Jerry Thomas v. EmployBridge d/b/a Pro Logistix

(Modifying Award and Decision of Administrative Law Judge)

Injury No.: 13-020058

Employee: Jerry E. Thomas

Employer: EmployBridge d/b/a Pro Logistix

Insurer: American Casualty Company of Reading, PA

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. We have reviewed the evidence, read the parties' briefs, and considered the whole record. Pursuant to $\S 286.090$ RSMo, we modify the award and decision of the administrative law judge. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

Costs under § 287.560 RSMo

The administrative law judge determined that employer defended this claim without reasonable ground and awarded attorney's fees to employee under § 287.560 RSMo, which provides, in pertinent part:

All costs under this section shall be approved by the division and paid out of the state treasury from the fund for the support of the Missouri division of workers' compensation; provided, however, that if 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 to award costs under the foregoing provision with caution and only where the case is clear and the offense egregious. Nolan v. Degussa Admixtures, Inc., 276 S.W.3d 332, 335 (Mo. App. 2009). As noted by the administrative law judge, the initial treatment records generated in connection with employee's medical care following the work injury suggest that he injured his left hand in a car door and not, as employee testified, in a machine while working at the premises of employer's client. This evidence, combined with the testimony from employer's witness Rick Cavallaro, raised legitimate questions with regard to the issue of accident. It was employee's burden to convince the fact finder that he sustained an accident at work; employer did not lack reasonable ground for challenging his ability to do so.

We find insufficient evidence on this record to support a finding that employer acted with the type of "egregious and outrageous conduct" exemplified in cases such as Monroe v. Wal-Mart Assocs., 163 S.W.3d 501, 506 (Mo. App. 2005) and Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 250 (Mo. 2003). For this reason, we modify the administrative law judge's award on this point. We conclude that employer did not

defend this claim without reasonable ground, and that employer is not liable for costs under § 287.560.

We note that in employer's brief, it challenges the administrative law judge's conclusion that employee's average weekly wage with employer entitles him to a compensation rate of $240.00. But employer did not, in its Application for Review, identify any error on the part of the administrative law judge with respect to this issue. As a result, the issue is not properly before us. See 8 CSR 20-3.030(3)(A), requiring an applicant for review to "state specifically in the application the reason the applicant believes the findings and conclusions of the administrative law judge on the controlling issues are not properly supported." See also *Stonecipher v. Poplar Bluff R1 Sch. Dist.*, 205 S.W.3d 326, 332 (Mo. App. 2006). For this reason, we will not disturb the administrative law judge's findings, analysis, or conclusions with respect to the issue of the appropriate rate of compensation herein.

We modify the award of the administrative law judge as to the issue whether employer is liable for costs under § 287.560 RSMo. Employer is not liable for employee's attorney's fees, because employer did not defend this claim without reasonable ground.

The award and decision of Administrative Law Judge Emily S. Fowler, issued November 19, 2013, is attached and incorporated by this reference to the extent not inconsistent with our award and decision herein.

The Commission approves and affirms the administrative law judge's allowance of an 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 6th day of May 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

DISSENTING OPINION FILED

Curtis E. Chick, Jr., Member

Attest:

Secretary

Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge awarding costs under § 287.560 RSMo against this employer should be affirmed.

As its rationale for reversing the award of costs, the majority cites the fact that contemporaneous medical records report employee having shut his hand in a car door, rather than having injured himself while working for employer. The majority posits that this circumstance provided employer with a reasonable ground for its denial of this claim. I find a number of problems with this.

First, the majority ignores the case law which holds that " $[t]$ here is no requirement that the medical records report employment as the source of injury." Daly v. Powell Distrib., Inc., 328 S.W.3d 254, 259 (Mo. App. 2010). There are many good reasons for this rule, the most compelling of which is that the unsworn statements of the oftentimes unidentified individuals within the healthcare system who create these records simply are not entitled to more weight than the sworn and cross-examined testimony of an employee before an administrative law judge. Especially here, where we are dealing with records generated in the course of employee's treatment in the emergency department of a large hospital, the reliability of these hearsay statements strikes me as highly suspect.

