Romero Grayson v. Thorne & Son Asphalt Paving Co.

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

Injury No.: 15-089660

Employee: Romero Grayson

Employer: Thorne \& Son Asphalt Paving Co.

Insurer: General Casualty Co. of Wisconsin

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, and considered the whole record, we find that the award of the administrative law judge denying compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to $\S 286.090$ RSMo, we affirm the award and decision of the administrative law judge (ALJ) with this supplemental opinion.

The threshold issue in this case is whether the employee's September 25, 2015, injury arose out of and in the course of his employment. ${ }^{1}$

The ALJ determined that at the time of his alleged injury on September 25, 2015, the employee was engaged in voluntary horseplay that was neither commonplace in the workplace nor condoned by employer. The ALJ therefore concluded that employee did not sustain an injury arising out of and in the course of his employment. We essentially agree with the administrative law judge's analysis. However, we note that case law relating to horseplay cited in the ALJ's award was legislatively abrogated by the 2005 enactment of $\S 287.020 .10 RSMo. { }^{2}$ Although reasoning in these cases may remain instructive, it cannot be relied upon.

Instead, the facts in this particular case must be analyzed by the application of the test set out in § 287.020.3(2):

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[^0]: ${ }^{1}$ In his brief to the Commission employee's attorney raises for the first time the issue of timeliness of employer's answer to the claim for compensation. The Division of Worker's Compensation acknowledged receipt of the employee's claim for Injury No. 15-089660 on November 20, 2015. Employer's answer was received on December 31, 2015, forty-one days later. Citing the thirty-day time period cited in 8 CSR 50-2.010(8)(B) and Lumbard-Bock v. Winchell's Donut Shop, 939 S.W. 2d 456 (Mo. App. 1996) employee argues that all facts cited in employee's claim must be deemed admitted.

We take administrative notice of Division records showing an earlier claim for compensation arising out of this injury acknowledged on November 16, 2015. The Division received employer's answer to that claim, designated number 15-077133, on November 30, 2015. We consider employer's November 30, 2015, answer as timely vis á vis both claims. We note that employer's later-filed answer cited no additional or different reasons for disputing employee's claim.

We further find that by failing to raise the issue of timeliness of employer's answer at the time of the ALJ's hearing, employee's attorney signified by his conduct and the manner in which he proceeded there was no issue relating to timeliness of employer's answer and thereby waived the issue. Dorothy Lawson v. Emerson Electric Company, 809 S.W.2d 121 (Mo. App. 1991).

${ }^{2}$ McMillin v. Payless Cashways, Inc., 897 S.W.2d 661 (Mo. App. 1995); Peet v. Garner Oil Co., 492 S.W.2d 103 (Mo. App. 1973).

An injury shall be deemed to arise out of and in the course of the employment only if:

(a) It is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; and

(b) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life.

As we have found, the risk source of the employee's injury in this case was employee's own voluntary consent to horseplay that was neither commonplace at work nor condoned by employer. Because the risk source of employee's injury was personal and did not arise out of the work or the workplace, his injury is not compensable. ${ }^{3}$

As we have found, this claim must be denied because the employee failed to meet his burden of proving that his injury arose out of the work or the workplace. Because we have ruled that the employee's injury is not compensable, the issue of medical causation is moot. We therefore disavow the ALJ's additional findings regarding medical causation.

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

The award and decision of Administrative Law Judge Mark Siedlik, issued September 23, 2016, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 18^{\text {th }} \qquad$ day of April 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

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[^0]: ${ }^{3}$ Miller v. Missouri Highway and Transportation Commission, 287 S.W.3d 671 (Mo. 2009); Johme v. St. John's Mercy Healthcare, 366 S.W.3d 504 (Mo. 2012).

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 occupation under the Law? No
4. Date of alleged accident or onset of occupation disease: September 25, 2015
5. State location where alleged accident occurred or occupational disease was contracted: Raytown, Jackson County, Missouri
6. Was above employee in employ of above employer at time of allege 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: Employee was preparing to lay asphalt when he began wrestling with a coworker. The two men fell to the ground and Employee landed on his right shoulder.
12. Did accident or occupational disease cause death? No

Issued by the Division of Workers' Compensation

Employee: Romero Grayson

Injury No. 15-089660

1. Part(s) of body injured by accident or occupation disease: Right Shoulder
2. Nature and extent of any permanent disability: N/A
3. Compensation paid to-date for temporary disability: None
4. Value necessary medical aid paid to date by employer/insurer? None
5. Value necessary medical aid not furnished by employer/insurer? unknown
6. Employee's average weekly wage: $\ 1,225.94
7. Weekly permanent partial disability compensation rate: $\ 464.58
8. Second Injury Fund liability: No
9. Future Medical treatment awarded: N/A

