Keith McCutchen v. Peoplease Corporation

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 not supported by competent and substantial evidence and was not made in accordance with the Missouri Workers’ Compensation Act. Pursuant to section 286.090 RSMo, the Commission reverses the award and decision of the administrative law judge dated August 16, 2004. The award and decision of the administrative law judge (ALJ) is attached and incorporated by this reference.

The Commission further approves an allowance of attorney’s fee in the amount of 25% of the benefits awarded herein as being fair and reasonable. The Commission denies employee’s request that attorney fees and costs of litigation be assessed against the employer/insurer under section 287.560 RSMo.

Any past due compensation shall bear interest as provided by law. This award is temporary or partial in nature, is subject to further order and shall be kept open until a final award can be made. All parties should be aware of the provisions of section 287.510 RSMo.

This matter comes before the Commission on an Application for Review filed by employee from an award denying compensation.

The issues presented to the ALJ were: 1) whether the injury arose out of and in the course of employment; 2) the average weekly wage and the compensation rate; 3) the medical causal relation between employee’s injuries and his employment; 4) the liability of employer/insurer for medical bills incurred by employee; 5) the liability of employer/insurer for further medical aid; and, lastly, 6) the liability of employer/insurer for temporary total disability from July 14, 2003, until the date of the hearing on April 29, 2004.

Employee claims that he was injured as the result of an assault that took place in the work place on July 14, 2003. Employee claims he was assaulted by a co-employee (his son) who became angry and upset after employee gave him a work order. Employee claims the assault was the outgrowth of friction generated on the job and was a rational consequence of the hazard of his supervisory position.

Employer/insurer argued that the injuries sustained in the assault would not be compensable because employee initiated

the altercation and would be disqualified as the aggressor in the altercation. As the aggressor, the injuries would not arise out of and be in the course of employment under section 287.120.1 RSMo.

Both employee and his son were employed by Peoplease and assigned to Edwards Transportation. Edwards is a trucking company. Employee was the foreman in the shop area and the son was originally hired to work on tires but, over time, was asked to do various duties. The son came to resent the fact that anyone working in the shop thought they had the right to order him to perform tasks.

On July 14, 2003, employee instructed his son to take a four-wheeled ATV and spray weeds around the company building. The four-wheeler broke down and son came back to the shop to fix the problem. Employee instructed him to clean up another four-wheeler and finish the job. The co-employee son refused. Employee told him he was fired and son threw a bolt and hit employee in the mouth. Son then took a broom from a trashcan and struck employee twice. Employee fell over some tires. Son threw a couple of wrenches and picked up a lead pipe to continue the assault. Son struck employee with the pipe. Employee drew his pocket knife and son exited the building.

Employee sustained injuries to his arms, back and neck. Employee underwent physical therapy, given medications and was seen by a neurosurgeon. He was given a 25 -pound weight restriction and then that was reduced to 10 -pounds and office work only. At that point employee was laid off. He has seen a couple of physicians, through Medicaid, since his lay off in early November of 2003. He has had pain injections and prescription refills.

It should be pointed out that the co-employee son testified that he started the fight because he "was fed up with work. I mean I would consider it being overworked and underpaid. I was picking up the loose ends of everybody else's stuff. The jobs they would do, they'd leave all their stuff laying there and then they would expect me to pick it up and I was just fed up with it." "It wasn't anything personal. It was just build up of the way they were treating me out there." "...when he told me l'd be fired, it made me mad and that's the reason I did it." "I was mad. Because I was doing somebody else's job."

Other employees testified that employee started things when son refused the work assignment and made a nasty comment. Employee then threw something at son. Testimony also indicated that son told co-workers that his dad (employee) started it.

The ALJ accepted the testimony as to employee throwing something first. He, therefore, concluded that employee was the aggressor and denied compensation. We disagree. Having reached the decision that the claim was not compensable the remaining issues were not addressed.

Assaults are compensable under the law in section 287.120.1 which provides, in part, "the term accident shall include an injury or death of the employee caused by the unprovoked violence or assault against the employee by any person."

To be the victim of an unprovoked assault the claimant must not be the aggressor and must not be the one who caused the assault.

