Ivan Fall v. Matt Miller Co., Inc. d/b/a Red Door Construction

On November 13, 2013, employee filed a Motion For Costs arguing the employer's Application For Review does not raise an argument premised on any evidence in the record or supported by any legal authority. In the Motion, employee argues that employer ignores controlling case law authority as to the issue of notice and relies upon substantive amendments to Chapter 287 that did not take effect until January 2014. Employee suggests employer's arguments are not tendered to this Commission in good faith. Employee alleges that his costs in responding to employer's Application for Review amount to $\ 1,200.00, representing 6 hours of work on the part of his attorney at an hourly rate of $\ 200.00.

The Commission has not received any response from the employer to employee's Motion For Costs.

Section 287.560 RSMo provides, in relevant part, as follows:

[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.

The Commission is authorized under the foregoing section to award the attorney's fees incurred by a party in responding to proceedings that are brought, prosecuted, or defended without reasonable grounds: "[t]he 'whole cost of the proceedings' includes all amounts the innocent party expended throughout the proceeding brought, prosecuted, or defended without reasonable grounds, including attorney's fees." DeLong v. Hampton Envelope Co., 149 S.W.3d 549, 555 (Mo. App. 2004)(citation omitted).

The courts have cautioned the Commission to limit an award of costs under § 287.560 to those cases where "the issue is clear and the offense egregious." Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 250 (Mo. 2003). Here, we are convinced that the issue is clear, because employer's position quite simply finds no evidentiary support whatsoever in the record. Rather, the uncontested lay testimony and expert medical opinion evidence overwhelmingly supports the administrative law judge's conclusion that employee suffered an occupational disease and is entitled to benefits. Employee is also correct in pointing out that employer, having appealed the issue of notice, wholly ignores the relevant and controlling precedent of Allcorn v. Tap Enters., 277 S.W.3d 823 (Mo. App. 2009), the holding of which is inarguably dispositive.

We are further convinced that the offense is egregious. In its brief and at oral argument in this matter, employer failed to advance a single colorable argument that would support our disturbing the administrative law judge's award in any way. Employer's counsel conceded that employer did not provide any expert medical testimony to rebut that advanced by employee, but argued that the issue in this case is whether the Commission can rely on "pure opinion" evidence in resolving issues of medical causation. We are perplexed by this statement, as it seems to ignore fifty years of Missouri case law cautioning that "the question of causation [is] one for medical testimony, without which a finding for claimant would be based on mere conjecture and speculation and not on

Substantial evidence." Welker v. MFA Cent. Co-operative, 380 S.W.2d 481, 487 (Mo. App. 1964). Employer's citation to recent and substantive amendments to Chapter 287 that are in no way applicable to this claim, and its failure to direct us to relevant and controlling legal authority with respect to the issue of notice are further suggestive of the lack of good faith with which employer approaches this Commission. Accordingly, we find that employer's conduct before the Commission is egregious.

In light of the foregoing considerations, we conclude that employer's appeal to the Commission is without reasonable grounds. We conclude that the whole cost of these proceedings should be assessed against employer. We find that $1,200.00 represents a fair and reasonable charge for services rendered by employee's attorney in responding to employer's Application for Review. We conclude that employer is liable to employee for $1,200.00 in attorney's fees as the whole cost expended by employee in responding to employer's appeal herein.

**Conclusion**

We affirm and adopt the award of the administrative law judge with this supplemental opinion.

Employee is entitled to, and employer is hereby ordered to pay, $1,200.00 in attorney's fees representing employee's costs in responding to employer's appeal herein.

The award and decision of Administrative Law Judge L. Timothy Wilson, issued July 19, 2013, is attached and incorporated by this reference.

The Commission approves and affirms as fair and reasonable the administrative law judge's allowance of a 25% lien in favor of employee's attorney on compensation awarded herein.

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

Given at Jefferson City, State of Missouri, this 17th day of March 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Ivan Fall

Injury No. 08-118155

Dependents: N/A

Employer: Matt Miller Co., Inc. d/b/a Red Door Construction

Insurer: Carolina Casualty Insurance Co.

Additional Party: N/A

Hearing Date: May 6, 2013

Checked by: LTW

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: April 11, 2008
5. State location where accident occurred or occupational disease was contracted: Greene County, MO
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: While engaged in employment with the Employer, Employee experienced occupational exposure to anhydrous ammonia, which caused him to sustain an injury to his upper lobe and resulted in him suffering an injury in the nature of asthma, in the form of reactive airways disease.
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: BAW (Asthma / Reactive Airways Disease)
14. Nature and extent of any permanent disability: 15 % ppd
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer? None
17. Value necessary medical aid not furnished by employer/insurer? \$4,997.97

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Ivan Fall

1. Employee's average weekly wages: $\ 480.00
2. Weekly compensation rate: $\ 320.00 (TTD / PPD)
3. Method wages computation: Stipulation

1. Amount of compensation payable:

Unpaid medical expenses: $\ 4,997.97

Future medical care is awarded.

(See Award)

60 weeks of permanent partial disability from Employer \& Insurer: $\ 19,200.00

Weeks of disfigurement from Employer: ..... N/A

Permanent total disability benefits from Employer \& Insurer: ..... N/A

1. Second Injury Fund liability: N/A

TOTAL: $\mathbf{\$ 2 4 , 1 9 7 . 9 7}$, plus future medical care

1. Future requirements awarded: Yes (See Award)

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 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Randy Alberhasky, Esq.

Employee: Ivan Fall

Injury No. 08-118155

Dependents: N/A

Employer: Matt Miller Co., Inc. d/b/a Red Door Construction

Insurer: Carolina Casualty Insurance Co.

Additional Party: N/A

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on May 6, 2013. The parties were afforded an opportunity to submit briefs or proposed awards, resulting in the record being completed and submitted to the undersigned on or about May 28, 2013.

The employee appeared personally and through his attorney, Randy Alberhasky, Esq. The employer and insurer appeared through their attorney, John Wendler, Esq.

The parties entered into a stipulation of facts. The stipulation is as follows:

(1) On or about April 11, 2008, Matt Miller Co., Inc. d/b/a Red Door Construction was an employer operating under and subject to The Missouri Workers' Compensation Law, and d