Sheila A. Clovis v. J.B. Hunt Transp.
United States District Court for the Northern District of West Virginia
September 20, 2019, Decided
Civil Action No. 1:18-cv-147

Reporter
2019 U.S. Dist. LEXIS 160359 *
SHEILA A. CLOVIS, Administratrix of the Estate of JEFFREY ALLEN CLOVIS, deceased, Plaintiff, v. J.B. HUNT TRANSPORT, INC., An Arkansas Corporation, or any Assignee, lessee, transferee, or Any Owner of the 2015 International Tractor-trailer driven by the Defendant, Theodore Timothy Hill, Jr., and THEODORE TIMOTHY HILL, JR., Defendants, And J.B. HUNT TRANSPORT, INC., Third-party Plaintiff, v. RYDER TRUCK RENTAL, INC. and M.R. LOGISTICS, LLC, Third-party Defendants.
Notice: Decision text below is the first available text from the court; it has not been editorially reviewed by LexisNexis. Publisher’s editorial review, including Headnotes, Case Summary, Shepard’s analysis or any amendments will be added in accordance with LexisNexis editorial guidelines.

MEMORANDUM OPINION AND ORDER GRANTING RYDER TRUCK RENTAL, [*1] INC.’S MOTION TO DISMISS THIRD PARTY COMPLAINT [DKT. NO. 27]
Pending before the Court is Third-Party Defendant Ryder Truck Rental, Inc.’s Motion to Dismiss Third Party Complaint [Dkt. No. 27]. Third-Party Plaintiffs, J.B. Hunt Transport, Inc. and
Clovis v. J.B. Hunt, et al.Civil Action No. 1:18-cv-147
MEMORANDUM OPINION AND ORDER GRANTING RYDER TRUCK RENTAL, INC.’S MOTION TO DISMISS THIRD PARTY COMPLAINT [DKT NO. 27]
Theodore Timothy Hill, Jr., have filed their response in opposition [Dkt. No. 49] with Third-Party Defendant having replied to same [Dkt. No. 55]. With the matter fully briefed, the motion is ripe for decision. For the reasons discussed herein, the Court GRANTS the motion to dismiss [Dkt. No. 27].
I. PROCEDURAL HISTORY
Plaintiff Shelia A. Clovis, Administratrix of the Estate of Jeffrey Allen Clovis, filed her Complaint asserting a Wrongful Death claim under West Virginia Code § 55-7-6 on July 11, 2018 in the Circuit Court of Monongalia County, West Virginia [Dkt. No. 1-1]. The Complaint named J.B. Hunt Transport, Inc. and Theodore Timothy Hill, Jr. as Defendants asserting claims for negligence, respondeat superior and punitive damages. Defendants [*2] removed the matter to United States District Court for the Northern District of West Virginia on July 30, 2018, asserting diversity of citizenship jurisdiction [Dkt. No. 1].
On November 1, 2018, Defendant J.B. Hunt Transport, Inc. timely filed its Motion for Leave to File Third-Party Complaint. Judge Irene M. Keeley granted that motion on November 2, 2018 [Dkt. No. 18] and the Third-Party Complaint was filed on November 5, 2018 [Dkt. No. 19]. This matter was transferred to United States District Court Judge Thomas S. Kleeh on December 1, 2018 [Dkt. No. 21]. Third-Party Defendant M.R. Logistics, Inc. answered the
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Clovis v. J.B. Hunt, et al.Civil Action No. 1:18-cv-147
MEMORANDUM OPINION AND ORDER GRANTING RYDER TRUCK RENTAL, INC.’S MOTION TO DISMISS THIRD PARTY COMPLAINT [DKT NO. 27]
Third-Party Complaint on December 19, 2018 [Dkt. No. 24] while
Third-Party Defendant Ryder Truck Rentals, Inc. filed its Motion
to Dismiss as well as its Answer the same day [Dkt. No. 26]. On
December 27, 2018, Defendants and Third-Party Plaintiffs J.B. Hunt
Transport, Inc. and Theodore Timothy Hill, Jr. filed their Notice
of Fault pursuant W. Va. Code § 55-7-13d asserting Matthew
Burlakoff, M.R. Logistics, LLC and/or Ryder Truck Rentals, [*3] Inc.
are wholly or partially at fault for the events described in the
Complaint [Dkt. No. 35].
II.FACTUAL BACKGROUND
According to the Complaint, 1 early in the morning of August
9, 2016, Defendant Theodore Timothy Hill, Jr. was driving a 2015 International Oklahoma registered tractor-trailer owned by Defendant J.B. Hunt Transport, Inc. (“J.B. Hunt”) [Dkt. No. 1-1 at ¶5]. Hill was traveling north on Interstate 79 in Monongalia County, West Virginia [Id.]. In the same area, Matthew Burlakoff was operating a Freightliner 2013 Cascadia owned by Third-Party Defendant Ryder Truck Rentals, Inc. (“Ryder”) and leased to Mr.
Burlakoff’s employer, M.R. Logistics, Inc. [Id. at ¶6]. That
dismiss, the court should accept as
1 “In considering a motion to
true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff.” Mylan Laboratories,Inc. v. Matkari, 7 F.3d 1130, 1134 (4thCir. 1993)(citation omitted). The Court, of course, applies the same standard to third-party complaints when addressing a motion to dismiss.
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Clovis v. J.B. Hunt, et al.Civil Action No. 1:18-cv-147
MEMORANDUM OPINION AND ORDER GRANTING RYDER TRUCK RENTAL, INC.’S MOTION TO DISMISS THIRD PARTY COMPLAINT [DKT NO. 27]
vehicle was experiencing [*4] mechanical difficulties which ultimately caused the Freightliner to come to a stop on the right side of the road [Id. at ¶7]. Mr. Burlakoff contacted Summers Towing Company (“Summers”) of Morgantown for a tow of both the tractor and the trailer [Id.]. While awaiting assistance from Summers, Mr. Burlakoff set out orange reflective triangles in the road way of the interstate [Id.].
Eventually, two wreckers arrived from Summers including one truck driven by the decedent Mr. Clovis [Dkt. No. 1-1 at ¶¶8-9]. He parked his tow truck immediately behind the trailer with his lights flashing [Id. at ¶9]. Both the trailer (owned by Ryder and leased by M.R. Logistics) and tow truck had all appropriate reflective tapes and its white color reflected the flashing lights from Mr. Clovis’ truck along with the orange triangles on the road [Id.]. Notwithstanding these safety measures, without warning, Defendant Hill “negligently, carelessly and in reckless and wanton disregard of the vehicles and persons on the roadway at that time slammed and crashed into the rear of the Clovis tow truck, propelling and driving it forward into the right rear bumper of the Ryder tractor, causing it to fly off the roadway [*5] onto the embankment to the east of Interstate 79” [Id. at ¶12]. Mr. Clovis was tragically instantly killed as a result of the collision and was thrown from his tow truck [Id.].
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Clovis v. J.B. Hunt, et al.Civil Action No. 1:18-cv-147
MEMORANDUM OPINION AND ORDER GRANTING RYDER TRUCK RENTAL, INC.’S MOTION TO DISMISS THIRD PARTY COMPLAINT [DKT NO. 27]
J.B. Hunt’s Third-Party Complaint alleges the Freightliner was experiencing “mechanical difficulties” on August 8-9, 2016 [Dkt. No. 19 at ¶7]. Those difficulties are alleged to include “low coolant” and “very low coolant” warnings [Id. at ¶8]. Those warnings caused the vehicle to lose power and shut down at least 4 times [Id. at ¶9-10]. Mr. Burlakoff allegedly shut off the vehicle and/or pressed a reset button in order to continue driving; however, the reset button will only work 4 times before the vehicle shuts down completely [Id. at ¶10-11]. After the vehicle was “reset” the fourth time, it came to a stop “at a more dangerous section of roadway than it was when the first warning occurred” [Id. at ¶13]. “The tractor and trailer stopped partially blocking one interstate lane, in violation of West Virginia Statutes” 2 [Id. at ¶15]. According [*6] to the Third-Party Complaint, the Freightliner had been to a Ryder facility on July 25, 2016 for maintenance [Id. at ¶17]. J.B. Hunt alleges Ryder “failed to make it road worthy which caused it to shut down in the early morning hours of August 9, 201[6]” 3 [Id. at ¶18].
2 The Third-Party Complaint, unlike the Third-Party Plaintiffs’ response in opposition to the pending motion, does not mention or cite any specific statutes or regulations (state or federal) nor does it allege generally or specifically what conduct of Ryder violates what “West Virginia Statutes.”
3 The Third-Party Complaint mistakenly references August 9, 2018, as the date of the incident.
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Clovis v. J.B. Hunt, et al.Civil Action No. 1:18-cv-147
MEMORANDUM OPINION AND ORDER GRANTING RYDER TRUCK RENTAL, INC.’S MOTION TO DISMISS THIRD PARTY COMPLAINT [DKT NO. 27]
The two-count Third-Party Complaint asserts one claim against Ryder for “negligence.” J.B. Hunt alleges Ryder had a duty to maintain the tractor unit in a reasonably safe condition and a duty to maintain the tractor unit to ensure it would not break down on public roadways and endanger the public [Dkt. No. 19 at ¶20-21]. J.B. Hunt alleges Ryder did not maintain the [*7] vehicle in a reasonably safe condition and, as a proximate result, the vehicle broke down on a public roadway “where the accident occurred causing or contributing to the death of Plaintiff’s decedent” [Id. at ¶22-24]. The Third-Party Complaint does not allege Ryder’s actions caused J.B. Hunt or Mr. Hill any damages. Instead, Third-Party Defendants “demand judgment against Ryder Truck Rentals, Inc. . . . for an amount to be determined by a jury” [Id. at Prayer for Relief].
III. STANDARD OF REVIEW
Rule 8 of the Federal Rules of Civil Procedure only requires a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Despite the liberal standard Rule 8 imposes, Rule 12(b)(6) allows a defendant to move for dismissal upon the ground that a complaint does not “state a claim upon which relief can be granted.” In ruling on a motion to dismiss, a court “must accept as true all of the factual allegations contained in the complaint.” Anderson v. Sara Lee
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Clovis v. J.B. Hunt, et al.Civil Action No. 1:18-cv-147
MEMORANDUM OPINION AND ORDER GRANTING RYDER TRUCK RENTAL, INC.’S MOTION TO DISMISS THIRD PARTY COMPLAINT [DKT NO. 27]
Corp., 508 F.3d 181, 188 (4th Cir. 2007) (quoting Erickson v.Pardus, 551 U.S. 89, 94 (2007)). A court is “not bound to accept as true a legal conclusion couched as a factual allegation.” [*8] Papasan v. Allain, 478 U.S. 265, 286 (1986).
A court should dismiss a complaint if it does not contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Plausibility exists “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.Iqbal, 556 U.S. 662, 678 (2009). A motion to dismiss “does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Republican Party of N.C. v.Martin, 980 F.2d 942, 952 (4th Cir. 1992).
IV. DISCUSSION
Third-Party Defendant Ryder seeks dismissal of the Third-Party Complaint primarily because of the 2015 revisions to West Virginia comparative negligence law specifically the near total abolition of claims for contribution given the establishment of several liability as the norm. See W. Va. Code §55-7-13c; W. Va. Code §55-7-13d. As the Supreme Court of Appeals of West Virginia has noted, these relatively new statutes “purport to fully occupy the field of comparative fault and the consideration of ‘the fault
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Clovis v. J.B. Hunt, et al.Civil Action No. 1:18-cv-147
MEMORANDUM OPINION AND ORDER GRANTING RYDER TRUCK RENTAL, INC.’S MOTION TO DISMISS THIRD PARTY COMPLAINT [DKT NO. 27]
of parties and nonparties to a civil action.'” Modular Bldg.Consultants of W. Va., Inc. v. Poerio, Inc., 774 S.E.2d 555, 567 n.12 (W. Va. 2015). 4
W. Va. Code §55-7-13c(a) provides that “[i]n any action for damages, the liability [*9] of each defendant for compensatory damages shall be several only and may not be joint.” Defendants may only be held liable for the amount of compensatory damages allocated to that defendant based on its percentage of fault. W. Va. Code §55-7-13c(a). The statute provides an initial exception to this general rule where two or more defendants “consciously conspire and deliberately pursue a common plan or design to commit a tortious act or omission.” Id. In such cases, liability may be joint and a right of contribution from other defendants exists. Id. No such allegations are made in either the Complaint or Third-Party Complaint.
A. The Third-Party Complaint Fails To Allege Criminal Conduct.
Despite the statutory default to several liability only, joint and several liability may still exist under very limited circumstances only one of which possibly arises here – “A defendant
4 This Court does not perceive W. Va. Code §55-7-13 to “purport” to address the comparative fault issues in this case. Instead, this Court believes these sweeping statutory provisions completely govern the issues raised in the pending motion as well as civil actions seeking recovery for the actionable negligence of others.
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Clovis v. J.B. Hunt, et al.Civil Action [*10] No. 1:18-cv-147
MEMORANDUM OPINION AND ORDER GRANTING RYDER TRUCK RENTAL, INC.’S MOTION TO DISMISS THIRD PARTY COMPLAINT [DKT NO. 27]
whose acts or omissions constitute criminal conduct which is a proximate cause of the damages suffered by the plaintiff …” W. Va. Code §55-7-13c(h)(2). In its Motion to Dismiss, Third-Party Defendant Ryder argues the Third-Party Complaint is nothing more than a claim for contribution in disguise. Third-Party Plaintiffs, apparently conceding that point, suggest the “criminal conduct” exception applies and justifies the assertion of their third-party “negligence” claim. 5 The response to the pending motion offers a compendium of federal and state statutes and regulations that Third-Party Plaintiffs argue applies and “constitutes criminal conduct.” However, the Third-Party Complaint is silent on that front other than a vague, non-specific allegation that there was a “violation of West Virginia Statutes” 6 [Dkt. No. 19 at ¶15].
The specific allegation of the Third-Party Complaint is noteworthy – “The tractor and trailer stopped partially blocking one interstate lane, in violation of West Virginia Statutes” [Dkt.
5 Inexplicably, Third-Party Plaintiffs do not assert this exception or [*11] even mention W. Va. Code §55-7-13c in their Third-Party Complaint. The claim against Ryder sounds only in negligence despite, as discussed infra, the lack of any allegation of damages suffered by J.B. Hunt or Mr. Hill proximately caused by Ryder.
6 Again, the Third-Party Complaint, unlike Third-Party Plaintiffs’ response in opposition to the pending motion, does not mention or cite any specific statutes or regulations (state or federal) nor does it allege generally or specifically what conduct of Ryder violates what “West Virginia Statutes.”
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Clovis v. J.B. Hunt, et al.Civil Action No. 1:18-cv-147
MEMORANDUM OPINION AND ORDER GRANTING RYDER TRUCK RENTAL, INC.’S MOTION TO DISMISS THIRD PARTY COMPLAINT [DKT NO. 27]
