Paul Probst v. Bill Wise (d/b/a Wise Construction Company)

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 January 20, 2006.

The sole allegation of error, as stated by employer, Billy G. Wise, d/b/a Wise Construction Company, is that, “the Administrative Law Judge found that claimant was covered under the Traveler’s insurance policy issued to employer, but failed to award employer attorney fees and costs expended in defending this action after Traveler’s wrongfully refused to defend on employee’s behalf.”

We have thoroughly reviewed employer’s Application for Review and Brief. Employer’s arguments and allegations fail to direct us to statutory authority for the awarding of attorney’s fees and costs to employer from insurer. We have reviewed the record and the Missouri Workers’ Compensation Law for any such authority.

At trial, this issue was stated as, “Employer’s claim for reimbursement of legal fees and expenses for reimbursement from Insurer.” Our review of the Missouri Workers’ Compensation Law revealed no statute authorizing us to order reimbursement of attorney’s fees and costs.

Section 287.560 RSMo endows the Commission with authority to assess the costs of a proceeding, but only against a party who brought, prosecuted, or defended a proceeding “without reasonable grounds.” That section reads, in part: [I]f the division or the commission determines that any proceedings have been brought, prosecuted or defended without reasonable ground, it may assess the whole cost of the proceedings upon the party who so brought, prosecuted or defended them.

In Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240 (Mo. 2003), the Supreme Court held that attorney’s fees are properly considered costs under § 287.560. “The commission should only exercise its discretion to order the cost of proceedings under section 287.560 where the issue is clear and the offense egregious.” Landman, 107 S.W.3d at 250. Employer did not allege error with regards to the administrative law judge’s failure to make a finding that insurer defended this claim without reasonable grounds. Employer did not argue the issue of unreasonable grounds in its Brief. Any claim under § 287.560 is deemed abandoned.

We conclude that employer failed to preserve a legal basis for an award of attorney’s fees and costs. We deny employer’s Motion to Submit Additional Evidence as moot.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

The award and decision of Administrative Law Judge Robert J. Dierkes, issued January 20, 2006, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 5^{\text {th }}$ day of September 2006.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

NOT SITTING

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: Paul Probst

Injury No. 03-028988

Dependents: N/A

Employer: Bill Wise

Additional Party: N/A

Insurer: Travelers Casualty and Surety Company

Hearing Date: October 27, 2005

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: RJD/tmh

1. Are any benefits awarded herein? Yes.
2. Was the injury or occupational disease compensable under Chapter 287? Yes.
3. Was there an accident or incident of occupational disease under the Law? Yes.
4. Date of accident or onset of occupational disease: December 31, 2002.
5. State location where accident occurred or occupational disease was contracted: Columbia, Boone County, Missouri.
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.

1. Did accident or occupational disease arise out of and in the course of the employment? Yes.
2. Was claim for compensation filed within time required by Law? Yes.
3. Was employer insured by above insurer? Yes.
4. Describe work employee was doing and how accident occurred or occupational disease contracted:

Employee was carrying a box up concrete stairs, stumbled and struck his right knee on the concrete.

1. Did accident or occupational disease cause death? No. Date of death? N/A.
2. Part(s) of body injured by accident or occupational disease: Right knee.
3. Nature and extent of any permanent disability: 7.5 % permanent partial disability of right knee.
4. Compensation paid to-date for temporary disability: None.
5. Value necessary medical aid paid to date by employer/insurer? None.
6. Value necessary medical aid not furnished by employer/insurer? $\ 7,894.14.
7. Employee's average weekly wages: $\ 525.00.
8. Weekly compensation rate: $\$ 350.00 / \ 340.12.
9. Method wages computation: 287.250 .1(4)

1. Amount of compensation payable:

Medical expenses:

$\ 7,894.14

12 weeks of permanent partial disability benefits:

$\ 4,081.44

TOTAL: $\mathbf{\$ 1 1 , 9 7 5 . 5 8}$

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 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Dennis Murphy

An evidentiary hearing was held in this case on October 27, 2005, in Columbia. The parties requested leave to file posthearing briefs, which leave was granted, and the case was submitted on November 28, 2005. The hearing was held to determine the following issues:

