Vickie Harrah v. Tour Saint Louis

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 05-143549

Employee: Vickie Harrah

Employer: Tour Saint Louis

Insurer: Uninsured

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

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to $\S 286.090$ RSMo, the Commission affirms the award and decision of the administrative law judge dated August 17, 2012. The award and decision of Administrative Law Judge Karla Ogrodnik Boresi, issued August 17, 2012, is attached and incorporated by this reference.

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 $2^{\text {nd }}$ day of July 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

DISSENTING OPINION FILED

Curtis E. Chick, Jr., Member

Attest:

Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I am convinced that the majority errs in denying employee's request for an award of prejudgment interest on her past medical expenses.

Employee worked as a bus driver for 35 years. During the summer of 2005 she took a job driving employer's trolley. On September 1, 2005, a drunk driver crashed into the trolley while employee was driving it. Employer did not have workers' compensation insurance at the time of the accident.

Employee suffered neck, low back, and right shoulder injuries that necessitated extensive medical treatment, including multiple surgeries to employee's right shoulder. Employee was initially forced to bear the cost of this medical treatment, but has now secured an award of her past medical expenses against the Second Injury Fund under § 287.220.5 RSMo. The question is whether employee is entitled to prejudgment interest on this award.

As recognized in Eason v. Treasurer of State, 371 S.W.3d 886 (Mo. App. 2012), the plain language of $\S 287.220 .5$ is silent regarding whether an employee may recover prejudgment interest on an award of past medical expenses from the Second Injury Fund. Id. at 891. This is true both before and after the 2005 amendments to the Missouri Workers' Compensation Law. But legislative silence on the question of prejudgment interest cannot be interpreted to mean the legislature intended to cut off such relief for injured employees. See McCormack v. Stewart Enters., 956 S.W.2d 310 (Mo. App. 1997). This is because the legislature would undoubtedly have been aware of Missouri's general interest statutes when it crafted the language of the Missouri Workers' Compensation Law. See § 408.020 RSMo. If the legislature intended to prohibit an award of prejudgment interest in the context of workers' compensation, it easily could have said so. As the McCormack and Eason courts reasoned, the failure of the legislature to address the issue of prejudgment interest means that Missouri's general interest statutes are applicable. See McCormack, 956 S.W.2d at 313; Eason, 371 S.W.3d at 891.

In rejecting Eason and McCormack, the majority reasons that the 2005 amendments work the effect that an employee can no longer recover an award of prejudgment interest on past medical expenses because of the requirement under § 287.800 RSMo to strictly construe the language of Chapter 287. The majority correctly cites the case law rule that "[a] strict construction of a statute presumes nothing that is not expressed." Carver v. Delta Innovative Servs., 379 S.W.3d 865, 874 (Mo. App. 2012)(citations omitted). But the majority then takes the unwarranted step of presuming that the legislature in 2005 intended to deprive an injured employee of relief in the form of prejudgment interest under $\S 287.220 .5$, where no such intention is expressed in the language of the statute. In other words, the majority can only reach the conclusion that it reaches herein by presuming something that is not expressed anywhere in the 2005 amendments.

I would apply $\S 408.020$ and the McCormack factors and find that employee met her burden of proving her entitlement to prejudgment interest. Employee showed that the expenses were due, because she paid for them; the amount of the claim is readily ascertainable, in that employee has provided the bills themselves; and employee has made a demand for payment by filing her claim for compensation against the Second Injury Fund. See McCormack, 956 S.W.2d at 314. Employee has met each of the requirements under $\S 408.020$ and is entitled to prejudgment interest on her medical expenses.

For the foregoing reasons, I would modify the award of the administrative law judge to find the Second Injury Fund liable for the payment of prejudgment interest on the award of past medical expenses. I respectfully dissent from that portion of the majority's decision denying employee's request for an award of prejudgment interest.

