Joseph Fronek v. Production Delivery Services, Inc.

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

**Injury No.:** 11-106035

**Employee:** Joseph Fronek

**Employer:** Production Delivery Services, Inc.

**Insurer:** New Hampshire Insurance Co.

**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 read the briefs, reviewed the evidence, and considered the whole record, we find that the award of the administrative law judge awarding 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 (ALJ) with this supplemental opinion.

Employer/insurer's application for review alleges the ALJ's award is erroneous because the ALJ:

- Unreasonably failed to consider [that the] video [of employee's injury] does not depict a head injury.

- Unreasonably dismissed Employer's expert medical opinion retained by [an] individual not involved in the compensation case.

- Unreasonably considered claimant's expert opinions despite erroneous assumptions that formed the basis of those opinions.

- Failed to consider [that] notice of a "work" injury was not given.

Employer/insurer's brief provides a number of valid reasons why the ALJ could have made different credibility determinations that would support a denial of permanent total disability benefits against the employer/insurer.

The employer challenges the ALJ's credibility determinations. Cognizant of this issue, after a thorough review of the evidence, the ALJ found that "The convincing and credible evidence supports a finding that the accident was the prevailing factor in causing PTSD, post-concussion syndrome, and physical injury to the upper extremities."

Injury No.: 11-106035

Employee: Joseph Fronek

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low back, and neck."1 The ALJ further specifically found the employee met his burden of establishing his right to recover permanent total disability benefits, stating:

His claim is supported by credible lay testimony, medical/psychological and vocational evidence. Claimant's testimony of the accident, the effects, and his current struggles are persuasive. His friends credibly described the dramatic shift in Claimant's personality, mental wellbeing, and overall ability to function. His injury is no less debilitating simply because it impacted his mental rather than physical health.2

Employer/insurer alleges that the ALJ erred by failing to consider a video that "does not depict a head injury."3 The record includes only one surveillance video DVD: Claimant's Exhibit 17, titled "Surveillance Video of Accident." The ALJ demonstrated her consideration of this evidence by time-specific references to segments of the video she incorporated in her award.4 The ALJ found the video showed that when hit without warning from behind by a small station wagon:

The car struck Claimant's lower body directly from behind, with the rear bumper aligned with Claimant's upper calf at the knees and the top of the rail lights at his buttocks/low back. Claimant's knees buckled, his upper body pitched violently forward as he extended a hand towards the ground, he hit the ground rolling back and to the right, and landed sprawled on his back with his head on the ground (emphasis added).5

We find the ALJ's description of the surveillance video entirely accurate.

The Commission is not required to defer to an ALJ's credibility determination and may come to a different conclusion, so long as there is competent and substantial evidence to support our award.6 That said we give careful consideration to an ALJ's credibility determination based on her first-hand observation of witnesses. Based upon our review of all of the evidence in this case, we are not persuaded to disagree with the ALJ's determination of the employee's credibility or the overall weight given to the expert medical and vocational opinions in this case.

1 Award, p. 18.

2 Id.

3 Employer/insurer's Application for Review, dated November 15, 2017.

4 Award, p. 5.

5 Id.

6 Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo., 2003); McCutchen v. Peoplease Corporation, 195 S.W.3d 421 (Mo. App., 2006).

Injury No.: 11-106035

Employee: Joseph Fronek

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Section 287.420 RSMo provides, in pertinent part:

> No proceedings for compensation for any accident under this chapter shall be maintained, unless written notice of the time, place and nature of the injury, and the name and address of the person injured, has been given to the employer no later than thirty days after the accident, unless the employer was not prejudiced by failure to receive the notice.

Section 287.420 requires that an employer be notified regarding the time, place, and nature of an injury. Section 287.020.3(5) defines injury as "violence to the physical structure of the body." Read in conjunction, what is required is that employer be notified regarding the time, place, and nature of the trauma sustained.

An injured worker is not required by § 287.420 to provide his employer with a medical diagnosis, or to keep employer apprised of symptoms and/or opinions (professional or otherwise) regarding the etiology of said symptoms.

The employee is free to secure medical treatment on his own; the employer may be relieved of liability for related medical expenses but, under such circumstances, neither § 287.420 nor any other provision of the Act results in forfeiture of the claim.

