Charles Kinney v. Dresser-Rand Company

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

**Injury No.:** 11-111943

**Employee:** Charles Kinney

**Employer:** Dresser-Rand Company

**Insurer:** New Hampshire Insurance Company

On August 21, 2015, employee filed a claim for compensation alleging repetitive trauma injury to his low back and legs sustained during the course and scope of his employment with employer.

Employer did not file an answer, hire an attorney to enter an appearance, or respond to the claim in any fashion prior to hearing.

On July 12, 2017, the administrative law judge issued a default award allowing compensation to employee.

On December 20, 2017, employer filed an application for review with the Labor and Industrial Relations Commission (Commission) alleging the Division of Workers' Compensation failed to properly notify employer of employee's claim, the hearing, and the award. Employer requested that the Commission set aside the award and remand for a new hearing to allow it to present its defenses.

On July 12, 2018, the Commission issued an order remanding this matter to an administrative law judge to take evidence as to the allegations set forth in employer's application for review. This hearing took place on January 23, 2019, and the parties have briefed their respective positions with regard to the allegations and claims for relief set forth in employer's application for review. We have reviewed the transcript of the January 23, 2019, hearing, read the parties' briefs, and considered the whole record.

For the following reasons, we accept jurisdiction of employer's application for review, and affirm the administrative law judge's default award.

Employee provided, on his claim for compensation, the following address for employer: 167 Indian Prairie Lane, Union, MO 63084. Employee's attorney, Nile Griffiths, explained that, in his experience, his clients often don't know the correct corporate entity for their employer or the correct address to use, so his practice is to call the Division of Workers' Compensation (Division) to verify an employer's address. If, as in this case, the Division is unable to identify the correct address for the employer, Mr. Griffiths conducts an internet search; that is how Mr. Griffiths found the Union, MO, address he provided on employee's claim for compensation.

It is undisputed that the Union, MO, address does not belong to employer. The Division's practice is to send a copy of a claim for compensation to the address supplied.

Injury No.: 11-111943

Employee: Charles Kinney

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in the claim;¹ this occurred here, and as a result, employer did not receive notice of the filing of the claim for compensation from the Division.

Instead, on December 15, 2015, Mr. Griffiths attempted to request information from employer in connection with employee's claim by sending a letter with a copy of the claim for compensation to 520 Kelly Lane, Louisiana, MO, 63353. The copy of the claim for compensation provided with this mailing was not signed or stamped as filed by the Division. Mr. Griffiths was unable to remember, specifically, how he found the Louisiana, MO, address, but he believes it may have turned up in additional internet research after employee informed him he had worked at a facility in Louisiana, MO. This correspondence resulted in a December 18, 2015, letter from James Klingelsmith, who was then serving as employer's workers' compensation claims manager. In his letter, Mr. Klingelsmith acknowledged receipt of the correspondence from Mr. Griffiths, but denied any knowledge of a work injury.

Thereafter, it is uncontested that employer did not contact the Division to inquire about the status of employee's claim or update its address (despite having a copy of a claim for compensation listing the incorrect Union, MO, address), did not file an answer, did not have an attorney enter an appearance on its behalf, did not further correspond with Mr. Griffiths, and ultimately took no action to defend this claim until late 2017.

After more than a year elapsed with no other response or action from employer in connection with the claim, Mr. Griffiths asked the Division to move forward with a default hearing, which was initially set for February 2, 2017. At that setting, Mr. Griffiths provided the Division with two alternate addresses for employer: the Louisiana, MO, address, and 500 Paul Clark Drive, Olean, NY 14760, which was the address listed in the correspondence from Mr. Klingelsmith. As a result, the Division reset the hearing for 60 days later, and on February 15, 2017, sent certified notice of the hearing to both of these addresses. Employer received both notices on February 21, 2017. Additionally, on March 1, 2017, Mr. Griffiths sent a copy of the notice of hearing via certified mail to the Louisiana, MO, address.

After receiving these notices of hearing, employer once again failed to answer or defend the claim. Employer argues this failure should be excused as the product of good faith mistake or confusion on the part of its personnel as to how to proceed. Specifically, employer presents testimony from Elaine Palmer, the workers' compensation claims manager that succeeded Mr. Klingelsmith after employer was sold to another company. On February 24, 2017, Ms. Palmer received the February 15, 2017, notice of hearing from the Division via email attachment from a human resources payroll manager with employer. Ms. Palmer forwarded this email to Nicholas Bruno, another employee with employer who Ms. Palmer typically relied upon to provide her with insurance information; Mr. Bruno responded that he had searched but couldn't find any claims for employee in his records. Ms. Palmer asked Mr. Bruno what she should do, and

¹ Pursuant to 8 CSR 50-2.010(8), "Upon receipt of a Claim for Compensation, the division shall forward a copy of the claim to the employer and its insurer[.]"

