David King v. American Employer Group III d/b/a Service Stars, LLC

(Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)

Injury No. 13-063318

Employee: David King

Employer: American Employer Group III

d/b/a Service Stars, LLC

Insurer: Sunz Insurance Company

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund (Open)

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. Having read the briefs, reviewed the evidence, heard the parties' arguments, and considered the whole record, we find that the award of the administrative law judge allowing compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge with this supplemental opinion.

Average weekly wage deemed admitted under 8 CSR 50-2.010(8)(B)

The Division of Workers' Compensation (Division) acknowledged employee's claim for compensation on September 3, 2013. Employer filed its answer to employee's claim for compensation on October 11, 2013. As a result, we agree with the administrative law judge's determination that under 8 CSR 50-2.010(8)(B), employer is deemed to have admitted the statements of fact contained in employee's claim for compensation, which includes employee's identification of "sufficient for max rate" as his average weekly wage. See T.H. v. Sonic Drive in of High Ridge, 388 S.W.3d 585 (Mo. App. 2012).

To avoid this result, employer argues that employee's claim for compensation was "ineffectively filed" because employee sent it to the wrong address and failed to send it via certified mail. Employer does not cite any authority for the proposition that employee was required to send his claim for compensation to employer. ${ }^{1}$ This is understandable, as the applicable regulations at 8 CSR 50-2.010(7) and (8) require only that the employee file his claim for compensation with the Division, and the Division is then tasked with forwarding copies to the employer and its insurer, or third-party administrator, if applicable. It appears, therefore, that the appropriate question is not whether employee filed an "ineffective" claim for compensation, but whether the Division failed to satisfy its obligation to timely notify employer of employee's claim for compensation, such that employer's failure to file an answer within 30 days should be excused. We are not convinced, for the following reasons.

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[^0]: ${ }^{1}$ Employer does cite 8 CSR 50-2.010(12)(C) as standing for the proposition that employee should have sent a copy of his claim for compensation to employer via certified mail, but that regulation speaks to the type of notice the Division must send to parties (particularly in cases where a claim for compensation is dismissed or a default award is issued) and does not suggest any duty on the part of an employee to send a claim for compensation to an employer, via certified mail or otherwise, and thus is in no way supportive of employer's arguments herein.

Improve: David King

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It was employer's burden to prove that it did not timely receive a copy of employee's claim for compensation. *Ward v. Mid-America Fittings*, 974 S.W.2d 586, 588 (Mo. App. 1998). The only evidence employer presented on this issue was testimony from Rolf Rathmann, employee's supervisor. Mr. Rathmann testified that he had not ever personally seen employee's claim for compensation, but did not offer any foundational testimony to suggest that he would have been the individual with employer who was actually designated to receive or handle such mailings from the Division. Elsewhere in his testimony, Mr. Rathmann indicated that "another department" would be in charge of dealing with workers' compensation issues such as whether to take steps to have employee sent for authorized medical treatment. The fact that Mr. Rathmann did not ever personally see employee's claim for compensation thus appears to be largely irrelevant, and there is no other evidence on this record that would permit us to make any finding as to when employer received employee's claim for compensation, much less that the Division failed to send it to employer in a timely manner.

Nevertheless, employer asks us to assume that it did not timely receive a copy of employee's claim for compensation, based on its argument that employee incorrectly identified 2342 LaSalle Street, St. Louis, MO 63104 as employer's mailing address in his claim for compensation, pointing to Mr. Rathmann's testimony that the correct address as of August 2013 would have been 222 S. 21st Street, St. Louis, MO 63103. Yet, in employer's answer filed with the Division on October 11, 2013, employer listed 2342 LaSalle Street, St. Louis, MO 63104 as its mailing address. Employer cannot reasonably complain that others used the 2342 LaSalle Street address where employer itself identified that address as correct as late as October 2013.