We note that although the ALJ finds that employer did not receive written notice of the employee's injury within thirty days it appears that witness Mrs. Michelle Harkins, employer's secretary/treasurer and human resources director, prepared a written account of the April 10, 2011, accident within this time frame. It appears, then, employer possessed a written notice within thirty days. Section 287.420 does not require that such notice be given by the employee. Regardless, the employer had actual notice of employee's injury so there can be no prejudice.

Employer's application for review states no error in the ALJ's award of $6,444.95 in past medical expenses. Employer's brief argues that no further payments for past medical expenses should be required because any such medical expenses are unrelated to the work injury but rather related to the employee's "own personality and life stressors." Employer makes no argument that bills ordered paid by the ALJ's award were for treatment at a time when employer was unaware of the need for same and/or tendering medical care. We affirm the ALJ's award of $6,444.95 for past medical expenses.

7 When deposed on October 28, 2015, Mrs. Harkins testified that approximately a week after the employee's accident she "engaged Mr. Fronek and did the correct paperwork necessary for the State of California Labor Board and the Workman's Compensation Board to file a claim." Transcript 753.

8 Employer/insurer's Petitioner's Brief, p. 53.

Injury No.: 11-106035

**Employee:** Joseph Fronek

based on medical bills admitted into evidence at the hearing and the employee's credible testimony that the bills were incurred as a result of the work injury.9

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

The award and decision of Administrative Law Judge Karla Ogrodnik Boresi, issued October 30, 2017, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

The Commission approves and affirms the administrative law judge's allowance of an 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 **10th** day of July 2018.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

John J. Larsen, Jr., Chairman

**CONCURRING OPINION FILED**

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

9 Award, pp. 10, 17.

Injury No.: 11-106035

Employee: Joseph Fronek

I have read the briefs of the parties and reviewed the whole record. I have considered all of the competent and substantial evidence based on the record as a whole.

Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I reluctantly concur with the majority's supplemental opinion affirming the ALJ's award allowing compensation.

Employer/insurer was disadvantaged in its investigation and defense of employee's claim by employee's failure to provide written notice of his injury within thirty days, as the law provides. However, the majority correctly notes the employer/insurer's agent, secretary/treasurer and human resources director Mrs. Michelle Harkins, prepared a written account of the employee's April 10, 2011, accident within this time frame, and thereby satisfied the provisions of § 287.240. Unfortunately, employer's compliance with best practices relating to reporting work injuries defeats its defense on the issue of notice in this case.

I have carefully viewed the surveillance video the employee produced as evidence that employee sustained a head injury at work on April 10, 2011. Even after watching the tape in slow motion, I am unable to conclude that it clearly depicts the employee striking his head on the ground after being hit from behind by a vehicle in employer's parking lot. That said, I agree with the majority's deference to the ALJ's credibility findings based on her first-hand observation of the employee as well as her description of the employee's April 10, 2011, accident.

Reld K. Forrester, Member

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Joseph Fronek

Dependents: N/A

Employer: Production Delivery Services, Inc.

Additional Party: Second Injury Fund

Insurer: New Hampshire Insurance Co. c/o Chartis Claims, Inc.

Hearing Date: July 18, 2017

Injury No.: 11-106035

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: KOB

1. Are any benefits awarded herein? Yes

1. Was the injury or occupational disease compensable under Chapter 287? Yes

1. Was there an accident or incident of occupational disease under the Law? Yes

1. Date of accident or onset of occupational disease: April 10, 2011

1. State location where accident occurred or occupational disease was contracted: Ohio

1. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes

1. Did employer receive proper notice? Yes

1. Did accident or occupational disease arise out of and in the course of the employment? Yes

1. Was claim for compensation filed within time required by Law? Yes

1. Was employer insured by above insurer? Yes

1. Describe work employee was doing and how accident occurred or occupational disease contracted: While he was assisting in the loading of a truck, a car suddenly and unexpectedly struck Claimant from behind.

1. Did accident or occupational disease cause death? No

1. Part(s) of body injured by accident or occupational disease: Body as a whole/Psych, upper extremities, back and neck.

1. Nature and extent of any permanent disability: Permanent, Total Disability

1. Compensation paid to-date for temporary disability: $32,390.60, representing a period from September 30, 2012 to August 3, 2013

1. Value necessary medical aid paid to date by employer/insurer? $50,558.03

WC-22-R1 (6-81)

Injury No.: 11-106035

Page 1

1. Value necessary medical aid not furnished by employer/insurer? $6,444.95

1. Employee's average weekly wages: Not specifically determined.

1. Weekly compensation rate: