William Maloy v. Cabinet \& Bath Supply, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 01-113069

Employee: William Maloy

Employer: Cabinet \& Bath Supply, Inc.

Insurer: Fire \& Casualty Insurance Company of Connecticut

Date of Accident: April 20, 2001

Place and County of Accident: Nixa, Christian County, Missouri

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Act. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated November 24, 2003, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Margaret Ellis Holden, issued November 24, 2003, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 26 ^{\text {th }}$ day of April 2005.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

DISSENTING OPINION FILED

Attest: John J. Hickey, Member

Secretary

I must respectfully dissent from the award and decision of the majority of this Commission affirming the award and decision of the administrative law judge. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be reversed.

The administrative law judge denied compensation after concluding that the injury did not occur as described by

the employee. The administrative law judge based her conclusion "on the fact that none of the other people who testified that they were present when the mantel was lifted, moved, and reassembled remembered anything about the mantel being dropped, the claimant hurting himself, needing help, acting like he was in pain, or anything unusual at all happening regarding the mantel." The administrative law judge's conclusion implies a finding those witnesses were credible.

The record developed at a remand hearing subsequent to the trial, convinces me that most of employer's witnesses are not credible.

- Mr. Barton and Mr. Hambelton each admitted fabricating a story that Mr. Bean was stealing from employer in an effort to get Mr. Bean fired.

- Mr. Barton testified that Mr. Barton and Mr. Hambelton were acting in concert in this corrupt scheme. Mr. Hambelton testified that Mr. Hambelton acted alone.

- Mr. Bean admitted to threatening physical harm against any employee who contacted OSHA about potential safety violations.

- Mr. Barton testified that he concocted a story to leave employee with the impression that Mr. Bean pressured witnesses to lie on the stand at the hearing on employee's claim. Mr. Barton testified he lied to employee to rile employee up in the hopes that employee would confront Mr. Paris about the alleged misdeeds of Mr. Bean.

Mr. Paris owns all of the stock of employer. Mr. Paris testified at the remand hearing. Mr. Paris' testimony suggests to me a lack of concern for the safety of employees and at least a tacit approval of dishonest tactics by employees.

- Mr. Paris acknowledged that he had taken no disciplinary action against Mr. Bean for threatening physical harm against employees who report suspected safety violations to OSHA.

- Mr. Paris acknowledged that he had taken no disciplinary action against Mr. Barton for admittedly lying and scheming in an effort to get Mr. Paris to fire Mr. Bean.

The lies and actions admitted by Mr. Barton, Mr. Bean, Mr. Hambelton, and Mr. Paris at the remand hearing convince me it is error to give credence to any of their testimony regarding the alleged work accident. Mr. Barton's web of lies convinces me that employee's version of events is credible.

Mr. Barton most recently claimed he made up the story he told employee about co-workers lying on the stand at the original hearing. Mr. Barton explained that he lied to make employee mad. This explanation does not make sense. Why would employee get mad if Mr. Bean told employees to deny knowledge of a work accident if there had been no work accident? That testimony would be the truth.

Mr. Barton's desired outcome -- employee's anger -- would only occur if employee really suffered a work accident and injury, and he learned Mr. Bean told his co-workers to deny knowledge of the work accident. I believe that is what happened in this case.

I find employee's version of events to be credible. I find employee suffered a compensable injury in the manner he described. I would issue a temporary award of compensation awarding past medical expenses, further medical care, and temporary total disability benefits.

For the foregoing reasons, I must respectfully dissent from the award of majority affirming the administrative law judge's denial of compensation in this matter.

Employee: William Maloy

Injury No. 01-113069

Dependents: $\quad \mathrm{n} / \mathrm{a}$

Employer: Cabinet \& Bath Supply, Inc.

Additional Party: $\quad \mathrm{n} / \mathrm{a}$

Insurer: Fire \& Casualty Insurance Company of Connecticut

Hearing Date: $\quad 6 / 24 / 03 \quad$ Checked by: MEH

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? No
4. Date of accident or onset of occupational disease: N/a
5. State location where accident occurred or occupational disease contracted: N/a
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? No
7. Did employer receive proper notice? No
8. Did accident or occupational disease arise out of and in the course of the employment? No
9. Was claim for compensation filed within time required by Law? No
10. Was employer insured by above insurer? No
11. Describe work employee was doing and how accident happened or occupational disease contracted: N/a.
12. Did accident or occupational disease cause death? NO Date of death? N/a N/A
13. Parts of body injured by accident or occupational disease: N/a
14. Nature and extent of any permanent disability: N/a