The above referenced workers’ compensation claim was heard before the undersigned Administrative Law Judge on August 2, 2016 pursuant to Employee’s request for a Hardship Hearing to obtain authorization of medical treatment, attendant temporary total disability benefits, reimbursement of out of pocket medical expenses \& payment of medical expenses incurred under this denied claim. All other issues were reserved pending further hearing and Final Award. The parties were afforded the opportunity to submit Proposed Awards, resulting in the record being completed and submitted on August 27, 2016. The employee, Romero Grayson, appeared personally and through counsel, Zachary A. Kolich. The employer, Thorne \& Son Asphalt Paving Co., and its insurer, General Casualty Co. of Wisconsin, appeared through counsel Daniel J. Lobdell.

The parties entered into the following stipulations at trial:

1. Employer was operating under and subject to the provisions of the Missouri Workers’ Compensation Act and liability was fully insured by General Casualty Co. of Wisconsin.
2. An employer/employee relationship existed between Employee and Employer on September 25, 2015.
3. Employer received timely notice of Employee’s accident.
4. Employee’s claim was filed within the time allowed by law.
5. Compensation rates are $\ 817.29 for temporary total disability compensation and $\ 464.58 for permanent partial disability compensation.

The issues to be resolved in these proceedings are:

1. Whether Employee met with personal injury by accident arising out of and in the course of his employment on September 25, 2015;
2. Whether Employee's medical condition, need for treatment, and disability are causally related to the alleged work accident;
3. Whether Employer must provide medical treatment to cure and relieve Employee's right shoulder complaints; and
4. Whether Employer must provide temporary total disability benefits.

The following exhibits were offered by the Claimant and admitted into evidence:

Claimant's Exhibit A - Report of Dr. Michael Poppa dated 11/17/15

Claimant's Exhibit B - Curriculum vitae of Dr. Michael Poppa

Claimant's Exhibit C - RAMIC Independence MRI report dated 12/2/14

Claimant's Exhibit D -- Veteran Affairs MRI report dated 10/19/15

The following exhibits were offered by the Employer and Insurer and admitted into evidence.

Employer/Insurer's Exhibit No. 1 -- 60 day letter of Department for the Veterans Administration Medical Center dated April 12, 2016

Employer/Insurer's Exhibit No. 2 -- Deposition of John Benedetti dated 6/21/16

Employer/Insurer's Exhibit No. 3 -- Deposition of Kurtis Simms dated 6/21/16

Employer/Insurer's Exhibit No. 4 -- Deposition of Kerry Mozee dated 6/21/16

Employer/Insurer's Exhibit No. 5 - Deposition of Josh Crumet dated 6/21/16

Employer/Insurer's Exhibit No. 6 -- Deposition of Jose Fernandez dated 6/21/16

Employee is a 57-year-old man who began working for Employer in March or April of 2015. His primary job responsibility was to rake asphalt evenly so that it could be rolled over by heavy equipment. On September 25, 2015, Employee was at a job site near $120^{\text {th }}$ and Wornall Street in Kansas City, Missouri. Employee and his co-workers arrived at 7:00 a.m. to prepare the equipment for the remainder of the day. The asphalt was to be delivered at 8:00 a.m. Shortly

before the asphalt arrived, Employee began wrestling with one of his coworkers, Jose Fernandez. During the grappling, the two men fell to the ground and Employee landed on his right shoulder. He testified that he felt immediate pain and numbness in his right arm from the shoulder to the elbow. After the incident, Employee attempted to continue to work but was eventually forced to stop and seek medical treatment.

Employee contends that the wrestling and subsequent fall were an unprovoked attack by Mr. Fernandez. Conversely, Employer argues that Employee was a voluntary participant in the wrestling, which constituted impermissible horseplay on the jobsite. Employer further contends that Employee was suffering from a significant, pre-existing right shoulder injury at the time of the accident. Accordingly, Employer asserts the prevailing factor for Employee's right shoulder complaints, need for treatment, and resulting impairment, was this pre-existing condition.

Employee testified at the Hardship Hearing that the injury occurred on an otherwise normal day. He stated that while getting prepared for the day his co-worker, Jose Fernandez, started harassin