Melissa Donnell v. Trans States Airlines

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, heard the parties’ arguments, and considered the whole record. Pursuant to § 286.090 RSMo, we issue this final award and decision modifying and supplementing the award and decision of the administrative law judge. 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 makes a claim for costs and sanctions in this matter on three different theories: (1) the statutory award of costs to the prevailing party in a hearing brought pursuant to § 287.203 RSMo; (2) doubling of the temporary award as a result of employer’s failure to comply with it pursuant to § 287.510 RSMo; and (3) the whole cost of the proceedings because employer defended this case without reasonable grounds pursuant to § 287.560 RSMo. The administrative law judge summarily denied all of the costs and sanctions sought by employee on the rationale that employer paid $\ 65,453.17 in temporary total and permanent total disability benefits and $\ 157,649.34 in medical bills.

Employee filed an Application for Review alleging the administrative law judge erred in declining to award her costs and sanctions. As to her reasonable cost of recovery under § 287.203, we agree with employee and modify the award of the administrative law judge. As to the other claims for costs and sanctions, we provide the supplemental analysis herein.

Employee’s claim for costs under § 287.203 RSMo The applicable version of § 287.203 RSMo provides, as follows:

Whenever the employer has provided compensation under section 287.170, 287.180 or 287.200, and terminates such compensation, the employer shall notify the employee of such termination and shall advise the employee of the reason for such termination. If the employee disputes the termination of such benefits, the employee may request a hearing before the division and the division shall set the matter for hearing within sixty days of such request and the division shall hear the matter on the date of hearing and no continuances or delays may be granted except upon a showing of good cause or by consent of the parties. The division shall render a decision within thirty days of the date of hearing. Reasonable cost of recovery shall be awarded to the prevailing party.

Here, employee requested a hearing under the foregoing section when employer denied her request to get ankle surgery. Employer’s position at the hearing was that employee didn’t need surgery as a result of the work injury and that she had reached maximum

Improvee: Melissa Donnell

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medical improvement and should return to work. On September 20, 2005, the administrative law judge issued a temporary award granting employee's request and ordering employer to pay for the surgery and to resume temporary total disability benefits thereafter. Nevertheless, employer argues employee didn't really "prevail" because the administrative law judge deferred the issue of past temporary total disability benefits to the final award. We note that when the administrative law judge did address the issue in his final award, he ultimately ruled this issue in employee's favor.

Employer appears to be arguing that employee cannot be considered the "prevailing party" under § 287.203 where the administrative law judge awarded her everything she requested but deferred a ruling on one of the issues. We are not persuaded. The undeniable result of the hearing was that the administrative law judge accepted employee's argument that she was entitled to further treatment and rejected employer's argument that she was at maximum medical improvement. The administrative law judge did not say, in his award, why he deferred the issue of temporary total disability benefits, but there is no suggestion that it was the result of any failure of proof on employee's part. We are convinced employee was the prevailing party.

As evidence of her reasonable cost of recovery, employee provides her Exhibit LLL, which suggests the amount of $4,834.85. Employer did not provide any evidence that would suggest the amount reflected in Exhibit LLL is either inaccurate or unreasonable.

We find that the amount employee expended for the hardship hearing was $4,834.85. We further find this was a reasonable amount. We conclude that employee was the prevailing party for purposes of § 287.203, and that, as a result, she is entitled to her reasonable cost of recovery in the amount of $4,834.85.

Employee's claims for costs under § 287.510 RSMo

Employee also seeks doubling of the temporary award in this matter under § 287.510 RSMo, which provides:

In any case a temporary or partial award of compensation may be made, and the same may be modified from time to time to meet the needs of the case, and the same may be kept open until a final award can be made, and if the same be not complied with, the amount equal to the value of compensation ordered and unpaid may be doubled in the final award, if the final award shall be in accordance with the temporary or partial award.

