Jerome v. Farmers Produce Exchange

SHANGLER, Judge,

concurring in result.

The order of the Industrial Commission poses as the issue for decision: “whether or not the employee [Jerome] is in need of and entitled to nursing care as the result of his work-related injury.” The order decides that Jerome needs such care and that his wife, a certified nurse assistant who regularly performs the service — a species of care above and beyond the kind usually rendered by one spouse to the other — is entitled to compensation for it. The order also decides that Jerome is entitled to compensation for the nursing care at the rate of $7 per hour for one hour each week.

The nature of the nursing care that the husband needs and the wife administers is expressly found in the order of the Industrial Commission and recounted in detail by the principal opinion. It is the same regimen of care that the husband describes and the wife confirms. It is the same regimen of care that the Commission majority finds also from the testimony of the wife, testimony “credible and worthy of belief.” It is a kind of needed care, moreover, the Commission determined even as against the contending medical evidence of the employer.

The value of the nursing care that the husband needs and the wife administers is *571also expressly found in the order of the Commission. That finding, as do the others essential to decision, rests on the testimony of the wife and on her credibility:

The employee’s wife testified, and there was no testimony to the contrary, that nursing assistants providing the type of in-home care as the employee required, were compensated at the rate of $7.00 per hour.

The Commission adopted that evidence as the value of the nursing care needed and rendered.

The wife testified also, and there was no testimony to the contrary, that she spends some three hours per weekday and five to six hours per Saturday and Sunday at this needed nursing care for her husband. The order of the Commission makes no reference to this testimony, nor enters any finding on that element of the award. It nevertheless determines: “[T]he employee is entitled to compensation at the rate of $7 per hour for one hour each week.” The order is conspicuous in that every other element essential to award — the need for nursing care, the extent of that care, the aptitude of the wife to provide it, the hourly cost of such service — rests on the testimony of the wife and on her credibility noticed and found by the Commission. It is only the hours needed to perform that service that the order neither notices in the testimony nor finds. Yet the pages of the record are full of explanations by the wife, and by the husband, of the time she spends for the needed nursing — some 25 hours per' week.

I concur with the result of the principal opinion that the award that limits the compensation to one hour per week for nursing care should be reversed. It is contrary to the overwhelming weight of the evidence, even when considered in a light most favorable to decision. Johnson v. City of Duenweg Fire Dept., 735 S.W.2d 364, 366[1] (Mo. banc 1987). I concur also that the final award be remanded to the Commission for reconsideration upon the entire record. § 287.495, RSMo.Supp.1990.

I would remand on another, and cognate, ground. The integrity of a final award as a quasi-judicial exercise by the Industrial Commission amenable to appellate review depends upon findings of fact that explain how the determinative issues were decided. § 287.495.1(3); Smith v. Ozark Lead Co., 741 S.W.2d 802, 811[4,5] (Mo.App.1987). The number of hours per week of nursing care for which the employee was entitled to compensation was a constitutive element of the award before the Commission for adjudication. It was determined at one hour per week, but no finding explains that element of award, how derived, or from what evidence. To be sure, there is no requirement that a finding give evidentiary detail, but only ultimate fact. Groce v. Pyle, 315 S.W.2d 482, 490[8] (Mo.App.1958).

The evidence that the nursing care occupied some twenty-five hours per week was all that there was before the Commission on that issue. It came from the husband and also from the wife. It is the Commission, of course, that passes on the credibility of the witnesses. It may disbelieve the testimony of any witness, even when un-contradicted and unimpeached. Brown v. Hillhaven Convalescent Center, 776 S.W.2d 47, 49 (Mo.App.1989). It believed the evidence of the employee as against that of the employer, however, that there was need of nursing care, and attributed that belief to the testimony of the wife. It believed her account of the nursing care performed, but made no allowance for the hours that such labor occupied.

It is for that reason that the award that limits compensation for nursing care to one hour each week is clearly contrary to the overwhelming weight of the evidence. It is for that reason also that a finding that explains the ultimate fact on which that element of the award rests is essential to an informed appellate review.

As the award now stands, the nursing services are compensated for one hour each week — that is, for some nine minutes per day. There is no basis in the record before us, either in the evidence or in the distinctive expertise that attends the adjudications of the Industrial Commission in such *572matters, that sanctions that element of the award as lawful.