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Thompson v. Missouri Veteran's Home9/24/2001
Appeal From: Labor and Industrial Relations Commission
Opinion Vote: AFFIRMED.
Shrum and Montgomery, JJ., concur.
Opinion:
Lyllis Thompson ("Claimant") sustained a compensable, work-related back injury on September 4, 1992, at the Missouri Veterans Home ("MVH"), where she worked 40 hours a week on a per day schedule from 11:00 p.m. to 7:00 a.m. Concurrent with her employment at MVH, Claimant also worked 40 hours a week on a per day schedule from 2:30 p.m. to 10:30 p.m. at Good Shepherd Nursing Home ("Good Shepherd").
In its final award the Missouri Labor and Industrial Relations Commission ("the Commission") awarded Claimant permanent, partial disability benefits and temporary, total disability benefits based solely on Claimant's earnings derived from her employment at MVH. In so doing, the Commission expressly rejected Claimant's contention, which she now advances in this appeal, that generally, under sections 287.250, RSMo Cum. Supp. 1992 (involving computation of an employee's average weekly wage for statutory compensation purposes) and 287.800, RSMo 1994 (the liberal construction provision of Chapter 287), her wages earned at Good Shepherd should have been factored in calculating her wage rate at the time of her 1992 injury. We determine that Claimant's point lacks merit and we affirm the Commission's final award.
In our review, we disturb the decision of the Commission "only if we find that:
(1) it acted without or in excess of its powers;
(2) the decision was procured by fraud;
(3) the facts found by the Commission do not support the award; or
(4) the record lacks sufficient competent evidence to warrant the making of the award." Moriarty v. City of Kirksville, 975 S.W.2d 215, 219 (Mo.App. 1998).
"In determining whether the record possesses sufficient competent evidence to support the Commission's findings and award, we apply a two-step process." Id.; see Davis v. Research Med. Ctr., 903 S.W.2d 557, 571 (Mo.App. 1995). Under each step, we view the evidence and reasonable inferences drawn therefrom in a light most favorable to the award. We initially examine the whole record to determine if the record contains sufficient competent and substantial evidence to support the award. Moriarty, 975 S.W.2d at 219; Davis, 903 S.W.2d at 571.
If we find that there is sufficient competent evidence supporting the award, we move to the second step and consider all evidence in the record, including that evidence which opposes or is unfavorable to the award, taking into account the overall effect of all the evidence and we determine whether the award is against the overwhelming weight of the evidence. Moriarty, 975 S.W.2d at 219; Davis, 903 S.W.2d at 571.
"'However, findings and awards of the Commission which are clearly the interpretation or application of the law, as distinguished from a determination of facts, are not binding on us and fall within our province of independent review and correction where erroneous.'" Moriarty, 975 S.W.2d at 219 (quoting Davis, 903 S.W.2d at 571); see Esquivel v. Day's Inn of Branson, 959 S.W.2d 486, 488 (Mo.App. 1998).
We divide our discussion of Claimant's sole point into two parts for the sake of clarity. We first observe, however, that in 1993 the Missouri General Assembly significantly overhauled Chapter 287 of the Workers' Compensation Law. Hence, for the first time, employees employed by multiple or concurrent employers may recover wages from their second employment, up to a statutory maximum, rather than not recover for the second employment at all as was previously the case. See Hillyard, 9
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