Raymond Smuzeski v. Altec Industries

Employee: Raymond Smuzeski

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statutory power "with great caution and only when the case for costs is clear and the offense egregious."

Nolan v. Degussa Admixtures, Inc., 276 S.W.3d 332, 335 (Mo. App. S.D. 2009) (internal citations omitted).

In the case at hand, the best evidence suggests that employee had consistently reported to employer, Dr. Rutz, and then Dr. Mabe that he had gradually become stiff and sore during the July 2, 2009, work day and that it was his work on that day which had caused his new injury. He had consistently reported to each of these sources that he could recall no specific event that occurred. We have no evidence that employee ever reported to employer that a specific event where employee was working on a hydraulic pump had occurred on a job in Ellisville, Missouri, in mid-July 2009.

It was not until employer received Dr. Bailey's report dated September 20, 2010, that employer learned about the alleged second event in Ellisville (that employee told Dr. Bailey he had reported to employer) that occurred in mid-July 2009 after seeing Dr. Rutz and before seeing Dr. Mabe. And it was in that same report that Dr. Bailey stated his reliance on this event of which employer had no knowledge in establishing causation. And it was in this same report that Dr. Bailey made his treatment recommendations. Since Dr. Bailey based his causation finding on this event about which employer had no knowledge and since employer had not previously received a report of any such incident, employer reasonably wanted to investigate this information further.

Its investigation of this matter led to the letter from its attorney to Dr. Bailey. In response, Dr. Bailey's November 19, 2010, report acknowledged a potential inconsistency in what employee had told him and the importance of the inconsistency. Dr. Bailey emphasized the need for credible information. Dr. Bailey's November 19, 2010, report led employer to schedule depositions with employee.

Consequently, we are persuaded that these circumstances gave employer a reasonable basis for further investigation and withholding authorization for the treatment that Dr. Bailey had recommended. Therefore, we hereby reverse that part of the award and decision that assessed costs under § 287.560.

In all other respects, we affirm and adopt the award and decision of the administrative law judge.

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

The award and decision of Administrative Law Judge Karla Ogrodnik Boresi, issued January 27, 2012, is attached and incorporated by this reference, except to the extent it is inconsistent with this award and decision.

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Injury No.: 09-110930

This award and decision is only temporary or partial, 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 § 287.510 RSMo.

Given at Jefferson City, State of Missouri, this **2nd** day of July 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

VACANT Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

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: July 2, 2009
5. State location where accident occurred or occupational disease was contracted: Saint Louis City
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: During a busy stretch, Claimant was working long, hard, heavy work, when he felt pain in his lower back.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Low back
14. Nature and extent of any permanent disability: TBD
15. Compensation paid to-date for temporary disability: 0
16. Value necessary medical aid paid to date by employer/insurer? 0

1. Value necessary medical aid not furnished by employer/insurer? TBD
2. Employee's average weekly wages: Not determined
3. Weekly compensation rate: $\$ 807.48 / \ 422.97
4. Method wages computation: By agreement.

1. Amount of compensation payable:

1. Second Injury Fund liability: Open TOTAL: $\ 14,264.09
2. Future requirements awarded:

Each of said payments to begin immediately and be subject to modification and review as provided by law. This award is only temporary or partial, is subject to further order, and the proceedings are hereby continued and the case kept open until a final award can be made.

IF THIS AWARD IS NOT COMPLIED WITH, THE AMOUNT AWARDED HEREIN MAY BE DOUBLED IN THE FINAL AWARD, IF SUCH FINAL AWARD IS IN ACCORDANCE WITH THIS TEMPORARY AWARD.

The compensation awarded to the claimant shall be subject to a lien in the amount of --- of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Deferred to final award; payment for legal services addressed as costs of proceedings herein.

The matter of Raymond V. Smuzeski ("Claimant") proceeded to hearing on a hardship basis. Attorney Jill Bollwerk represented Claimant. Attorney John Fox represented Altec Industries ("Employer"), which is self-insured. The Second Injury Fund, while a party to the underlying claim, did not participate in the hearing because no issues of Second Injury Fund liability were raised.

Two of three ${ }^{1}$ pending cases were tried simultaneously: Injury No. 07-056964 with an alleged injury date of June 18, 2007 (the " 2007 Case"), and the instant case, Injury No. 09110930, with an alleged injury date of July 2, 2009 ( the " 2009 Case"). With respect to the 2009 Case, the parties agree that on or about July 2, 2009, Claimant was an employee of Employer, earning an average weekly wage that qualified him for rates of compensation of $\ 807.48 for temporary total disability ("TTD") benefits and $\ 422.97 in permanent partial disability ("PPD") benefits. The parties stipulated venue is proper in the City of St. Louis, and Claimant filed his claim in a timely manner. Claimant seeks medical treatment for his low back, and Employer questions whether Claimant had a compensable injury that is causally related to a work accident or disease.

In the 2009 Case, the issues to be determined are limited to the following: 1) Did Claimant sustain an injury by accident or occupational disease that arose out of and in the course of employment; 2) was a work accident the prevailing factor in causing both the resulting medical condition of the recurrent herniated disc at L5-S1 and any disability resulting therefrom; 3) Is future medical care is necessary to cure and relieve Claimant from the effects of a work accident in July of 2009; 4) Did Claimant provide notice pursuant to § 287.420; and 5) Did Employer defend the July 2009 Case without "reasonable ground" such that the Division may assess the whole costs of the proceedings against Employer pursuant to § 287.560?

The undisputed evidence establishes Claimant has a recurrent herniated disc in his lumbar spine. The dispute is whether such injury is compensable and Employer is liable for benefits.

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[^0]: ${ }^{1}$ Injury No. 10-056013 shall remain on the prehearing docket.

Claimant began working as a mobile service mechanic for Employer, a company that produces digger derricks and aerial equipment for the utility industry, in 2002. He provides onsite repairs for customers' utility equipment. He goes wherever the customer may be in order to fix or repair the equipment, working out of a hub in Wentzville, Missouri. Ameren UE, one of his biggest customers, allows him to keep his truck on location and receive his mail there. He does all of his paperwork at his home in Warrenton,