MNKOI 0000811697

Injury No.: 11-111943

Employee: Charles Kinney

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Mr. Bruno responded that employer would need to contact its relevant insurer at the time of employee's claimed injury.

Ms. Palmer did not do this, and took no other action until receiving an email on March 9, 2017, from Jason Fulton, a health and safety manager with employer, referencing the copy of the notice of hearing Mr. Griffiths had sent to employer. In this communication, Mr. Fulton asked Ms. Palmer who would handle the response and representation in connection with employee's claim. Ms. Palmer believes she called Mr. Fulton after receiving this email, but she can't specifically remember what they discussed, and she admitted that she thereafter took no action to contact the appropriate insurer or request that legal counsel be assigned. Instead, Ms. Palmer assumed Mr. Bruno would contact the insurer and take the appropriate steps to respond to the notice; she vaguely suggested that, unlike Mr. Bruno, she didn't have "access" to the relevant insurer's "system," without elaborating further. *Transcript*, page 67. She also acknowledged, however, that she is the final person in employer's chain-of-command responsible for acting as the liaison with employer's insurance carriers for all workers' compensation matters. Ultimately, no one with employer took responsibility to contact the appropriate insurance carrier, ask an attorney to enter an appearance, contact the Division, ask for a continuance, or any other of the steps one might expect an employer to take after receiving notice of an imminent hearing before the Division. As a result, no one appeared at the hearing of April 3, 2017, to present a defense on behalf of the employer.

The administrative law judge issued the default award on July 12, 2017. Unfortunately, the Division sent the award to the incorrect Union, MO, address, instead of the Louisiana, MO, or Olean, NY, addresses, and did not attempt any alternate notice to employer when the United States Postal Service (USPS) returned this mailing as undeliverable. Nasreen Esmail, Chief Counsel and Deputy Director of the Division, testified it would have fallen to Division personnel with the St. Louis office to inform the Division's central Jefferson City office that the Division's records should be updated with the two additional addresses for employer, but that this clearly was not done. We find Ms. Esmail's testimony to be credible. We find that the relevant personnel with the Division's central Jefferson City office were not informed of the two alternate addresses for employer, and that for this reason, the Division only sent the award to the Union, MO, address.

On October 18, 2017, employee registered the July 12, 2017, award as a judgment in the Circuit Court of Pike County, Missouri, pursuant to § 287.500 RSMo.² On October 19, 2017, employee served a notice of entry of judgment on employer's registered agent in

2 Section 287.500 RSMo provides, in relevant part, as follows: "Any party in interest may file in the circuit court of the county in which the accident occurred, a certified copy of a memorandum of agreement approved by the division or by the commission or of an order or decision of the division or the commission, or of an award of the division or of the commission from which an application for review or from which an appeal has not been taken, whereupon said court shall render judgment in accordance therewith and notify the parties. Such judgment shall have the same effect and all proceedings in relation thereto shall thereafter be the same as though said judgment were a final judgment which had been rendered in a suit duly heard and determined by said court."

MNKOI 0000614457

Injury No.: 11-111943

Employee: Charles Kinney

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Missouri, CT Corporation; the next day, CT Corporation emailed the notice of entry of judgment to six employees of employer. The correspondence from CT Corporation incorrectly identified the notice as pertaining to a garnishment action; employer's witness Kristina Beyer, a human resources support person, explained (and we so find) that this error prompted a paralegal with employer to forward the mailing to payroll rather than its legal department, or workers' compensation insurer. The correspondence from CT Corporation did, however, include a copy of the notice of entry of judgment. This document stated that the judgment was in connection with a workers' compensation proceeding, and that the judgment was in the sum of 31,632.43 in past medical expenses, 95,436.25 in temporary total disability benefits, and $811.73 per week in lifetime permanent total disability benefits.

The mailing from CT Corporation to employer did not include a copy of the award itself, and the notice of entry of judgment did not identify the date the award was issued, or provide any other detail as to employee's claim or the administrative law judge's findings and conclusions. On November 30, 2017, employer first received a copy of the award as part of a packet of information sent to employer by Matthew Padberg, the attorney employee hired to collect the judgment. Employer thereafter filed its application for review with the Commission on December 20, 2017.

Conclusions of Law

Timeliness of employer's application for review

The first issue we must resolve is whether we are able to take jurisdiction of employer's application for review filed December 20, 2017, where the administrative law judge's award was issued on July 12, 2017, and where § 287.480.1 RSMo requires an application for review to be filed within 20 days of an administrative law judge's award. The Missouri courts have instructed that "[t]he timely filing of an application for review is jurisdictional and requires strict compliance." *Merritt v. Shoney's, Inc.*, 925 S.W.2d 494, 495 (Mo. App. 1996). "Failure to comply with the statutory time for appeal results in a lapse of jurisdiction and of the right of appeal." *Meybatyan v. Webster University*, 122 S.W.3d 726, 727 (Mo. App. 2003).

