James Hood v. City of Kansas City, Missouri

Improve: James Hood

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Because we are convinced that the administrative law judge's findings with regard to the nature and extent of employee's disability are supported by the evidence on record, and because we agree, based on those findings, that employee's claim satisfies the statutory requirements for proving a claim of permanent total disability against the Second Injury Fund under § 287.220.2 RSMo, we decline to disturb the award of permanent total disability benefits against the Second Injury Fund.

**Conflation of the issues identified for hearing**

We note some apparent confusion as to the scope or nature of the issues identified at the hearing for determination by the administrative law judge. The parties asked the administrative law judge to determine "whether [employee] sustained an accident arising out of and in the course and scope of employment[.]" *Transcript*, page 3. This question, stated in this fashion, would appear to implicate at least two statutory elements of an employee's claim under Chapter 287. Specifically, the question whether employee sustained an "accident" implicates the statutory definition under § 287.020.2 RSMo, which provides as follows:

The word "accident" as used in this chapter shall mean an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift.

Meanwhile, the question whether employee's accident arose out of and in the course and scope of employment seemingly implicates § 287.020.3(2) RSMo, which provides, in relevant part, as follows:

(2) An injury¹ 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.

In his award, the administrative law judge did not address either of the foregoing statutory provisions. Instead, he discussed the competing expert medical opinions in this case, found the opinions of Dr. P. Brent Koprivica to be more persuasive, and

¹ It is worth noting here, as we have in the past, that § 287.020.3(2) does not require an employee to prove an "accident" arising out of and in the course of employment, but rather an "injury" arising out of and in the course of employment; the distinction is not merely academic where both "accident" and "injury" have specific definitions for purposes of Chapter 287, and where we are required to strictly construe the provisions of the Missouri Workers' Compensation Law. See § 287.800.1 RSMo. We additionally note that the word "scope"—which seemingly implicates common law principles related to whether an employee's activities fall within the reasonable parameters of the employment relationship—does not appear in § 287.020.3(2).

Enployee: James Hood

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concluded employee "did suffer an accident arising out of and in the course and scope of employment." Award, page 7. In other words, the administrative law judge addressed and resolved the question of medical causation under § 287.020.3(1) RSMo, which provides, in relevant part, as follows:

An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. "The prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability.

At the hearing, the parties did not expressly identify, on the record, any issue of medical causation for the administrative law judge's consideration.

To summarize, we are now faced with a record where the parties appear to have asked the administrative law judge to consider and resolve at least two statutory tests, and an award wherein the administrative law judge resolved neither, but instead addressed and resolved a third question that was not expressly identified for trial. This is troubling because the courts have routinely cautioned us against delving into issues the parties have not specifically identified for hearing. See, e.g., Anhalt v. Penmac Pers. Servs., 505 S.W.3d 842 (Mo. App. 2016), concluding the Commission erred in considering, without additional proceedings, an issue of joint service where the parties did not specifically identify that issue at the hearing, but instead disputed the more general issue whether the employee's injuries arose out of and in the course of employment.

Here, we note that no party to this claim has specifically challenged the administrative law judge's choice to regard the issue identified as "whether employee sustained an accident arising out of and in the course and scope of employment" as one of medical causation; nor has any party suggested the administrative law judge's award is deficient for failure to consider or resolve either of the aforementioned statutory tests under §§ 287.020 or 287.020.3(2). We infer from these circumstances that employer and the Second Injury Fund effectively agree that those statutory tests, to the extent that they may have been implicated in this claim, are satisfied. For this reason, we will not further explore the issue whether the administrative law judge appropriately resolved the relevant issues, or exceeded his authority by delving into an issue that was not specifically identified.

We would, however, take this opportunity to remind the parties as to the critical importance of obtaining a statement of the particular issues in dispute that is not only complete, but precise in terms of the specific statutory elements and/or defenses at issue, in order to avoid any confusion (and costly multiplication of proceedings) that may result on appeal.

Conclusion

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

The award and decision of Administrative Law Judge Lawrence Rebman, issued February 1, 2017, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this $\qquad 10^{\text {th }} \qquad$ day of January 2018.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: James Hood

Injury No: 14-018909

Employer: City of Kansas City

Kansas City, Missouri

Insurer: Self-insured

Additional Party: Missouri State Treasurer as Custodian of the Second Injury Fund

Hearing Date: November 8, 2016

Checked by: LGR/drl

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 or occupational disease under the law? Yes.
4. Date of accident or onset of occupational disease: February 21, 2014
5. State location where accident occurred or occupational disease was contracted: Kansas City, Jackson County, Missouri.
6. Was the above Employee in the employ of the above Employer at the time of the alleged accident or occupational disease? Yes.
7. Did the Employer receive proper notice? Yes.
8. Did the accident or occupational disease arise out of and in the course of employment? Yes.
9. Was Claim for Compensation filed within time required by law? Yes.
10. Was Employer insured by above insurer? Yes.
11. Was the accident alleged the prevailing cause of the injuries and need for medical care? Yes.
12. Describe work Employee was doing and how accident occurred or occupational disease was contracted: While in the course and scope of Employee's work, Employee sustained an injury to his neck and low back while mopping a floor for two and one half hours.
13. Did accident or occupational disease cause death? No. Date of death? N/A

Issued by DIVISION OF WORKERS’ COMPENSATION

Employee: James Hood

Injury No: 14-018909

1. Part(s) of body injured by accident or occupational disease: Neck and low back
2. Compensation paid to date for temporary disability: $\ 0
3. Value of necessary medical aid paid to date by Employer/Insurer? \$5,372.08
4. Value of necessary medical aid not furnished by Employer/Insurer? Undetermined
5. Nature and extent of permanent partial disability: 15 % to the low back
6. Amount of compensation paid for permanent partial disability: $\ 7,706.94
7. Employee’s average weekly wage: $\ 832.15
8. Weekly compensation rate: $\$ 554.77 / \ 446.85
9. Method of wage computation: By agreement
10. Second Injury Fund liability: Permanent Total Disability

1. Amount of compensation payable:

Fifteen (15) percent permanent partial disability of the body as a whole at a 400-week level from the employer. This would be a total of 60 weeks of compensation at the permanent partial disability rate of $\ 446.85 for a total of $\ 26,811.00

The employer is ordered to provide medical care that is necessary to cure and relieve Mr. Hood of the effect of the injuries of February 21, 2014.

1. Second Injury Fund liability:

The Second Injury Fund is liable for permane