing2/19/2004
he blood sugar tests are for diabetes. The only medications for cellulitis are the oral antibiotics and Wife does not need to assist claimant in taking those medications. Further, the testimony does not support nursing services for the preparation of meals or the laundry of the Jobst stockings. Accepting as true all of the limitations given by Claimant and Wife, there simply is not sufficient evidence of a need home nursing services to the extent awarded by the Commission.
A comparison of the award for nursing services in other cases indicates that this award is not in conformity with past awards for nursing services. For instance in Hall, supra , even though the claimant was paralyzed as a result of the accident, an award of five hours per day for services rendered by the wife was affirmed. Those services included assistance in showering and dressing the claimant, preparation of meals and laundry, and getting into bed. 46 S.W.3d at 33. Likewise, in Jerome , although claimant was paralyzed from the waist down, the Commission awarded eleven-and-a-half hours per week for home nursing services. See Fitzgerald, 820 S.W.2d at 637 (discussing Jerome).
We find this case most similar to Fitzgerald, where an award of fifty-six hours per week for home nursing was reversed and remanded for a determination for services that are not above and beyond the services ordinarily performed by a spouse. Based on the record before us, we remand it to the Commission for the development of a record regarding necessary home nursing services. Point II is granted in part and the award of fifty-six hours per week throughout the year is reversed; however, the case is remanded to the Commission for a determination of the appropriate number of hours necessary of nursing services.
Point III contends that:
The Labor and Industrial Relations Commission erred when it found that the claimant was permanently and totally disabled in that the award was not supported by the substantial, competent, or credible evidence because the overwhelming weight of the evidence established that the claimant is not totally disabled according to the law.
As noted above, the point relied on wholly fails to state why, in the context of the case, the legal reasons support reversible error. Rule 84.04(d). The point simply states that the overwhelming weight of the evidence establishes that Claimant is not totally disabled according to the law. We have reviewed the volumous legal file and transcript and find that substantial evidence supports the award of permanent disability. Further review of Claimant's disability need not be restated here. Although Claimant is functional in his daily life, his testimony, Wife's testimony, the testimony of his treating physician, and the testimony of his vocational rehabilitation expert combine to provide the competent and substantial evidence to support the award of permanent total disability. Employer essentially argues to this court that according to Employer's experts, Claimant is not permanently and totally disabled. We adhere to the rule of deference to findings of credibility of witnesses to the Commission. See Stephens, 446 S.W.2d at 774-75. The award is not contrary to the overwhelming weight of the evidence. Point III is denied.
The award of permanent and total disability is affirmed, the award of past nursing services is reversed, and the award of future nursing services is reversed and remanded to the Commission for further development of the record for necessary home nursing services.
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