James Collins v. Kone, Inc.

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

**Injury No.:** 13-023689

**Employee:** James Collins

**Employer:** Kone, Inc. (settled)

**Insurer:** Old Republic Insurance Company (settled)

**Additional Party:** Treasurer of Missouri as Custodian of Second Injury Fund

This 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, read the briefs, heard the parties' arguments, 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 § 286.090 RSMo, we affirm the award and decision of the administrative law judge with this supplemental opinion.

We write this supplemental decision to acknowledge that Administrative Law Judge Kevin Elmer's last day of employment with the Division of Workers' Compensation (Division) was on June 15, 2017, but that the Division did not mail his award in this matter to the parties until June 19, 2017. The parties have not argued that this circumstance affects the validity of the award, but we deem it appropriate to briefly address the issue for purposes of completing the record, should this matter proceed to further appellate review.

Section 287.460.1 RSMo provides, in relevant part, as follows:

> The division, through an administrative law judge, shall hear in a summary proceeding the parties at issue and their representatives and witnesses and shall determine the dispute by issuing the written award within ninety days of the last day of the hearing. The award, together with a statement of the findings of fact, rulings of law and any other matters pertinent to the question at issue, shall be filed with the record of proceedings, and a copy of the award shall immediately be sent by electronic means or in the case of an unrepresented employee, by United States mail, to the parties in dispute and the employer's insurer.

The foregoing tasks an administrative law judge with "issuing" a written award, and thereafter imposes a duty upon the Division to "immediately" send the award to the parties. In this case, the Division created a Certificate of Mailing that reveals the following circumstances: (1) on June 13, 2017, Administrative Law Judge Kevin Elmer transmitted via email a completed and signed award in this matter to the Division's central office in Jefferson City, Missouri; (2) on June 15, 2017, the Division's Jefferson City office received the original copy of the award via UPS delivery; (3) the Division employee responsible for mailing awards to parties was out of the office between June 14, 2017, and June 16, 2017; and (4) the Division mailed the award to the parties on June 19, 2017. We take administrative notice of the Certificate of Mailing, and accept the foregoing as the factual circumstances surrounding the issuance and mailing of the administrative law judge's award in this case.

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Injury No. 13-023689

Given these facts, we conclude that, for purposes of § 287.460.1, the administrative law judge "issued" the award on June 13, 2017, while still employed with the Division. We conclude that the Division's failure to immediately send the award to the parties does not undermine the administrative law judge's prior issuance of the award at a time when he was still employed with the Division and capable of exercising his duties as an administrative law judge. We conclude that the proper date of the award remains June 19, 2017, because the Division did not notify the parties of the administrative law judge's award and decision until that date. See *Shelton v. Mo. Baptist Med. Cent.*, 998 S.W.2d 832, 835 (Mo. App. 1999). We note, however, that employee's application for review is timely whether the award is dated June 13 or June 19, 2017.

**The merits of employee's appeal**

The administrative law judge concluded that the Second Injury Fund is not liable for permanent partial or permanent total disability benefits in this matter. Employee appeals. We note that the administrative law judge's decision is largely premised upon a determination that employee did not provide credible testimony to support his claim. We are mindful that the administrative law judge had the opportunity to observe employee as he testified. After careful consideration, we are not persuaded to disturb the administrative law judge's finding in this regard. Accordingly, and because we otherwise agree with his analysis, we adopt the administrative law judge's award and decision as our own.

**Decision**

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

The award and decision of Administrative Law Judge Kevin Elmer is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this 14th day of June 2018.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

John J. Larsen, Jr., Chairman

**CONCURRING OPINION**

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: James Collins

I write separately to disclose the fact that I did not participate in the January 10, 2018, oral argument in this matter. However, I have reviewed the evidence, read the briefs of the parties, listened to an audio recording of the oral argument, and considered the whole record. I concur with the decision of the majority of the Commission.

Reid K. Forrester, Member

I, Naomi Pearson, Awards Clerk, with the Division of Workers' Compensation state as follows:

1. I am employed by the Division of Workers' Compensation.
2. One of my duties is to mail a copy of the Award on Hearing to the parties to the underlying workers' compensation case.
3. On June 13, 2017, the Division's Springfield adjudication office emailed an Award on Hearing written, completed and signed by Administrative Law Judge Kevin Elmer on June 13, 2017, after 4:00 p.m., in Injury No. 13-023689.
4. I was out of the office from June 14, 2017 through June 16, 2017, respectively.
5. On June 15, 2017, the Division's Jefferson City Office received the original Award on Hearing in Injury Number 13-023689 via UPS delivery.
6. The Award on Hearing was not mailed out by 5:00 p.m. on June 15, 2017.
7. The Division mailed the Award on Hearing to the parties to the case in Injury Number 13-023689, on June 19, 2017.