No. 19 at ¶15]. This is the only mention of any violation of law in the pleading and the word “criminal” is nowhere to be found. The common reading of this allegation is that it is a violation of state law to stop a tractor and trailer in an interstate lane of travel. The Third-Party Complaint is void of any allegation that Ryder’s maintenance or operation of the Frieghtliner allegedly violated federal or state law. Unlike other parties, there is no allegation Ryder has been charged or indicted for [*12] criminal conduct that is the proximate cause of the tragic events outlined in the Complaint. Furthermore, Ryder has not been alleged to have been convicted of or pleading guilty to criminal conduct.
Third-Party Plaintiffs’ efforts to distract from the issue are unavailing. The Court is quite aware of the minimal burden imposed at the 12(b)(6) motion stage and required under the “notice” pleading standard of Rule 8; however, a defendant should not be left to speculate as to the allegations against which it is defending. “A pleading that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” . . . Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual enhancement.'” Iqbal, 556 U.S. at 678 (citations omitted). A complaint must possess “facial plausibility” which permits the Court to reasonably infer the defendant is liable for the alleged misconduct. Id. The
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Clovis v. J.B. Hunt, et al.Civil Action No. 1:18-cv-147
MEMORANDUM OPINION AND ORDER GRANTING RYDER TRUCK RENTAL, INC.’S MOTION TO DISMISS THIRD PARTY COMPLAINT [DKT NO. 27]
Third-Party Complaint only alleges negligence without any mention of damages to the Third-Party Plaintiffs. [*13] As discussed infra, that claim is deficiently pled. The Third-Party Complaint does not cite or mention the statutory provision under which Third-Party Plaintiffs now seek to proceed. Furthermore, the Third-Party Complaint does not allege criminal conduct against Ryder which could sustain a contribution theory under W. Va. Code §55-7-13c(h)(2). The required facial plausibility is lacking and dismissal is therefore appropriate.
Likewise, any effort to amend the Third-Party Complaint to assert the W. Va. Code §55-7-13c(h) exception to several liability via response briefing is inappropriate. “[A] complaint cannot be amended by a plaintiff’s brief in opposition to a motion to dismiss.” Phillips v. Shaw Constructors, Inc., 2012 WL 6859457 (D.S.C.), 3 (D.S.C. 2012) (citations omitted); see also Gilmour v.Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004) (“A plaintiff may not amend her complaint through argument in a brief opposing summary judgment.”).
As discussed supra, the Court finds the “negligence” claim as pled against Ryder in the Third-Party Complaint to be fatally flawed under applicable West Virginia law. Regardless, the dismissal of the “negligence” claim against Ryder does not alter the apportionment of liability based on fault for J.B. Hunt or any
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Clovis v. J.B. Hunt, et al.Civil Action No. 1:18-cv-147
MEMORANDUM OPINION AND ORDER GRANTING RYDER TRUCK RENTAL, INC.’S [*14] MOTION TO DISMISS THIRD PARTY COMPLAINT [DKT NO. 27]
other parties. As noted, J.B. Hunt filed its Notice of Fault
pursuant to W. Va. Code § 55-7-13d [Dkt. No. 35] preserving its
opportunity to have both Third-Party Defendants on the verdict
form for the jury to apportion fault among any alleged tortfeasors.
As West Virginia Code §55-7-13d provides:
(1) In assessing percentages of fault, the trier of fact shall consider the fault of allpersons who contributed to the alleged damages regardless of whether the person was or could have been named as a party to the suit;
(2) Fault of a nonparty shall be considered if the plaintiff entered into a settlement agreement with the nonparty or if a defending party gives notice no later than one hundred eighty days after service of process upon said defendant that a nonparty was wholly or partially at fault. Notice shall be filed with the court and served upon all parties to the action designating the nonparty and setting forth the nonparty’s name and last known address, or the best identification of the nonparty which is possible under the circumstances, together with a brief statement of the basis for believing such nonparty to be at fault[.]
W. Va. Code Ann. § 55-7-13d(a)(1 and 2) (emphasis added). As such,
even in the absence of [*15] the Third-Party “negligence” claim, J.B.
Hunt and Mr. Hill are still arguably only subject to several
liability for their respective percentages of fault as assessed by
jury.
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Clovis v. J.B. Hunt, et al.Civil Action No. 1:18-cv-147
MEMORANDUM OPINION AND ORDER GRANTING RYDER TRUCK RENTAL, INC.’S MOTION TO DISMISS THIRD PARTY COMPLAINT [DKT NO. 27]
B. The Third-Party Complaint Fails To Allege The Essential Element of Damages.
The Third-Party Complaint is also devoid of any allegation
that Ryder’s breach of a duty owed caused Third-Party Plaintiffs
to suffer an injury. “To recover in an action based on negligence
the plaintiff must prove that the defendant was guilty of . . .
negligence and that such negligence was the proximate cause of the
injury of which the plaintiff complains.” Syl Pt. 1, Atkinson v.
Harman, 158 S.E.2d 169, 171 (W. Va. 1967) (citation omitted).
“These elements of duty, breach and injury are essential to
actionable negligence and in the absence of any of them the action
must fall.” Id. at 173 (emphasis added); see also McNeilly v.
Greenbrier Hotel Corp., 16 F. Supp.3d 733, 738 (S.D. W.Va. 2014)
(“The basic elements of a negligence claim are duty, breach of
that duty, causation, and damages.”) (emphasis added).
Again, the Third-Party Complaint contains no allegation that
Ryder’s alleged negligent [*16] conduct proximately caused damages to
J.B. Hunt or Mr. Hill. 7 Even under the deferential standards
7 Ryder properly notes the absence of even an allegation of damages to J.B. Hunt or Mr. Hill as evidence the “negligence” claim framed in the Third-Party Complaint is merely an effort to seek contribution. The Court agrees. Given the statutory revisions to West Virginia’s comparative fault system, such claims, as discussed, are unnecessary and inappropriate here. See W. Va. Code §55-7-13c(a) (“In any action for damages, the liability of each defendant for compensatory damages shall be several only and may not be joint.”).
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MEMORANDUM OPINION AND ORDER GRANTING RYDER TRUCK RENTAL, INC.’S MOTION TO DISMISS THIRD PARTY COMPLAINT [DKT NO. 27]
applied on a 12(b)(6) motion, Third-Party Plaintiff’s failure to plead an essential element let alone sufficient factual support for that element is fatal. “[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me allegation.” Iqbal, 556 U.S. at 678. The Third-Party Complaint falls short of even that standard and, therefore, must be dismissed. [*17] 8
V. CONCLUSION
For the reasons discussed above, Third-Party Defendant Ryder’s Motion to Dismiss Third-Party Complaint [Dkt. No. 27] is
GRANTED. Third-Party Plaintiffs’ claim as asserted in the Third-Party Complaint against Ryder Truck Rental, Inc. is DISMISSED WITHPREJUDICE.
It is so ORDERED.
The Clerk is directed to transmit copies of this memorandum opinion and order to counsel of record.
DATED: September 20, 2019
/s/ Thomas S. Kleeh THOMAS S. KLEEH
UNITED STATES DISTRICT JUDGE
8 The Court finds this reason to be a separate and independent basis to warrant dismissal of the Third-Party Complaint to those discussed supra.
14

