Edward Crawford v. Archway Building Maintenance, Inc.

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

**Injury No.:** 16-068661

**Employee:** Edward Crawford

**Employer:** Archway Building Maintenance, Inc.

**Insurer:** Hartford Underwriters Insurance Company

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by 8 CSR 20-3.040(2). We have reviewed the evidence, read the parties' briefs, and considered the whole record. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge (ALJ). We adopt the findings, conclusions, decision, and award of the ALJ to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

Employee filed a hardship petition seeking a resumption of benefits and sought a temporary or partial award pursuant to § 287.510 RSMo. At hearing, the parties stipulated that the employee sustained an accident and injury arising out of and in the course of his employment on September 7, 2016; that the applicable rates of compensation were $363.03 for both temporary total disability and permanent partial disability; that employer paid $9,750.46 in temporary total disability benefits for the period September 8, 2016, through March 16, 2017; and $9,546.00 in medical expenses.

The parties asked the (ALJ) to resolve the following issues:

- Medical causation;

- Nature and extent of unpaid temporary total disability for the period March 17, 2017, through September 18, 2017, in the amount of 26 and 4/7th weeks;

- Entitlement to additional medical treatment.

The ALJ found that the employee failed to prove that the September 7, 2016, accident was the prevailing cause of his alleged cervical injuries. He further found that the employee failed to prove the elements of an injury arising out of and in the course of his employment. The ALJ denied all compensation and found all remaining disputed issues, including employee's entitlement to additional medical benefits, moot.¹

On January 5, 2018, the employee filed a timely application for review with the Commission alleging the ALJ's award was erroneous because:

¹ The ALJ's decision, inaccurately titled "Temporary Award", mistakenly provided for a future determination on the issue of nature and extent of any permanent partial disability. Award, pp. 1, 3, and 8.

Injury No.: 16-068661

Employee: Edward Crawford

- 2 -

In a hardship hearing for additional medical care under § 287.140 in which the parties stipulated to the elements of accident and injury, administrative law judge Denigan erred in applying the "prevailing cause" standard because § 287.140 did not incorporate the prevailing cause standard and the proper standard is whether the treatment is reasonably required to cure and relieve the effects of the injury pursuant to Tillotson v. St. Joseph Med. Center, 347 S.W.3d 511 (Mo.App. 2011).

On January 17, 2018, twelve days after the filing of employee's application for review, employer mailed an answer alleging, "[T]he ALJ correctly applied the law and the applicable standard in determining that the claimant failed to prove his claim of work related injury and causally related necessary medical care. Pursuant to 8 CSR 2-3.030(4), we exercise our discretion to extend employer's ten-day time limit for filing an answer to the employee's application for review.

On or about May 4, 2018, employer filed a Motion to Dismiss Application for Review, raising entirely new issues not referenced in its answer or discussed in its brief. Because we find that employer failed to properly preserve these issues for review by the Commission, we deny employer's motion.

For the reasons stated below, we affirm the ALJ's award, as supplemented herein.

Discussion

We find that the employee has repeatedly been less than candid with regard to his reported medical histories. We agree with the ALJ that the employee is not credible. We further agree with the ALJ that the ultimate opinions expressed by Dr. Lukasz J. Curylo are better informed and more persuasive than those of Dr. Ivan Myers.

The parties stipulated that the employee sustained an accident and injury arising out of and in the course of his employment. They further stipulated that the issue of medical causation remained in dispute.

Section 287.020.3.1 provides, "An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability (emphasis added)."

In Malam v. Department of Corrections², the Missouri Supreme Court has recently confirmed that the prevailing factor standard applies where the issue of medical causation is in dispute. Employee's argument that Tillotson v. St. Joseph Med. Center³, an earlier decision by the Western District Court of Appeals, mandates a different standard of proof relating to employer's obligation to provide medical treatment pursuant to § 287.140 RSMo is not well taken.

2 Malam v. Dept. of Corr., 492 S.W.3d 926,929 (Mo. 2016).

3 Tillotson v. St. Joseph Med. Center, 347 S.W.3d 511 (Mo. App. 2011).

MNKOI 0000811698

- 3 -

Injury No.: 16-068661

Because the employee failed to sustain his burden of proof that the September 7, 2016, accident was the prevailing factor causing any identified medical condition or disability he failed to prove the elements of a compensable injury.

Our decision resolves all issues relating to the employee's claim in this matter and constitutes a final award.

The award and decision of Administrative Law Judge Joseph E. Denigen, issued December 18, 2017, is attached and incorporated herein to the extent not inconsistent with this decision and award.

