Gabina Castaneda v. LSI Staffing Solutions

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

Injury No. 17-104957

**Employee:** Gabina Castaneda

**Employer:** LSI Staffing Solutions

**Insurer:** Zurich American Insurance

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having read the briefs, reviewed the evidence, and considered the whole record, we find that the award of the administrative law judge granting 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.

On December 23, 2019, an administrative law judge issued an award granting compensation to employee in this workers' compensation claim. On January 7, 2020, employer filed a timely application for review with the Labor and Industrial Relations Commission (Commission).

On April 22, 2020, employer filed a brief with the Commission in connection with its application for review.

On April 28, 2020, employee filed with the Commission a reply brief, and a motion for costs against employer pursuant to § 287.560 RSMo. Employee seeks to recover the payment of costs in this case for her attorney's fee in the amount of $4,437.00 (25% of the $17,748.01/total Award) and case expenses of 2,781.11, for a total of 7,218.11, and claims that employer's defense and appeal that employee had to prosecute was frivolous. On May 13, 2020, employer filed a reply brief, which included a response to employee's motion for costs.

On May 19, 2020, employee filed a motion to strike employer's reply brief with this Commission, alleging that employer's attachments in support of its reply brief are not part of the record. Employee further asserts that employer's May 13, 2020 brief should be stricken pursuant to Commission rule 8 CSR 20-3.030(5)(C). Employee also argues that employer's brief violates 8 CSR 20-3.030(5)(A) and (B) regarding font size and the length of a reply brief, respectively. Employee argues that employer's reply brief uses font smaller than 13 font and is 21 pages in length, including attachments, and that the exhibits attached to employer's brief are not part of the record/evidence.

Injury No. 17-104957

Employee: Gabina Castaneda

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"The commission should only exercise its discretion to order the cost of proceedings under section 287.560 where the issue is clear and the offense egregious. But where the commission has so exercised its discretion, the Court will defer to it absent a lack of substantial evidence to support the award or overwhelming evidence contradicting it."1

§287.560 states, in relevant part:

[I]f the 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.

Commission rule 8 CSR 20-3.030(5) states, in relevant part:

(5) Briefs—Typewritten. Briefs filed in any case pending before the commission shall be typewritten. The original shall be filed with the commission and a copy served upon the opposing party(ies).

(A) All briefs shall be subject to the following requirements:

1. Use characters throughout the briefs, including footnotes that are not smaller than thirteen (13) font, Times New Roman on Microsoft Word;

(B) A reply brief is not required or suggested but if the petitioner believes it is necessary to file a reply, it shall not exceed eight (8) pages.

(C) Upon its own motion, or upon motion by any interested party, the commission may, in its discretion, decline to consider any brief or any portion of a brief that is not filed in accordance with these rules.

We do not find anything egregious in any of the points employee argues in support of her motion for costs, and therefore deny that motion. We do, however, believe that employee's motion to strike employer's May 13, 2020 reply brief should be granted, because employer attached exhibits to the brief that are not already in the record. Furthermore, employer's May 13, 2020 reply brief is over 8 pages, and the font used in it appears to be smaller than 13 font, in violation of regulations 8 CSR 20-3.030(5)(A) and (B).

Conclusion

We affirm and adopt the award of the administrative law judge as supplemented herein. The award and decision of Administrative Law Judge Lisa Pottenger is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

1 Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 250-51 (Mo. banc 2003) (overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 224 (Mo. banc 2003).

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Given at Jefferson City, State of Missouri, this **31st** day of July 2020.

**Robert W. Cornejo, Chairman**

**Reid K. Forrester, Member**

**S. Viki Curls**

Shalonn K. Curls, Member

Attest:

**Secretary**

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gabina Castaneda

Injury No. 17-104957

Employee: Gabina Castaneda

Injury No. 17-104957

Dependents: N/A

Employer: LSI Staffing Solutions

Insurer: Zurich American Insurance

Additional Party: N/A

Hearing Date: December 9, 2019

Checked by: LP/lh

1. Are any benefits awarded herein? Yes.

1. Was the injury or occupational disease compensable under Chapter 287? Yes.

1. Was there an accident or incident of occupational disease under the Law? Yes.

1. Date of accident or onset of occupational disease: June 28, 2017

1. State location where accident occurred or occupational disease was contracted: Kansas City, Clay County, Missouri.

1. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.

1. Did employer receive proper notice? Yes.

1. Did accident or occupational disease arise out of and in the course of the employment? Yes.

1. Was Claim for Compensation filed within time required by Law? Yes.

1. Was employer insured by above insurer? Yes.

1. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee wore improperly fitted work boots and fell landing on her left lower side of body while at work cutting fruit for her employer.

