Stephen Marino v. Greystone Partners, Inc.

1. The E.W. court reasoned that " $[t]$ he need to distinguish extraordinary mental stress from ordinary day-to-day stress is not applicable to a mental injury arising from a traumatic event, so it is understandable why the legislature did not require proof of extraordinary and unusual stress for compensation of a claim for mental injury resulting from a traumatic incident." Id. at 536.

Instead, the appropriate question in this case is whether employee proved that he suffered a compensable injury by accident for purposes of § 287.120.1 RSMo. Jones v. Washington Univ., 199 S.W.3d 793 (Mo. App. 2006). Because the parties disputed the issues of accident, medical causation, and injury arising out of and in the course of employment, it was necessary for employee to satisfy his burden of proof with respect to each of these issues in order to prove that his mental injury by accident was compensable under § 287.120.1.

In that regard, we note that employee's case turns, to a large degree, on whether his evidence is deemed credible and persuasive. This includes the expert medical opinion evidence employee advanced in support of his claim, as well as employee's own testimony regarding the (alleged) effect that the incident of December 18, 1998, had upon him. The administrative law judge rendered extensive, thorough, and thoughtful findings with regard to the credibility and weight he gave to all of this evidence. After careful consideration, we are not persuaded to disturb these findings from the administrative law judge.

Accordingly, and because the administrative law judge determined that employee's evidence is not persuasive with respect to the issue of medical causation, we conclude that employee's work was not a substantial factor causing employee to suffer any resulting medical condition or disability. For this reason, the claim is denied, and all other issues are moot.

We affirm and adopt the award of the administrative law judge as supplemented herein.

The award and decision of Administrative Law Judge John K. Ottenad, issued May 13, 2014, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this $\qquad 17^{\text {th }} \qquad$ day of March 2016.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? No
4. Date of accident or onset of occupational disease: (allegedly) December 18, 1998
5. State location where accident occurred or occupational disease was 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? No
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: Claimant was a property manager for Employer and allegedly became unable to work anymore as a result of an altercation he witnessed on the property he managed.
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: (allegedly) Body as a Whole—Psychiatric (Mental injury)
14. Nature and extent of any permanent disability: N/A
15. Compensation paid to-date for temporary disability: $\ 0.00
16. Value necessary medical aid paid to date by employer/insurer? $\ 0.00

Employee: Stephen Marino Injury No.: 99-182337

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: Sufficient to result in the applicable rates of compensation
3. Weekly compensation rate: $\ 562.67 for TTD/\$294.73 for PPD
4. Method wages computation: By agreement (stipulation) of the parties

1. Amount of compensation payable:

Employer/Insurer previously settled its risk of liability

1. Second Injury Fund liability:

Claim denied $\ 0.00

TOTAL: $\mathbf{\$ 0 . 0 0}$

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: Ellen E. Morgan.

Employee: Stephen Marino

Dependents: N/A

Employer: Greystone Partners, Inc. (Settled)

Additional Party: Second Injury Fund

Insurer: Lumbermens Mutual Casualty Company

C/O Broadspire Services, Inc. (Settled)

Injury No.: 99-182337

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JKO

On February 8, 2013, the employee, Stephen Marino (Claimant), appeared in person and by his attorney, Ms. Ellen E. Morgan, for a hearing for a final award on his claim against the Second Injury Fund. The employer, Greystone Partners, Inc. (Employer), and its insurer, Lumbermens Mutual Casualty Company C/O Broadspire Services, Inc., were not present or represented at the hearing since they had previously settled their risk of liability in this case. The Second Injury Fund was represented at the hearing by Assistant Attorney General Michael Finneran.

To allow the parties time to prepare and file their proposed awards or briefs in this matter, if they chose to do so, the record did not technically close until March 10, 2013. Although we did not go back on the record or take any further evidence in this matter after the initial hearing date, the record was, then, closed on that date and the briefs were submitted by the parties by that date.

At the time of the hearing, the parties agreed on certain stipulated facts and identified the issues in dispute. These stipulations and the disputed issues, together with the findings of fact and rulings of law, are set forth below as follows:

1) On or about December 18, $1998^{1}$, Claimant allegedly sustained an accidental injury and/or occupational disease.

2) Claimant was an employee of Greystone Partners, Inc. (Employer).

3) Venue is proper in the City of St. Louis.

4) Employer received proper notice.

[^0]

[^0]: ${ }^{1}$ When Claimant filed his Claim for Compensation in this matter, he alleged a date of injury of February 28, 1999. Based on that alleged date of injury, the Division assigned an Injury Number beginning with "99." At the time of hearing, based presumably on the evidence that they anticipated being offered into the record, the parties stipulated to a new alleged date of injury of December 18, 1998, while still keeping the original "99" Injury Number previously assigned by the Division.

5) The Claim was filed within the time prescribed by law.

6) At the relevant time, Claimant earned an average weekly wage sufficient to result in applicable rates of compensation of $\ 562.67 for total disability benefits and $\ 294.73 for permanent partial disability (PPD) benefits.

7) Employer has not paid any temporary total disability (TTD) benefits in this case.

8) Employer has not paid any medical benefits in this case.

1) Did Claimant sustain an accident and/or occupational disease?

2) Did the accident and/or occupational disease arise out of and in the course of Claimant's employment for Employer?

3) Are Claimant's injuries and continuing complaints medically causally connected to his alleged accident and/or occupational disease at work on or about December 18, 1998?

4) What is the nature and extent, if any, of Claimant's permanent partial and/or permanent total disability attributable to this injury?

5) What is the liability, if any, of the Second Injury Fund?

The following exhibits were admitted into evidence:

A) Deposition of Dr. Adam Sky, with attachments, dated May 13, 2011

B) Deposition of Dr. Reuben Schnayer, with attachments, dated June 1, 2011

C) De