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Breckle v. Hawk's Nest2/6/2001
Appeal From: Labor and Industrial Relations Commission, Hon. Patrick Clifford, Judge
Opinion Vote: REVERSED AND REMANDED. Dowd, P.J. and Russell, J., concur.
Opinion:
Appellant Randall Breckle appeals from an award entered by the Labor and Industrial Relations Commission after this Court reversed and remanded the Commission's previous award in his workers' compensation case. Appellant argues that the Commission failed to follow this Court's mandate in making its determination. We agree. Reversed and remanded.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant filed a claim for workers' compensation against his employer, Hawk's Nest, Inc., and the Treasurer of the State of Missouri as Custodian of the Second Injury Fund, alleging injuries sustained in a work-related accident. After a Final Hearing, the Administrative Law Judge found Hawk's Nest liable for permanent partial disability of 40% of the body as a whole, 15% of the left upper extremity, and 10% of the right upper extremity. The ALJ found the Second Injury Fund liable for Permanent Total Disability. The ALJ denied compensation for past medical care, but did allow for compensation for future medical care necessary to cure and relieve Appellant from the effects of the work injury.
Appellant appealed to this Court regarding the denial of compensation for past and future nursing care. On appeal, the Court held that the facts did not support the Commission's award. The Court noted the testimony of Appellant's wife that she was providing all of his care, that he required constant observation and supervision, that he required assistance in having meals brought to him, getting dressed and bathing, and that due to the possibility of falling, he was not often alone and that if she was not home with Appellant, one of their children assisted him. The Court found that Appellant's wife's services to him went beyond the ordinary duties of a spouse. The Court reversed the Commission's award regarding the issue of compensation for past and future nursing care services provided by Appellant's wife and remanded the matter to the Commissions with directions to determine a reasonable amount of compensation for the services. The Court further instructed that if the record was inadequate, the Commission should require further evidence and make an award requiring Hawk's Nest to furnish necessary home nursing care, or, in the alternative, to compensate Appellant for his wife's nursing services. See Breckle v. Hawk's Nest, Inc., 980 S.W.2d 192 (Mo.App. E.D. 1998).
On remand, the Commission entered an order finding Hawk's Nest liable to furnish Appellant necessary future home nursing care or, in the alternative, compensate him only for his wife's nursing services at the rate established by Appellant's evidence of $5.67 per hour. The Commission further entered an order finding Hawk's Nest liable for past nursing services, and noted that Appellant's wife was not with Appellant 24-hours a day at home. Thus, the Commission found that the record was inadequate to determine the number of hours that Appellant's wife provided nursing services in excess of normal spousal duties. Accordingly, the Commission remanded the matter to the Division of Workers' Compensation to conduct an evidentiary hearing regarding the number of hours that Appellant's wife provided services to Appellant in excess of normal spousal duties during each relevant period and the proper rate of compensation. The Division was instructed to forward the transcript of the evidentiary hearing to the Commission for review and further order.
The Division subsequently conducted a hearing on September 21, 1999, at which Appellant e
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