2019 WL 4418285

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. IT MAY BE SUBJECT TO A MOTION FOR REHEARING OR TRANSFER. IT MAY BE MODIFIED, SUPERSEDED OR WITHDRAWN.
Missouri Court of Appeals, Western District.
Ronald REYNOLDS, Respondent,
v.
WILCOX TRUCK LINE, INC., Appellant.
WD 81969
|
Filed: September 17, 2019
Synopsis
Background: Employer, a trucking company, appealed the decision of Labor and Industrial Relations Commission to award workers’ compensation benefits to claimant, an over-the-road truck driver who was diagnosed with post-traumatic stress disorder (PTSD) after his truck overturned on the interstate, after finding claimant had suffered permanent and total disability, and to award compensation for claimant’s wife’s past nursing services.

Holdings: The Court of Appeals, Hardwick, J., held that:

[1] employer’s appellate brief substantially complied with rule governing contents of appellate briefs;

[2] Court of Appeals would exercise its discretion to consolidate and address multifarious arguments employer made in violation of rule governing content of appellate briefs;

[3] Commission’s finding that claimant suffered permanent and total disability, was not against weight of the evidence;

[4] “nursing” for purposes of determining whether workers’ compensation is due for past nursing services is the varied activities that constitute the duties of a person skilled in caring, including one especially trained to carry out such duties under the supervision of a physician;

[5] past emotional support nursing services wife provided to claimant were compensable under the Workers’ Compensation Act; and

[6] competent and substantial evidence supported Commission’s award for wife’s past emotional support nursing services.

Affirmed.

West Headnotes (20)

[1]
Appeal and Error

Employer’s appellate brief challenging the decision of Labor and Industrial Relations Commission substantially complied with Supreme Court Rule governing contents of appellate briefs, even though its brief did not contain the full and fair version of the facts at issue on appeal, where Court of Appeals was nonetheless able to address the claims presented. Mo. Sup. Ct. R. 84.04(c).
Cases that cite this headnote

[2]
Appeal and Error

The Court of Appeals will not exercise its discretion to dismiss an appeal for technical deficiency under the Supreme Court Rule governing appellate brief requirements unless the deficiency impedes disposition on the merits.
Cases that cite this headnote

[3]
Administrative Law and Procedure

The Court of Appeals’ review of a workers’ compensation award focuses on the decision of the Labor and Industrial Relations Commission and not that of the ALJ.
Cases that cite this headnote

[4]
Workers’ Compensation

Court of Appeals would exercise its discretion to consolidate and address multifarious arguments employer, on challenge to decision of Labor and Industrial Relations Commission’s decision, made within its appellate brief in violation of Supreme Court Rule governing the content of appellate briefs, although such points generally preserved nothing for review and were subject to dismissal. Mo. Sup. Ct. R. 84.04(d).
Cases that cite this headnote

[5]
Workers’ Compensation

For purposes of the Workers’ Compensation claim, “total disability” is defined as the inability to return to any employment and not merely inability to return to the employment in which the employee was engaged at the time of the accident. Mo. Ann. Stat. § 287.020.
Cases that cite this headnote

[6]
Workers’ Compensation

The test for determining whether a workers’ compensation claimant is permanently and totally disabled is whether the worker is able to compete in the open labor market. Mo. Ann. Stat. § 287.020.
Cases that cite this headnote

[7]
Workers’ Compensation

The ability to compete in the open labor market, for determining whether a workers’ compensation claimant is permanently and totally disabled, hinges on whether, in the ordinary course of business, any employer would be reasonably expected to hire the individual given his or her present physical condition. Mo. Ann. Stat. § 287.020.
Cases that cite this headnote

[8]
Workers’ Compensation

Labor and Industrial Relations Commission’s finding that claimant, an over-the-road truck driver who was diagnosed with post-traumatic stress disorder after his truck overturned on the interstate, suffered permanent and total disability, was not against weight of the evidence; psychologist and vocational rehabilitation consultant determined that claimant was unable to compete in the open labor market, evidence showed that even while working on his son’s farm, claimant’s capacity for work was limited at best, he needed to be supervised at nearly every step, and his diminished capacity often made work a source of grave danger, and that claimant was no longer capable of engaging in non-transportation related employment for which he was capable of before. Mo. Ann. Stat. § 287.020.
Cases that cite this headnote

[9]
Workers’ Compensation

Labor and Industrial Relations Commission is not prevented from finding that a workers’ compensation claimant is permanently and totally disabled simply because he or she holds limited, sporadic, and/or highly accommodated employment. Mo. Ann. Stat. § 287.020.
Cases that cite this headnote

[10]
Workers’ Compensation

A workers’ compensation claimant need not be completely inert or inactive to qualify as permanently and totally disabled. Mo. Ann. Stat. § 287.020.
Cases that cite this headnote

[11]
Workers’ Compensation

Where the right to workers’ compensation depends upon which of two conflicting medical theories should be accepted, the issue is peculiarly for the Labor and Industrial Relations Commission’s determination.
Cases that cite this headnote

[12]
Workers’ Compensation

When determining entitlement to workers’ compensation, where the evidence would warrant either of two opposed medical findings, the Court of Appeals is bound by the Labor and Industrial Relations Commission’s decision, and it is irrelevant that there is supportive evidence for the contrary finding.
Cases that cite this headnote

[13]
Workers’ Compensation

A workers’ compensation issue appropriate for, but not addressed with the Labor and Industrial Relations Commission cannot be litigated on appeal.
Cases that cite this headnote

[14]
Workers’ Compensation

Employer failed to preserve for appellate review its claim that Labor and Industrial Relations Commission improperly relied on psychologist’s opinion that additional psychological testing on workers’ compensation claimant would be harmful as both a sword to prove his claim of disability and a shield to prevent further testing by neuropsychologist, where ALJ twice found that claimant was justified in refusing to comply with employer’s request to submit to a second neurological examination, and it did not raise the issue for Commission to review.
Cases that cite this headnote

[15]
Statutes

Strict construction of a statute requires that the scope of the statute not be extended beyond its literal meaning and that the statute not be unreasonably interpreted.
Cases that cite this headnote

[16]
Statutes

The rule of strict construction does not mean that the statute shall be construed in a narrow or stingy manner, but it means that everything shall be excluded from its operation which does not clearly come within the scope of the language used; the clear, plain, obvious or natural import of the language should be used, and the statutes should not be applied to situations or parties not fairly or clearly within its provisions.
Cases that cite this headnote

[17]
Workers’ Compensation

“Nursing” for purposes of determining whether an award of workers’ compensation is due for past nursing services is the varied activities that constitute the duties of a person skilled in caring for and waiting on the infirm, the injured, or the sick, which could include one especially trained to carry out such duties under the supervision of a physician; the individual offering the services does not need licensure or formal education. Mo. Ann. Stat. § 287.140.1.
Cases that cite this headnote