However, the courts have allowed an exception in cases where it can be demonstrated that the Division failed to follow its own statutory notice procedures, or otherwise deprived the applicant due process: "The twenty-day period for filing an application for review begins to run when the Division has served notice of the ALJ's decision in accordance with the statutory procedures." *Phelan v. Treasurer*, 249 S.W.3d 260, 263-264 (Mo. App. 2008). "Failure to comply with the statutory notice requirements extends the twenty day time limit for filing an application for review." *Eighmy v. Tandy/O'Sullivan Industries*, 867 S.W.2d 688, 691 (Mo. App. 1993). We conclude that this occurred here, when the Division sent the July 12, 2017, award only to the demonstrably ineffective Union, MO, address, and failed to attempt alternate notice to the two addresses employee had previously provided. Section 287.520.1 RSMo provides, in relevant part, as follows, with regard to notices required under Chapter 287:

Any notice required under this chapter shall be deemed to have been properly given and served when sent by registered or certified mail

Injury No.: 11-111943

Employee: Charles Kinney

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properly stamped and addressed to the person or entity to whom given, at the last known address in time to reach the person or entity in due time to act thereon, or to counsel for that person or entity in like manner.

(emphasis added).

As of the date the award was issued on July 12, 2017, it would have been apparent to Division personnel that the Union, MO, address was ineffective for providing notice to employer, but that the certified notices of hearing had been received at the Louisiana, MO, and Olean, NY, addresses. In other words, the Division did not send notice to employer's "last known addresses," and thus failed to provide the statutory notice described under § 287.520. Of course, employer never took any steps to contact the Division to correct its address after learning in December 2015 that employee had hired an attorney to pursue a Missouri workers' compensation claim, and thus employer bears some responsibility for its lack of notice. However, the case law in this area focuses on what actions were taken by the agency to attempt notice, and whether these actions were "reasonably calculated" to be effective under all the circumstances:

An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.

*Mullane v. Cent. Hanover Bank & Tr. Co.,* 339 U.S. 306, 314 (1950).

We have credited the testimony from Ms. Esmail, and found that the relevant personnel with the Division's central Jefferson City office were not informed of the two alternate addresses for employer, and that for this reason, the Division only sent the award to the Union, MO, address. We conclude, therefore, that the Division's notice of the award was not reasonably calculated, under all the circumstances, to apprise employer of the issuance of the administrative law judge's award. We conclude that this constituted a due process failure by the Division sufficient to extend the time period for filing employer's application for review.

The next question we must address is when to begin the 20-day appeal period. Employee argues that employer had actual notice of the award as of October 20, 2017, when it received the notice of entry of judgment from its registered agent. As employee correctly notes, the courts have held that, "[a] party who has received actual notice is not prejudiced by and cannot complain of the failure to receive statutory notice." *Mosby v. Treasurer of Mo.,* 954 S.W.2d 11, 13 (Mo. App. 1997). However, in our view, there is an important difference between notice communicated through a judgment or other second-hand means versus notice communicated by receipt of a copy of the award itself.

This is because the contents of an application for review may be critical. Specifically, where an application for review is deficient or fails to raise various issues, it can alter the subsequent course of proceedings before the Commission, or even result in a

Injury No.: 11-111943

Employee: Charles Kinney

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dismissal of the appeal. See *Jones v. Steel*, 280 S.W.3d 713 (Mo. App. 2009). Here, the notice of entry of judgment contained only the monetary amount of the award, but no further detail as to the nature of employee's claim. This document did not provide employer with a summary of the administrative law judge's findings and conclusions, and thus employer could not reasonably have utilized this document to craft an appeal challenging the award with the specificity required under Commission rule 8 CSR 20-3.030(3)(A). Accordingly, from a due process standpoint, we deem it more appropriate to run the 20-day appeal period in this case from employer's receipt of a copy of the actual award. To hold otherwise would suggest parties who have been deprived statutory notice by the Division are thereafter tasked with filing an application for review based upon incomplete, second-hand information about an award.

We conclude, therefore, that the 20-day appeal period in this case runs from employer's receipt of the award on November 30, 2017, and we accept jurisdiction of the application for review as timely where it was filed with the Commission on the 20th day thereafter, December 20, 2017.

We turn now to employer's request that we set aside the administrative law judge's default award and remand this matter to the Division, so that it may pursue its defenses to the underlying claim. Employer frames this issue as one of due process, faulting employee's attorney for using an incorrect address in the claim for compensation, and tracing its own failure to raise a defense back to that initial circumstance. But there is no dispute that employer received not only actual, but statutory notice of the April 3, 2017, hearing from the Division via certified mail. The default award was issued as a direct result of employer's failure to respond to that notice or participate in that hearing. Accordingly, we conclude that there was no due process concern with the Division proceeding with the hearing, or the administrative law judge ruling against employer on a default basis.

