Paul Brown v. Domino's Pizza/MBR Management Corporation

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 12-052588

Employee: Paul Brown

Employer: Domino's Pizza/MBR Management Corporation

Insurer: American Family Mutual Insurance Company

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 § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated August 15, 2016. The award and decision of Administrative Law Judge John K. Ottenad, issued August 15, 2016, 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 $\qquad 15^{\text {th }} \qquad$ day of December 2016.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Paul Brown

Injury No.: 12-052588

Dependents: N/A

Employer: Domino's Pizza/MBR Management Corporation

Additional Party: Second Injury Fund

Insurer: American Family Mutual Insurance Company

Hearing Date: February 18, 2016

Record Closed on March 19, 2016

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JKO

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: July 8, 2012
5. State location where accident occurred or occupational disease was contracted: Lincoln 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 occurred or occupational disease contracted: Claimant worked as a general manager for Employer at one of their pizza stores and injured his body as a whole, as a result of heat exhaustion from the excessive temperatures in the pizza shop.
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: Body as a Whole
14. Nature and extent of any permanent disability: 8.75 % of the Body as a Whole
15. Compensation paid to-date for temporary disability: $\ 0.00
16. Value necessary medical aid paid to date by employer/insurer? $\ 8,906.59

Employee: Paul Brown Injury No.: 12-052588

1. Value necessary medical aid not furnished by employer/insurer? $\ 32,457.90
2. Employee's average weekly wages: $\ 525.00
3. Weekly compensation rate: $\ 350.00 for TTD/ $\ 350.00 for PPD
4. Method wages computation: By agreement (stipulation) of the parties

1. Amount of compensation payable:

Past medical expenses $\ 32,457.90

35 weeks of permanent partial disability $\ 12,250.00

1. Second Injury Fund liability:

Voluntarily dismissed by Claimant on the record at the time of the hearing

TOTAL: $\mathbf{\$ 4 4 , 7 0 7 . 9 0}$

1. Future requirements awarded: N/A

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: Andrew H. Marty.

Employee: Paul Brown

Injury No.: 12-052588

Dependents: N/A

Employer: Domino's Pizza/MBR Management Corporation

Additional Party: Second Injury Fund

Insurer: American Family Mutual Insurance Company

Checked by: JKO

On February 18, 2016, the employee, Paul Brown (Claimant), appeared in person and by his attorney, Mr. Andrew H. Marty, for a hearing for a final award on his claim against the employer, Domino's Pizza/MBR Management Corporation (Employer), and its insurer, American Family Mutual Insurance Company. The employer, Domino's Pizza/MBR Management Corporation, and its insurer, American Family Mutual Insurance Company, were represented at the hearing by their attorney, Ms. Peggy Hecht. The Second Injury Fund is a party to this case and was dismissed voluntarily by Claimant on the record at the time of the hearing.

To allow the parties time to prepare and file their proposed awards or briefs in this matter, the record did not technically close until March 19, 2016. Although we did not go back on the record or take any additional evidence in this matter, the record was, then, closed on March 19, 2016 and the briefs were submitted by the parties by April 1, 2016, after an additional request for an extension of time was filed by the parties and granted.

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 July 8, 2012, Paul Brown (Claimant) sustained an accidental injury arising out of and in the course of employment that resulted in injury to Claimant.

2) Claimant was an employee of Domino's Pizza/MBR Management Corporation (Employer).

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

4) Employer received proper notice.

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

6) At the relevant time, Claimant earned an average weekly wage of $\ 525.00, resulting in applicable rates of compensation of $\ 350.00 for total disability benefits and $\ 350.00 for permanent partial disability benefits.

7) Employer paid no temporary total disability benefits to date.

8) Employer paid medical benefits totaling $\ 8,906.59.

1) Are Claimant's complaints and diagnoses, that led to the treatment he secured during the second hospitalization, medically causally connected to his accident at work for Employer on July 8, 2012?

2) Is Employer liable for past medical benefits in the stipulated amount of $\ 32,457.90 ?

3) What is the nature and extent of Claimant's permanent partial disability attributable to this injury?