Perhaps more importantly, it is uncontested that employer had immediate and actual notice, through Mr. Rathmann, of employee's accident of August 10, 2013, that the accident rendered employee unable to work for employer, and that as a result of the accident, employee was in need of medical treatment. It is further uncontested that Mr. Rathmann knew at least as of August 29, 2013, that employee had retained legal counsel and was seeking to exercise his rights under the Missouri Workers' Compensation Law. Yet, employer did not file a report of injury in this matter until January 20, 2014, thus violating § 287.380 RSMo, which placed a duty upon employer to notify the Division of employee's injury within 30 days of the employer's obtaining knowledge of the injury. If employer had timely filed its notice of injury with the Division, it is likely that any confusion on the part of the Division with respect to employer's correct mailing address could have been reasonably rectified.

Finally, we note that employer was not without a remedy if in fact it did not receive timely notice of employee's claim for compensation. Under 8 CSR 50-2.010(8)(A), employer could have filed with the Division an application for an extension of time to answer employee's claim for compensation, and for good cause shown, that application would have been granted. That employer declined to make use of the provisions of 8 CSR 50-2.010(8)(A) suggests either a failure to timely exercise its rights under that

2 Elsewhere in his testimony, Mr. Rathmann admitted that in business emails he sent for the employer in late August 2013, his signature block included the 2342 LaSalle Street address.

3 We note that employer's answer also lists the employer as "American Employer Group d/b/a Service Stars," belying employer's related argument that employee failed to identify the correct corporate entity in his claim for compensation.

Imployee: David King

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regulation or an implied concession that it lacked good cause for such an extension. Either possibility does nothing to advance employer's arguments herein.

In sum, employer has failed to provide any evidence to suggest (let alone prove) that the Division failed to timely notify it of the filing of employee's claim for compensation. As a result, we discern no basis for disturbing the administrative law judge's conclusion that the statements of fact in employee's claim for compensation shall be deemed admitted by the employer by application of 8 CSR 50-2.010(8)(B).

Costs under § 287.560 RSMo

Section 287.560 RSMo authorizes an assessment of the whole cost of the proceedings (including attorney's fees) upon the party that brings, prosecutes, or defends any proceedings without reasonable ground. See Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 252 (Mo. 2003). We are not unsympathetic to employee's argument that employer unreasonably defends this matter in arguing that employee's workers' compensation benefits should be deemed forfeited under § 287.120.6(3) RSMo where there is no dispute that employer gave employee an option whether to (1) take a drug test after his work accident or (2) sign a document which purported to constitute a waiver of his workers' compensation benefits and which made no mention whatsoever of a drug test or refusal to test. We will defer the issue of costs, however, until a final award can be entered in this matter.

Decision

We affirm and adopt the findings, conclusions, decision, and award of the administrative law judge to the extent they are not inconsistent with this supplemental opinion.

The award and decision of Administrative Law Judge Suzette Carlisle, issued August 1, 2014, is attached and incorporated by this reference.

This award is only temporary or partial. It 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.

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

Given at Jefferson City, State of Missouri, this 30th day of December 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: David King

Dependents: N/A

Employer: American Employer Group III- d/b/a Service Stars, LLC.

Additional (Open)

Insurer: Sunz Insurance Company

Hearing Date: May 13, 2014

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

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: August 10, 2013
5. State location where accident occurred or occupational disease contracted: St. Louis County
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 happened or occupational disease contracted: Claimant slipped, fell, and injured his low back.
12. Did accident or occupational disease cause death? No
13. Parts of body injured by accident or occupational disease: Low back
14. Compensation paid to-date for temporary disability: $\ 0
15. Value necessary medical aid paid to date by employer/insurer? $\ 3,564.57
16. Value necessary medical aid not furnished by employer/insurer? N/A

Employee: David King

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: Sufficient for maximum rate
3. Weekly compensation rate: $\ 853.08
4. Method wages computation: Pursuant to 8 C.S.R. 50-2.010(8) and Aldridge v. Southern Missouri Gas Co., 131 S.W.3d 876 (Mo.App. 2004).

1. Amount of compensation payable:

Unpaid medical expenses:

$362 / 7 weeks of temporary total disability

\ 30,954.62

TOTAL:

$\ 30,954.62

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 25 % of all payments hereunder in favor of the following attorney for necessary legal services ren