[18]
Statutes

Where a statute is amended only in part, or as respects only certain isolated and integral sections thereof and the remaining sections or parts of the statute are allowed and left to stand unamended, unchanged, and apparently unaffected by the amendatory act or acts, it is presumed that the Legislature intended the unamended and unchanged sections or parts of the original statute to remain operative and effective, as before the enactment of the amendatory act.
Cases that cite this headnote

[19]
Workers’ Compensation

The past emotional support nursing services wife provided to claimant, an over-the-road truck driver who was diagnosed with post-traumatic stress disorder (PTSD) after his truck overturned on the interstate, were compensable under the Workers’ Compensation Act; wife managed claimant’s medications and monitored his health for adverse drug reactions, communicated with his caregivers, remained with claimant during the day to prevent accidents or a psychological crisis, used guided imagery and deep breathing exercises to calm him after panic attacks, and after employer denied claimant’s request for nursing care, it became necessary for wife to reduce, and eventually abandon, her outside employment to provide the services necessary to care for claimant. Mo. Ann. Stat. § 287.140.1.
Cases that cite this headnote

[20]
Workers’ Compensation

Competent and substantial evidence supported Labor and Industrial Relations Commission’s award to workers’ compensation claimant for wife’s past emotional support nursing services after claimant, an over-the-road truck driver who was diagnosed with post-traumatic stress disorder (PTSD) after his truck overturned on the interstate; care consultant testified that claimant was in need of care and that it was exceedingly difficult to determine the exact amount of time a person would spend providing nursing services to claimant because his condition waxed and waned in terms of severity on a day-to-day basis, and Commission determined that it was only during bad days that wife was required to provide nursing services and bad days were occurring, on average, three times per week. Mo. Ann. Stat. § 287.140.1.
Cases that cite this headnote

APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION
Before Division One: Victor C. Howard, Presiding Judge, Lisa White Hardwick and Gary D. Witt, Judges
Opinion

Lisa White Hardwick, Judge

*1 Wilcox Truck Line, Inc. and its insurer Accident Fund Insurance Company of America (“collectively, Employer”) appeal the decision of the Labor and Industrial Relations Commission (“Commission”) awarding workers’ compensation benefits to employee Ronald Reynolds. Employer raises two points on appeal: 1) the Commission’s award was erroneous because there was insufficient evidence that Reynolds was permanently and totally disabled as a result of his injury; and 2) the Commission erred in awarding Reynolds’s wife (“Wife”) compensation for past nursing services because she provided services that would typically be provided by a spouse. For reasons explained herein, we find no error and affirm.

FACTUAL AND PROCEDURAL HISTORY1
[1] [2]On July 17, 2007, Reynolds was driving his regular route between Tennessee and Iowa as an over-the-road trucker for Wilcox Truck Line, Inc. As he traveled through a construction area on Interstate 35, Reynolds’s tractor-trailer made contact with a concrete barrier before crossing over and striking a guardrail and a road sign on the other side of the road. The tractor-trailer overturned and slid against the road on its passenger side until coming to a rest in the middle of the roadway. Reynolds kicked out the windshield to escape the wreckage, as the tractor-trailer caught fire and burned. Reynolds was transported to a hospital but was released later that day with directions to see a local doctor after medical providers determined that, in his extremely agitated state, he was a greater danger to himself within the hospital than at home.

Immediately after Reynolds returned home, he experienced sleep disturbances which Wife described as “[e]very time he closed his eyes to [sleep] he would wake up yelling.” Employer directed Reynolds to seek treatment at the local urgent care clinic. Wife conscripted the assistance of her sons to get Reynolds into the family truck because he refused to enter a moving vehicle. After a few examinations by urgent care providers, Reynolds was diagnosed with post-traumatic stress disorder (PTSD) and referred to licensed clinical social worker Anne Heselton for further consultation. Heselton subsequently concluded that Reynolds met the diagnosis criteria for acute stress disorder because:
he has been exposed to a traumatic event in which he experienced injury and a threat to his physical integrity and his response involved intense fear, helplessness, and horror; he has had some dissociative symptoms; he is persistently reexperiencing the trauma through thoughts and dreams and is distressed when exposed to reminders of the traumatic event; he is avoiding stimuli that arouse recollections of the trauma; he has marked symptoms of anxiety and increased arousal (difficulty sleeping, irritability); the symptoms are causing clinically significant distress; the symptoms have lasted for 9 days and occurred within 4 weeks of the traumatic event; and the symptoms are not due to the direct physiological effects of a substance, a general medical condition, Brief Psychotic Disorder, or another Axis I or Axis II disorder.

*2 In September 2007, Dr. Elizabeth Bhargava became Reynolds’s treating psychiatrist. Upon diagnosing Reynolds with PTSD, she increased his Prozac dosage and prescribed another medication to assist with his continued sleep disturbances. She referred him to a neuropsychologist, Dr. Steven Akeson for further therapy in October 2007. Dr. Akeson noted improvement after a few sessions and reported Reynolds was “very motivated to return to work[,]” and that his prognosis was excellent despite recent episodes of depression and anxiety. Dr. Bhargava subsequently cleared Reynolds for a trial period of over-the-road truck driving as long as he carefully monitored the effects of his prescribed sleep aid and kept his driving to the daylight hours. In therapy progress notes, Dr. Akeson outlined a potential return plan that would start with co-driver trips to Memphis and progress to occasional, unassisted trips before a full return to duty at some point in May 2008.

Upon his return to work, Reynolds reported that his confidence increased with each trip made with a co-driver. He noted some symptoms of anxiety when crossing through construction zones but was able to manage the symptoms. Reynolds eventually began driving solo trips to Memphis, which continued until April 27, 2008. On that day, Reynolds called his Wife after witnessing a “bad accident” on the road. Reynolds said he was sorry that he didn’t stop but the accident involved a family and he just “had to get on around it[.]” He asked Wife to pick him up at his truck drop-off location at 5:00 p.m.

Wife was unable to get Reynolds to exit the truck or unlock the cab door when he arrived at the drop-off location. She went to the passenger side and eventually convinced Reynolds to unlock the driver’s side door. However, Reynolds refused to get out of the truck and had to be physically removed by Wife with the assistance of another trucker. Reynolds has not returned to work since this incident.

On November 8, 2008, Dr. Dale Halfaker, a neuropsychologist, conducted an evaluation of Reynolds based on DAPS2 testing and a review of his medical records. Dr. Halfaker diagnosed Reynolds with PTSD and rated its effect as a permanent 10% partial disability. Further, Dr. Halfaker opined that Reynolds had reached a maximum level of psychological improvement and that he could return to work without psychological restrictions.

On November 11, 2010, Dr. Stanley Butts evaluated Reynolds at the request of Reynolds’s counsel. Dr. Butts diagnosed Reynolds with PTSD and major depressive disorder resulting from the 2007 tractor-trailer accident. He rated Reynolds as permanently and totally disabled, noting specifically that he was unable to engage in meaningful, gainful employment as a result of the PTSD. Dr. Butts recommended continued use of medication and therapy.

Reynolds also engaged Gary Weimholt, a vocational rehabilitation consultant, to perform a vocational evaluation based upon review of medical records, letters and notes completed by Wife, and deposition testimony. Weimholt opined that Reynolds would not be able to return to employment as a truck driver. Further, Weimholt concluded that no employer would hire Reynolds because of “the mental health problems that he has associated with [PTSD] that have been documented in the file.”

