Dennis Bales v. Clarkson Construction Company

(Modifying Award and Decision of Administrative Law Judge)

Injury No.: 07-134940

Employee: Dennis Bales

Employer: Clarkson Construction Company

Insurer: ACIG Insurance Company

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

This cause has been submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480 RSMo. { }^{1}$ We have reviewed the evidence and briefs and have considered the whole record. Pursuant to § 286.090 RSMo, the Commission modifies the award and decision of the administrative law judge (ALJ) dated January 10, 2012.

Among other findings, the ALJ found that employer willfully ignored the recommendations of their authorized treating physician, failed to offer employee work within Dr. Wheeler's restrictions, and failed to pay employee compensation during the time employee was unable to work. The ALJ, therefore, concluded that employee is "entitled to penalties against the employer and insurer pursuant to $\S 287.560 RSMo in the amount of \ 15,411.44, representing 25 % of the amount of temporary total disability due and owing." We find that the ALJ's application of $\S 287.560$ RSMo to award a penalty of 25 % of the temporary total disability benefits awarded is improper and legally unfounded under Missouri Workers' Compensation Law.

Section 287.560 RSMo provides, in relevant part, 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.

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).

In this case, the ALJ did not make a finding that employer/insurer defended this case without reasonable ground. However, even if the ALJ's cited instances of employer/insurer's nonfeasance with respect to the treatment of employee is construed

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[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2007 unless otherwise indicated.

as a finding that employer/insurer defended this case without reasonable ground, the only award that can be made under $\S 287.560$ RSMo is an award of the "whole cost of the proceedings." The ALJ's award of a 25 % penalty based upon the amount of the temporary total disability benefits awarded is improper under Missouri Workers' Compensation Law and, therefore, cannot be affirmed by the Commission.

We find that the 25 % temporary total disability benefit penalty is improper and reverse that portion of the ALJ's award. All other aspects of the award are affirmed.

The award and decision of Administrative Law Judge Mark D. Siedlik, dated January 10, 2012, 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 $1^{\text {st }}$ day of August 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

V A C A N T

Chairman

James Avery, Member

Curtis E. Chick, Member

Attest:

Secretary

Employee: Dennis Bales

Injury No: 07-134940

Employer: Clarkson Construction Company

Insurer: ACIG Insurance Company

Additional Party: Treasurer of the State of Missouri, Custodian of the Second Injury Fund

Hearing Date: September 22, 2011

Checked by: MSS/cy

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: September 7, 2007
5. Location where accident occurred or occupational disease was contracted: Johnson County, Kansas
6. Was the above employee in the employ of the above employer at time of alleged accident or occupational disease? Yes
7. Did the employer receive proper notice? Yes
8. Did the accident or occupational disease arise out of and in the course of employment? Yes
9. Was the claim for compensation filed within time required by Law? Yes
10. Was the employer insured by the above insurer? Yes
11. Describe the work employee was doing and how the accident occurred or the occupational disease contracted: Employee slipped and fell on a wet sheet of plywood.
12. Did the accident or occupational disease cause death? No

A. Deposition of Terry L. Cordray, M.S.

B. Deposition of John D. Pro, M.D.

C. Deposition of P. Brent Koprivica, M.D.

D. Deposition of Sheba Khalid, M.D.

E. Fernando M. Egea, M.D. medical rating dated September 9, 1994 (Exhibit admitted as to Employer only)

F. Medical records of Jonathan Chilton/Midwest Neurosurgery Associates

G. Medical records of Concentra-Alden

H. Medical records of Eden Wheeler, M.D.

I. Medical records of Excelsior Springs Medical Center

J. Medical records of Kearney Family Medicine

K. Medical records of Northland Internal Medicine

L. Medical records of Paincare, P.A.

M. Medical records of Robert L. Buzard, M.D.

N. Medical records of Liberty Hospital

O. Lowry Jones, Jr., M.D. independent medical evaluation dated December 23, 2010 (Exhibit admitted as to Employer only)

P. Missouri Division of Workers' Compensation records (Exhibit P is admitted in its entirety as to Employer. All contents except for the report of Dr. Egea is admitted against the Second Injury Fund)