1. Did accident or occupational disease cause death? No. Date of death? N/A

1. Part(s) of body injured by accident or occupational disease: left SI/low back, left knee

WV-32-81 (6-81)

Page 1

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gabina Castaneda

Injury No. 17-104957

1. Nature and extent of any permanent disability: 7.5 % of the left knee (160) and 5% of left SI joint/low back (400)

1. Compensation paid to-date for temporary disability: 0

1. Value necessary medical aid paid to date by employer/insurer? $6,560.40

1. Value necessary medical aid not furnished by employer/insurer? 0

1. Employee's average weekly wages:

1. Weekly compensation rate: $911.27/477.33

1. Method wages computation: 8CSR 50-2.010(8)(B).

**COMPENSATION PAYABLE**

1. Amount of compensation payable: The employer is liable to claimant for 32 weeks of permanent partial disability or $15,274.56 and past temporary total disability benefits from June 29, 2017 to July 17, 2017.

1. Second Injury Fund liability: N/A

1. Future requirements awarded: The employer is liable to Claimant for future medical care stemming from the June 28, 2017 accident pursuant to Dr. Stuckmeyer's recommendation but not limited to those options. RSMo. 287.140

Said payments to begin as of the date of the award 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 25 percent a lien in favor of, Mav Mirfasihi, Attorney at Law, for reasonable and necessary attorney's fees pursuant to Mo.Rev.Stat. §287.260.1.

WC-32-R1 (6-81)

Page 2

Employee: Gabina Castaneda

Injury No. 17-104957

Dependents: N/A

Employer: LSI Staffing Solutions

Insurer: Zurich American Insurance

Additional Party: N/A

Hearing Date: December 9, 2019

Checked by: LP/lh

On December 9, 2019, the parties appeared for a final hearing. The Employee, Gabina Castaneda, appeared in person and with counsel, Mav Mirfasihi. The Employer, LSI Staffing Solutions, through its insurer, Zurich American administered by Gallagher Bassett, was represented by Kip Kubin.

The parties stipulated to the following:

1) That LSI Staffing was an employer operating subject to Missouri's workers' compensation law;

2) That the insurer, Zurich American administered by Gallagher Bassett, was their insurer.

3) That Ms. Castaneda was their employee;

4) That jurisdiction was proper in Clay County, Missouri;

5) That Claim sustained an accident that occurred within the course and scope of her employment on June 28, 2017;

6) That the claim was filed within the time allowed by law;

7) That proper notice was given;

8) That the Employer has provided medical expenses in the amount of $\ 6,560.40 and has not provided any temporary total disability benefits.

The issues to be resolved by this hearing are as follows:

1) Whether the Claim for Compensation is valid pursuant to Reg. 8 CSR 50-2.010.7;

2) Wage rate for permanent partial disability and temporary total disability;

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gabina Castaneda

Injury No. 17-104957

3) Medical causation as to the left knee and left SI joint/low back;

4) Whether the Employer is liable to the Employee for future medical care in order to cure and relieve the effects of the June 28, 2017 accident;

5) Whether Claimant suffered any disability and, if so, the nature and extent of that disability; and

6) Whether the Employer is liable to the Employee for past temporary total disability benefits from June 28, 2017 to July 17, 2017.

The Employer makes issue that the Claim for Compensation is invalid pursuant to 8 CSR 50-2.010.7 stating the Claimant did not sign the Claim for Compensation as required by strict construction of the regulations. 8 CSR 50-2.010.7 states: "The employee or the employee's dependents may file a Claim for Compensation." Claimant hired her attorney on April 18, 2018, and signed an attorney/client contract indicating that she gave her lawyer the limited power of attorney to sign her name on any Claim for Compensation filed on her behalf. On April 30, 2018, her lawyer filed a Claim for Compensation and he signed his name on behalf of the Claimant. The regulation states "may" which means a claimant's signature is not required in order to file a proper Claim for Compensation. I find the Claim for Compensation was properly filed by Claimant's attorney who signed on her behalf.

The next issue is wage rate. The Claimant filed a Claim for Compensation on April 30, 2018. In the section of the claim form titled Average Weekly Wage, Claimant alleged "max rate." The Employer answered the Claim for Compensation on July 17, 2018. Indeed, the date stamped by the Division on the Answer was July 17, 2018 which is not within 30 days from the date of receipt of the Claim for Compensation. 8 CSR 50-2.010.8(b) states: "Unless the Answer to Claim for Compensation is filed within 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." An employer's untimely answer results in the admission of factual allegations including max rate in Claimant's Claim for Compensation. See TH v. Sonic Drive-in of High Ridge, 388 SW3d 585 (Court of Appeals E.D. 2012). In TH v. Sonic Drive-in of High Ridge, the Court of Appeals, E.D. found that max wage rate as alleged in claimant's Claim for Compensation was a factual allegation deemed admitted by the employer based on filing a late answer. TH v. Sonic Drive-in of High Ridge, 388 SW3d 585, 594 (Court of Appeals E.D. 2012). Likewise, as in this case, I find based on the evidence admitted, regulations indicating shall, and case law, that the Claimant is entitled to the maximum rate of compensation for the time period of June 28, 2017 which is $911.27/$477.33.