1. Compensation paid to-date for temporary disability: 0
2. Value necessary medical aid paid to date by employer/insurer? 0

Employee: William Maloy Injury No. 01-113069

1. Value necessary medical aid not furnished by employer/insurer? 0
2. Employee's average weekly wages: N/a
3. Weekly compensation rate: N/a
4. Method wages computation: N/a

21.Amount of compensation payable:

Unpaid medical expenses: \$

0 weeks of temporary total disability (or temporary partial disability)

0 weeks of permanent partial disability from Employer

0 weeks of disfigurement from Employer

Permanent total disability benefits from Employer beginning n/a, for Claimant's lifetime

1. Second Injury Fund liability: Yes No Open

weeks of permanent partial disability from Second Injury Fund

Uninsured medical/death benefits

Permanent total disability benefits from Second Injury Fund:

weekly differential (0) payable by SIF for weeks beginning n/a

and, thereafter, for Claimant's lifetime

1. Future requirements awarded:

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of N/A of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Employee: William Maloy Injury No. 01-113069

Dependents: $\quad n / a$

Employer: Cabinet \& Bath Supply, Inc.

Additional Party: $\quad n / a$

Insurer: Fire \& Casualty Insurance Company of Connecticut

Hearing Date: $\quad 6 / 24 / 03 \quad$ Checked by: MEH

On June 24, 2003, the parties appeared before the undersigned administrative law judge for a temporary hardship hearing. The employer appeared represented by Maria Campbell, and the claimant appeared in person represented by Robert Grosser. Memoranda of law were submitted by July 23, 2003.

The parties stipulated that on or about April 20, 2001, Cabinet and Bath Supply was an employer operating subject to the Missouri Workers' Compensation Law. The employer's liability was fully insured by Fire and Casualty Company of Connecticut. On the alleged injury date of April 20, 2001, William Maloy was an employee of the employer. The claimant was working subject to the Missouri Workers' Compensation Law. This employment occurred in Christian County, Missouri. The claimant's claim was filed within the time prescribed by Section 287.430. At the time of the claimed accident/occupational disease claimant's average weekly wage was $\ 710.59, sufficient to allow the compensation rate of $\ 473.72 for temporary total disability and $\ 314.26 for permanent partial disability benefits. No temporary total disability benefits have been paid. The employer has paid no medical benefits. The attorney fee sought is 25 %.

1. Whether the claimant sustained an accident/occupational disease.
2. Whether the claimant gave the employer proper notice.
3. Whether the accident arose out of the course and scope of employment.
4. Whether the accident caused the injuries and disabilities for which benefits are now being claimed.
5. Whether the employer is obligated to pay for past medical expenses.
6. Whether the claimant has sustained injuries that will require future medical care in order to cure and relieve the claimant of the effects of the injuries.
7. Any temporary total disability benefits owed to the claimant, both past and future.
8. Whether employer and insurer is entitled to a credit to past medical bills paid by private health care provider because employer and insurer paid 80 % of the premiums.

The employer makes and installs cabinetry. The claimant worked for the employer as a cabinetmaker. On Friday, April 20, 2001, he had finished building a large fireplace mantel made of cherry. This mantel was to be moved from the warehouse to the showroom. This fireplace consisted of two pieces, a top and bottom. To be

moved and installed, these pieces were taken apart and reassembled in the showroom. When assembled, the mantel was approximately nine feet high. The bottom piece was approximately five feet eight inches tall and the top piece was three feet four inches tall. They were both about nine feet wide. The top piece weighed 200-300 pounds.

The employee testified that he and a co-worker moved the piece. They began by stepping up on an 18-inch workbench and lifting the top piece off of the bottom piece. The employee said that when he stepped backwards off the bench while holding the mantel, he felt a pain in his back and almost dropped the mantel. He said that he did not drop it but caught it and felt a severe pain in his back. He said there was a jerk when he caught it. He said a co-worker helped him put the mantel on a table. He said that other co-workers had to wheel the mantel in for him and he only screwed it into place. He said other guys offered to help him. He testified that he talked to Kevin Bean, his supervisor, and told him he hurt his back. He said he told him that he pulled his back out of place and the other workers were going to help him install the mantel. The employee also said that after this he did no more lifting that day.

When he got home from work he laid on the floor and his wife rubbed his back. He then went to bed. His wife testified that she was aware he had an injury when he got home that night. She does not remember the exact date but knows it was a Friday. He said he called Joan Summers on Friday night or Saturday morning about installing some cabinets for her. A