Scott Curran v. Johnson Controls, Inc.

(Affirming Award and Decision of Administrative Law Judge by Supplemental Opinion)

Injury No.: 02-016564

Employee: Scott Curran

Employer: Johnson Controls, Inc.

Insurer: Authorized Self-Insurer

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480 RSMo. { }^{1}$ Having reviewed the evidence, read the briefs, and considered the whole record, the Commission finds that the award of the administrative law judge (ALJ) is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the ALJ dated June 23, 2011, as supplemented herein.

Employee alleges, among other things, that the ALJ erred in denying his claim for past temporary total disability (TTD) benefits for the time period of February 4, 2004, to March 25, 2004 ( $72 / 7$ weeks). Based on our review, we conclude that the ALJ did not err in denying employee's claim for the past TTD benefits, but find that the award should be supplemented with additional facts and analysis regarding the same.

On February 3, 2004, employee was counseled by the plant superintendent regarding negligence, inefficiency, scrap, and productivity. Shortly after employee's meeting with the plant superintendent, employee complained to his plant manager that his shoulder hurt and that he needed to leave work. The human resources manager had previously told employee that he was not allowed to work at employer's facility while taking his prescribed pain pills (Lortab). Employee testified that on February 3, 2004, his shoulder pain reached the point that he needed to take his pain pills and, therefore, he requested to go home.

Employee was permitted to leave work on February 3, 2004, but was instructed to provide verification from a medical professional for his need to leave work on that date. The next day, February 4, 2004, employee saw Dr. Middleton, who provided him with a set of trigger point injections. ${ }^{2}$ Dr. Middleton's February 4, 2004, note indicates employee's primary complaint as headaches. Dr. Middleton opined that the headaches were related to employee's myofascial pain associated with his right shoulder and neck pain. Employee requested a return to work slip from Dr. Middleton and she provided the same, but with

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[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2001 unless otherwise indicated.

${ }^{2}$ Employee had previously treated with Dr. Middleton and actually had a regularly scheduled appointment to receive these trigger point injections on February 16, 2004.

implications that if he has any change in his headaches such as blurred vision, nausea, or vomiting, he needs to seek immediate medical treatment. Employee provided copies of Dr. Middleton's return to work slip to employer the next day, February 5, 2011.

Despite receiving the return to work slip from Dr. Middleton, employer refused to allow employee to return to work. Employee sought another note from Dr. Middleton. On February 11, 2004, Dr. Middleton provided a second return to work slip indicating that she was treating employee for neck and shoulder pain and that the headaches are related to the neck and shoulder pain. Upon being presented with this second return to work slip, employer still refused to allow employee to return to work.

An employer memo dated March 25, 2004, provides evidence of employer's rationale for refusing to allow employee to return to work. Said memo states, as follows:

[Employee] supplied documentation on 2/5/04 and 2/11/04 and neither one of these documents supported or stated the need to leave work on 2/3/04 for shoulder problems. On 3/22/04, the union presented more documentation. This document indicates that [employee] had an office visit on 2/4/04 and was given a trigger point injection. This document again does not specifically state the need for him to leave work on 2/3/04. Furthermore, this was presented forty eight (48) days after he left work on 2/3/04. [Employee]'s record will reflect a "B" rule suspension from 2/5/04 through 3/25/04 for 'Other actions or offenses detrimental to the welfare of the Company or anyone associated with the Company."

Employee testified that on March 25, 2004, employer called him and "requested [he] ... sign a piece of paper saying it was [his] fault [he] was off work" for the period of February 4, 2004, to March 25, 2004. Employee refused to sign the paper and was discharged on April 5, 2004, for failing to show up for work or report his absences from March 29, 2004, through April 2, 2004.

With respect to TTD benefits, the Court in Cooper v. Medical Center of Independence, 95 S.W.2d 570 (Mo. App. 1997) summarized the law, as follows:

Section 287.020.7 defines 'total disability' as the 'inability to return to any employment and not merely [the] inability to return to the employment in which the employee was engaged at the time of the accident.' 'Temporary total disability' is a judicial creation that is defined by case law and not by statute. See Herring v. Yellow Freight System, Inc., 914 S.W.2d 816, 820 (Mo. App. 1995). The purpose of temporary disability awards is to cover the employee's healing period. Id. Temporary total disability benefits should be awarded only for the period before the employee can return to work. Williams v. Pillsbury Co., 694 S.W.2d 488, 489 (Mo. App. 1985). Temporary total disability awards are owed until the claimant can find employment or the condition has reached the point of maximum medical

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progress. *Vinson v. Curators of Univ. of Missouri*, 822 S.W.2d 504, 508 (Mo. App. 1991). A temporary award is not warranted when further progress is not expected. *Phelps v. Jeff Wolk Const. Co.*, 803 S.W.2d 641, 646 (Mo. App. 1991).