The next issue to be decided is whether the fall on June 28, 2017, was the prevailing factor of Claimant's low back/left SI joint and left knee. Claimant received authorized medical care of the left knee strain due to the work related fall of the June 28, 2017 accident. Claimant testified at hearing she also hurt her left hip and low back at the time she fell on June 28, 2017. Medical records of Concentra generated close in time to the injury reflect left SI cramping and left hip pain along with tenderness of the L5-S1 region. (See Claimant's Exhibit No. 1). Claimant's expert, Dr. Stuckmeyer, found the accident of June 28, 2017, was the direct proximate and prevailing factor of Claimant's left knee, left sacroiliac dysfunction and left-sided facet generated lumbosacral pain. Another expert, the Employer's expert, Dr. Michael Dempewolf, whose testimony was admitted into evidence, opined that Claimant's fall of June 28, 2017, was the prevailing factor of her left lower extremity, back and pelvic injuries. (See

WV-32-R1 (6-81)

Page 4

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gabina Castaneda

Injury No. 17-104957

Claimant's Exhibit No. 5, p 14). I find based on the uncontroverted evidence that the fall of June 28, 2017, is the prevailing factor of Claimant's left knee, low back and left SI complaints.

The next issue to be tried is whether the Employer is liable to the Employee for future medical care regarding her left knee, left hip and low back as a result of the June 28, 2017 accident. In support of her position, Claimant has offered the medical report and testimony of Dr. Stuckmeyer. Dr. Stuckmeyer recommended Claimant undergo a steroid injection and possibly left hip arthroscopy for a small focal labral tear. (See Claimant's Exhibit No. 10). Dr. Stuckmeyer also opined based on the MRIs taken of July 30, 2019, and the physical examination of the left knee, that Claimant may require a left knee arthroscopy. Dr. Stuckmeyer recommends facet injections of the low back in order to cure and relieve the effects of the June 28, 2017 fall. The Employer and Insurer refer to their expert, Dr. Michael Dempewolf, in support of their position that Claimant is not entitled to future medical care. Dr. Dempewolf after reviewing the MRIs of the left knee, left hip and low back found Claimant's conditions chronic and the MRI's did not show any abnormality. Although Dr. Dempewolf found the studies were considered normal, he did not comment on whether treatment is required in order to cure and relieve the effects of the fall at work. The standard of proof for entitlement is an allowance for future medical aid cannot be met simply by offering testimony that it is possible that the Claimant will need future medical treatment, *Modlin v. Sunmark, Inc.*, 699 SW2d, p 5, 7, (Mo. App. 1995). The cases establish, however, that it is not necessary for the Claimant to present "conclusive evidence of the need for future medical care." *Sifferman v. Sears Roebuck & Company*, 906 SW2d 823, 838, (Mo. App. 1995) To the contrary, numerous cases have made it clear that in order to meet their burden, claimants are required to show by a reasonable probability that they will need future medical treatment. *Dean v. St. Luke's Hospital*, 936 SW2d 601, (Mo.App. 1997). Indeed, employees must establish through competent medical evidence that medical care requested "flows" from the accident before the employer is responsible, *Landers vs. Chrysler Corporation*, 963 SW2d 275, (Mo. App. 1997). I find that Claimant has met her burden of proof regarding future medical care since I do not find Dempewolf's comments on the MRIs probative on this issue. I find the Employer is liable to Claimant pursuant to Section 287.140 RSMo.

At the time of the hearing, Claimant credibly testified she continued with problems of standing, sitting, walking due to the work accident of June 28, 2017. There was no evidence or testimony admitted the Claimant had disabilities of the left SI/low back and left knee prior to June 28, 2017. Based on the evidence presented, I find Claimant suffered 7.5 percent permanent partial disability of the left knee and 5 percent permanent partial disability of the left SI/low back or $15,274.56 for permanent partial disability.

I also find the Employer is liable to the Employee for temporary total disability benefits from June 29, 2017 to July 17, 2017 at a weekly rate of $911.27. Claimant was not at maximum medical improvement of the left knee during this time period and was under active medical care with modified work restrictions during this time period. Additionally, medical evidence was presented that she was temporarily and totally disabled during the 19 days she was receiving physical therapy of the left knee. Therefore, the Employer is liable to the Employee for temporary total disability benefits beginning June 29, 2017 to July 17, 2017.

WV-32-331 (6-81)

Page 5

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gabina Castaneda

Injury No. 17-104957

Mav Mirfasihi, attorney at law, is allowed a fee of costs plus 25 percent of all sums awarded under this provisions of this award for necessary legal services rendered to the Employee.

I certify that on 12-23-19

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:

Lisa Pottenger

Administrative Law Judge

Division of Workers' Compensation