Dr. Jennifer Lynch of the Ferell-Duncan Clinic conducted an Employer-requested mental examination of Reynolds on July 24, 2015. Dr. Lynch’s diagnoses were REM sleep behavior disorder, depression, chronic insomnia, and PTSD. Dr. Lynch found no evidence of progressive cognitive decline but recognized that Reynolds was clearly suffering from impaired cognition and symptoms consistent with PTSD and depression. Dr. Lynch observed that previous evaluations had reported a significant decline from prior to the accident. Accordingly, Dr. Lynch recommended continuing the present care plan but suggested a few modifications to Reynolds’s medication regimen.

*3 The Commission heard testimony about Reynolds’s declining mental and physical abilities after the accident. Prior to his injury, family members described him as a sharp man who was good with numbers and proficient at maintaining vehicles and other farming implements. Further, he raised over a hundred head of cattle and hogs as well as six horses. Post-injury, he was unable to work as efficiently, needing both constant supervision and far more time to complete even simple activities.

On March 23, 2011, Reynolds requested nursing services related to his injuries, but Employer refused to provide the services. Wife initially reduced her work hours outside the home to care for Reynolds. Based on Reynolds’s declining condition, Wife eventually abandoned her outside employment entirely to care for him. Victoria Powell, a nurse and care consultant, concluded that Reynolds needed sixteen to twenty hours of daily home care for “maintenance, safety, and well-being.”

Reynolds sought workers’ compensation for his injuries. Following a final hearing, the Administrative Law Judge (“ALJ”) determined that, as of November 20, 2014, Reynolds was permanently and totally disabled because of his work-related PTSD and depression. The ALJ denied Reynolds’s request for past nursing services performed by Wife, determining that “[Wife] does not provide constant care for [Reynolds],” and that “the services she provides to [Reynolds] are primarily services ordinarily provided by a wife to a husband.” Both parties requested the Commission to review the award. The Commission subsequently affirmed the finding of permanent and total disability, but partially reversed the ALJ’s decision and awarded Reynolds compensation for Wife’s past nursing services. Employer appeals.

STANDARD OF REVIEW
[3]Our review of a workers’ compensation award focuses on the decision of the Commission and not that of the ALJ.3 Glasco v. Treasurer of State—Custodian of Second Injury Fund, 534 S.W.3d 391, 397 (Mo. App. 2017). We will not disturb the Commission’s award unless the Commission acted in excess of its powers, the award was procured by fraud, the facts found by the Commission do not support the award, or there was not sufficient competent evidence in the record to support the award. § 287.495.1.4 In deciding whether there was sufficient competent and substantial evidence to support the Commission’s award, we examine the evidence in the context of the whole record. Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-23 (Mo. banc 2003). “An award that is contrary to the overwhelming weight of the evidence is, in context, not supported by competent and substantial evidence.” Id. at 223.

The Commission’s determinations of law are reviewed de novo. Lincoln Univ. v. Narens, 485 S.W.3d 811, 815 (Mo. App. 2016). We must, however, “defer to the commission’s findings on issues of fact, the credibility of the witnesses, and the weight given to conflicting evidence.” Malam v. State, Dept. of Corrs., 492 S.W.3d 926, 928 (Mo. banc 2016).

ANALYSIS

I. The Award of Permanent and Total Disability is Supported by Substantial and Competent Evidence
*4 [4]In Point I, Employer asserts that the Commission erred, as a matter of law, in finding that Reynolds was permanently and totally disabled as a result of work-related PTSD. In support of the point relied on, Employer offers several arguments that fall into two categories: (1) allegations of error arising from the Commission’s failure to take into account Reynolds’s conduct post-accident; and (2) allegations of error arising from the Commission’s failure to properly evaluate expert testimony presented by the parties.5

A. Allegations of Error Arising from Reynolds’s Conduct
Employer argues that the Commission’s finding of permanent and total disability was against the overwhelming weight of the evidence based on the following factors: (1) Reynolds returned to work after initially being diagnosed with PTSD; (2) Reynolds continues to perform various farm duties in connection with a cattle-raising operation; (3) Reynolds’s inability to operate a truck does not render him incapable of any employment; and (4) Reynolds has not sought any employment outside his farm since April 2008. In citing these factors, Employer’s overarching contention is that there was no evidence that Reynolds has been shut out of the entire open labor market.

[5] [6] [7]“Under section 287.020, the term ‘total disability’ is defined as the inability to return to any employment and not merely … inability to return to the employment in which the employee was engaged at the time of the accident.” Scott v. Treasurer of State—Custodian of Second Injury Fund, 417 S.W.3d 381, 386 (Mo. App 2014) (internal citation and quotations omitted). It is well established that the test for determining whether a claimant is permanently and totally disabled “is whether the worker is able to compete in the open labor market.” Molder v. Mo. State Treasurer, 342 S.W.3d 406, 411 (Mo. App. 2011) (citing Treasurer v. Cook, 323 S.W.3d 105, 110 (Mo. App. 2010)). “The ability to compete in the open labor market hinges on whether, in the ordinary course of business, any employer would be reasonably expected to hire the individual given his or her present physical condition.” Archer v. City of Cameron, 460 S.W.3d 370, 375 (Mo. App. 2015).

[8]Employer’s four contentions related to Reynolds’s post-accident conduct essentially assert a single allegation—that the Commission failed to adequately consider facts that demonstrate that Reynolds is not permanently and totally disabled. These contentions fail for a multitude of reasons.

[9]First, Employer argues that Reynolds chose to voluntarily retire due to “some psychological difficulties in driving a truck.” This contention is rebutted by the Commission’s factual and credibility determinations—to which we are bound. See Malam, 492 S.W.3d at 928. The Commission relied on evidence from Dr. Butts and Weimholt in determining that Reynolds was unable to compete in the open labor market. The mere fact that Reynolds returned to work for a trial period does not defeat his claim for compensation as “Missouri courts have made clear that the Commission is not prevented from finding that a claimant is permanently and totally disabled simply because he or she holds limited, sporadic and/or highly accommodated employment.” Molder, 342 S.W.3d at 412.

*5 [10]Second, Employer argues that Reynolds is not permanently and totally disabled because he is engaged in a cattle-raising operation that involves “operating tractors, feeding the livestock, and bush hogging pastures.” The record, under even the most charitable of readings, does not support Employer’s contention. Reynolds stated that he assisted his son in raising approximately eighteen head of cattle and several companion horses. These activities occasionally required Reynolds to fix a fence or clear a pasture with a bush hog. When pressed, however, Reynolds described his work as “piddling”—a characterization supported by Reynolds’s family members, all of whom stated that his capacity for work was limited at best, that he needed to be supervised at nearly every step, and that his diminished capacity often made this farm work a source of grave danger. The Commission adopted the ALJ’s “exhaustive” recitation of the testimony from Reynolds’s family as competent and substantial evidence supporting Reynolds’s contention that he was permanently and totally disability. A claimant need not be completely inert or inactive to qualify as permanently and totally disabled. Archer, 460 S.W.3d at 376.

