William Stratton v. City of Odessa

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

**Injury No.:** 14-103735

**Employee:** William Stratton

**Employer:** City of Odessa

**Insurer:** Missouri Rural Services Workers' Compensation Trust

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, heard the parties' arguments, and considered the whole record, we find that the 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 award and decision of the administrative law judge with this supplemental opinion.

At the outset, we note that at page 17 of the administrative law judge's award, the heading at # 8 indicates: Officer Stratton is entitled to costs of $21,983.64 under section 287.560. Whereas at page 19, the administrative law judge's conclusions state, "Officer Stratton is entitled to costs and fees for the City's unreasonable defense in the amount of $19,728.54." We agree that the employee is entitled to an award of costs and attorney's fees in the amount of $19,728.54, and correct the error in the amount listed in the heading at page 17, to be consistent with this finding.

Section 287.560 RSMo states in relevant part:

> ... if the division or commission determines that any proceedings have been brought, prosecuted or defended without reasonable ground, it may assess the whole cost of the proceedings upon the party who so brought, prosecuted or defended them. ... (Our emphasis)

While the statute allows us the discretion to assess costs against a party, our discretion is clearly limited in the context of prosecution or defense of the proceedings.

We agree with the administrative law judge that an award of costs is appropriate in these circumstances where employer continued to defend without reasonable grounds during the course of the proceedings. We write separately, however, to clearly limit the bases for our ruling, given that the administrative law judge referenced conduct outside the proceedings, which may give the appearance he relied on a course of conduct long preceding the initiation of this claim in 2015.

We adopt the administrative law judge's findings on this issue beginning on page 17 of his award. We further adopt the administrative law judge's findings on this issue through the first full paragraph on page 18, excluding the final sentence, "Unfortunately, the City's egregious conduct goes far beyond anything before the Landman and De Long courts." While we understand the administrative law judge was thereafter referencing information which the employer should have been aware prior to employee filing the claim for compensation, we want

Injury No. 14-103735

Employee: William Stratton

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to make clear that these pre-filing events are not part of the "proceedings," as required under § 287.560. The perception of employer's action or inaction prior to the initiation of this proceeding is not relevant to an award of costs where "any proceedings have been brought, prosecuted or defended without reasonable ground." *Id.*

We disavow those additional paragraphs of the award beginning on page 18, with "Officer Stratton's testimony painted ...." and continuing through page 19 up to the heading, "CONCLUSION." We do so only because we want to clearly identify that any actions prior to the initiation of the workers' compensation proceeding are not a basis for our finding that an award of costs is appropriate under § 287.560.

At the time of initiation of the proceeding, employee filed a Claim for Compensation on April 6, 2015, indicating the basis for his claim as exposure to mold, fumes and other hazards in the workplace causing occupational disease and specifically demanding such treatment as will cure and relieve the effects of his injuries. *Transcript*, page 143. At the point that employee initiated proceedings, employer had choices to make in how to proceed, as informed by the past events of which it was aware.²

After initiation of the proceedings in 2015, at least as early as January 2016, an asthma specialist had noted suspicion that employee's exposure to mold in a work location for the city had caused his condition. He noted the hospitalization in 2008 for empyema. (Dr. Wald of Kansas City Allergy & Asthma Associates). In December 2016, Dr. Poppa issued a report connecting the employee's conditions with work exposure. It wasn't until October 2017 that employer obtained its own opinion from Dr. Shen, who then confirmed that employee's conditions were related to mold exposure in the workplace, were persistent, were likely to be permanent and unlikely to resolve. Even then, after an opinion from employer's own doctor, employer didn't offer treatment or admit its liability.³ At the time of hearing in February 2019, employer continued to deny all liability.

We are mindful that the Commission is cautioned to exercise its discretion to assess an award of costs only in clear circumstances. *Landman v. Ice Cream Specialties, Inc.*, 107 S.W. 3d 240, 250 (Mo. 2003) *overruled on other grounds by Hampton v. Big Boy Steel Erection*, 121 S.W. 3d 220, (Mo. 2003). Similarly to *Landman*, employer did not provide treatment even after its evaluating physician, Dr. Shen confirmed the mold exposure at work was related to employee's condition. There is no evidence that employer sought any other medical opinion thereafter.