Instead, the relevant issue is whether employer has proven a sufficient "good cause" for failing to participate in the hearing of April 3, 2017. If so, the proper result would be to set aside the administrative law judge's award and remand this matter to allow employer to pursue its defenses. See *Ross v. Safeway Stores, Inc.*, 738 S.W.2d 611, 616 (Mo. App. 1987). "[A]ny definition of good cause must devolve on the simple elements of good faith and reasonableness under all the circumstances." *King v. Div. of Emp't Sec.*, 964 S.W.2d 832, 836 (Mo. App. 1997). Although this record certainly does not support a conclusion that employer's personnel acted in bad faith, we conclude that employer's inaction in connection with the notice of hearing was not reasonable under all the circumstances, for the following reasons.

We must first recognize that employer asks us, essentially, to vacate years of effort on the part of the Division and employee's legal representatives in adjudicating and

3 We note that employee did provide his own testimony and expert medical and vocational evidence at the April 3, 2017, hearing to support his claims, so the default award was not an "automatic" disposition in employee's favor. Rather, it was an award rendered without the benefit of any responsive evidence from employer.

Injury No.: 11-111943

Employee: Charles Kinney

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litigating this matter. We must also recognize that to set aside the award of the administrative law judge and remand this matter for additional proceedings would serve not only to prejudice the Division and employee, but also all other parties that rely upon the Division's limited administrative resources to prosecute their own pending claims and defenses. Accordingly, this is not a remedy that we consider lightly.

While we understand that miscommunication, confusion, and mistakes will occasionally arise, we think the Division's notices should carry more weight, and be taken more seriously than what occurred here. Obviously, employer's personnel lacked clarity about who was responsible for coordinating employer's response to the February 15, 2017, notice of hearing. The record is insufficient to permit us to determine whether this was a failure on the part of employer to enact clear policies, delineate employee roles, provide sufficient training, or some combination of these. In our view, however, the reasonable action would have been for someone with employer to recognize the gravity of receiving a notice of hearing from the Division, and exercise responsibility to, at the very least, have an attorney contact the Division and request a continuance.

This would have given employer ample time to sort out who was responsible for handling the matter, which insurance company should be involved, and all other areas of confusion that employer asserts as justifying its inaction. Instead, the relevant personnel with employer assumed someone else was handling the matter, allowed the hearing date to pass, and did nothing until learning that employee had secured a judgment on the award in circuit court.4 This conduct, in our view, went beyond mere mistake and instead amounted to an unreasonable disregard for the Division's administrative process.

In sum, we conclude employer lacked good cause for its failure to participate in the April 3, 2017, hearing before the administrative law judge. For this reason, we deny employer's request to set aside the award of the administrative law judge.

Decision

We affirm and adopt the award of the administrative law judge with our supplemental findings and conclusions provided herein.

The award and decision of Administrative Law Judge Joseph P. Keaveny, issued July 12, 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.

4 We note that employer has failed to direct us to any legal authority that would suggest the Commission is authorized, after the issuance of a circuit court judgment on an award pursuant to § 287.500 RSMo, to vacate the award upon which the judgment was based. Because we have determined that employer lacks good cause for failing to participate in the hearing, we need not further consider this question, but we deem it appropriate to note this as an additional, significant concern implicated in the remedy employer requests.

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Injury No.: 11-111943

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this 18th day of October 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

SEPARATE OPINION FILED

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Injury No.: 11-111943

Employee: Charles Kinney

I have reviewed the evidence, read the briefs of the parties, and considered 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 agree with the majority's decision to take jurisdiction of employer's application for review, because I believe it was timely filed on the 20th day after employer first received a copy of the administrative law judge's award. However, I disagree with the majority's decision to affirm the administrative law judge's default award.

Our system of justice favors a disposition on the merits wherever possible; this is especially true in the workers' compensation context, where the courts routinely caution us to consider the underlying substance of a claim, rather than dispose of matters on purely procedural or overly technical grounds:

Cases should be heard and decided on their merits. To that end, statutes and rules relating to appeals, being remedial, are to be construed liberally in favor of allowing appeals to proceed.

*Isgriggs v. Pacer Indus.,* 869 S.W.2d 295, 296 (Mo. App. 1994).

Of course, I am aware that the language of Chapter 287 is to be strictly construed, pursuant to § 287.800.1 RSMo. But the relevant rule here is not a statutory one, but rather the case law rule that an applicant for review challenging a default disposition from the Division must demonstrate a good cause for the procedural default. Accordingly, the liberal construction to which the *Isgriggs* court refers—echoing language from countless other Missouri workers' compensation decisions—applies here to our determination whether employer has demonstrated a good cause for setting aside the default award.

Notably, the Commission majority does not appear to apply a liberal construction of good cause. Instead, they appear, throughout their decision, to take a rather harsh view of employer's conduct. From my reading of the relevant Missouri case law, I gather that a default award is a result to be avoided wherever possible. Yet, the Commission majority allows this default award to stand on a finding that employer should be faulted for the good faith and honest mistakes of its personnel. This is contrary to the law in Missouri.