Third, Employer asserts that Reynolds has many talents and a wealth of experience that would allow him to find employment in nearly any field outside “transportation employment.” Employer contends that the record demonstrates that Reynolds “has farmed his entire life including cattle raising, has had employment as an auctioneer, has had a business buying and selling cattle, and is mechanically inclined on and off his farm (including motor vehicle repair, welding, and general laborer).” While the record demonstrates that Reynolds has engaged in those practices, the Commission also determined that—since the accident—Reynolds is no longer capable of engaging in any of those potential occupations. For that reason, Employer’s third argument must fail.

Fourth, Employer alleges that Reynolds has not sought any employment outside his farm since April 2008 and therefore the Commission was not presented with any evidence that Reynolds lacks access to the open market. This contention, however, ignores the wealth of evidence discussed supra and Weimholt’s report, wherein he stated:
In conclusion, it is my opinion that [Reynolds] has a total loss of access to the open competitive labor market and is totally vocationally disabled from employment. It is my opinion that there is no reasonable expectation that an employer, in the normal course of business, would hire [Reynolds] for any position, or that he would be able to perform the usual duties of any job that he has been or is qualified to perform.
The Commission was free to—and did—find that this evidence credibly demonstrated that Reynolds was permanently and totally disabled. Accordingly, we reject Employer’s claim that the Commission’s finding of permanent and total disability failed to account for Reynolds’s post-accident conduct.

B. Allegations of Error Arising from Expert Testimony
In the second group of arguments challenging the award of permanent and total disability, Employer contends that the Commission failed to properly evaluate the parties’ expert testimony because: (1) no treating physician or healthcare provider offered an opinion that Reynolds cannot hold employment; (2) Reynolds relied almost exclusively on the opinion of his retained expert, Dr. Butts, to support his claim of permanent total disability; (3) Employer’s expert, Dr. Halfaker, was prevented from completing a second examination of Reynolds; and (4) Reynolds failed to prove that any reported cognitive deficits were caused by the accident.

[11] [12]Employer primarily assigns error to the Commission’s reliance on Dr. Butt’s opinion over that of Dr. Halfaker. These arguments are a thinly disguised invitation to disregard the Commission’s assessment of the medical opinions in the record and make our own assessment, which we cannot do. Dierks v. Kraft Foods, 471 S.W.3d 726, 733 (Mo. App. 2015). “Where the right to compensation depends upon which of two conflicting medical theories should be accepted, the issue is peculiarly for the Commission’s determination.” Id. (citation and quotations omitted). Indeed, where the evidence “would warrant either of two opposed findings,” we are bound by the Commission’s decision, “and it is irrelevant that there is supportive evidence for the contrary finding.” Hornbeck v. Spectra Painting, Inc., 370 S.W.3d 624, 629 (Mo. banc 2012) (citation and quotations omitted). We therefore find no error in the Commission’s decision to accept Dr. Butt’s opinion over that of Dr. Halfaker. See Dierks, 471 S.W.3d at 733.

*6 [13] [14]Employer further suggests that Reynolds improperly relied on Dr. Butt’s opinion—that additional psychological testing would be harmful—as both a sword to prove his claim of disability and a shield to prevent further testing by Dr. Halfaker. The ALJ twice found that Reynolds was justified in refusing to comply with Employer’s request to submit to a second neurological examination due to credible concerns that further evaluations would be traumatic and endanger him. Employer has not provided any authority explaining why the ALJ’s ruling was made in error or why we should reverse on this ground when it did not raise this issue for Commission review. “An issue appropriate for, but not addressed with the [C]ommission, cannot be litigated on appeal.” Archer, 460 S.W.3d at 377 (alteration in original) (citations and quotations omitted). Point I is denied.

II. Wife’s Services were Compensable Nursing Services Pursuant to Section 287.140.1
In Point II, Employer asserts that the Commission erred in awarding Reynolds compensation for past nursing services related to tasks completed by Wife. Employer contends Wife provided assistance to Reynolds as a spouse in the usual course of a marriage and her conduct did not qualify as nursing services under Section 287.140.1, which states, in pertinent part:
In addition to all other compensation paid to the employee under this section, the employee shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury.

After the administrative hearing, the ALJ ruled that Reynolds was not entitled to compensation for Wife’s services because the services provided by Wife were of a nature “ordinarily provided by a wife to a husband.” The Commission reversed the ALJ’s ruling and awarded Reynolds compensation for past nursing services, finding that the definition of “nursing” under Chapter 287 is broad enough to cover the additional services provided by Wife—even under a strict interpretation of the statute.

In 2005, the General Assembly amended Chapter 287 to require, inter alia, that the provisions of the Worker’s Compensation Law chapter be construed strictly. § 287.800.1. Prior to 2005, however, we routinely held that, a liberal construction of Section 287.140.1 justified requiring an employer to compensate a spouse for providing nursing services. See e.g., Daugherty v. City of Monett, 192 S.W.2d 51, 56-57 (Mo. App. 1946). Courts also cautioned that the compensable services must be beyond those that a spouse would normally offer by virtue of the marital relationship. See id.; see also Stephens v. Crane Trucking, Inc., 446 S.W.2d 772, 781 (Mo. 1969); Groce v. Pyle, 315 S.W.2d 482, 491 (Mo. App. 1958). The prefatory question we must answer prior to addressing the merits of Employer’s second point therefore is whether, under the strict construction mandate of Section 287.800.1, the holdings of these cases are still in effect.

[15] [16]“Strict construction of a statute requires that the scope of the statute not be extended beyond its literal meaning and that the statute not be unreasonably interpreted.” Snyder v. Consol. Library Dist. No. 3, 306 S.W.3d 133, 137 (Mo. App. 2010). However, “[t]he rule of strict construction does not mean that the statute shall be construed in a narrow or stingy manner, but it means that everything shall be excluded from its operation which does not clearly come within the scope of the language used.” Young v. Boone Elec. Coop., 462 S.W.3d 783, 792 (Mo. App. 2015) (internal citations and quotations omitted). “The clear, plain, obvious or natural import of the language should be used, and the statutes should not be applied to situations or parties not fairly or clearly within its provisions.” Id. (internal citations and quotations omitted).

*7 [17]The word “nursing” is not defined within Chapter 287. “In the absence of statutory definitions, the plain and ordinary meaning of a term may be derived from a dictionary, and by considering the context of the entire statute in which it appears.” Kader v. Bd. of Regents of Harris-Stowe State Univ., 565 S.W.3d 182, 187 (Mo. banc 2019) (citation and quotations omitted). Nursing is defined as: (1) “the profession of a nurse”; and (2) “the varied activities that constitute the duties of a nurse.” Nursing, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1552 (1993). While the dictionary provides several definitions for the term “nurse,” those that could plausibly apply in the context of the Worker’s Compensation Law are: (1) “a person who looks after or gives advice to another”; and (2) “a person skilled in caring for and waiting on the infirm, the injured, or the sick; [specific]: one especially trained to carry out such duties under the supervision of a physician.” Nurse, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1551 (1993).

With regard to the first definition, if the term “nursing” could be read to include merely looking after someone, then “nursing” would swallow the entirety of Section 287.140.1 and include as compensable many services not contemplated by the legislature. The second definition more directly applies to the provision of medical services for injuries. Therefore, we read “nursing” to mean the varied activities that constitute the duties of a person skilled in caring for and waiting on the infirm, the injured, or the sick; which could include one especially trained to carry out such duties under the supervision of a physician. See id.; see also Nursing, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1552 (1993).