The following exhibits were admitted into evidence:

1. Certified medical treatment records of Dr. Pedro Padilla
2. Medical treatment records of St. Joseph Hospital West
3. Deposition of Dr. David Volarich, with attachments, dated October 30, 2015

A. Medical report of Dr. Marcos Rothstein

B. Correspondence from the attorney for St. Joseph Hospital West to the attorney for Employer/Insurer dated January 6, 2016

Note: Any stray marks or handwritten comments contained on any of the exhibits were present on those exhibits at the time they were admitted into evidence, and no other marks have been made since their admission into evidence on February 18, 2016.

Based on a comprehensive review of the evidence, including Claimant's testimony, the expert medical opinion, the medical treatment records and bills, and the other documentary evidence in this matter, as well as based on my personal observations of Claimant at hearing, I find:

1) Claimant is a 39-year-old man, who was employed by Domino's Pizza/MBR Management Corporation (Employer) as a general manager at their store in Troy, Missouri at or about the time of his accident on July 8, 2012. He had worked for Employer for 2 to $21 / 2$ years prior, answering phones, making pizzas and delivering them. As the general manager, he was responsible for scheduling, making/cutting pizzas, doing paperwork and supervising the route drivers. He generally worked five days a week from 9:30 a.m. to 7:00 or 8:00 p.m., and, then, Sunday from 4:00 p.m. until 1:00 or 2:00 a.m. Based on his prior experience working in the pizza making/delivering industry, he said that he wanted to make sure the store he worked at had an air conditioner that worked, because some stores had none and the temperatures would top 100 degrees in the summer between the heat outside and the heat coming from the pizza ovens. He testified that the store in Troy, Missouri, where he worked, had an air conditioner, but it was not working very well.

2) Claimant explained that the heat was greatest by the pizza ovens and the temperature by the ovens was always higher than what showed on the thermostat that was hanging by the office. He testified that there was a conveyor oven (top and bottom) for baking two pizzas at a time, which were set to 490 degrees. During the summer of 2012, at or around the time of his injury, Claimant testified that the temperature outside was in the mid-100 degrees, and inside, 95 degrees was the lowest he saw on the thermostat.

3) Claimant noted that he had asked his boss many times to fix the air conditioning in the store before July 8,2012 , but he was told that it was not a high priority for his boss because there were other stores that did not have any air conditioning at all. He said that he often worked with cold rags on his neck or he would step into the cooler to try to cool off from the excessive heat in the store.

4) Claimant testified that 2012 was a really hot summer. By July 8, 2012, he had been working all week in the excessive heat in the store and progressively felt worse as the week continued. He said he felt dizzy, nauseous, weak and lightheaded. He called his supervisor to report his complaints and the supervisor told him to go to the hospital, so he went to St. Joseph Hospital West.

5) Medical treatment records from St. Joseph Hospital West (Exhibit 2) document Claimant's admission to that facility on July 8, 2012 for complaints of general malaise, dizziness, nausea, being very tired and having worked in 97-degree temperatures for four days. He was diagnosed and treated for heat exhaustion, as well as acute renal failure and dehydration. He was also found to have iron deficiency anemia, so he received a battery of tests, including a colonoscopy and upper endoscopy. He was discharged from the hospital on July 11, 2012. Among the

secondary diagnoses listed on the summary sheet from the hospital are, "Accident caused by excessive heat due to weather conditions" and "Injury or poisoning occurring at/in public building." These secondary diagnoses suggest to me that the doctors treating Claimant at the hospital related the need for his admission and treatment to the heat exhaustion and heat exposure he had been exposed to at work for the days leading up to July 8, 2012.

6) Claimant testified that after his hospital admission, he took the rest of the week off and returned to work for Employer the following Monday. He admitted that his kidney function had returned to normal when he was released from the hospital the first time. He said that on Monday and Tuesday when he worked, he noticed that the heat was decreased in the store and the air conditioning was working better, but it was still hot, with the thermostat in the 80s. He took off Wednesday because he started progressively feeling bad again (nauseous and lightheaded), and, then, he went back to the hospital, as he was told to do at discharge, if he started feeling bad again.

7) Medical treatment records from St. Joseph Hospital West (Exhibit 2) document his second admission on July 19, 2012 for a diagnosis of acute renal failure, which the doctor characte