Our courts have specifically recognized that "[g]ood cause includes a mistake or conduct that is not intentionally or recklessly designed to impede the judicial process." *Heintz Elec. Co. v. Tri Lakes Interiors, Inc.,* 185 S.W.3d 787, 793 (Mo. App. 2006). There is no hint in this record that employer's conduct was intentionally or recklessly designed to impede the Division's process. Rather, employer's failure to answer this claim or raise a defense stems directly from the conduct of employee's counsel, who provided a faulty address in employee's claim for compensation, and then included this same faulty address in the amended claim for compensation filed August 8, 2016, despite the fact he'd already learned of employer's alternate addresses.

Injury No.: 11-111943

Employee: Charles Kinney

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This prevented employer from timely answering the claim, pursuing discovery, or raising its defenses, of which it has many, including: that the claim should be barred by reason of employee's failure to timely or properly notify employer of his injuries, as required pursuant to § 287.420 RSMo; that application of the last exposure rule under § 287.067 RSMo prevents an award of compensation against this employer; that employee's claim appears to be barred by the statute of limitations; and that employee's injuries do not even appear to be work-related. Unfortunately, though, the Commission majority has chosen to elevate procedure over substance, with the result that employer is now deprived of an opportunity to explore these defenses, any one of which would be a total bar to the award of lifetime benefits employee secured on a default basis.

To be clear, I share the Commission majority's opinion that parties ought to take seriously the notices they receive from the Division. But I disagree that employer failed to do so, here. The Commission majority conflates good faith confusion and mistake with intentional disregard. I see no indication that the employer ignored the Division's notice or failed to take it seriously. Rather, the notice was unfortunately passed among several employees who very clearly lacked the appropriate direction on how to handle an unusual situation like this, where a former employee failed to timely notify employer of his alleged injuries, his legal counsel misled the Division as to the correct address for his employer, and the claim thereafter proceeded for nearly two years with only the most marginal of attempts to involve employer in this proceeding.

In sum, I find employer had a good cause for failing to attend the hearing of April 3, 2017. I would set aside the default award and remand this matter with instructions that the Division permit employer to file an answer, pursue discovery, raise its defenses, and thereafter assign an administrative law judge to determine this claim on its merits.

Because the majority has determined otherwise, I respectfully dissent.

Reid K. Forrester, Member

DRESSER-RAND GROUP INC.

DRESSER-RAND LLC

Dresser-Rand Services, Inc.

DRESSER-RAND SERVICES, LLC

Dresser-Rand Arrow Services Inc. |

**Injury No.:** 11-111943

**Before the**

**Division of Workers' Compensation**

**Department of Labor and**

**Industrial Relations**

**Of Missouri**

**Jefferson City, Missouri**

**Dresser-Rand Arrow Services Inc.**

**Additional Party:** N/A

**Insurer:** N/A

**Hearing Date:** April 3, 28, & May 2, 2017

**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: November 23, 2011
5. State location where accident occurred or occupational disease was contracted: St. Louis
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 operated a jackhammer and rock drill 10 hours per day, 6 days per week.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Lower back
14. Nature and extent of any permanent disability: Permanent total disability
15. Compensation paid to-date for temporary disability: 0
16. Value necessary medical aid paid to date by employer/insurer? 0

Revised Form 31 (3/97) Page 1

1. Value necessary medical aid not furnished by employer/insurer? $\ 31,632.43
2. Employee's average weekly wages: $\ 1400.00 - $\ 1500.00 per week
3. Weekly compensation rate: $\ 811.73 TTD/ $\ 425.19 PPD
4. Method wages computation: Statement of Facts

1. Amount of compensation payable:

Unpaid medical expenses

$\ 31,632.43

Unpaid temporary total disability benefits ( 117 weeks 4 days)

$\ 95,436.25

1. Permanent total disability benefits from Employer:

Beginning January 5, 2016 for $\ 811.73, and

continuing for Claimant's lifetime.

TOTAL:

INDETERMINATE

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: Nile D. Griffiths

On April 3, 2017, Mr. Charles Kinney, ("Claimant") appeared at the Missouri Division of Workers' Compensation, St. Louis Office ("Division"). Claimant requested a hearing for a final award to determine liability of Dresser-Rand Co. ("Employer") for permanent total disability, as well as other benefits. Claimant appeared in person and with counsel, Nile D. Griffiths. Despite Claimant's attorney sending certified notice to three different addresses, Employer/Insurer did not appear. This was a default hearing.

Claimant's attorney introduced the following uncontroverted facts:

1. Claimant is suffering from an occupational disease arising out of and in the course of employment on or about November 23, 2011.
2. The average weekly wage allows for the maximum rates of compensation.
3. The applicable rates of compensation are 811.73 for total disability and 425.19 for permanent partial disability.
4. The employer has paid zero in medical expenses.
5. The employer has paid zero in temporary total disability.
6. There are outstanding medical bills of $31,632.43.

