Matthew Hembree v. John Jamison & Co., LLC

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

Injury No.: 14-058646

Employee: Matthew Hembree

Employer: John Jamison \& Co., LLC

Insurer: Missouri Employers Mutual Insurance Company

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. Having reviewed the evidence, read the parties' briefs, 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.

The parties asked the administrative law judge to determine whether employee is entitled to future medical care provided by the employer pursuant to $\S 287.140$ RSMo, which states, in relevant part, as follows:

1. In addition to all other compensation paid to the employee under this section, the employee shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury. ...
2. The employer shall have the right to select the licensed treating physician, surgeon, chiropractic physician, or other health care provider; provided, however, that such physicians, surgeons or other health care providers shall offer only those services authorized within the scope of their licenses. For the purpose of this subsection, subsection 2 of section 287.030 shall not apply.

The administrative law judge thoroughly discussed and capably sorted through the conflicting expert medical testimony with respect to this issue, and found employee's expert, Dr. Mitchell Mullins, more credible. The administrative law judge additionally credited employee's testimony with regard to the nature of his ongoing complaints. Consistent with these findings, the administrative law judge ordered employer to provide employee with such additional or future medical care as recommended by Dr. Mullins, and which is reasonable, necessary, and causally related to the work injury.

Employer appeals, arguing that the administrative law judge, in specifically incorporating the recommendations from Dr. Mullins, has deprived employer of its statutory right to

Select the authorized treating physician. We disagree. The administrative law judge did not order that employee's future medical treatment must be directed by a particular physician or medical provider; rather, the administrative law judge merely satisfied his fact-finding duty with regard to the conflicting evidence, and determined that Dr. Mullins provided the more credible account of the future medical requirements employee may reasonably require as a result of the work injury.

Of course, employer is obligated, pursuant to the award, to select and authorize physicians and other medical providers that will accept the facts of this case as found by the administrative law judge, including his findings with regard to the nature and severity of the injury employee suffered, as well as the determination (consistent with Dr. Mullins's recommendations and testimony) that employee remains in need of ongoing care. While this may constrain, somewhat, employer's choice of provider (e.g. employer obviously cannot comply with the award by sending employee to a provider, like Dr. Woodward, who believes employee has no further need for treatment as a result of the work injury), this is the practical result of every award of future medical treatment issued against an employer, where conflicting evidence is advanced with regard to whether the employee needs any treatment at all.

Stated simply, acceptance of Dr. Mullins's testimony and recommendations by the administrative law judge was not only appropriate to resolve the issue, but also serves to provide necessary guidance for the parties as to the manner in which employer may satisfy its obligations with respect to the award of future medical treatment. For these reasons, we decline to disturb, in any fashion, the administrative law judge's wellreasoned findings, analysis, conclusions, and award with respect to future medical care.

The parties asked the administrative law judge to determine the appropriate average weekly wage and corresponding rates of compensation. The administrative law judge noted that employee was paid by the hour, and accordingly applied § 287.250.1(4) RSMo to determine the appropriate average weekly wage. In his calculations, the administrative law judge excluded one week, owing to the evidence that employee was absent 5 or more regular or scheduled work days during the applicable time period. Specifically, employee's Exhibit 2 suggests employee was absent at least 5 regular or scheduled work days, and employee's Exhibit 3 (admitted without objection) makes clear that employee was absent a total of 7 days during the applicable 13-week period. As employee's credible testimony makes clear, these absences were the product of employer sending employee home without pay on days that he, nevertheless, showed up to work his regularly scheduled shift.

In light of this evidence, the administrative law judge reasoned he was authorized to exclude one week from his calculations pursuant to the caveat under § 287.250.1(4) that "[f]or purposes of computing the average weekly wage pursuant to this subdivision, absence of five regular or scheduled work days, even if not in the same calendar week, shall be considered as absence for a calendar week." The administrative law judge accordingly divided employee's gross earnings during the 13-week period preceding the injury by 12 , rather than 13 , to account for such absences.

