Richard Hatton v. Johnson Controls, Inc.

(Affirming in Part and Reversing in Part Temporary Award and Decision of Administrative Law Judge)

**Injury No.:** 08-035733

**Employee:** Richard Hatton

**Employer:** Johnson Controls, Inc.

**Insurer:** Self-Insured

**Additional Party:** Treasurer of Missouri as Custodian of Second Injury Fund

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. We have reviewed the evidence, read the briefs of the parties, heard oral argument, and considered the whole record. Pursuant to § 286.090 RSMo, the Commission affirms in part and reverses in part the award and decision of the administrative law judge dated July 27, 2009.

The Commission affirms the determination of the administrative law judge in all respects except the assessment against employer for costs and attorney's fees under § 287.560. The award and decision of Administrative Law Judge Linda J. Wenman, is attached and incorporated by this reference to the extent it is not inconsistent with the findings, conclusions, award, and decision herein.

The Commission finds that employer had reasonable grounds to defend this matter because the claim involved a question of law as to whether employee sustained a compensable injury under the 2005 amendments to the Workers' Compensation Law, and because we are not convinced that the facts and circumstances compel a finding that employer acted egregiously in its handling of this claim. As such, the Commission reverses the portion of the award of the administrative law judge concluding that employer did not have such reasonable grounds. The remainder of the award of the administrative law judge awarding employee benefits is affirmed.

Given at Jefferson City, State of Missouri, this **11th** day of May 2010.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

William F. Ringer, Chairman

Alice A. Bartlett, Member

**SEPARATE OPINION FILED**

John J. Hickey, Member

Attest:

Secretary

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be affirmed in its entirety, and further, that employer should be assessed costs and attorney's fees for this appeal as it too is unreasonable.

In pertinent part, § 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. 2003), the employer was assessed costs and attorney's fees for two separate injuries under $\S \S 287.560$. 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.

The facts in this case are strikingly similar to those in both of the above cases. There is no question that employee suffered a herniated disc when he bent over to check the levels in employer's pump sprayer while on the job on May 5, 2008. Yet, employer continues to deny employee's claim without any evidence to support its position, and in the face of overwhelming medical evidence indicating that employee's injury is clearly work related. Employer's treating doctor found that employee's injury was work related, and recommended that employee return for physical therapy. When employee returned for physical therapy, he learned that employer would not approve his treatment. Employee subsequently received a phone call and a letter from a claims administrator informing him that his injuries were not covered by workers' compensation because his back condition did not arise out of and in the course of his employment. Even though there was no medical evidence providing a basis for employer's denial of employee's claim, employee was forced to seek treatment through his own primary care physician.

- 2 -

**Improvement in the Health of the People**

Similarly, employer's evaluating doctor provided no basis whatsoever for employer's denial of the claim. Employer hired Dr. Mirkin to examine employee. Dr. Mirkin's report indicates that employee's work activity was the prevailing factor in causing employee's condition. Dr. Mirkin testified that the May 5, 2008, incident at work caused the disc herniation. When asked whether employee's condition is causally related to his activities at work, Dr. Mirkin replied:

> Yeah. Had he not been bending over at that particular moment, doing that particular activity, that protrusion I don't think would have caused him problems or occurred at that particular instance in time.

Employer chose to ignore the opinions of its own treating and evaluating doctors and instead denied the claim based on a highly technical legal argument. Employer does not deny that employee suffered a herniated disc as a direct result of an activity he performed while in the course of his work duties for employer, yet employer argues that the claim is not compensable merely because employee could have been hurt in a similar fashion while not at work. Essentially, employer argues that because employee could have bent over when he was at home, this Commission should ignore the fact that employee suffered a herniated disc while bending over to check the levels in employer's pump sprayer on May 5, 2008. I find no reasonable support for employer's argument in the 2005 amendments to the Workers' Compensation Law, or the handful of cases interpreting the amendments.

Employer's unconscionable denial of this claim has placed an undue burden on employee, and has caused him to accrue additional 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 because I find the grounds for appeal to be unreasonable.

*John J. Hickey, Member*

Employee: Richard Hatton

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: Johnson Controls, Inc.

Additional Party: Second Injury Fund (open)

Insurer: Self-insured

Hearing Date: June 18, 2009

Injury No.: 08-035733

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: LJW

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 5, 2008
5. State location where accident occurred or occupational disease contracted: Hannibal, 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 happened or occupational disease contracted: While performing his job duties, Employee felt sudden stabbing low back pain.
12. Did accident or occupational disease cause death? No
13. Parts of body injured by accident or occupational disease: Low back
14. Compensation paid to-date for temporary disability: None
15. Value necessary medical aid paid to date by employer/insurer? $\ 242.80
16. Value necessary medical aid not furnished by employer/insurer? $\ 65,169.73

Employee: Richard Hatton Injury No.: 08-035733

1. Employee's average weekly wages: Sufficient for maximum rates
2. Weekly compensation rate: $\$ 742.72 / \ 389.04
3. Method wages computation: Stipulated

1. Amount of compensation payable:

Unpaid medical expenses:

$\ 65,169.73

15 weeks of temporary total disability (or temporary partial disability)

$\ 11,140.80

§287.560 RSMo., costs

$\ 2,564.47

TOTAL:

$\$ 78,875.00^{*}$

Each of said payments to begin immediately and be subject to modification and review as provided by law. This award is only temporary or partial, is subject to further order, and the proceedings are hereby continued and the case kept open until a final award can be made.

IF THIS AWARD IS NOT COMPLIED WITH, THE AMOUNT AWARDED HEREIN MAY BE DOUBLED IN THE FINAL AWARD, IF SUCH FINAL AWARD IS IN ACCORDANCE WITH THIS TEMPORARY AWARD.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments in favor of the following attorney for necessary legal services rendered to the claimant: Kenneth Koester

Employee: Richard Hatton

Dependents: N/A

Employer: Johnson Controls, Inc.

Additional Party: Second Injury Fund (open)

Insurer: Self-insured

Injury No.: 08-035733

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: LJW

The above referenced Workers' Compensation claim was heard by the undersigned Administrative Law Judge on June 18, 2009. Richard Hatton seeks issuance of a temporary award ordering additional medical treatment under $\S 287.510$ RSMo., and 8 CSR 20-3.040. Neither party seeks a final award if additional medical treatment is denied. Briefs were received and the case was formally submitted on June 30, 2009. Attorney Kenneth Koester represented Richard Hatton (Claimant). Johnson Controls, Inc., (Employer) is self-insured, and represented by Attorney Mark Bates. The Second Injury Fund did not participate in the hearing, and by agreement will remain open.

Prior to the start of the hearing, the parties identified the issues for disposition in this case: liability of Employer for future medical expenses regarding additional medical treatment; liability of Employer for temporary total disability (TTD) benefits, accrued, but not previously paid; liability of Employer for past medical expenses; and expenses incurred by Employee in preparation for hardship hearing. Hearing venue was noted to be incorrect, but the parties consented to St. Louis venue. Jurisdiction properly lies with the Missouri Division of Workers' Compensation.

Claimant offered Exhibits A-F, and Employer offered Exhibits 1-3. All exhibits were admitted. All markings contained within any exhibit were present when received, and the markings did not influence the evidentiary weight given the exhibit. Any objections