1. Whether Travelers Casualty and Surety Company insured alleged Employer, Bill Wise, d/b/a Wise Construction Company, at the time of the alleged work-related accident;
2. Whether Claimant, Paul Probst, sustained an accident arising out of and in the course of his employment with Bill Wise, d/b/a Wise Construction Company, on December 31, 2002;
3. Whether the notice requirement of Section 287.420, RSMo, is a bar to Claimant’s Claim for Compensation herein;
4. Whether alleged Employer and its alleged Insurer (Travelers Casualty and Surety Company) shall be ordered to pay medical bills allegedly related to an alleged work-related accident of December 31, 2005;
5. Whether alleged Employer (Bill Wise, d/b/a Wise Bill Wise, d/b/a Wise Construction Company Construction Company) and its alleged Insurer (Travelers Casualty and Surety Company) shall be ordered to pay temporary total disability (“TTD”) benefits to Claimant, and, if so, for what period(s) of time;
6. Claimant’s average weekly wage and resultant compensation rates;
7. The nature and extent of Claimant’s permanent partial disability, if any; and
8. Employer’s claim for reimbursement from alleged Insurer for legal fees and expenses.

The parties stipulated to the following:

1. That the Missouri Division of Workers Compensation has jurisdiction over this case;
2. That venue is proper in Boone County;

1. That the claim for compensation was filed within the time allowed by the statute of limitations; and
2. That both Employer and Employee were covered by the Missouri Workers Compensation Law at all relevant times.

The evidence consisted of the "live" testimony of Claimant, Paul Probst, as well as his deposition testimony; the testimony of Claimant's wife, Karen Probst; the testimony of Russell Anderson; the testimony of Jay Wilson; the "live" testimony of (Employer) Billy Gene Wise, as well as his deposition testimony; the deposition testimony of Dr. Robert Sparks; the deposition testimony of Dr. Richard Rende; photocopies of payroll checks; affidavit of Janice Sturman and audit results; and a photocopy of an insurance policy.

Based upon the evidence adduced, I find the following facts:

1. In the year 2002 and early 2003, Billy Gene Wise was engaged in the construction business in Columbia, Missouri;
2. During that time, that construction business was not incorporated; Billy Gene Wise was engaged in the construction business as a sole proprietorship;
3. During that time, Billy Gene Wise did business under the names "Bill Wise Construction","Wise Construction Company" and "Wise Choice Construction"; these were not three separate business entities, but rather one business entity known by different names;
4. Other than the owner, Billy Gene Wise, the construction business had two employees, Paul Probst and Roger Strickland;
5. Billy Gene Wise paid Paul Probst $\ 15.00 per hour for his work;
6. Paul Probst generally worked thirty to forty hours per week for Billy Gene Wise;
7. Billy Gene Wise paid Paul Probst by check, and, occasionally, by cash;
8. The construction business was engaged in finishing of new residential construction;
9. On December 31, 2002, Billy Gene Wise was to help his sister move out of an apartment in Hallsville into an apartment in Columbia;
10. Late on December 30, 2002, Billy Gene Wise called Paul Probst and Roger Strickland and asked them if they would work on December 31, 2002, the work being moving Wise's sister; both Probst and Strickland reported to work on December 31, 2002, at the location in Hallsville and helped to move Wise's sister furnishings and belongings;
11. Billy Gene Wise paid Paul Probst and Roger Strickland their hourly wages for their work on December 31, 2002; Paul Probst was paid at his regular rate of $\ 15.00 per hour;
12. After the trucks were loaded on December 31, 2002, in Hallsville, Billy Gene Wise, Paul Probst, Roger Strickland and others proceeded to an apartment on Texas Avenue in Columbia where they began unloading the trucks and transporting Wise's sister's belongings into the apartment;
13. On December 31, 2002, while carrying a large box up the steps of the Texas Avenue Apartment, Paul Probst caught his toe on a step and fell forward, landing with his right knee on a concrete step, causing an abrasion of his knee;
14. On December 31, 2002, Billy Gene Wise became aware of an incident where Paul Probst fell or almost fell on the stairs, but Wise did not witness the incident;
15. On January 2, 2003, Paul Probst advised Billy Gene Wise that his right knee was swollen from the December 31, 2002, incident;
16. Prior to March 31, 2003, Paul Probst did not request medical treatment for his knee from Billy Gene Wise;
17. Paul Probst continued to work for Billy Gene Wise through March 31, 2003, but his job performance continued to suffer due to his right knee problem;
18. Billy Gene Wise advised Paul Probst that he would have to cut Probst's pay if his production did not improve;
19. On March 31, 2003,