Phillip Hiatt v. J.B. Hunt Transport Inc.

After reviewing the entire record, the Commission denies employee's motion to assess legal costs against employer and insurer. Furthermore, the Commission affirms the findings and legal conclusions of the administrative law judge as to employee's permanent total disability and employee's right to continue receiving weekly benefits therefor during the balance of his life; employer's and insurer's liability to provide all medical care needed in the future to cure and relieve employee from the effects of his injury; and employer's and insurer's additional liability under section 287.510. Because we disagree with the administrative law judge's calculation of the amount of that additional liability under section 287.510, though, we must modify that portion of his decision as set forth below.

Section 287.560, RSMo states in relevant 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."

Employee's motion to assess such legal costs against employer and insurer in this case, then, depends on whether employer and insurer had reasonable grounds for filing their Application to the Commission.

Although it has subsequently been amended, the provisions of section 287.510 pertaining to the case at hand state as follows:

In any case a temporary or partial award of compensation may be made, and the same may be modified from time to time to meet the needs of the case, and the same may be kept open until a final award can be made, and if the same be not complied with, the amount thereof may be doubled in the final award, if the final award shall be in accordance with the temporary or partial award. [Emphasis added.]

As can easily be seen from the emphasized language above, the decision as to whether or not to double an award for noncompliance is optional, not mandatory. It was within the administrative law judge's discretion to impose this penalty provision. Thus, it stands to reason that the Commission might exercise this question of discretion differently than the judge.

Accordingly, we conclude that employer and insurer had reasonable grounds for filing their Application to this Commission. Therefore, we deny employee's motion to assess costs against employer and insurer.

In the case before us, employer and insurer provided little excuse for their failure to pay employee's medical expenses in the amount of $\ 32,935.96 and no excuse for their interruption and delay in payment of six weeks of his court-ordered temporary total disability benefits. Even if the actions or omissions of employer and insurer were due to inattention or disorganization, "the employer's reasons for nonpayment are irrelevant, and we see no need to graft a requirement of ill-will or purposefulness onto the statute . . ." Shaw v. Scott, 49 S.W.3d 720 (Mo. App. W.D. 2001). Accordingly, we agree with the administrative law judge that imposition of the doubling penalty set forth in section 287.510 is appropriate.

On the other hand, we disagree with the administrative law judge's calculations concerning that penalty. Courts of this state have previously considered section 287.510 . Those courts have determined that if the penalty is assessed, it doubles the entire amount awarded under the temporary award, not just that portion that the employer or insurer failed or delayed in paying. Shaw, 49 S.W.3d at 727; Sutton v. Vee Jay Cement Contracting Co., 37 S.W.3d 803, 810 (Mo. App. E.D. 2000); and Hendricks v. Motor Freight Corp., 570 S.W.2d 702, 710 (Mo. App. 1978).

Accordingly, we conclude that employer and insurer are liable to pay double employee's medical expenses of $\ 32,935.96. They are also liable to pay double the entire amount of temporary total disability benefits to which employee was entitled as the result of the April 3, 2001, Temporary Award.

The Temporary Award indicated that employee's last day of work for employer was May 25, 2000. Thus, employee's temporary total disability benefits should have begun May 26, 2000. Dr. Richard M. Dubinsky documented on July 23, 2002, that employee had reached maximum medical improvement. (Tr. 469.) Using these two dates as the beginning and ending dates for employee's temporary total disability benefits, employee was entitled to 112 and $5 / 7$ weeks of temporary total disability benefits (112 5/7 X \$578.41), totaling \$65,195.07.

Therefore, in addition to paying employee the benefits and expenses to which he is otherwise entitled hereunder, we direct employer and insurer to pay the penalty authorized under section 287.510 -- \$32,935.96 + \65,195.07, totaling an additional \ 98,131.03. CONCLUSION

We affirm the findings and legal conclusions of the administrative law judge as to employee's permanent total disability and employee's right to continue receiving weekly benefits during the balance of his life or until modified by law and affirm the liability of employer and insurer to provide all medical care needed in the future to cure and relieve employee from the effects of his injury.

We also affirm the judge's decision to penalize employer and insurer as authorized by section 287.510, but we modify the amount of that penalty. We hereby order employer and insurer to pay employee an additional $\ 98,131.03.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fees in this case as being fair and reasonable.

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

Given at Jefferson City, State of Missouri, this $\qquad 3^{\text {rd }}$ day of January 2007.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

NOT SITTING

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: Phillip Hiatt

Injury No. 00-072366

Dependents: N/A

Employer: J.B. Hunt

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: May 8, 2000
5. State location where accident occurred or occupational disease was contracted: Clay 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.
8. Did accident or occupational disease arise out of and in the course of the employment? Yes.
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 occurred or occupational disease contracted: While getting in and out of his truck, the claimant was injured.
12. Did accident or occupational disease cause death? No. Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Neck, whole body.
14. Nature and extent of any permanent disability: To be determined.
15. Compensation paid to-date for temporary disability: 0
16. Value necessary medical aid paid to date by employer/insurer? \$1,749.33
17. Value necessary medical aid not furnished by employer/insurer? To be determined.
18. Employee's average weekly wages: Unknown.
19. Weekly compensation rate: $\$ 570.41 / 303.01$
20. Method wages computation: By agreement.

1. Amount of compensation payable: To be determined.

Unpaid medical expenses:

weeks of temporary total disability (or temporary partial disability)

weeks of permanent partial disability from Employer

weeks of disfigurement from Employer

Permanent total disability benefits from Employer beginning , for

Claimant's lifetime

1. Second Injury Fund liability: None.

weeks of permanent partial disability from Second Injury Fund

Uninsured medical/death benefits

Permanent total disability benefits from Second Injury Fund:

weekly differential payable by SIF for weeks beginning

and, thereafter, for Claimant's lifetime

TOTAL: To be determined.

1. Future requirements awarded: Weekly benefit and medical care.

Said payments to begin as of date of award 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 percent of all payments