The question of the cause of an assault involves the weighing of testimony from various parties and each case is fact specific. The Commission is charged with determining issues of credibility and the weight to be given conflicting evidence. Hughey v. Chrysler Corp., 34 S.W.3d 845, 846 (Mo. App. E.D. 2000); Chatmon v. St. Charles County Ambulance District, 55 S.W.3d 451, 457 (Mo. App. E.D. 2001).

In considering the evidence, we find the testimony of employee and of co-employee to be the more comprehensive. We accept the incident as related by employee and son. We accept son's explanation as to the reason he attacked employee.

Accordingly, we find the matter compensable and must reverse the denial of benefits.

Even if we were to accept the story of father throwing something at son, we would not find this to have initiated the assault. According to the testimony of the son, he assaulted the father because of being fed up with his job, getting orders to do other people's work and general frustration. Nowhere, does the son say he assaulted employee because something was thrown at him. To the contrary, the son expressly indicates work as the precipitating factor in the assault.

We find the matter meets the criteria for compensability under Dillard v. City of St. Louis, 685 S.W.2d 918, 923 (Mo. App. E.D. 1984): Loepke v. Opies Transport, Inc., 945 S.W.2d 655 (Mo. App. W.D. 1997); Wolfe v. DuBourg

House/Archdiocese of St. Louis, 93 S.W.3d 855 (Mo. App. E.D. 2003).

To be disqualified as an aggressor it must be shown that the employee's injuries were caused by his own threats and demonstrations of assault upon another. Dillard at 923. Here, any action of employee was ancillary to the reason for the ultimate assault. We accept the testimony of the assailant son in this regard.

Having determined that the claim is compensable we must now address the remaining issues.

We find employee's condition of ill being with respect to his neck and low back to be causally related to his injury. The only medical evidence before the Commission compels this finding. Employer/insurer chose not to introduce evidence from their own expert as to the question of causation. We, therefore, accept the evidence of Dr. Shuter concerning causation. Sullivan v. Masters Jackson Paving Co., 35 S.W.3d 879 (Mo. App. S.D. 2001).

We find the evidence to establish an average weekly wage of $\ 785.93 generating a compensation rate of $\ 523.94 for temporary total disability and $\ 347.05 for permanent partial disability.

We find employer/insurer liable for past medical expenses as set out in the transcript with no credit being allowed for payment by an ancillary source. Payment for the said bills shall be made to the provider, employee and his attorney. Employer/insurer disputed payment of the bills on the grounds of authorization, reasonableness and necessity and relatedness of the treatment. There is no dispute employer/ insurer knew of the incident in question. There is no dispute that employer/insurer knew employee was being treated for injuries sustained in the assault. There is no evidence that employer/insurer took any steps to assert their statutory right to control the course of medical treatment. There is no evidence to establish any claim that the bills are not reasonable, necessary and related.

We find that employee is entitled to, and employer/insurer shall provide, such future medical aid, including prescriptions and therapy, as may be determined to be necessary to cure and relieve employee's condition of ill being. Section 287.140 RSMo

We find employee's claim for temporary total disability from November 7, 2003, thru the date of the hearing on April 29, 2004, to be meritorious. Employer/insurer shall pay the sum of $\ 523.94 per week for the 25 weeks in question. Such payment shall be made to employee and his attorney.

The matter is remanded to the Division of Workers Compensation (Division) for further proceedings. As this is a temporary or partial award, jurisdiction remains with the Division. Among the issues to be immediately addressed are the medical status and expenses since the hearing as well as the entitlement of employee to temporary total benefits from the date of the hearing and continuing.

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

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

Attest:

John J. Hickey, Member

Secretary

ISSUED BY DIVISION OF WORKERS' COMPENSATION

Employee: Keith McCutchen

Injury No. 03-097976

Dependents: N/A

Employer: Peoplease Corporation

Additional Party: N/A

Insurer: Providence Property and Casualty Insurance Company

Hearing Date: Commenced April 29, 2004, completed June 21, 2004 Checked by: LK/sm

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? Yes
7. Did employer receive proper notice? Yes
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? Yes
10. Was employer insured by above insurer? Yes
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
13. Parts of body injured by accident or occupational disease: N/A
14. Nature and extent of any permanent disability: N/A
15. Compensation paid to date for temporary total disability: -0