Frank Roscom v. Woodstone Builders, LLC

(Reversing the Award and Decision of Administrative Law Judge)

Injury No.: 08-060525

Employee: Frank Roscom

Employer: Woodstone Builders, LLC

Insurer: American Home Assurance Company/AIG

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence and briefs, and considered the whole record, the Commission finds that the final award and decision 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 § 286.090 RSMo ${ }^{1}$, the Commission reverses the final award and decision of the Administrative Law Judge Robert H. House dated May 21, 2009, and issues a temporary or partial award. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

Employee sustained serious injury as a result of a work accident on July 17, 2008. Employee, then age 23, was raising a wall with co-workers when the wall fell on employee. As a result of his injuries, employee is paralyzed from the waist down. The administrative law judge heard this matter on employee's request for a temporary award of temporary total disability and medical treatment. The administrative law judge denied compensation on the ground that employee forfeited his right to compensation under § 287.120.6(3) RSMo (2007). Employee appealed to the Commission.

The primary issue to be decided was stated succinctly by employer in its brief. "At issue in this case is not whether [employee] sustained a work-related injury and whether it was the prevailing factor in causing his injures, but instead, the issue upon which all benefits rise or fall is whether [employee] forfeited his benefits under the Missouri Workers' compensation statute by refusal to submit to a drug test requested by the employer following his injury."

If the Commission decides the primary issue in the affirmative, the following issues must be decided:

- Whether and in what amount employee is entitled to past medical expenses.

- Whether and for what period employee is entitled to temporary total disability.

- Whether employee is entitled to additional medical care.

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[^0]: ${ }^{1}$ All statutory references are to the 2007 Revised Statutes of Missouri unless otherwise indicated.

As to the threshold issue of whether employee forfeited benefits under § 287.120.6(3) RSMo, we adopt the findings of the administrative law judge except as specifically modified or rejected herein.

As to the issues of temporary total disability and additional medical care, we find as follows:

Employee testified that he has constant pain in his mid-back. Employee is unable to drive or perform most other activities due to his paraplegia. Employee is depressed and short-tempered. Employee testified that employer has offered no treatment or therapy to employee since he left the hospital.

Dr. Bennoch testified that although employee's condition of paraplegia will not improve, employee is not at maximum medical improvement regarding his ongoing pain symptoms and his depression. Dr. Bennoch believes that employee has been temporarily totally disabled since the work accident. Dr. Bennoch testified that employee needs additional medical care including pain medications, psychological evaluation and treatment, and physical therapy. We find credible Dr. Bennoch's opinion.

Employer/insurer bears the burden of proving that employee forfeited his benefits. "The burden of establishing any affirmative defense is on the employer...In asserting any claim or defense based on a factual proposition, the party asserting such claim or defense must establish that such proposition is more likely to be true than not true." § 287.808 RSMo.

Section 287.030.2 RSMo provides, "Any reference to the employer shall also include his or her insurer or group self-insurer."

Section 287.120.6(3) RSMo provides:

The voluntary use of alcohol to the percentage of blood alcohol sufficient under Missouri law to constitute legal intoxication shall give rise to a rebuttable presumption that the voluntary use of alcohol under such circumstances was the proximate cause of the injury. A preponderance of the evidence standard shall apply to rebut such presumption. An employee's refusal to take a test for alcohol or a nonprescribed controlled substance, as defined by section 195.010, RSMo, at the request of the employer shall result in the forfeiture of benefits under this chapter if the employer had sufficient cause to suspect use of alcohol or a nonprescribed controlled substance by the claimant or if the employer's policy clearly authorizes post-injury testing.

We must construe the above provision strictly. See § 287.800.1 RSMo.

The administrative law judge correctly found that no one on behalf of employer directly requested employee to undergo a drug test. Notwithstanding, the administrative law judge concluded that employee's conversation with Nurses Norton and Cass met the statutory requirements of $\S 287.120 .6(3)$ RSMo. We disagree.