Employee: Matthew Hembree

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Employer appeals, arguing that the "absences" mentioned in the above-quoted provision refer only to an employee's failure to report for regularly scheduled work. Employer notes the uncontested evidence that employee showed up for work every regular and scheduled workday; employer argues, therefore, that employee was never "absent," and the days employer failed to provide him with gainful work cannot be excluded from our calculations.

We are not persuaded. As the parties are well aware, we must strictly construe the language of § 287.250.1(4), pursuant to the mandate under § 287.800.1 RSMo. "[A] strict construction of a statute presumes nothing that is not expressed." *Allcorn v. Tap Enters.*, 277 S.W.3d 823, 828 (Mo. App. 2009). Employer essentially asks us to add language to § 287.250.1(4) specifying that the "absences" in question must be caused by some failure on the part of the employee to make himself available for regularly scheduled work. But this presumes a meaning the legislature did not express. Instead, the legislature instructed that *all* absences, for whatever reason, shall be excluded from our calculations.

In our view, when an employee shows up for a regularly scheduled workday, but the employer does not make any work available, and sends the employee home without pay, an "absence" has unquestionably occurred. In the alternative, we would view employer's failure to provide employee with work each day he reported as "exceptional facts," and would deem the administrative law judge's calculation of employee's average weekly wage to be both "fair" and "just" pursuant to § 287.250.4, which provides as follows:

> If pursuant to this section the average weekly wage cannot fairly and justly be determined by the formulas provided in subsections 1 to 3 of this section, the division or the commission may determine the average weekly wage in such manner and by such method as, in the opinion of the division or the commission, based upon the exceptional facts presented, fairly determine such employee's average weekly wage.

For all of the foregoing reasons, we decline to disturb the administrative law judge's well-reasoned findings, analysis, conclusions, and award with respect to the issue of employee's average weekly wage and corresponding rates of compensation.

The administrative law judge states, in the first full sentence in the first paragraph on page 22 of his award, as follows: "Although Mr. Hembree testified that physical therapy has been recommended, he is unable to afford such care." Also, in the second sentence of the first full paragraph on page 9 of his award, the administrative law judge states as follows: "Additionally, Mr. Hembree states that the employer provided him with menial task work assignments, such as cleaning the company shop[.]"

In its brief, employer argues that these findings were in error, as the employee provided no such testimony at the hearing. In employee's responsive brief, he restates, as fact, the above-quoted statements from the administrative law judge, but fails to cite the

Injury No.: 14-058646

Employee: Matthew Hembree

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transcript to where such testimony or other supportive evidence might be found. We have carefully reviewed employee's hearing testimony, and we agree with employer that employee's testimony does not support the above-quoted statements by the administrative law judge. Accordingly, we hereby disclaim them.

It does not appear that these isolated errors materially affected the administrative law judge's overall analysis. In any event, we agree with the administrative law judge's ultimate conclusions with regard to the disputed issues. For this reason, we affirm and adopt the remainder of the administrative law judge's award and decision as our own.

**Conclusion**

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

The award and decision of Administrative Law Judge L. Timothy Wilson, issued June 30, 2016, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

We approve and affirm 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 13th day of March 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Matthew Hembree

Injury No. 14-058646

Dependents: N/A

Employer: John Jamison \& Co., LLC

Insurer: Missouri Employers Mutual Insurance Company

Additional Party: N/A

Hearing Date: April 27, 2016

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: June 25, 2014
5. State location where accident occurred or occupational disease was contracted: Christian County, Missouri (The parties agree to venue lying in Greene County, Missouri. Venue is proper.)
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 and performing his work duties with Employer, Employee was loading supplies and tools in the back of a pickup truck. As Employee attempted to load a large propane cyclinder, weighing approximately 200 pounds, in the back of the truck the metal to metal contact caused the cylinder to start slipping