Allen Baldwin v. City of Fair Play

(Modifying Award and Decision of Administrative Law Judge by Separate Opinion)

Injury No.: 11-015959

Employee: Allen Baldwin

Employer: City of Fair Play

Insurer: Missouri Rural Services Workers' Compensation Trust Fund c/o Cannon Cochran Management Services

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. ${ }^{1}$ We have reviewed the evidence and briefs, heard oral argument, and considered the whole record. Pursuant to $\S 286.090$ RSMo, we issue this temporary award modifying the November 3, 2011, temporary or partial award of the administrative law judge (ALJ). We adopt the findings, conclusions, decision, and award of the ALJ to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

We agree with the ALJ's conclusions as to the compensability of employee's claim and the award of future medical care. However, we disagree with the ALJ's finding that insurer is liable for employer and employee's reasonable attorney fees and expenses.

Section 287.560 RSMo provides, as follows:

The division, any administrative law judge thereof or the commission, shall have power to issue process, subpoena witnesses, administer oaths, examine books and papers, and require the production thereof, and to cause the deposition of any witness to be taken and the costs thereof paid as other costs under this chapter. ... [I]f 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.

The primary issue in this case concerns whether employee's February 27, 2011, injury arose out of and in the course of his employment. Following the 2005 amendments to Missouri Workers' Compensation Law and the introduction of strict construction to Chapter 287 of the Revised Statutes of Missouri, this issue of whether an injury "arises out of" and "in the course of" employment has been highly contested. Based on the facts of this case and the arguments proffered by insurer, we do not find that its defense of this claim was egregious or without reasonable grounds. Therefore, we find that employee and employer's claims for costs against insurer are denied.

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[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2010 unless otherwise indicated.

The award and decision of Administrative Law Judge Victorine R. Mahon issued November 3, 2011, is attached hereto and incorporated herein to the extent it is not inconsistent with this temporary award.

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.

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

Given at Jefferson City, State of Missouri, this $21^{\text {st }}$ day of March 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Allen Baldwin

Injury No. 11-015959

Dependents: N/A

Employer: City of Fair Play

Additional Party: Not Applicable

Insurer: Missouri Rural Services Workers' Compensation

Trust Fund c/o Cannon Cochran Management Services

Hearing Date: September 13, 2011;

Record Closed September 28, 2011

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

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: February 27, 2011.
5. State location where accident occurred or occupational disease contracted: Fair Play, 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: Employee slipped and fell while performing his work duties as a police officer and storm spotter.
12. Did accident or occupational disease cause death? No. Date of death? N/A.
13. Parts of body injured by accident or occupational disease: Right shoulder.

1. Nature and extent of any permanent disability: Not at issue at this time.
2. Compensation paid to-date for temporary disability: None.
3. Value necessary medical aid paid to date by employer/insurer? None.
4. Value necessary medical aid not furnished by employer/insurer? See Award.
5. Employee's average weekly wage: $\ 440.00.
6. Weekly compensation rate: $\ 293.33.
7. Method of wage computation: Stipulation.

1. Amount of compensation payable: No temporary total disability at this time.

Insurer shall pay $\ 8,798.18 for the whole cost of the proceeding, with $\ 4,976.18 of that amount to reimburse Claimant for his reasonable attorney fees and expenes, and the remainder to reimburse Employer, the City of Fair Play, for its reasonable attorney fees and expenses.

1. Second Injury Fund liability: Not Applicable.
2. Future requirements of the Award:

Employer/Insurer shall provide future medical care to cure and relieve the effects of the work related injury.

This award is only temporary or partial, is subject to further order, and the proceedings are continued and remain open until a final award can be made.

Employee: Allen Baldwin Injury No. 11-015959

Dependents: N/A

Employer: City of Fair Play

Additional Party: Not Applicable

Insurer: Missouri Rural Services Workers’ Compensation Trust Fund c/o Cannon Cochran Management Services

Hearing Date: September 13, 2011; Checked by: VRM/ps Record Closed September 28, 2011

The parties appeared before the undersigned Administrative Law Judge for a hardship hearing on September 13, 2011, in Springfield, Missouri. Allen Baldwin (Claimant) appeared in person and with his attorney, Kyle L. Kanable. Employer Craig Heidemann appeared on behalf of City of Fair Play (Employer). Its insurer, the Missouri Rural Services Workers’ Compensation Trust Fund, and its third party administrator Cannon Cochran Management Services, appeared by attorney Clinton Collier. This case has had significant pretrial and post trial activity.