Given at Jefferson City, State of Missouri, this **19th** day of July 2018.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

John J. Larsen, Jr., Chairman

**REID K. Forrester, Member**

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Edward Crawford

Injury No.: 16-068661

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: Archway Building Maintenance, Inc.

Additional Party: N/A

Insurer: Hartford Underwriters Insurance Co.

Hearing Date: September 18, 2017

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JED

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 occupational disease under the Law? Yes (stipulated)
4. Date of accident or onset of occupational disease: September 7, 2016 (stipulated)
5. State location where accident occurred or occupational disease was contracted: St. Louis County
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? 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 riding in passenger seat of a mini-van involved in minor motor vehicle accident.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Parts of body injured by accident or occupational disease: head
14. Compensation paid to-date for temporary disability: $\ 9,750.46
15. Value necessary medical aid paid to date by employer/insurer? $\ 9,546.00

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No. 16-068661

1. Value necessary medical aid not furnished by employer/insurer? none

1. Employee's average weekly wages: 544.58

1. Weekly compensation rate: 363.03/$363.03

1. Method wages computation: Stipulation

COMPENSATION PAYABLE

1. Amount of compensation payable: None

1. Second Injury Fund liability: No

TOTAL: -0-

1. Future requirements awarded: No. See narrative award.

Each of said payments to begin immediately and be subject to modification and review as provided by law. This award is only temporary or partial, is subject to further order, and the proceedings are hereby continued and the case kept open until a final award can be made.

IF THIS AWARD IS NOT COMPLIED WITH, THE AMOUNT AWARDED HEREIN MAY BE DOUBLED IN THE FINAL AWARD, IF SUCH FINAL AWARD IS IN ACCORDANCE WITH THIS TEMPORARY AWARD.

The compensation awarded to Claimant shall be subject to a lien in the amount of 25% which is awarded above as costs of recovery of all payments hereunder in favor of the following attorney for necessary legal services rendered to Claimant: N/A

Revised Form 31 (3-97)

Page 3

Issued by DIVISION OF WORKERS' COMPENSATION

injury No. 16-068661

FINDINGS OF FACT and RULINGS OF LAW:

Employee: Edward Crawford

Dependents: N/A

Employer: Archway Building Maintenance, Inc.

Additional Party: N/A

Insurer: Hartford Underwriters Insurance Co.

Hearing Date: September 18, 2017

Injury No.: 16-068661

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JED

TEMPORARY AWARD

This case involves a disputed injury to Claimant with the reported accident date of September 7, 2016. Employer admits Claimant was employed on said date and that any liability was fully insured. The Second Injury Fund is not a party to this Claim. Both parties are represented by counsel. This case proceeds pursuant to Hardship Petition in which Claimant seeks a resumption of benefits. Claimant alleges need for cervical spine surgery and his inability to return to work.

Issues for Trial

1. medical causation;
2. entitlement to additional medical treatment;
3. unpaid temporary total disability (Stipulated 26 and 4/7ths weeks).

FINDINGS OF FACT

Claimant had worked for Employer as a office maintenance worker. On the reported accident date, Claimant was involved in a motor vehicle accident as evidenced by bumper damage depicted in Exhibit B. Claimant was a passenger in the mini-van style vehicle and was being dropped at a work site after having attended a work meeting. The vehicle in which Claimant was riding as a (seat-belted) passenger sustained very minor damage to the bumper. (Exhibit B.) Claimant first treated with Concentra urgent care and gave a history of “being hit on the passenger side by another vehicle.”

Claimant subsequently treated with an orthopedist, Dr. Curylo, on October 4. Claimant told Dr. Curylo about the September 7 accident and that he had no pre-existing symptoms or conditions of his cervical spine (Exhibit A, p. 21). Dr. Curylo reviewed the MRI data and found significant stenosis at C3-4. He found no cervical disc herniations. He diagnosed cervical stenosis and recommended surgery.

WC-32-R1 (6-81)

Page 3

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No. 16-068661

At the outset of Claimant's direct testimony, he acknowledged during a series of leading questions that, regarding the posterior neck, he had no prior problems, treatment, MRI, surgery, or complaints to his primary doctor.

Three weeks before the reported accident, on August 14, 2016, Claimant was involved in a motor vehicle accident wherein he was struck in a right angle collision which totaled his Buick LaCross vehicle. On cross-examination, Claimant admitted he reported head and neck complaints to the police. The police report was also referenced on cross-examination. (See also Exhibit C, p. 5 of 6.) He testified he has a pending claim against the driver of the other vehicle in the earlier accident.

Claimant treated arthritis and shoulder pain at People's Health Center on August 9, 2016. Complaints included spasms, swelling and tingling in the arms. (Exhibit 12, p. 73.)

#### Dr.