Edward Sebelius v. Buccaneer Property Managers Inc.

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 15-018704

**Employee:** Edward Sebelius

**Employer:** Buccaneer Property Managers Inc.

**Insurer:** Uninsured

The above-entitled 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 and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated January 8, 2019. The award and decision of Administrative Law Judge Joseph P. Keaveny, issued January 8, 2019, is attached and incorporated by this reference.

The Commission further approves and affirms 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 **24th** day of July 2019.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Robert W. Comper, Chairman

Reid K. Forrester, Member

**DISSENTING OPINION FILED**

Curtis E. Chick, Jr., Member

**Attest:**

Secretary

Injury No. 15-018704

Employee: Edward Sebelius

The following facts are undisputed: Employee sustained a work injury on February 10, 2015, which resulted in a torn meniscus. That month, employer was in the process of transitioning to a new third party administrator (TPA). Employer understood that its workers' compensation insurance coverage would remain in place until a policy with a successor company went into effect on March 1, 2015. Unbeknownst to employer, its TPA terminated employer's workers' compensation insurance on February 9, 2015, the day before employee's work injury.

The sole issue on appeal to the Commission is employer's liability for past medical expenses of $35,681.23, relating to knee surgery performed by Dr. Corey Solman on July 14, 2015, and related post-surgery treatment necessitated by employee's work injury. Employer admits that it authorized employee to consult with Dr. Solman. There is further no dispute that employer's authorized health care provider, Concentra, agreed that employee needed the surgery Dr. Solman performed to repair his torn meniscus. Employer, nonetheless, insists that Dr. Solman's treatment was unauthorized because employer consistently referred employee to Concentra for treatment. Employer claims that employee acted unreasonably by failing to schedule his needed surgery through Concentra's provider network.

Employer's account with its designated health care provider, Concentra, became delinquent after employer's TPA stopped paying its bill. As a result, Concentra refused to schedule employee for the very surgery its own physicians agreed employee required. Employer's failure to carry workers' compensation insurance and its persistent failure to pay Concentra's bills made it impossible for employee to secure additional care within the Concentra network.

Employee credibly testified that employer's manager, Joan O'Dowd, suggested he use his personal health insurance to seek treatment and that employer would thereafter "make up the difference." Employee alleged Ms. O'Dowd further informed employee his injury wasn't compensable because he waited too long to report it, and that his knee problem "happens to everybody when they get to be that age" and was unrelated to work.

Employer now disavows its manager's alleged prior statements and attempts to shift the blame for its delinquent Concentra account to its third party administrator. However, an employer cannot shirk responsibility for the acts of its agents. See *Garnant v. Shell Petroleum Corp.*, 228 Mo. App. 256 (Mo. App. 1933).

This dispute stems directly from employer's illegal failure to maintain workers' compensation insurance to protect its employees and pay for medical care for their work-related injuries. Because of its failure to maintain workers' compensation insurance on the date of employee's injury, employer effectively denied employee treatment it was obligated to provide to cure and relieve his work injury pursuant to § 287.140 RSMo.

*Transcript, 16.*

*Id.*

MNKOI 0000213416

Injury No. 15-018704

Employee: Edward Sebelius

- 2 -

Where an employer fails to secure workers' compensation insurance, and fails to pay for care, they lose the right to direct care. In this case, by allowing its account with its designated health care provider Concentra fall into arrears, employer constructively authorized employee to seek his own medical treatment.

The majority's refusal to award employee's past medical expenses for surgery and related treatment that employer admits employee required to cure and relieve the effects of his compensable injury effectively sanctions employer's failure to maintain workers' compensation insurance. This result is contrary to law and public policy.

For these reasons, I dissent from the majority's award affirming the decision of the administrative law judge in this case.

Curtis E. Chick, Jr., Member

Issued by DIVISION OF WORKERS' COMPENSATION

**Injury No.:** 15-018704

**Employee:** Edward Sebelius

**Department:** INCA

**Department:** Buccaneer Property Managers, Inc.

**Address:** 12000 N/A, 12000 EAST, INCA, 027001, U.S.A.

**Address:** 12000 N/A, 12000 EAST, INCA, 027001, U.S.A.

**Injury No.:** 15-018704

**Before the Division of Workers' Compensation Department of Labor and Industrial Relations Of Missouri**

**Address:** 12000 N/A, 12000 EAST, INCA, 027001, U.S.A.

**Injury Date:** 10/10/2018

**Address:** 12000 N/A, 12000 EAST, INCA, 027001, U.S.A.

**Jefferson City, Missouri**

**Checked by:** JPK

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 of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: 02/10/2015
5. State location where accident occurred or occupational disease was contracted: St. Louis, 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? No, uninsured
11. Describe work employee was doing and how accident occurred or occupational disease contracted: While spreading rock salt, employee slipped on ice and tore the medial meniscus in his right knee.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Medial meniscus in right knee
14. Nature and extent of any permanent disability: 27.5% lower extremity at the right knee
15. Compensation paid to-date for temporary disability: Unknown
16. Value necessary medical aid paid to date by employer/insurer? $1,700.00 (disputed)