“In construing a statute, [we] must presume the legislature was aware of the state of the law at the time of its enactment.” Suffian v. Usher, 19 S.W.3d 130, 133 (Mo. banc 2000) (quoting Matter of Nocita, 914 S.W.2d 358, 359 (Mo. banc 1996)). Consequently, “[u]nless a statute clearly abrogates common law by express statement or by implication, the common law stands.” Ahern v. P & H, LLC, 254 S.W.3d 129, 133 (Mo. App. 2008). This is particularly true in areas of “traditional judicial activity,” where we require the General Assembly to make a “positive expression” of its intent to foreclose our previous actions. O’Grady v. Brown, 654 S.W.2d 904, 911 (Mo. banc. 1983) (citation and quotations omitted).

The legislature, in amending Chapter 287, could have chosen to define nursing in any number of ways. See Nursing, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1552 (1993); see also Nurse, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1551 (1993). It also could have chosen to abrogate our previous decisions that defined and applied the term. Indeed, the legislature demonstrated that it is perfectly capable of abrogating previous opinions it finds objectionable. See, e.g., § 287.020. Instead, the General Assembly shifted the lens of construction pursuant to Section 287.800.1, without changing the definition of nursing or the focus of Section 287.140.1. Prior to the amendment, the focus of Section 287.140.1 in regard to “nursing” was on the type of service rendered, and not on the individual rendering the service. Nothing in the General Assembly’s statutory amendment has changed that focus. “Statutes are enforced as they are written, not as they might have been written.” Frye v. Levy, 440 S.W.3d 405, 420 (Mo. banc 2014). Put simply, if the shift towards strict construction made any measure of difference in the definition of nursing, it has resulted in a reduction of the types of services contemplated as “nursing” by the statute and not in the categorical abrogation of a spouse’s capacity to provide compensable nursing services. Indeed, neither the text of Section 287.140.1, nor the dictionary-derived definition of nursing indicate that the individual offering the services need licensure or formal education. See Section 287.140.1; see also Nursing, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1552 (1993)

*8 [18]Section 1.120 offers further support for this construction of Section 287.140.1. It provides: “[t]he provisions of any law or statute which is reenacted, amended or revised, so far as they are the same as those of a prior law, shall be construed as a continuation of such law and not as a new enactment.” § 1.120. This construction is consistent with the general canon of interpretation that in circumstances where “part of a statute is repealed by an amendatory act, the provisions retained are regarded as a continuation of the former law while those omitted are treated as repealed.” Sell v. Ozarks Med. Ctr., 333 S.W.3d 498, 508 (Mo. App. 2011) (internal citation and quotations omitted). As explained by the Missouri Supreme Court:
[W]here a statute is amended only in part, or as respects only certain isolated and integral sections thereof and the remaining sections or parts of the statute are allowed and left to stand unamended, unchanged, and apparently unaffected by the amendatory act or acts, it is presumed that the Legislature intended the unamended and unchanged sections or parts of the original statute to remain operative and effective, as before the enactment of the amendatory act.
Citizens Bank and Tr. Co. v. Dir. of Revenue, 639 S.W.2d 833, 835 (Mo. 1982) (alteration in original) (quoting State ex rel. Dean v. Daues, 321 Mo. 1126, 14 S.W.2d 990, 1002 (Mo. 1929)). Consequently, we must still consider whether Wife’s services were beyond those owed to a spouse by virtue of the marital relationship, and in so doing, ascertain whether the Commission’s award of past nursing services is supported by competent and substantial evidence.

[19]Employer contends that “[t]he crux of what [Wife] has done for [Reynolds] after the accident consists of providing him emotional support when he is feeling down or depressed.” This summation runs contrary to the Commission’s factual findings that Wife managed Reynolds’s medications and monitored his health for adverse drug reactions, communicated with his caregivers, remained with Reynolds during the day to prevent him from “having accidents or from falling into a psychological crisis,” used guided imagery and deep breathing exercises to calm him after panic attacks, and counseled him through “symptoms of withdrawal and avoidance.” Further, after Employer denied Reynolds’s request for nursing care, it became necessary for Wife to reduce, and eventually abandon, her outside employment to provide the services necessary to care for Reynolds.6 Wife’s services met the “nursing” definition of a person skilled in caring for and waiting on the infirm, the injured, or the sick. Additionally, the Commission found “that each of these services were reasonably required to cure and relieve the effects of [Reynolds’s] work injury.” Accordingly, the nursing services provided by Wife are compensable under any reading of Section 287.140.1.

[20]Further, the Commission was careful to distinguish between the hours Wife committed to compensable services and those dedicated to normal spousal activities. In arriving at its award, the Commission stated that Powell credibly testified that Reynolds was in need of care and that it would be exceedingly difficult to determine the exact amount of time a person would spend providing nursing services to Reynolds because his condition waxed and waned in terms of severity on a day-to-day basis. The Commission then determined that it is only during “bad days” that Wife is required to provide nursing services and that the “ratio of good days to bad is rather favorable” with bad days occurring, on average, three times per week. This formulation is consistent with the General Assembly’s focus on the nature of the duties and not the person performing them. Therefore, the Commission’s award of past nursing services is in accordance with the law of Missouri and is supported by competent and substantial evidence. Point II is denied.

CONCLUSION
*9 The Commission’s award is affirmed.

All Concur.
All Citations
— S.W.3d —-, 2019 WL 4418285

Footnotes

1
Reynolds contends that the appeal should be dismissed pursuant to Rule 84.04(c) because Employer’s brief does not contain a full and fair version of the facts at issue in this appeal. While there are technical deficiencies, we find that Employer’s brief substantially complies with the Rule and we are able to address the claims presented. “We will not exercise our discretion to dismiss an appeal for technical deficiency under Rule 84.04 unless the deficiency impedes disposition on the merits.” Emig ex rel. Emig v. Curtis, 117 S.W.3d 174, 177 (Mo. App. 2003) (internal citation and quotations omitted).

2
DAPS is a 104-item comprehensive clinical test for “Detailed Assessment of Post-Traumatic Stress.”

3
The Commission, in modifying the ALJ’s award, stated that the ALJ’s findings were “interspersed throughout a 136-page decision that includes lengthy summaries of the evidence … without accompanying analysis or commentary from the [ALJ] as to how he viewed such evidence.” Based on its reading of Stegman v. Grand River Reg’l Ambulance, 274 S.W.3d 529, 533-34 (Mo. App. 2008), the Commission attached and incorporated the ALJ’s award but also included in its final award a summary of the ALJ’s findings that the Commission affirmed and adopted as its own. Consequently, the Commission’s summary and adoptions will guide our review in any circumstance where the two awards differ.

4
All statutory citations are to RSMo 2000 as in effect at the time of Franklin’s injury, unless otherwise noted.

5
We note that Employer’s point on appeal is multifarious in that it “groups multiple, disparate claims” and thereby fails to comply with Rule 84.04(d). Rouse v. Cuvelier, 363 S.W.3d 406, 419 (Mo. App. 2012). Although such points generally preserve nothing for review and are subject to dismissal, we exercise our discretion to consolidate and address the arguments in two categories.

6
“It might be said in passing that if appellants dislike the idea of compensating claimant for such services when rendered by his wife, they might have exercised their privilege of purchasing them for him in the first instance, from someone in the practical nursing profession.” Stephens, 446 S.W.2d at 781 (citation and quotations omitted).