I hereby certify that the above is an accurate and complete statement of the events relating to the mailing of the Award on Hearing in Injury No. 13-023689.

Naomi Pearson

Signature __________________________

Date __________________________

Employee: James Collins

Injury No. 13-023689

Dependents: N/A

Employer: Kone, Inc. (Settled)

Insurer: Old Republic Insurance Company (Settled)

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

Hearing Date: April 20, 2017

Checked by: KAE

1. Are any benefits awarded herein? No
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: April 2, 2013
5. State location where accident occurred or occupational disease was contracted: Greene County, Missouri
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: Employee was on top of an elevator while bending down on knees and bending over releasing a door restrictor on an elevator and felt a pop at that time.
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: Back
14. Nature and extent of any permanent disability: Permanent Partial Disability
15. Compensation paid to-date for temporary disability: $\ 0.00
16. Value necessary medical aid paid to date by employer/insurer? $\ 914.04
17. Value necessary medical aid not furnished by employer/insurer? N/A
18. Employee's average weekly wages: Greater than $\ 1,241.62

Issued by DIVISION OF WOR. RS' COMPENSATION

Employee: James Collins

1. Weekly compensation rate: 827.75 for TTD and PTD, and 433.58 for PPD
2. Method wages computation: Stipulation of the parties

COMPENSATION PAYABLE

1. Amount of compensation payable: N/A (Employee and Employer/Insurer entered into a Stipulation for Compromise Settlement.)
2. Second Injury Fund liability: No

Weeks of permanent partial disability from Second Injury Fund: N/A

Uninsured medical/death benefits: N/A

Permanent total disability benefits from Second Injury Fund: None

TOTAL: $\ 0.00

1. Future requirements awarded: None

Issued by DIVISION OF WOR....RS' COMPENSATION

Employee: James Collins

Injury No. 13-023689

Employee: James Collins

Injury No. 13-023689

Dependents: N/A

Employer: Kone, Inc. (Settled)

Insurer: Old Republic Insurance Company (Settled)

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

Hearing Date: April 20, 2017

Checked by: KAE

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on April 20, 2017. The parties were afforded an opportunity to submit briefs or proposed awards, resulting in the record being completed and submitted to the undersigned on or about May 19, 2017.

The employee appeared personally and through his attorney, Robert Beezley, Esq. The employer and insurer did not appear since they had previously entered into a Stipulation for Compromise Settlement with the employee that was approved by another Administrative Law Judge on May 4, 2015. The Second Injury Fund appeared through its attorney, Catherine Goodnight, Assistant Attorney General.

The parties entered into a stipulation of facts. The stipulation is as follows:

1. On or about April 2, 2013, Kone, Inc., was an employer operating under and subject to The Missouri Workers' Compensation Law and during this time was fully insured by Old Republic Insurance Company.
2. On the alleged injury date of April 2, 2013, James Collins was an employee of the employer and was working under and subject to The Missouri Workers' Compensation Law.
3. On or about April 2, 2013, the employee sustained an accident, which arose out of and in the course of his employment with the employer.
4. The above-referenced employment and accident occurred in Greene County, Missouri. Venue is proper in Greene County, Missouri.
5. The employee notified the employer of his injury as required by Section 287.420, RSMo.
6. The Claim for Compensation was filed within the time prescribed by Section 287.430, RSMo.

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Issued by DIVISION OF WOR....RS' COMPENSATION

Employee: James Collins

Injury No. 13-023689

(7) At the time of the alleged accident of April 2, 2013, the employee's average weekly wage was in excess of 1,241.62, which is sufficient to allow a compensation rate of 827.75 for temporary total disability compensation/permanent total disability compensation and a compensation rate of $433.58 for permanent partial disability compensation.

(8) Temporary total disability compensation has been provided to the employee in the amount of $0.00.

(9) The employer and insurer have provided medical treatment to the employee, having paid $914.04 in medical expenses.

(10) That the attorney fee being sought