Attorney Paul Huck had been contracted by Insurer to represent the separate interests of Employer. Approximately one week prior to hearing, Attorney Paul Huck sought to withdraw because Employer had no uncovered liability exposure, and because Craig Heidemann also had entered his appearance on Employer’s behalf. Because Employer had two counsel, Mr. Huck’s request was granted. On the day of hearing, Mr. Heidemann, who was the second counsel representing Employer, filed a motion to withdraw. That motion was denied as it appeared to this Administrative Law Judge that there remained a conflict between Employer and its Insurer, in that the two parties do not agree on the issue of compensability.

At the hearing, Counsel for Employee made a request for costs for having to proceed to hearing in a case which he believed was clearly compensable. Mr. Heidemann sought to join in that motion. The record remained open 15 days for the receipt of evidence on the issue of costs. Employee’s documentary evidence of costs was submitted on September 23, 2011 and is marked as Exhibit H. On September 27, 2011, Mr. Heidemann filed a motion for costs and submitted documentation thereof. Because the record still was open, the evidence and motion were taken with the case. By telephone conference conducted September 28, 2011, the parties were advised that Mr. Heidemann’s motion for costs and his evidence would be received. Insurer’s counsel was given 15 days thereafter to file a response to the motion for costs. Briefs on all other issues also were to be filed within 15 days.

Also at the onset of the hearing, Employer’s counsel alleged that Insurer, which is a Trust Fund, had no standing to proceed because it was taking a position contrary to Employer’s position, which

was to compensate Claimant. The issue of standing was taken under submission with the case. Employer was given 15 days (September 28, 2011) to submit any supplemental evidence and argument on the issue of standing by the Trust Fund. That issue subsequently was withdrawn by telephone conference by all of the parties.

At the conclusion of the initial hearing on September 13, 2011, the Administrative Law Judge provided the parties with an oral opinion. Despite that oral opinion, the parties failed to resolve their differences. Having received the briefs and the additional evidence on the issue of costs, I issue this Award in favor of Employee and Employer.

The parties agree to the following facts:

1. Allen Baldwin was an employee of the City of Fair Play on February 27, 2011.
2. On February 27, 2011, Claimant was covered by, and Employer was subject to the Missouri Workers' Compensation Law.
3. On February 27, 2011, Claimant sustained an injury.
4. Claimant's average weekly wage on that date was $\ 440.00, yielding a temporary total disability rate of $\ 293.33.
5. Employer and its Insurer have provided no medical care and no temporary total disability.

The following are issues are in dispute:

1. Did Claimant's injury, sustained on February 27, 2011, arise out of and within the course of employment with the City of Fair Play?
2. Is Claimant entitled to medical care as a result of the injury?
3. Are any of the parties entitled to costs?

A. Employee Policy - June 12, 2008

B. Fair Play Police Dept. Log - February 27, 2011

C. Payroll Summary - March 3, 2011

D. Employment Agreement

E. Statement - Mayor Bern Johns - March 21, 2011

F. Letter from City of Fair Play to CCMSI - June 17, 2011

G. Missouri Rural Services Workers' Compensation Insurance Trust

H. Affidavit - Kyle L. Kanable

I. Activity - Attorney Kanable

1. Deposition - Sarah Newell - with exhibits
2. Letter - February 28, 2011

A. Attorney Referral Form

B. Letter to Insurer from Employer

C. Motion for Costs with Exhibit A. - Affidavit ${ }^{1}$

Claimant Allen Wade Baldwin is the Chief of Police of the City of Fair Play, a small Missouri municipality with a population of less than 600 residents. As would be expected in most any small town, Chief Baldwin's duties are multiple and varied. He initially was hired in 2001 as a maintenance worker. Between 2003 and 2004, Claimant became a certified water operator. His job was to test the chlorination system and assure that the City's water supply was safe. These duties were in addition to those as a maintenance worker. In 2008, with the City having paid for his training, Claimant became a police officer for the City of Fair Play. His new duties as a police officer required that he respond to calls for service, as well as enforce traffic laws and ordinances. He still maintained his duties as a certified water operator. Claimant also was required to perform maintenance duties as needed.

Claimant's new duties in 2008 as a police officer were set forth in Exhibit A, which was an agreement that Claimant signed with the City. That document, provided by Mayor David Vincent, requires that all employees be willing to report to duty in the case of an emergency. In May 2009, Claimant became the Chief of Police.

As Chief of