Cheryl Hayden v. S.W. Center for Independent Living

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

**Injury No.:** 16-104167

**Employee:** Cheryl Hayden

**Employer:** S.W. Center for Independent Living

**Insurer:** Missouri Employers Mutual Insurance

**Additional Party:** Lester E. Cox Medical Centers (Direct Pay Medical Fee Dispute 16-01266)

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 parties' briefs, and considered the whole record, we find that the Temporary or Partial Award of the administrative law judge allowing 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 temporary award and decision of the administrative law judge with this supplemental opinion.

Employer raised due process and equal protection under the law issues for the first time in its brief before the Commission filed on July 9, 2018. Employer asserts the award of $824,242.26 pursuant to § 287.510 RSMo (Temporary or Partial Awards) is in violation of its protections under the Missouri and the United States Constitutions. Specifically, employer argues it is a taking of property without due process and that it denies employer and insurer equal protection under the law.

An administrative commission is not empowered to determine the constitutionality of statutes. *Tadrus v. Missouri Board of Pharmacy*, 849 S.W.2d 222 (Mo. App. 1993). The employer did not raise these issues at hearing or in its application for review. Nevertheless, we note for the record that employer has raised such issues and employee has provided response to the issues by a brief filed July 12, 2018.¹

We note that the employer is challenging the statutory scheme which limits the ability to appeal beyond the administrative level until a final award is issued. A final award is one which disposes of the entire controversy between the parties. This Temporary and Partial Award does not dispose of the entire controversy. This challenge has already been addressed and overruled in several Missouri Courts of Appeal decisions.² The Workers' Compensation statute is a comprehensive body of law, which has been

¹ However, employee objects to employer's inclusion of this issue in its brief, as not raised in its application for review and as not timely raised in the proceeding. We leave these issues to a reviewing court at the appropriate time should they be raised by the parties.

² See *Motor Control Specialties, Inc. v. Labor & Industrial Rels. Commission*, 323 S.W.3d 843, (Mo. App. W.D. 2010); *Norman v. Phelps Cty. Reg'l Med. Ctr.*, 256 S.W. 3d 202, 205 (Mo. App. S.D. 2008); and *Leech v. Phoenix Home Care*, 547 S.W. 3d 572 (Mo. App. S.D. 2018).

Injury No.: 16-104167

Employee: Cheryl Hayden

- 2 -

amended by the legislature on several occasions. The 2005 amendments to the statute clearly instruct us to "strictly construe" its provisions. § 287.800 RSMo. "Under the clear terms of section 287.495, appellate courts only have the authority to review 'final awards.'" *AB Electric Inc. v. Franklin*, 559 S.W. 3d 38, 42, (Mo. App. W.D. 2018).

Employer asks the Commission to provide a remedy of deeming the Temporary Award in this matter as a "final" award, which would then be subject to appeal to the Court of Appeals, under § 287.495 RSMo. The law does not authorize any mechanism whereby we might provide the relief requested by the employer. We must, therefore deny employer's request.

Employer has asked us to credit it with reductions in medical bills to which the employee is entitled. The administrative law judge ruled that the evidence did not clearly establish that employee was assured any reductions in her medical bills at this time and therefore denied the employer's request. We agree with the administrative law judge on the state of the evidence in the record before us. However, additional evidence brought before the administrative law judge during the course of proceeding may change that ruling. We affirm the administrative law judge's ruling on this issue, without prejudice to the employer/insurer to provide additional significant evidence prior to a final award. See *Jennings v. Station Casino St. Charles*, 196 S.W.3d 552, 558 (Mo. App. E.D. 2006).

The amount of the unpaid medical expenses, which includes the Direct Payment medical fee request by Lester E. Cox Medical Centers (16-01266) is not consistently stated throughout the Award.

Specifically at page 2 of the Award, line 6, reads:

Unpaid medical expenses: 813,947.67

This amount includes 136,461.34 which Employer/Insurer is to pay directly to Lester E. Cox Medical Centers to satisfy the Direct Pay Medical Fee Dispute. It also includes the amount that Claimant is to pay to satisfy the outstanding Medicaid Lien, less attorney's fees as discussed in the Award. (Emphasis ours)

10,294.59

TOTAL 824,242.26

On the other hand, page 9, under the heading *Cost of Medical Care*, 2nd and 4th paragraphs and page 12 (bottom paragraph) and page 13 (top line) identify the figure

3 The Award at page 12, under the heading Direct Pay Medical Fee, refers to the Missouri Supreme Court case, *Curry v. Ozarks Electric Corporation* and references an incorrect page number. We correct the citation reference to 39 S.W. 3d 494 (Mo banc 2001) overruled on different grounds by *Hampton v. Big Boy Steel Erection*, 121 S.W. 3d 220 (Mo. 2003)

Injury No.: 16-104167

Employee: Cheryl Hayden

- 3 -

as $136,421.26, as testified (and certified) by the custodian of records for the medical center.