Revised Form 31 (3/93)

Page 1

1. Value necessary medical aid not furnished by employer/insurer: 35,681.23
2. Employee's average weekly wages: 730.00
3. Weekly compensation rate: $486.60 TTD/ $451.02 PPD
4. Method wages computation: Stipulated

1. Amount of compensation payable: 44 weeks PPD from employer: $19,844.88
2. Second Injury Fund liability: No

**TOTAL:** $19,844.88

1. Future requirements awarded: None

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Mark Cantor

On 10/10/2018, the parties appeared for a hearing. Edward Sebelius ("Employee") appeared in person and with counsel, Mark Cantor. The Employer, Buccaneer Property Managers, Inc., was represented by David Bender. No insurance company was a party to this case.

1) The Employer, Buccaneer Property Managers, Inc., was operating subject to Missouri's Workers' Compensation Law on or about 02/10/2015. 2) Edward Sebelius was an employee at all times herein. 3) The Employer was provided notice of the employee's alleged injury and the Report of Injury was timely filed. 4) St. Louis, Missouri is the proper venue. 5) Applicable rates of compensation are $\ 486.60 for TTD and $\ 451.02 for PPD.

Claimant introduced, and had admitted into evidence, the following Exhibits:

1) Deposition of Dr. Corey Solman dated May 22, 2018 with attached exhibits: 2) Curriculum Vitae 3) Orthopedic Sports Medicine medical records 4) Correspondence from employer's counsel dated 5/18/2015 5) Correspondence to Dr. Corey Solman dated 6/30/2015 6) MRI photos - Medial Meniscus Tear - Right Knee 7) Orthopedic Sports Medicine billing records 8) Orthopedic Ambulatory Surgery Center of Chesterfield 9) Orthopedic Ambulatory Surgery Center of Chesterfield 10) Athletico Physical Therapy/PRORehab billing records and medical records 11) Greater Missouri Imaging billing records 12) Greater Missouri Imaging medical records

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 15-018704

12) K & S medical bill for compression wrap and pump

2) Independent Medical Evaluation of Dr. John A. Petrovich dated 9/19/2017

3) Medical bills Summary

4) Concentra - Certification of medical/billing records showing nothing paid

5) Correspondence from Buccaneer Property Managers to Claimant on 11/06/2015 advising of termination of employment

6) Employee Incident Statement

7) Concentra referral for MRI dated 03/02/2015

8) Correspondence to employer of 3/26/2015 demanding authorized MRI and TTD

9) Correspondence to employer of 04/01/2015 demanding MRI

10) Claimant's Demand for Orthopedic Consult and Care of 4/30/2015 enclosing MRI results of a torn meniscus

11) Non-Coverage Letter of 05/05/2015 indicated the employer was not covered on date of injury

12) Correspondence from employer's counsel of 5/18/2015 authorizing Claimant to seek orthopedic care, both in writing and voice message

13) Correspondence to employer's counsel of 6/10/2015 - Demand for TTD and surgery

14) Correspondence to employer's counsel of 6/29/2015 - Demand for TTD and payment for surgery

15) Operative Report - 7/14/2015 - Right knee

16) Correspondence to employer's counsel of 8/4/2015 - Demand timely payment of TTD and payment for surgery

17) Correspondence to employer's counsel of 8/17/2015 - Demand authorization of physical therapy at PRORehab

18) Correspondence to employer's counsel of 11/03/2015 - Demand for second surgery and for timely TTD payments

19) Correspondence to employer's counsel of 4/13/17 - Demand for additional care

20) Correspondence to employer's counsel of 6/14/2017

21) Request for Production of Documents

Employer introduced, and had admitted into evidence, the following Exhibits:

A) 5/18/2015 letter to Mark Cantor

B) 6/23/2015 letter to Mark Cantor

C) 7/01/2015 letter to Mark Cantor

D) 7/09/2015 letter to Mark Cantor

E) 7/22/2015 letter to Mark Cantor

F) 7/31/2015 letter to Mark Cantor

G) 8/11/2015 letter to Mark Cantor

H) 8/21/2015 letter to Mark