The majority also ignores employee's testimony that he was in shock when he arrived at the hospital. As the administrative law judge noted, contemporaneous photographs of the violent mutilation of the middle finger on employee's left hand are included in evidence. Especially in light of this evidence, I find eminently credible employee's testimony that he was in shock and that he wasn't really aware of what he initially said or did once he arrived at the hospital. If indeed employee did tell the emergency personnel and treating physicians that he injured his hand in a car door, he did so because he was in shock and was not fully aware of what was taking place. I also agree with the administrative law judge's assessment that there is no possible way that employee could have suffered the injury seen in these photographs by shutting his hand in a car door. For these reasons, along with the fact that the medical records reveal employee still had his work glove on his left hand when he arrived at the hospital, and the admissions on the part of employer's sole witness that he discovered blood on the floor where employee was working, I conclude that the issue is clear, and that employer had no reasonable ground whatsoever for disputing the issue of accident.

Second, the majority ignores that employer waited until the day of the hearing to dispute the issue of notice, and thereafter failed to present any evidence that would support a finding that employee failed to provide written notice or that employer was prejudiced as a result. As the administrative law judge points out, employer had absolutely no ground for disputing this issue where the records of the Division of Workers' Compensation reveal that it received a copy of employee's claim for compensation within thirty days of the injury, because that document unquestionably amounted to written notice of

Employee's injury meeting each of the criteria required under § 287.420 RSMo. At minimum, employer has unreasonably defended this claim with respect to the issue of notice, and thus an award of costs is proper.

Third, the majority ignores that in its brief to this Commission, employer acts egregiously in misstating the record. For example, on page 7 of its brief, employer asserts that its witness, the supervisor Rick Cavallaro, testified that there was no blood on the machine where employee was working, but fails to note that this witness also specifically testified that he didn't even check the machine. See Transcript, page 112. Employer's lack of candor toward this tribunal reveals an absence of good faith and is emblematic of the type of behavior that an award of costs under $\S 287.560$ is designed to prevent.

I would affirm the award of the administrative law judge ordering employer to pay attorney's fees for its unreasonable and egregious behavior in defending this claim. Because the majority has determined otherwise, I respectfully dissent from that part of the Commission's decision.

Curtis E. Chick, Jr., Member

Employee: Jerry E. Thomas

Injury No: 13-020058

Dependents: N/A

Employer: EmployBridge d/b/a Pro Logistix

Insurer: American Casualty Company of Reading, PA/Gallagher Bassett Services, Inc.

Additional Party: N/A

Hearing Date: October 7, 2013

Checked by: ESF/pd

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: March 14, 2013
5. State location where accident occurred or occupational disease was contracted: Kansas City, Jackson 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 operating a milling machine when it jammed. While attempting to free the jam, his left hand was injured by the milling head.
12. Did accident or occupational disease cause death? No

Date of death? N/A

1. Part(s) of body injured by accident or occupational disease: Amputation of middle finger on left hand
2. Nature and extent of any permanent disability: Not determined at this time
3. Compensation paid to-date for temporary disability: $\ 0
4. Value necessary medical aid paid to date by employer/insurer? $\ 0
5. Value necessary medical aid not furnished by employer/insurer? \24,395.94
6. Employee's average weekly wages: \ 360.00
7. Weekly compensation rate $\$ \$ 240.00 / \ 240.00
8. Method wages computation: by evidence

1. Amount of compensation payable: Temporary benefits for 3 weeks at $\ 240.00 per week for a total of $\ 720.00. Medical aid in the amount of $\ 24,395.94
2. Future requirements awarded: future medical which shall cure and relieve the effects of Employee's injury to his left middle finger and shall include but not limited to prosthesis.

Costs shall be assessed against Employer for defending this claim on unreasonable grounds and shall be paid as attorney fees of 25 % of all benefits awarded herein for a total of $\ 6,278.99 to be paid above and beyond the medical costs and temporary total disability to be paid to Employee.

Employee: Jerry E. Thomas

Injury No: 13-020058

Dependents: N/A

Employer: EmployBridge d/b/a Pro Logistix

Insurer: American Casualty Company of Reading, PA/Gallagher Bassett Services, Inc.

Additional Party: N/A

Hearing Date: October 7, 2013

Checked by: ESF/pd

On October 7, 2013 the Employee and the Employer/Insurer appeared for a hardship hearing. The Division