Andrew Lingle v. Ryder Integrated Logistics

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 his workers' compensation claim, and the Second Injury Fund was entitled to challenge his ability to do so at a hearing before an administrative law judge. 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). Specifically, there is no evidence to indicate that the Second Injury Fund's failure to attend the scheduled deposition of Dr. Musich was intentional or otherwise the result of bad faith. Likewise, we are not persuaded that the Second Injury Fund's position in this matter was without reasonable ground such that employee is entitled to his attorney's fees incurred preparing for the final hearing. 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 Kathleen M. Hart, dated September 28, 2010, as modified, is attached hereto, and its findings and conclusions

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

Given at Jefferson City, State of Missouri, this $7^{\text {th }}$ 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: Andrew Lingle

Departments: $\mathrm{n} / \mathrm{a}$

Employer: Ryder Integrated Logistics (previously settled)

Additional Party: Second Injury Fund

Insurer: Self

Hearing Date: July 12, 2010

Injury No.: 07-114432

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: KMH

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: October 25, 2007
5. State location where accident occurred or occupational disease was contracted: St. Louis
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: Claimant injured his low back while lifting cases of oil in the course and scope of his employment.
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: body as a whole referable to the low back
14. Nature and extent of any permanent disability: 30 % of the body as a whole referable to the low back previously paid by Employer.
15. Compensation paid to-date for temporary disability: $\ 12,796.80
16. Value necessary medical aid paid to date by employer/insurer? $\ 82,015.83

Employee: Andrew Lingle Injury No.: 07-114432

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: unknown
3. Weekly compensation rate: $\$ 319.94 / \ 319.94
4. Method wages computation: Stipulation

1. Amount of compensation payable:

120 weeks of permanent partial disability from Employer

(previously paid)

1. Second Injury Fund liability: Yes

42 weeks of permanent partial disability from Second Injury Fund \$13,437.48

Attorney fees and costs \ 1,300.00

TOTAL: \quad \ 14,737.48

1. Future requirements awarded: None

Said payments to begin immediately 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 % of the permanent disability award and $\ 1,300.00 in expenses in favor of the following attorney for necessary legal services rendered to the claimant:

James A. Fox

Employee: Andrew Lingle

Dependents: $\mathrm{n} / \mathrm{a}$

Employer: Ryder Integrated Logistics (previously settled)

Additional Party: Second Injury Fund

Insurer: Self

Injury No.: 07-114432

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: KMH

A hearing was held on the above captioned matter July 12, 2010. Andrew Lingle (Claimant) was represented by attorney James Fox. The Second Injury Fund (SIF) was represented by Assistant Attorney General Mike Finneran. Ryder (Employer) and Claimant settled the primary claim in this matter before trial.

Claimant alleges he sustained additional permanent disability due to the combined effects of his work related injury with his previous work injury.

The parties stipulated to the following:

1. Claimant was injured October 25, 2007, while in the course and scope of his employment for Employer.
2. Employer and Claimant were operating under the provisions of the Missouri Workers' Compensation law.
3. Employer's liability was fully self insured.
4. Employer had notice of the injury and a claim for compensation was timely filed.
5. Claimant's average weekly wage was sufficient to entitle him to a PPD rate of $\ 319.94.
6. Claimant and Employer entered into a compromise lump sum settlement on October 19, 2009. The settlement was approved by the Division and represents 30\% PPD to the body as a whole referable to the low back.

The parties stipulated the issues to be resolved are the nature and extent of SIF liability and attorney fees and costs.

Based upon the competent and substantial evidence, I find:

1. Claimant is a 43 year-old male who sustained a compensable injury October 25, 2007, while loading a trailer at work. Claimant's duties for Employer involved transferring auto parts from roll carts to steel cages and loading the steel cages onto tractor trailers.
2. Claimant injured his neck at work in 1994. He saw multiple medical specialists and had extensive treatment on his neck. In March 1996 he underwent a C5-6 fusion with iliac crest bone graft. He had extensive physical therapy and returned to work with no restrictions. He settled this case for 22.5 % of the body referable to the cervical spine.
3. Leading up to his 2007 work injury and continuing, Claimant had ongoing problems as a result of his neck injury. The surgery relieved his arm complaints, but he has ongoing pain and permanent limitations in all ranges of motion. He is unable to lift his head to look up or