Paul Robey v. Schott Farms, Inc. and Alliance Savings Company/AMS Staff Leasing

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 July 2, 2007. The award and decision of Chief Administrative Law Judge Jack H. Knowlan, Jr., issued July 2, 2007, is attached and incorporated by this reference.

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.

Given at Jefferson City, State of Missouri, this 1st day of April 2008.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Employee: Paul Robey, Deceased

Injury No. 01-076622

Dependents: Aileen Robey, Widow

Additional Party: Second Injury Fund

Insurer: CNA

Hearing Date: February 21, 2007

Checked by: JK/kh

(Hearing completed March 30, 2007)

- Are any benefits awarded herein? Yes

- Was the injury or occupational disease compensable under Chapter 287? Yes

- Was there an accident or incident of occupational disease under the Law? Yes

- Date of accident or onset of occupational disease? June 22, 2001

- State location where accident occurred or occupational disease contracted: Jackson County, Missouri

Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes (See findings)

- Did employer receive proper notice? Yes

- Did accident or occupational disease arise out of and in the course of the employment? Yes

- Was claim for compensation filed within time required by law? Yes

- Was employer insured by above insurer? Yes

- Describe work employee was doing and how accident happened or occupational disease contracted: Employee was involved in a motor vehicle accident while driving a truck for Schott Farms, Inc. and Alliance Savings Company.

- Did accident or occupational disease cause death? Yes

- Parts of body injured by accident or occupational disease: Head and chest

- Nature and extent of any permanent disability: Employee died on September 21, 2001 as a result of the head injuries he suffered in the June 22, 2001 accident.

- Compensation paid to date for temporary total disability: None

- Value necessary medical aid paid to date by employer-insurer: None

- Value necessary medical aid not furnished by employer-insurer: $\ 63,137.89

- Employee's average weekly wage: $\ 493.32

- Weekly compensation rate: $\ 328.88 for temporary total disability benefits and death benefits

- Method wages computation: Section 287.240.1(5)

- Amount of compensation payable:

- Second Injury Fund liability: SIF claim denied

- Future requirements awarded: $\ 328.88 per week for death benefits payable to the employee's widow, Aileen Robey, and a possible remarriage payment, as specified in the findings of fact and rulings of law.

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall 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 awarded hereunder in favor of the following attorney for necessary legal services rendered to the employee's dependent: Joseph P. Rice

On January 24, 2006, the employee's widow, Aileen Robey, appeared in person and by her attorney, Mr. Joe Rice, for a temporary or partial award. Schott Farms, Inc. was represented at the hearing for the temporary award by its attorney, Mr. Jim Hux. Alliance Savings Company / AMS Staff Leasing and CNA were represented at the hearing by their attorney, Mr. Steve McManus. The Second Injury Fund was represented at the hearing by Assistant Attorney General, Frank Rodman.

On February 16, 2006, Administrative Law Judge, Jack H. Knowlan, Jr. issued a Temporary or Partial Award in which the judge determined Schott Farms, Inc.'s status as a covered employer, Mr. Robey's status as an employee of Alliance Savings Company / AMS Staff Leasing, Mr. Robey's average weekly wage and rate of compensation, and the amount of temporary total disability payable to the Mr. Robey's widow. Given the complex nature of the medical issues, the parties had agreed that a temporary or partial award would be more efficient. The parties believed that after the

threshold issue of covered employment was resolved, the parties might be able to settle the remaining issues.

On March 29, 2006, the Labor and Industrial Relations Commission issued an order setting aside the administrative law judge's temporary or partial award. Citing Section 285.510 RSMo. (2000), and Shaw v Scott, 49 S.W.3d 720, 728 (Mo. App. 2001), the Commission concluded that "once further medical progress is not expected, a final award can be made and the issuance of a temporary award is no longer appropriate". The Commission felt their decision was consistent with the goal of avoiding piecemeal litigation. The Commission returned the matter to the Division of Workers' Compensation for further proceedings and final disposition.

On May 30, 2006, a Joint Motion for Reconsideration of Order issued by the Labor and Industrial Relations Commission on March 29, 2006, was filed. After considering this request, the Commission denied the Motion for Reconsideration by order dated June 30, 2006.

On January 30, 2007, a telephone conference call was held to discuss a motion to quash a subpoena related to a request for direct payment of medical. The attorneys participating in this phone conference included Mr. Joe Rice, the attorney representing the employee's widow; Mr. Jim Hux, the attorney for Schott Farms, Inc.; Mr. Steve McManus, the attorney representing Alliance Savings Company / AMS Staff Leasing and CNA; and Assistant Attorney General Frank Rodman, the attorney for the Second Injury Fund. In addition to the attorneys representing the primary parties to the claim, three additional attorneys representing health care providers that have filed have filed requests for direct payment of medical bills participated in the telephone conference. Those attorneys included Mr. Dan Finch, attorney for Southeast Missouri Hospital and Scott R. Gibbs, M.D.; Mr. Bart Brand, attorney representing Anesthesia Associates of Cape Girardeau; and Mr. Alan Gallas, attorney for St. Luke's Hospital.

During this telephone conference call, the parties discussed and agreed that the rules of the Department of Labor and Industrial Relations pertaining to medical fee disputes had been amended effective February 28, 2007, and no longer provided that the Division of Workers' compensation loses jurisdiction to hear medical fee disputes after the underlying case is dismissed, settled or an award entered [8 CSR 50-2.030 (2) (I)]. The parties agreed that under the amended rules it is permissible for the direct pay medical fee disputes to be left open and resolved independently of the underlying workers' compensation claim. Under the circumstances of this case, the parties further agreed that if the primary case is resolved in favor of the employee, and that decision is affirmed, the direct pay medical disputes may be resolved by agreement.

Based on this discussion, the parties agreed that the parties to the underlying workers' compensation case would proceed with a final hearing on February 21, 2007, to resolve all the issues in dispute, but the direct pay medical fee disputes of St. Luke's Hospital and Southeast Missouri Hospital would remain open. The employee's attorney, Mr. Joe Rice, agreed to contact the other health care providers who have filed direct pay requests to determine whether they preferred to have Mr. Rice present their bills as part of his primary case or leave the direct pay requests open. By letter dated January 31, 2007, Mr. Steve McManus confirmed the agreement reached in the telephone conference call. A copy of that letter, together with all of the Requests for Direct Payment, have been marked and admitted by the administrative law judge as part of employee's exhibit U.

Subsequent to the January 30, 2007 conference call, two health care providers that had filed requests for direct payment advised Mr. Rice that they wanted Mr. Rice to pursue the payment of their claims as part of the underlying claim. Anesthesia Associates of Cape Girardeau filed a request for direct payment dated February 7, 2006, for $\ 1,135.00, and Mr. Rice has submitted that bill as employee's exhibit U-6. Midwest Pulmonary Consultants, PC filed a request for direct payment on February 11, 2002, for $\ 3,155.00. Midwest Pulmonary filed a second request for direct payment for the same services on August 26, 2002 for $\ 2,905.00. Mr. Rice has advised that these two requests are duplicates, and the correct amount is $\ 2,905.00. On March 2, 2007, Midwest Pulmonary withdrew its request for direct payment, and their bill was submitted by Mr. Rice as employee's exhibit U-5.