Rusty Sprouse v. Superior Asphalt Company

further, that employer should be assessed costs and attorney's fees for this appeal as it too is unreasonable.

In pertinent part, section 287.560 RSMo provides that if "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.App. 2003), the employer was assessed costs and attorney's fees for two separate injuries under sections 287.560. Id. at 250. For the first injury, the employee was sent to a doctor by the employer to determine if her injury was work related, and if it was, the employer told her it would pay benefits and medical expenses. Id. The doctor found the employee's injuries to be work related. Id. Despite this, the employer failed to pay benefits or medical expenses of the employee. Id. The employer defended the second injury on the grounds that the employee's work did not cause her injury. Id. It concluded that certain medical records showed that employee's injury was not work related. Id. The Court found that those records did not include any such conclusion, and therefore, did not give the employer a reasonable basis for denying the claim. Id.

In Monroe v. Wal-Mart Associates, Inc., 163 S.W.3d 501 (Mo.App. 2005), the employer's own doctor opined that employee's injury was caused by her work. Id. at 504. "Despite [the doctor's] unequivocal conclusion that Claimant's hernia was the result of the alleged work place injury, [employer] continued to deny compensation." Id. The court found this conduct to be "egregious and outrageous." Id. at 508. The court further stated that "like the employer in Landman, at the hearing, Wal-Mart did not call witnesses or present any medical evidence . . . and instead only pointed to alleged discrepancies in the medical records." Id. Those medical records "do not provide Wal-Mart with a reasonable basis for denying" employee's injury was work related. Id.

The facts in this case are strikingly similar to those in both of the above cases. Employer's own doctor found that employee's injury was caused by his work accident. Employer relies on Dr. Ebelke's testimony in response to employer's question of whether vomiting could have caused employee's injury. Dr. Ebelke replied yes, and further, that anything or nothing could have caused the injury. Employer alleges that this leads to the conclusion that employee's injury was not work related. Just as in Landman, the records here draw no such conclusion, and therefore, do not give employer a reasonable basis to deny this claim.

Employer also focuses on an alleged discrepancy in Dr. Morack's medical records. Those records indicate that employee reported his injury before it happened. First, this is clearly impossible. Second, Dr. Morack's corrected deposition testimony shows that he was told of the injury later in the day on September 22, 2004, after the accident occurred. Therefore, no discrepancy exists. Employer presented no medical evidence of its own to show an alternative theory of causation. Its denial rests only on that alleged discrepancy and its conjecture and speculation as to other unsupported causation theories. As in Monroe, this conduct is "egregious and outrageous."

Employer's unconscionable denial of this claim for the past 40 months has placed an extreme burden on employee, and has caused him to accrue undue costs and attorney's fees in the pursuit of his deserved benefits. For this reason, I would affirm the award of the administrative law judge in its entirety. Additionally, I would assess employer the costs and attorney's fees in connection with this appeal since employer's denial is still unreasonable.

John J. Hickey, Member

AWARD

Employee: Rusty Sprouse

Injury No. 04-105870

Dependents: N/A

Employers: Superior Asphalt Company

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: September 22, 2004.
5. State location where accident occurred or occupational disease was contracted: Kansas City, 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. Employee injured his low back when a seat of a Superior truck Claimant drove "bottomed out."
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: Low back.
14. Nature and extent of any permanent disability: 15 percent.
15. Compensation paid to-date for temporary disability: 0
16. Value necessary medical aid paid to date by employer/insurer? 0
17. Value necessary medical aid not furnished by employer/insurer? $18,140.35
18. Employee's average weekly wages: Maximum rate
19. Weekly compensation rate: $675.90/$354.05
20. Method wages computation: By stipulation.

1. Amount of compensation payable: unpaid medical expenses - $18,140.35 9/23/04 to 3/21/05 - weeks for temporary total disability (temporary partial disability) 17,573.40 60 weeks for permanent partial disability from employer 21,243.00 costs of proceeding under 287.560 in attorney's fee 14,239.19 and 2,540.16 in expenses

1. Second Injury Fund liability: N/A

TOTAL: $\ 73,736.10

1. Future requirements awarded: N/A

Said payments to begin upon receipt 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 hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Mr. Michael Fitzgerald.

Employee: Rusty Sprouse

Injury No: 04-105870

Dependents: N/A

Employers: Superior Asphalt Company

Insurers: ACIG Insurance Company

Additional Party: N/A

Hearing Date: June 27, 2007

Checked by: LM/cg

The parties appeared for a hearing on June 27, 2007. The Employee, Mr. Rusty Sprouse, was present and represented by Michael Fitzgerald. The Employer, Superior Asphalt Company, and Insurer, ACIG Insurance Company, was represented by Paul Cowing.

The parties stipulated to the following:

1) That the Employer, on September 24, 2004, was an Employer operating subject Missouri workers' compensation law;

2) That its liability was fully insured by ACIG Insurance Company;

3) That Rusty Sprouse was its Employee;

4) That Rusty Sprouse was working subject to the law in Kansas City, Missouri;

5) That Mr. Sprouse notified the Employer of the injury as required by law;

6) That the claim was filed within the time allowed by law;

7) That the temporary total disability rate was $\ 675.90 and a permanent partial disability rate of $\ 354.05;

8) That the Employer has paid no medical expenses or temporary benefits in this case.

The issues to be resolved by this hearing include:

1) Whether the Employee sustained an accident arising out of and in the course of his employment on September 22, 2004;

2) Medical causation;

3) Whether the Employer must reimburse the Employee for medical expenses totaling \$23,325.35;

4) Whether the Employee is entitled to temporary total disability benefits from September 23, 2004 to March 21, 2005 in the amount of $\ 17,573.40;

5) Whether the Employee suffered any disability, and if so, the nature and extent of Employee's disability;

6) Whether the Employer must reimburse the Employee the cost of this proceeding for defending the claim without reasonable ground pursuant to $\S 287.560$.

I find, based on the following evidence, that on September 22, 2004, Claimant sustained a herniated disk that occurred within the course and scope of his employment with Superior Asphalt Company. Claimant credibly testified that, in the afternoon of September 22, 2004, the

seat of a Superior Asphalt Company truck Claimant drove "bottomed out" when Claimant drove into a crevasse at a construction site near Little Blue Parkway and I-70. Although Claimant felt

a burning sensation in his low back, he worked the rest of the day on September 22, 2004. All medical records and the history contained in them corroborate Claimant's testimony. As such, I find Claimant sustained injury to his low back that arose out of and in the course of his employment on September 22, 2004.

the right lower extremity. The following day, Claimant's wife drove him to their chiropractor, Michael Morak. On September 23, 2004, Chiropractor Morak arranged an MRI to be completed and took Claimant off work for ten days. Claimant dropped the off-work slip to his supervisor but did not inform his Employer of the work injury until October 1, 2004.

On October 1, 2004, Claimant informed his supervisor of the work accide