Neither Nurse Norton nor Nurse Cass was acting on behalf of the employer or the insurer at any time. Both testified that they visited employee to inform him that the insurance company wanted him to submit to a drug test, to inform him that he could consent or refuse to submit to a drug test, and to inform him that refusal to do so may jeopardize his workers' compensation claim. Nurse Norton advised employee he may wish to check with the human resources department of employer or consult with an attorney regarding his rights. We find that the information conveyed to employee by Nurses Norton and Cass did not constitute a request by employer that employee submit to a drug test as contemplated by $\S 287.120 .6(3)$. Consequently, employee never refused an employer request to submit to a drug test.

Employer argues that its workplace drug policy "clearly authorizes post-injury drug testing" even though employer has a written drug policy identifying types of permitted testing and post-injury testing is not included in the written drug policy. We need not determine whether employer's policy clearly authorizes post-injury drug testing because our determination that employer did not request that employee submit to a drug test is dispositive of the forfeiture issue. To be clear, we specifically do not adopt the administrative law judge's findings and conclusions regarding whether employer's drug policy clearly authorizes post-injury drug testing.

We conclude that the forfeiture set forth in § 287.120.6(3) RSMo was not triggered in this case because employer never requested that employee submit to a drug test. Employee is entitled to compensation for his injury that arose out of and in the course of his employment.

Employee argued he did not have the capacity to refuse or consent to a drug test. Relying upon an implied consent case, the administrative law judge determined that employee had capacity to refuse. We disagree with the administrative law judge's analysis and specifically reject his application of implied consent cases to the facts of this case. The rationale is inapplicable in the workers' compensation arena where there is no statutory implied consent.

In his brief, employee asserts that the parties stipulated that there are outstanding past medical expenses in the amount of $\ 165,523.46, in the event the claim is found compensable. The record does not support employee's assertion in that there is no stipulation that outstanding medical bills total $\ 165,523.46. Employee offered no testimony regarding his medical treatment or medical bills to enable us to issue an

award on expenses due to date. The issue of past medical expenses may be resolved upon final hearing of this claim.

Based upon the foregoing, we conclude that employee has been temporarily and totally disabled since July 18, 2008. Employee is entitled to temporary total disability benefits at the stipulated weekly rate of $\ 300.00 from July 18, 2008, until such time as employee reaches maximum medical improvement. Naturally, employer/insurer is entitled to credit for temporary total disability amounts already paid.

Employee has requested additional medical care. Employee is entitled to all medical treatment necessary to cure and relieve him from the effects of his injury including, but not limited to, pain medications/management, psychological evaluation and treatment, and physical therapy.

We reverse the award of the administrative law judge. Employer/insurer has failed to prove that employee forfeited his benefits under § 287.120.6(3) RSMo. We direct employer/insurer to pay temporary total disability benefits as directed. We direct employer/insurer to provide medical treatment necessary to cure and relieve employee of the effects of his injury.

This award is only temporary or partial. It is subject to further order, and the proceedings are hereby continued and kept open until a final award can be made. All parties should be aware of the provisions of $\S 287.510$ RSMo.

Randy C. Alberhasky, Attorney at Law, is allowed a fee of 25 % of the benefits awarded for necessary legal services rendered to employee, which shall constitute a lien on said compensation.

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

Given at Jefferson City, State of Missouri, this $12^{\text {th }}$ day of January 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

1. Are any benefits awarded herein? NO
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: JULY 17, 2008
5. State location where accident occurred or occupational disease was contracted: TANEY COUNTY, MO
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: SETTING A WALL INTO PLACE
12. Did accident or occupational disease cause death? NO
13. Part(s) 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 disability: $\ 4,444.00
16. Value necessary medical aid paid to date by employer/insurer? 53,510.59
17. Value necessary medical aid not furnished by employer/insurer? N/A
18. Employee's average weekly wages: $\ 450.00

1. Weekly compensation rate: $\ 320.00 AND $\ 268.00
2. Method wages computation: AGREED

1. Amount of compensation payable: -0 -

Unpaid medical expenses:

weeks of temporary total disability (or temporary partial disability)

weeks of permanent partial disability from Employer

weeks of disfigurement from Employer

1. Second Injury Fund liability: NO

TOTAL: -0-

1. Future requirements awarded: NONE

Said payments to begin $\quad \mathrm{N} / \mathrm{A} \