Employer suggests that it was reasonable to continue to defend on the ground that employee was not at maximum medical improvement (MMI). However, there were opinions that he was at a permanent disability status. Dr. Poppa opined in his December 8, 2016 report that employee was at MMI. Even Dr. Shen suggested that it was a permanent condition. Continuing to defend on the basis that employee was not at MMI was not reasonable.

1 The judge's references are to events of which the employer would have been aware because of its involvement with the inspections and related remediation efforts in its building and are relevant only to the extent.

2 In the Findings of Fact set forth by the administrative law judge, we note instances where the employer's reactions to events preceding the filing of this Claim for Compensation are characterized as lying. We do not find this characterization as relevant in any way to our ultimate conclusion that the employer is liable for costs of this proceeding which are limited to action or inaction after initiation of the proceeding. However, the recitation of past events does provide relevant evidence regarding the level of knowledge of employer about the viability of employee's assertions about his health conditions.

3 As noted in employee's brief, while employer suggests it offered treatment at some point prior to hearing, employee's credible testimony was that he had never refused any treatment offered by employer. *Transcript*, pages 109-110, 120.

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We do not find employer's defenses to the statute of limitations to be reasonable when employee filed his claim even before he had a firm medical opinion upon which it was reasonably discoverable and apparent that he had an occupational disease attributed to his work. We do not find employer's defense on the basis of challenge to medical charges to be reasonable when there are ways to address those issues short of denying all liability.

We acknowledge that employer is not required to put on any evidence to disprove employee's positions. § 287.808 RSMo. Employee bears the burden of proof on all elements of a cause of action. However, once that burden has been met, the burden shifts to employer for any affirmative defenses. The burden of proof is on the party asserting a defense based on a factual proposition as more likely true than not by contrary persuasive evidence. *Id.* There was an absence of any contrary evidence by the employer, further leaving us with only the unrebutted evidence of the employee and the absence of any proof supporting employer's defenses or its disputes with factual propositions. Employer made a strategic legal tactic to rely on its legal right to not put on evidence. However, in doing so, employer ran the risk of this exact outcome. This Commission is, therefore, left with a record of evidence with little to nothing to justify the employer's actions during the course of the proceedings.

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

The award and decision of Chief Administrative Law Judge Mark Siedlik is attached and incorporated herein to the extent not inconsistent with this supplemental 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 _______ day of November 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: William Stratton

Injury No. 14-103735

Employer: City of Odessa

Additional Party: N/A

Insurer: Missouri Rural Services Workers' Compensation Trust

Hearing Date: February 7, 2019

Checked by: MS/drl

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: September 26, 2014
5. State location where accident occurred or occupational disease was contracted: Odessa, Lafayette County, 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? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: While in the course and scope of his employment, Officer Stratton was exposed to black mold over the course of many years. This exposure caused him to develop multiple, debilitating respiratory and psychological symptoms.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Lungs, Respiratory System, Psyche, Body as a Whole

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: William Stratton

Injury No. 14-103735

1. Nature and extent of any permanent disability: 20% to body as a whole for Respiratory System, 5% to body as a whole for Psychological Symptoms

1. Compensation paid to-date for temporary disability: None

1. Value necessary medical aid paid to date by employer/insurer? $0

1. Value necessary medical aid not furnished by employer/insurer? 109,720.34

1. Employee's average weekly wages: 812.43

1. Weekly compensation rate: 541.64 TTD and 451.02 PPD

1. Method wages computation: Stipulation

1. Amount of compensation payable: $156,988.90

Medical Bills = $109,720.34

TTD from 1/17/08 to 2/17/08 = 2,166.56 (4 weeks x 541.64)

5% PPD for Psychological Symptoms = 9,020.40 (20 weeks x 451.02)

20% PPD for Respiratory System = 36,081.60 (80 weeks x 451.02)

1. Future requirements awarded: Medical Treatment

1. Costs awarded: 19,728.54 (11,817.14 in attorney's fees plus $7,911.40)

The compensation awarded to the Employee shall be subject to a 25% lien in favor of Ms. Brianne Thomas, of Boyd, Kenter, Thomas & Parrish, LLC, for reason