1. Incidence of occupational disease (exposure and medical causation).
2. Whether injury arose out of and in the course of employment.
3. Medical causation: prevailing factor/attribution.
4. Unpaid medical expenses in the amount of $31,632.43.
5. Permanent total disability.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 11-111943

Charles Kinney testified that he is 51 years old, single, and has no other dependents. He is a high school graduate who scores at the sixth grade, ninth month on reading and eleventh grade seventh month on math. He was in the Army Reserves from 1985-1992 and was a combat engineer. He has no service-connected disabilities and has had no additional formal training. He was employed most recently by Iron Horse Energy Services from around April 6, 2012, through October 4, 2013. He was considered a laborer and would do anything from shoveling and operating a jackhammer to sometimes operating heavy equipment. He was on his knees and squatting all the time. He often worked ten hours a day, six days a week. He had worked for Dresser-Rand Services from 2007-2011, in Louisiana, Missouri, doing essentially the same type of work until that company split off from his last employer. Claimant testified that Dresser-Rand Services employed 50-60 people at this location.

On or about July 21, 2011, claimant was examined by John Sharma, M.D. for complaints of pain in the left leg for at least six months. The pain started in his left calf and shot up into the thigh and left hip area. He occasionally had numbness and tingling in his left leg. The assessments were unspecified joint pain and muscle spasms. He was prescribed Naproxen, Prednisone tapering dose, and Cyclobenzaprine.

On June 11, 2013, Claimant was seen by Patricia Burbank, APN, FNP for pain in the left leg that radiated and caused difficulty walking. The assessments were unspecified joint pain, sciatica of the left side, tobacco use disorder, muscle cramps, and low back pain. Potassium, magnesium and tramadol were prescribed. The x-ray of the lumbar spine, taken on June 14, 2013, showed moderately pronounced arthritic features for his age and chronic appearing minor anterior wedging at L1.

On July 12, 2013, an MRI was performed on claimant's lumbar spine. It showed chronic-appearing minor anterior wedging at L1 and L2. There were posterior disc bulges at L1-2, L2-3, L3-4, and L4-5 and associated end plate degenerative changes.

On October 18, 2013, Andrew Wilson, M.D. examined claimant for back pain and lower extremity radiculopathy. Sensation was slightly altered in the L5 left dermatone. The diagnosis was lumbago and claimant was referred to Dr. Bailey for injections.

Roger Bailey, M.D. examined claimant on November 5, 2013, for lower back pain radiating into the bilateral lower extremities. Dr. Bailey performed a L5-S1 epidural injection on November 8, 2013, and another injection on November 15, 2013.

On April 15, 2014, claimant returned to Dr. Wilson and reported continued pain. His exam was unchanged. Claimant had another follow up with Dr. Wilson on April 28, 2014. The exam was unchanged and imaging studies were reviewed.

Dr. Wilson performed an L5-S1 sacral ala transverse process fusion with Osteocel, bone graft, and L5-S1 pedicle fixation utilizing the NuVasive system on August 4, 2014. The postoperative diagnosis was pars defect with lumbar instability at L5. Claimant was discharged on

WC-32-R1 (6-81)

Page 4

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 11-111943

August 6, 2014. Claimant returned to Dr. Wilson on September 25, 2014, and reported no radiculopathy and improved back pain.

Robert Margolis, M.D. examined claimant on December 8, 2015, regarding a several year history of back pain dating at least to 2009. The pain had been intermittent, and he never saw a physician. In November 2011, Claimant was doing heavy lifting and operating a jackhammer when his back pain increased. It began radiating down his legs. After Claimant operated the jackhammer he would lift the heavy slabs of concrete which had been removed. He continued to have symptoms but did not see a physician until two years later. He merely put up with the pain and took Advil or Tylenol.

Dr. Margolis reviewed the imaging studies and medical records. He believed the activity Claimant performed through his employment for Dresser-Rand and Iron Horse Energy Services was the substantial and prevailing factor in his developing symptomatic lumbar spondylolisthesis requiring fusion. Because of this injury to his low back with subsequent surgery and ongoing complaints, Dr. Margolis felt he had a permanent partial disability of 45% of the person as a whole. Claimant was to avoid repetitive bending, twisting and stooping. He was to limit lifting to 25 pounds frequently and 40 pounds occasionally. Due to his work history, age, and restrictions, Dr. Margolis thought the average employer would not hire him in the normal course of doing business. Dr. Margolis considered claimant to be totally and completely disabled from all forms of employment.

Opinion Evidence

Robert P. Margolis, M.D.

Claimant offered a report by Robert P. Margolis, M.D. as Exhibit 6. The report was issued on January 4, 2016, on an examination of the Claimant that was completed on December 8, 2015. Claimant has ongoing complaints in regard to his back to include pain that occurs with activity. He states that his legs cramp at night; however, he denies any ongoing radicular complaints. He states that his legs will hurt if he stands for several hours. He has a loss of motion in his back. When present, he states, that his back pain can be 9 or 10 out of 10. He only uses over-the-counter analgesics as needed.