Under the September 20, 2005, temporary award, employer was ordered to "provide the treatment and surgery recommended by Dr. Clare and to pay temporary total disability after surgery until [employee] reaches maximum medical improvement." Employee argues employer failed to comply with this mandate. The contemporary treatment notes suggest considerable miscommunication and delay in getting authorization from the employer for certain treatments. For example, aquatherapy was initially denied, and insurer's adjuster denied the second in a series of lumbar sympathetic block injections for unclear reasons, with the result that employee had to start the series over again. Employee also took a deposition of the adjuster who handled this case for employer/insurer. This witness suggested she would have been better able to do her job if employer's counsel had timely

Improvee: Melissa Donnell

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provided her a letter from employee's counsel suggesting that the insurer had improperly terminated benefits.

But despite this evidence of considerable hassle and delay on employer's part, the courts have clarified that the remedy under § 287.510 is only applicable to an amount of compensation that is "ordered and unpaid" at the time of the final award. *Ball-Sawyers v. Blue Springs Sch. Dist.*, 286 S.W.3d 247, 257 (Mo. App. 2009). The temporary award ordered employer to "provide the treatment and surgery recommended by Dr. Clare and to pay temporary total disability after surgery until [employee] reache[d] maximum medical improvement." In identifying her grievances as to the way employer directed her medical treatment after the issuance of the temporary award, employee does not identify any evidence that employer's actions ultimately prevented her from receiving either (1) treatments and surgery recommended by Dr. Clare, or (2) temporary total disability benefits after surgery. Nor has employee identified any amount of compensation that was "ordered and unpaid" at the time of the final award. We note that employer actually provided more in temporary total disability benefits than ordered in the temporary award, in that it began paying those benefits before employee underwent her ankle surgery, where the temporary award provided such benefits should commence "after surgery."

Ultimately, we acknowledge the significant frustration employee endured in securing her benefits under the temporary award in this case, but must conclude employee failed to meet her burden on this issue. We find that employer did not fail to comply with the temporary award of compensation dated September 20, 2005.

Accordingly, employee's claim, for costs under § 287.510, is denied.

Finally, employee seeks recovery of the whole cost of the proceedings under § 287.560, which provide, in relevant part, as follows:

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.

The foregoing section authorizes this Commission to award the whole cost of the proceedings against any party who brings, prosecutes, or defends proceedings without reasonable grounds. The courts have instructed that our authority to award the costs contemplated in the foregoing section is to be exercised "with great caution and only when the case for costs is clear and the offense egregious." *Wilson v. C.C. Southern, Inc.*, 140 S.W.3d 115, 120 (Mo. App. 2004).

Employee's case for costs rests on the theory that employer acted egregiously in hiring experts to contest the opinions of its own authorized treating doctors. Employee argues employer should have accepted the opinions from its treating doctors (namely, that employee has reflex sympathetic dystrophy (RSD) and that it is work related), and

Injury No.: 02-143782

Employee: Melissa Donnell

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should not have been allowed to have her evaluated by independent medical experts. But especially where medical causation of a complex and little-understood condition like RSD is at issue, we are not convinced that employer defended this case without reasonable grounds when it sought second opinions from evaluating doctors.

It was employee's burden to prove all of the elements of her workers' compensation claim, and employer was entitled to challenge her ability to do so. Employer provided expert medical testimony supporting its position. The record fails to disclose evidence sufficient to support a finding that employer 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 involved in Monroe and Landman to those at issue here, we are not persuaded that employer engaged in the type of conduct that $\S 287.560$ is designed to prevent.

We conclude employer did not defend this case without reasonable ground. Accordingly, employee's claim for the whole cost of the proceedings under $\S 287.560$ is denied.

We modify the award of the administrative law judge on the issue of costs under § 287.203 RSMo. Employee is entitled to, and employer is obligated to pay, her reasonable cost of recovery under that section in the amount of $\ 4,834.85.

We supplement the analysis of the administrative law judge on the issue of employee's claims for costs and sanctions under $\S \S 287.510$ and 287.560 RSMo. In all other respects, we affirm the award of the administrative law judge.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

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

The award and decision of Administrative Law Judge Cornelius T. Lane is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

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

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

DISSENTING OPINION FILED

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Pa