In determining whether an employee is totally disabled, the main issue is 'whether any employer, in the usual course of business, would reasonably be expected to employ the [employee] in [the employee's] present physical condition.' *Brookman v. Henry Transp.*, 924 S.W.2d 286, 290 (Mo. App. 1996). This standard is applied to temporary total disability, as well as permanent total disability. Contrary to the findings of the Commission, this does not mean that an employer is forced to either make light duty available to a claimant or pay temporary total disability benefits simply because the claimant remains under active medical care and there is a reasonable expectation that the employee's functional level might improve. An employer is only obligated for said benefits if the employee could not compete on the open market for employment.

*Id.* at 575.

Employee argues that he was released to return to work by Dr. Middleton on February 4, 2004, and that the only reason he did not return to work was because employer refused to allow him to return to work due to a medical condition related to his work injury.

We find that the competent and substantial evidence supports a finding that employee was not permitted to return to work on account of separate and distinct labor management issues. There is no evidence to support a finding that employee was unable to work or that employer refused to allow him to return to work due to a medical condition. Employee was actively seeking to return to work and the only medical evidence on this issue supports a finding that employee was, in fact, able to work during the time in question.

For the foregoing reasons, we agree with the ALJ's conclusion and deny employee's claim for past TTD benefits. Employee failed to prove that he was unable to compete for employment in the open labor market from February 4, 2004, to March 25, 2004.

We affirm the award of the ALJ as supplemented herein.

The award and decision of Chief Administrative Law Judge Nelson G. Allen, issued June 23, 2011, is attached hereto and incorporated herein to the extent it is not inconsistent with this decision and award.

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.

Given at Jefferson City, State of Missouri, this **29th** day of March 2012.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

William F. Ringer, Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: SCOTT CURRAN

Injury No. 02-016564

Employer: JOHNSON CONTROLS, INC.

Insurer: AUTHORIZED SELF-INSURER

Hearing Date: APRIL 4, 2011

Checked by: NGA

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 4, 2002
5. State location where accident occurred or occupational disease was contracted: BUCHANAN 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 A WELDER AND HAD TO MOVE HEAVY OBJECTS IN A REPETITIVE MANNER.
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: BOTH WRISTS AND RIGHT SHOULDER.

1. Nature and extent of any permanent disability: $\mathbf{1 0 \%}$ PERMANENT PARTIAL DISABILITY TO BOTH WRISTS AND 10\% MULIPLICITY FACTOR AND 7-1/2\% PERMANENT PARTIAL DISABILITY TO RIGHT SHOULDER AND 3 WEEKS DISFIGUREMENT ALLOWANCE.
2. Compensation paid to-date for temporary disability: NONE
3. Value necessary medical aid paid to date by employer/insurer? $\ 11,825.42
4. Value necessary medical aid not furnished by employer/insurer? $\mathbf{7 , 0 8 4 . 2 3}
5. Employee's average weekly wages: \mathbf{\$ 7 7 6 . 8 3}
6. Weekly compensation rate: \$ 517.89 / \ 329.42
7. Method wages computation: By Stipulation

1. Amount of compensation payable:

Unpaid medical expenses:

$\ 7,084.23

Weeks of temporary total disability (or temporary partial disability)

55.9 Weeks of permanent partial disability from Employer $\mathbf{X} \$ 329.42=\ 18,414.58

3 Weeks of disfigurement from Employer x 329.42 = \$988.26

1. Second Injury Fund Liability: N/A

TOTAL: $\ 26,487.07

1. Future requirements awarded: THE EMPLOYER IS ORDERED AND DIRECTED TO PROVIDE CLAIMANT WITH NONSURGICAL TREATMENT BY DR. MIDDLETON FOR UP TO FOUR VISITS PER CALENDAR YEAR.

Each of said payments to begin FEBRUARY 5, 2002 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 $\mathbf{2 5 \%}$ of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: DAVID W. WHIPPLE.

Employee: SCOTT CURRAN

Injury No. 02-016564

Employer: JOHNSON CONTROLS, INC.

Insurer: AUTHORIZED SELF-INSURER

Hearing Date: APRIL 4, 2011

Checked by: NGA

Prior to presenting evidence, the parties stipulated the issues to be determined by this hearing are:

1. Whether the claimant's injury was medically caused by claimant's alleged accident or occupational disease;
2. Liability of the employer for additional medical treatment;
3. Liability of the employer for past temporary total disability compensation;
4. Liability of the employer for past medical bills;
5. What is the nature and extent of claimant's disabi