After reviewing the medical records provided, as well as obtaining a history from and examining the Claimant, Dr. Margolis made the following statements within a reasonable degree of medical certainty:

1) The activity that Claimant performed throughout the course of his employment for Dresser-Rand and Iron Horse Energy Services was the substantial and prevailing factor in his developing symptomatic lumbar spondylolisthesis requiring the fusion.

2) The claimant has a permanent partial disability of 45 percent of his person as a whole as a result of his injury to his low back with subsequent surgery and ongoing complaints.

3) Claimant should avoid repetitive bending, twisting and stooping. He should limit lifting to 25 pounds frequently and 40 pounds occasionally.

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 11-111943

4) It is Dr. Margolis' opinion that based on Claimant's work history, age, as well as disability and restrictions that the average employer would not hire Claimant in the normal course of doing business. Therefore, he considers Claimant to be totally and completely disabled from all forms of employment. However, he would defer to a Vocational Rehabilitation Counselor.

James M. England, Jr.

Claimant offered a report by James M. England, Jr., a Vocational Rehabilitation Counselor, as Exhibit 7. The report was issued on April 14, 2016, on an examination of the Claimant that was completed on March 24, 2016. Claimant was given the Wide Range Achievement Test, Revision 4 and scored at only the sixth grade, ninth month on reading, but at the eleventh grade, seventh month on math. This is in line with the fact that Claimant told Mr. England math was his favorite subject and that that was the one subject in which he seemed to excel other than building trades type of activity and auto mechanics. Claimant told Mr. England that his sleep is broken up during the night and he gets no more than about 2 hours of rest at any one time. He rarely gets more than 4-5 hours total rest and is really tired as a result during the daytime. It is not unusual for him to doze off because of the lack of sleep. He spends around two hours a day in a recliner and much of the rest of the day on his bed with a wedge pillow behind his back allowing him to semi sit up. If one assumes claimant's presentation, as well as his description of his typical functioning in his home, Mr. England does not believe that claimant would be able to sustain employment in the long run. There is certainly no work activity that would allow him to semi recline or to actually spend time lying down a good part of the day. Mr. England concludes, "As he described his typical daily functioning I believe he is more likely to remain totally disabled from a vocational standpoint."

RULINGS OF LAW

This is an uncontested case. 8 CSR 50-2.010 provides, in part:

"(8) Upon receipt of a Claim for Compensation, the division shall forward a copy of the claim to the employer and its insurer, or third party administrator, if applicable, or Second Injury Fund, if applicable, and within thirty (30) days from the date of the division's acknowledgment of the claim, the employer or its insurer, or third party administrator, if applicable, or The Second Injury Fund, if applicable, shall file an Answer to Claim for Compensation, with sufficient copies for the division, the claimant(s) and each of his/her attorneys.

(A) Extensions of time to file an Answer to Claim for Compensation will be granted only upon a showing of good cause. Applications for an extension of time to answer the claim shall be made to the chief administrative law judge of the local office with venue of the case.

(B) Unless the Answer to Claim for Compensation is filed within thirty (30) days from the date the division acknowledges receipt of the claim or any extension previously granted, the statements of fact in the Claim for Compensation shall be deemed admitted for any further proceedings."

In the instant case, the Division received the Claim for Compensation on 8/21/2015 and an amended Claim for Compensation dated August 8, 2016. Claimant's attorney sent the Notice

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 11-111943

of Hearing by certified mail to Employer at three different mailing addresses. Employer responded to Claimant's attorney on December 18, 2015 stating that Claimant had been discharged for cause, however, Employer never filed an Answer to Claim for Compensation with the Division. Employer's response to Claimant's attorney indicates confirmed notice of the Claim for Compensation. Therefore, Employer's failure to file an Answer to Claim for Compensation compels the admission of the facts in the Claim for Compensation for any further proceedings.

RSMO Section 287.067 provides, in part:

"3. An injury due to repetitive motion is recognized as an occupational disease for purposes of this chapter. An occupational disease due to repetitive motion is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability. The prevailing factor is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability. Ordinary, gradual deterioration, or progressive degeneration of the body caused by aging or by the normal activities of day-to-day living shall not be compensable."

Claimant was employed by Employer from November 16, 2007, through November 23, 2011. He ran a jackhammer and a rock drill all day. Once in a while, he would pick up concrete from a foundation that he had demolished. He worked ten hours a day, six days a week. He worked on a crew of 6 to 10 people. Claimant began to experience low back and left leg pain. He was examined by Dr. Sharma on July 21, 2011. He has had low back and left leg pain since July 21, 2011. After the initial examination, he went back to work but could not operate the machinery all day, had to take frequent breaks and was unable to lift as he previously could. He would miss occasional days of work because of back pain. He just stayed in the hotel room. His pace of work slowed way down. After a December 8, 2015 examination, Dr. Margolis opined that the activity that claimant performed throughout the course of his employment for Dresser-Rand and Iron Horse Energy Services was the substantial and prevailing factor in his developing symptomatic lumbar spondylolisthesis requiring the fusion.

