Angie Bridges v. Home Depot

All costs under this section shall be approved by the division and paid out of the state treasury from the fund for the support of the Missouri division of workers' compensation; provided, however, that if 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.

Under the foregoing section, the general rule is that costs of a proceeding before the Division or the Commission shall be paid out of the state treasury from the fund for the support of the Division. DeLong v. Hampton Envelope Co., 149 S.W.3d 549, 555 (Mo. App. 2004) (citations omitted). However, as an exception to the general rule, the Division or the Commission may assess the whole cost of the proceedings upon a party who, without reasonable ground, brought, prosecuted, or defended a proceeding before the Division or Commission. Id. (citations omitted). The "whole cost of the proceedings" includes all amounts the innocent party expended throughout the proceeding brought, prosecuted, or defended without reasonable grounds, including attorney's fees. Id. (citations omitted).

We exercise our discretion under $\S 287.560$ RSMo, with great caution and only where the case for costs is clear and the offense egregious. See Nolan v. Degussa Admixtures, Inc., 276 S.W.3d 332, 335 (Mo. App. 2009). We disagree with the administrative law judge's finding that the Second Injury Fund defended this claim without reasonable ground. It was employee's burden to prove all of the elements of her workers' compensation claim, and the Second Injury Fund was entitled to challenge her ability to do so at the hearing. The record fails to disclose evidence sufficient to support a finding that the Second Injury Fund acted with the type of "egregious and outrageous conduct" exemplified in cases such as Monroe v. Wal-Mart Assocs., 163 S.W.3d 501, 506 (Mo. App. 2005) and Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 250 (Mo. 2003). When we compare the facts of Monroe and Landman to the record before us, we are not persuaded that the Second Injury Fund engaged in the type of conduct that $\S 287.560$ is designed to prevent.

In sum, we believe the award of costs and attorney fees is improper and reverse that portion of the administrative law judge's award. All other aspects of the award are affirmed.

The Commission reverses that portion of the award holding the Second Injury Fund liable for costs and attorney fees under $\S 287.560$ RSMo. Each party shall bear their own costs and shall be responsible for their own attorney fees associated with this matter.

The award and decision of Administrative Law Judge Mark D. Siedlik, dated July 14, 2010, as modified, is attached hereto, and its findings and conclusions are

Injury No.: 06-043009

Employee: Angie Bridges

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incorporated to the extent they are not inconsistent with our findings and conclusions herein.

Given at Jefferson City, State of Missouri, this 7th day of March 2011.

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 without modification. I dissent from the majority's decision to deny the award of costs and fees in this matter. I would affirm the award of the administrative law judge allowing the award of fees and costs against the Second Injury Fund.

For the foregoing reasons, I respectfully dissent from the portion of the award denying employee's fees and costs under § 287.560 RSMo.

John J. Hickey, Member

Employee: Angie Bridges

Injury No: 06-043009

Dependents: N/A

Employer: Home Depot

Additional Party: Clint Zweifel, Missouri State Treasurer, Custodian, Second Injury Fund

Insurer: New Hampshire Ins. Co.

Hearing Date: March 25, 2010

Checked by: MSS/cy

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 18, 2006
5. State location where accident occurred or occupational disease was contracted: Kansas City, 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: Employee was stepped in a hole and twisted her left knee.
12. Did accident or occupational disease cause death? No

Date of death? N/A

1. Part(s) of body injured by accident or occupational disease: Left Knee
2. Nature and extent of any permanent disability: 13.2 weeks of Permanent Partial Disability as to the Second Injury Fund
3. Compensation paid to-date for temporary disability: $\ 20,306.55 (by Employer)

1. Value necessary medical aid paid to date by employer/insurer? $\ 17,173.55 (by Employer)
2. Value necessary medical aid not furnished by employer/insurer? None
3. Employee's average weekly wages: $\ 571.59
4. Weekly compensation rate: $\$ 381.05 / \ 365.08
5. Method wages computation: Stipulation of the parties

1. Benefits Currently Due:

Permanent Disability From Second Injury Fund

13.2 weeks of Permanent Partial Disability @ \365.08 ..... \ 4,819.06

Total Benefits Due: $\ 4,819.06

Costs:

Expenses of Litigation. ..... $\ 1,074.00

Attorney Fee. ..... $\ 1,200.00

Total Award ..... $\underline{\underline{57,093.06}}$

The compensation awarded to the claimant shall be subject to a twenty-five percent (25\%) lien in favor of John B. Boyd, Attorney, for reasonable and necessary attorney's fees.

Employee: Angie Bridges

Injury No: 06-043009

Dependents: N/A

Employer: Home Depot

Additional Party: Clint Zweifel, Missouri State Treasurer, Custodian, Second Injury Fund

Insurer: New Hampshire Ins. Co.

Hearing Date: March 25, 2010

Checked by: MSS/cy

On March 25, 2010, the Employee and the Second Injury Fund appeared for a final hearing. The Division had jurisdiction to hear this case pursuant to $\S 287.110$. The Employee, Angie Bridges, appeared in person and with counsel, John B. Boyd. The Second Injury Fund appeared through its counsel, Kimberly Fournier, Assistant Attorney General. The primary issue the parties requested the Division to determine was the liability of the Second Injury Fund for Permanent Partial Disability compensation. For the reasons noted below, I find that Employee is entitled to Permanent Partial Disability compensation and her costs of litigation from the Second Injury Fund.

The parties stipulated that:

1. On or about May 18, 2006, ("the injury date"), Home Depot ("Employer") was an employer operating subject to Missouri's Workers' Compensation law with its liability fully insured by its lawful authority to self-insure;
2. Angie Bridges was its employee working subject to the law in Kansas City, Clay County, Missouri;
3. Employee notified Employer of her left knee injury and filed her claim within the time allowed by law;
4. Employer provided Employee with medical care in the sum of $\ 17,173.55;
5. Employee met with injury by accident arising out of and in the course of her employment;

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Angie Bridges

Injury No. 06-043009

1. Temporary-total disability was paid by Employer-Insurer in the sum of

20,306.55;

1. Employee's Average Weekly Wage at the time of the accident was 571.59;
2. Employee and Employer settled the primary claim based upon a 25%

permanent partial disability to the left knee, with an additional sum of

$22,373.09 included for future medical care.

ISSUES

The parties requested the Division to determine:

1. What is the liability of the Second Injury Fund for Permanent Partial

Disability, if any?

1. Is Employee entitled to an award for her costs, pursuant to an unreasonable

defense asserted by the State Treasurer as Custodian of the Second Injury

Fund?

FINDINGS

Employee testified on his own behalf and presented the following exhibits, all of which

were admitted into evidence:

Exhibit A - Deposition of James A. Stuckmeyer, MD

Exhibit B - Stipulation for Compromise Settlement with Employer/Insurer

Exhibit C - Letter of December 21, 2009 from Boyd to Fournier

Exhibit D - Letter of March 1, 2010 from Boyd to Fournier

Exhibit E - Letter of March 4, 2010 from Fournier to Boyd

Exhibit F - Invoice of Dr. Stuckmeyer for his deposition

Exhibit G - Invoice of Dolginoff Court Reporting for deposition fee

The Second Injury Fund did not call any witnesses, and had no documentary exhibits to

offer. Instead, its defense was based upon the cross-examination of its counsel.

Based on the above exhibits and the testimony of Angie Bridges, I make the following

findings:

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Employee met with an injury by accident when on May 18, 2006, she stepped in a hole and twisted