Curtis E. Chick, Jr., Member

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 1, 2005
5. State location where accident occurred or occupational disease was contracted: Saint Charles
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? No
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant was involved in a motor vehicle accident while operating a trolley.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: shoulder, neck and back
14. Nature and extent of any permanent disability: 40 % shoulder, 5 % back, 5 % neck
15. Compensation paid to-date for temporary disability: $\ 0.00
16. Value necessary medical aid paid to date by employer/insurer? $\ 0.00

1. Value necessary medical aid not furnished by employer/insurer? $\ 159,232.51
2. Employee's average weekly wages: $\ 148.85
3. Weekly compensation rate: $\ 99.23 for TTD/\$240.00 for PPD
4. Method wages computation: 30 -hour rule

1. Amount of compensation payable:

Unpaid medical expenses (including interest as provided by law):

$\ 159,232.51

22 5/7 weeks of temporary total disability (or temporary partial disability):

$\ 2,253.93

132.8 weeks of permanent partial disability from Employer

$\ 31,872.00

Total from Employer: $\quad \ 193,358.44

1. Second Injury Fund liability: Yes

19.2 weeks of permanent partial disability from Second Injury Fund

$\ 4,608.00

Uninsured medical benefits (excluding interest - see Award):

$\ 159,232.51

Total from Second Injury Fund: $\quad \ 163,840.51

1. Future requirements awarded: None.

Said payments to begin immediately 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 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Dean Christianson

The matter of Vickie Harrah ("Claimant") proceeded to hearing to determine the rights and obligations of the parties under the Missouri Workers' Compensation Act (the "Act"). Attorney Dean Christianson represented Claimant. Attorney Marcus Raymond represented Tour Saint Louis ("TSL" or "Employer"). Assistant Attorney General Rachael Houser represented the Second Injury Fund.

The parties stipulated that on or about September 1, 2005, Claimant sustained injury in a accident while operating a TSL vehicle. The parties also stipulated Employer had notice of an injury, Claimant filed her claim for compensation within the time prescribed by law, and venue is proper in the St. Louis office of the Division of Workers' Compensation. Finally, there is agreement that on the date of the accident, TSL was not insured for workers' compensation liability.

The issues to be resolved in this proceeding are:

1. Is Claimant an employee of TSL for workers' compensation purposes;
2. Is TSL is a covered employer under the Act;
3. Are Claimant's injuries medically caused by the accident of September 1, 2005;
4. Is Claimant entitled to payment of past medical bills in the amount of $\ 159,232.51;
5. Is Claimant is entitled to future medical care;
6. Is Claimant entitled to temporary total disability ("TTD") benefits from December 22, 2008 through September 30, 2009;
7. What is the average weekly wage, and corresponding rates of compensation;
8. What is Claimant's permanent partial disability ("PPD"); and
9. Is the Second Injury Fund liable for uninsured medical and/or disability benefits?

Claimant offered the following exhibits, which were admitted without objection:

A. Deposition of Dr. Volarich

B. Medical records of Northland Mid America Orthopedics

C. Medical records of St. Peters Family Medicine

D. Medical records of Dr. Milne

E. Medical records of Crosby Chiropractic

F. Medical records of Crosby Chiropractic

G. Medical records of Dr. Stahle

H. Medical records of DePaul Health Center

I. Medical records of Northwest Infectious Disease

J. Medical records of NYDIC Open MRI

K. Medical records of Radiology Consultants Midwest

L. Medical records of St. Charles Sports \& Physical Therapy

M. Medical records of Surgical Center of St. Louis

N. Medical records of St. Peters Open MRI

O. Medical records of Barnes-Jewish St. Peters Hospital

P. Medical records of Barnes-Jewish St. Peters Hospital

Q. Medical records of Optioncare Enterprise Inc.

R. Medical bills and summary

S. Police report

TSL offered the following exhibits, which were admitted without objection:

1. Contractor pay sheet
2. Letter from Unemployment
3. Year 2005 Form 1099
4. Correspondence between contractors
5. Release and trust agreement

The Second Injury Fund did not offer any exhibits.

Based upon the above exhibits, and the testimony of Claimant and other witnesses at hearing, I make the following findings.

Claimant is a 52-year-old woman who has been a bus driver for 35 years. Since 2003, she has worked during the school year for the Fort Zumwalt School District. She made $\ 12 per hour during the 2004-05 school year, working 35-40 hours per week.

In 2005, Claimant's friend Dianne told her about a job opportuni