RSMO Section 287.140 provides, in pertinent part:

1. The employee shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury. If the employee desires, he shall have the right to select his own physician, surgeon, or other such requirement at his own expense.***

1. The employer shall have the right to select the licensed treating physician, surgeon, chiropractic physician, or other health care provider; provided, however that such physicians, surgeons or other health care providers shall offer only those services authorized within the scope of their licenses.

A desire to choose one's own medical provider can only arise when an employee has knowledge of the existence of a work-related injury needing medical treatment and can, thus,

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 11-111943

voluntarily elect to forego the employer's obligation to provide medical treatment. Meyers v. Wildcat Materials, Inc 258 S. W. 3d 78

Claimant had back surgery almost three years after leaving his job with Employer. It was only after the surgery that Claimant was informed that it was work related. Claimant's lack of knowledge that he had sustained a work-related injury at the time that he sought medical treatment precluded him from choosing between his medical provider and Employer's medical provider.

Claimant asserts Employer is liable for past medical expenses totaling $31,632.43 that were needed to relieve the effects of his work-related occupational disease. Dr. Margolis stated "The activity that this patient performed throughout the course of his employment for Dresser-Rand and Iron Horse Energy Services was the substantial and prevailing factor in his developing symptomatic lumbar spondylolisthesis requiring the fusion as referenced above. The patient now has ongoing complaints as stated."

A sufficient factual basis exists for the [fact finder] to award compensation for past medical expenses when: (1) the claimant introduces his medical bills into evidence; (2) the claimant testifies that the bills are related to and the product of his work injury; and (3) "the bills relate to the professional services rendered as shown by the medical records in evidence." Maness v. City of De Soto, 421 S. W. 3d 532,544

Claimant submitted medical bills that correspond with medical records that gave rise to treatment for the November 2011 occupational disease. Claimant testified he received the treatment for the low back as reflected in the medical records. Therefore, I find Employer is liable for Claimant's past medical expenses totaling $31,632.43.

RSMO 287.020.6 defines "total disability" as the inability to return to any employment and not merely the inability to return to the employment in which the employee was engaged at the time of the accident. Any employment means any reasonable or normal employment or occupation; it is not necessary that the employee be completely inactive or inert in order to meet the statutory definition. Kowalski v. M-G Metals and Sales, Inc. 631 S.W.2d919, 922 (Mo. App. 1982).

In determining whether a Claimant is permanently and totally disabled is whether, in the ordinary course of business, any employer reasonably would be expected to hire the injured worker, given his present physical condition. Radar v. Werner Enterprises, Inc. 360 S.W.3d 285 (MO.App.2012). I find Claimant met his burden.

Dr. Margolis reviewed the imaging studies and medical records. Because of this injury to his low back with subsequent surgery and ongoing complaints, Dr. Margolis felt he had a permanent, partial disability of 45% of the person as a whole. With regard to the low back, Mr. Kinney was to avoid repetitive bending, twisting, and stooping. He was to limit lifting to 25 pounds frequently and 40 pounds occasionally.

Claimant described his symptoms to James M. England. He tries to control his pain by changing positions and reclining as needed. The pain is always there. It goes into his

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legs with standing too long and sitting too long. He can generally be on his feet only about 15-20 minutes before he is looking for somewhere to sit. He can walk perhaps 100 yards, but would have to rest at that point. He can lift around 20 pounds briefly, but would not carry it far. He estimated that he normally sits around 15 minutes before the discomfort becomes more problematic and after about 20-30 minutes he is generally up and moving around. Due to his work history, age, and restrictions, the average employer would not hire him in the normal course of doing business

Claimant introduced evidence that the date of the occupational disease was November 23, 2011. Claimant introduced evidence indicating the applicable rates of compensation are $\ 811.73 for TTD and $\ 425.19 for PPD. Claimant further testified that his last day of work was October 3, 2013. Surgery was performed by Dr. Wilson on August 4, 2014. Dr. Margolis report is dated January 4, 2016. The record does not indicate any of the treating physicians placing the Claimant at MMI. Therefore, I find Employer liable for TTD benefits at a weekly rate of $\ 811.73 beginning retroactively on October 3, 2013 through January 4, 2016. In addition, I find Employer liable for a weekly rate of $\ 811.73 beginning retroactively on January 5,2016 , and continuing for the remainder of Claimant's life.

The November 23, 2011, occupational disease is the prevailing factor that caused injury to the discs L5-S1. Employer is liable for the following benefits: Temporary total disability, permanent total disability and past medical expenses.

I certily that on 7-12-17

I delivered a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file.


Made by:

Joseph P. Keaveny

Administrative Law Judge

Division of Workers' Compensation