Q. Deposition of Dennis Bales

1. Prior Stipulation for Compromise Settlement
2. September 9, 1994, report of Dr. Egea
3. October 26, 2007, letter addressed to employee from Clarkson Construction Wage Statement
4. Employee information card

Page $\mid 3$

1. Deposition of Dennis Bales
2. Deposition of Dr. Carl Ledbetter
3. Deposition of Dr. Tristen Cook

None.

- Employer Clarkson Construction was operating under and subject to the provisions of the Missouri Workers' Compensation Act and its liability was fully insured by ACIG Insurance Company.

- On or about September 7, 2007, Dennis Bales was an employee of Clarkson Construction and was working under the Missouri Workers' Compensation Act.

- On or about September 7, 2007, Dennis Bales suffered an accident arising out of and in the course of his employment.

- Employer had notice of Dennis Bales' accident.

- Employee's claim was filed within time allowed by law.

- The average weekly wage is sufficient for the maximum rate yielding a rate of $\ 742.72 for temporary total disability and permanent total disability and a rate of $\ 389.04 for permanent partial disability.

- Medical aid was furnished by the employer in the amount of $\ 6,387.89.

- Temporary total disability paid by the employer was $\ 0.

- Employer shall be entitled to a credit for compensation awarded based upon the settlement reached in Kansas for this claim.

The issues to be determined by the hearing are as follows:

- Whether the employee's medical condition was casually related to his September 7, 2007, accident.

- Whether the employee is entitled to additional medical care.

- Whether the employee is liable for temporary total disability benefits from October 26, 2007, through May 29, 2009.

- Nature and extent of disability.

- Second Injury Fund liability.

- Whether the employee is entitled to a penalty against the employer and insurer pursuant to Section 287.560 RSMo., for the employer and insurer's failure to pay temporary total disability benefits when the authorized treating physician opined employee was temporarily totally disabled and required further medical care.

A hearing was held on September 22, 2011, before the Honorable Mark S. Siedlik. Employee appeared in person and was represented by Kristi L. Pittman. The employer and insurer were represented by Andrew Mendelson and the Second Injury Fund was represented by Andrew Dickson.

Mr. Bales was initially seen by Dr. Jack Lausterer of Concentra Medical Centers on September 7, 2007. Dr. Lausterer reported Mr. Bales slipped on wet plywood at work and his right foot and leg went out from under him, causing him to twist. Dr. Lausterer reported Mr. Bales had marked pain in his back and numbness in his legs following the fall as well as sciatic type burning pain in his back that radiated into his calf area. Mr. Bales reported "glove" like numbness of his whole right lower extremity and tingling in his left lower extremity. Dr. Lausterer reported Mr. Bales' back pain was constant and "fairly intense." Dr. Lausterer felt Mr. Bales was suffering lumbar radiculopathy by history and exam. He prescribed pain medications and ordered an MRI. He ordered Mr. Bales to remain off work until he was seen back in the clinic in three days. Mr. Bales returned to Concentra Medical Centers on September 10, 2007, and was seen by Dr. Tell Copening. Dr. Copening reported Mr. Bales was medically unable to work and his pattern of symptoms had not improved. Mr. Bales reported paresthesis of the entire right leg. Dr. Copening noted an MRI had been ordered; assessed lumbar radiculopathy; continued his pain medications; and scheduled physical therapy three times a week for two weeks.

Mr. Bales underwent an MRI on September 12, 2007, at Liberty Hospital which showed a posterior disc bulge at the L4-5 level causing AP stenosis and associated bilateral recessed stenosis due to degenerative changes to the facet joints and hypertrophied ligamentum flavum. The MRI also noted a T-11 interior wedge fracture. Mr. Bales returned to Dr. Co