Meanwhile, page 15 -- "Summary" returns to the figure $136,461.34, as the amount to be paid directly to Lester E. Cox Medical Centers.

We find the more accurate figure is $136,421.26. We correct the Award to reflect this figure in all relevant references throughout and correct the Award consistent with this finding.

**Conclusion**

We affirm and adopt the Temporary or Partial Award of the administrative law judge as supplemented and corrected herein. This award is only temporary or partial. It is subject to further order, and the proceedings are hereby continued and kept open until a final award can be made. All parties should be aware of the provisions of § 287.510 RSMo.

The award and decision of Administrative Law Judge Victorine R. Mahon, issued May 16, 2018, is attached and incorporated herein to the extent not inconsistent with this supplemental/corrected decision.

We approve and affirm the administrative law judge's allowance of 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 7th day of March 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

SEPARATE OPINION FILED

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Secretary

Injury No.: 16-104167

Employee: Cheryl Hayden

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be reversed.

I do not believe the employee has proven a compensable injury under the Missouri Workers' Compensation Law for which the employer is liable. While her situation is sympathetic, this unfortunate accident is not something that arose out of and in the course of her employment. This was a trip she was taking, as would any employee, in going to work, and such a commute has long been considered not compensable.

"In general, 'an employee does not suffer injury arising out of and in the course of employment if the employee is injured while going or journeying to or returning from the place of employment.'" (quoting *McClain v. Welsh Co.*, 748 S.W.2d 720, 724 (Mo. App. E.D. 1988)). "This is true because in most circumstances, 'a trip to or from one's place of work is merely an inevitable circumstance with which every employee is confronted and which ordinarily bears no immediate relation to the actual services to be performed.'" (quoting *McClain v. Welsh Co.*, at 724, as cited in *Custer v. Hartford Ins. Co.*, 174 S.W.3d 602, 610-611 (Mo. App. 2005)).

The employee must prove that an injury sustained outside the workplace has "occurr[ed] within a period of employment at a place where the employee; may reasonably be fulfilling the duties of employment." *Harness v. Southern Copyright, Inc.*, 291 S.W.3d 299, 305 (Mo. App. 2009). Employee was driving to begin her work, and as such, she was in much the same position as anyone commuting to their workplace. She had just finished dropping her child off at school. The general rule is a commute to one's daily place of work does not arise out of and in the course of employment. She was not within a period of employment at that moment, and she was not fulfilling the duties of employment, while she was traveling to begin her work day.

Further evidence that employee was not within a period of employment or fulfilling her employment duties are the fact that employee knew she was not to be paid for the drive to work; and the fact that it never occurred to her to request that the employer cover her medical care, until much later when she consulted an attorney.

To show that her injury arose out of and in the course of her employment, the accident must be "caused by a specific event during a single work shift." § 287.020.2 RSMo. The evidence shows employee's work shift had not yet started. By a strict reading of the statute's definition, employee's injury did not arise as a result of an accident during a work shift. Furthermore, a car accident such as this tragic event, is something to which a worker "would have been equally exposed outside of and unrelated to the employment in normal nonemployment life." § 287.020.3 (2) (b) RSMo. As guided by the Missouri Supreme Court in *Johme v. St. John's Mercy Healthcare*, 366 S.W.3d 504, 511 (Mo. 2012), "it is not enough that an employee's injury occurs while doing something related to or incidental to the employee's work; rather, the employee's injury

Injury No.: 16-104167

Employee: Cheryl Hayden

- 2 -

is only compensable if it is shown to have resulted from a hazard or risk to which the employee would not be equally exposed in normal nonemployment life."

I would not find that employee has suffered a compensable injury as covered by the Missouri Workers' Compensation Act, because her travel to her workplace was not in the course of her employment and was not from a hazard to which she had any greater exposure than in her nonemployment life. Because I would find her injuries noncompensable, all other issues are moot.

I respectfully dissent and would vote to reverse the administrative law judge's temporary award of compensation.

Reid K. Forrester, Member

**Employee:** Cheryl Hayden

**Department:** Not applicable

**Employer:** S.W. Center for Independent Living

**Address:** 16000 W. 1st Floor, New York 10, N.Y. 105801, U.S.A.

**Address:** 16000 W. 1st Floor, New York 105801, U.S.A.

**Address:** 16000 W. 1st Floor, New York 105801, U.S.A.

**Address:** 16000 W. 1st Floor, New York 105801, U.S.A.

**Address:** 16000 W. 1st Floor, New York 105801, U.S.A.

**Address:** 16000 W. 1st Floor, New York 105801, U.S.A.

**Address:** 16000 W. 1st Floor, New York 105801, U.S.A.

**Address:** 16000 W. 1st Floor, New York 105801, U.S.A.

**Address:** 16000 W. 1st Floor, New York 105801, U.S.A.

**Address:** 16000 W. 1st Floor, New York 105801, U.S.A.

**Address:** 16000 W. 1st Floor, New York 105801, U.S.A.

**Address:** 16000 W. 1st Floor, N