Jason Collins v. Century Ready Mix, Inc.

Improvee: Jason L. Collins

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The Division sent its notice of the employee's September 9, 2019 claim for compensation to the employer on September 16, 2019. The employer/insurer's answer, filed on October 31, 2019, was untimely.

Based on the employee's claim statement set out, supra, and citing 8 CSR 50-2.010(8)(B), Lumbard-Bock v. Winchell's Donut Shop, 939 S.W.3d 456 (Mo. App. 1996) and Hendricks v. Motor Freight Corp., 570 S.W.2d 702 (Mo. App. 1978), the ALJ deemed that the issue of whether the employee sustained an occupational disease through repetitive trauma arising out of and in the course and scope of employment injury, as well as the issue of causation itself, were admitted as a consequence of the employer's untimely answer. We disagree.

Lumbard-Bock v. Winchell's Donut Shop, supra, at 457-458 and Taylor v. Labor Pros L.L.C., 392 S.W.3d 39, 44 (Mo. App. 2013), held "The failure to timely answer results in the factual statements in the claim being admitted, but does not result in the admission of legal conclusions such as whether the injury arose out of or in the course of the employment (emphasis added)."

The statement that the employee sustained an occupational disease caused by "some distinctive features of [his] job which was common to all jobs of that sort" and "occupational positioning" fails to clearly describe what the employee was doing and how his injury occurred. This catch-all language, apparently designed by the employee's attorney to encompass all possible scenarios, represents a legal conclusion as opposed to a statement of fact. Consequently, under Lumbard-Bock and Taylor v. Labor Pros., supra, the employer/insurer's untimely answer does not preclude it from disputing the issue of whether the employee sustained a compensable occupational disease injury within the course and scope of his employment. We will consider this issue on its merits.

The employee credibly described his fourteen-year exposure to continuous vibrations and jarring from seven to fourteen hours per day while sitting in a truck between five and ten years old with worn-out cushions. Dr. Brent Koprivica opined that the employee's work activities as a concrete truck driver represented an exposure to risk that was unique to his employment when compared to his non-work-related daily activities; that the employee's exposure during more than full-time employment described over years represented a severe exposure to whole-body vibration and jarring; and that the employee's workplace exposure to risk with ongoing cumulative injury on each day worked up to the listed claim date of April 2, 2019, represented the direct, proximate and prevailing factor in the development of his disc herniation with marked stenosis, post-laminectomy syndrome, right lower extremity disabling symptoms and significant psychological disability.

Based on the employee's testimony, deemed credible by the ALJ, and Dr. Koprivica's expert opinion, we find that the employee sustained a compensable occupational disease as a result of his exposure to repetitive trauma within the course and scope of his employment.

In T.H. Sonic Drive in of High Ridge, 388 S. W. 3rd 585 (Mo. App. 2012), the employee's claim alleged her average weekly wage as the "max rate." Id, at 589. The court unequivocally held, "Wage rate is a question of fact." Id, at 595. See also Taylor v. Labor Pros L.L.C, supra, at 44 (Mo App. 2013). Under these authorities, the ALJ correctly ruled that the "Maximum Rate/Wage" listed on the employee's claim was a statement of fact deemed admitted by the employer's untimely answer.

Division Rule 8 CSR 50-1.010(8) provides, in pertinent part, "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. . ."

The employer/insurer asks that we disregard "hard and fast"1 provisions of this rule to find the Division's notice to the employer of the employee's claim deficient because it failed to provide service consistent with the requirements of Missouri Rule of Civil Procedure 54.13 relating to Personal Service Within the State. In its brief, the employer/insurer argues that our enforcement of this rule as it relates to admissions based on a late answer to a claim undermines the maintenance of civility and the dignity of the Missouri Workers' Compensation Act. We disagree.

We note that courts have held that "As a general proposition, the Missouri Rules of Civil Procedure . . . do not apply to workers' compensation actions, unless the statute implicates the application of a specific rule." McGuire v. Christian County, 442 S.W.3d 117, 122 (Mo. App. 2014) citing U. S. Dept. of Veterans Affairs v. Boresi, 396 S.W.3d 356, 362 (Mo. banc 2013) (internal quotation marks omitted).

The employer/insurer argues that Rule 8 CSR 50-2.010(8) violates its constitutional due process rights. The Commission's statutory authority does not extend to ruling on constitutional issues. We note the employer/insurer's request to preserve this point for review by a higher court.

Claimant's Motion for Costs Pursuant R.S.MO. § 287.560, For Employer's Frivolous Appeal

Section 287.560 RSMo provides, in pertinent part, "[I]f the division or 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."

Pursuant to the section, the employee's attorney has filed a motion for attorney's fees and costs associated with his expenses and time exerted in responding to the employer's application for review to the Commission.

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[^0]: ${ }^{1}$ Employer/Insurer's Brief, p. 17.

In light of our finding that the employer/insurer's untimely answer to the employee's claim did not preclude it from disputing the threshold issue of whether the employee sustained an occupational disease arising out of and in the course of his employment, we find the employer/insurer's defense was not without reasonable ground. We, therefore, deny the employee's motion for costs and expenses.

We affirm and adopt the award of the ALJ as supplemented herein.

We approve and affirm the ALJ's allowance of attorney's fee herein as being fair and reasonable.

The December 23, 2021, award and decision of Administrative Law Judge Emily S. Fowler is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

Given at Jefferson City, State of Missouri, this $\qquad 2^{\text {nd }} \qquad$ day of February 2023.

LABOR AND INDUSTRIAL RELATIONS COMMISSION


Rodney J. Campbell, Chairman

Shalonn K. Curls, Member

SEPARATE OPINION FILED

Kathryn Swan, Member

Attest:

I have read the parties' briefs, listened to their arguments, and reviewed the whole record. I have considered all of the competent and substantial evidence based on the record as a whole. Based on my review of the evidence and consideration of the relevant provisions of the Missouri Workers' Compensation Law, I find that this claim is not compensable.

The majority correctly finds that the employee's claim statement relevant to the issue of whether he sustained an occupational disease in the course and scope of his employment represented a legal conclusion, not a statement of fact and that the employer is not precluded from disputing that the employee's injury arose out of or in the course of his employment.

The majority incorrectly rules in the employee's favor on the merits of this issue. It errs in relying on Dr. Koprivica's opinion that the employee was permanently and totally disabled because of his employment, because Dr. Koprivica relied on the employee's unsubstantiated self-reporting that he was jarred over two-thirds of his day in his work as a driver for the employer.

On February 4, 2020, the employee testified there was no particular onset to his symptoms and that he was "Just driving at work, doing my normal stuff at work driving a truck and I just noticed it that afternoon after I got done it started hurting worse." ${ }^{1}$ There was no reference of bouncing or jarring until Dr. Koprivica's June 17, 2020 report. Dr. Koprivica's report was also the first reference to jarring and an injury resulting from work. Dr. Koprivica defined jarring as "where you're actually driving over terrain . . . different than just the whole body vibration exposure from being in the truck while it's running." ${ }^{2}$ Dr. Koprivica found cumulative trauma from jarring two-thirds of the work day resulted in a disc herniation at L4-5. Dr. Koprivica's opinion relied on the truth of the employee's statement, alleging jarring for more than two-thirds of his work day.

As detailed by an ergonomist, Mr. Dennis Mitchell, the term "jarring" or "shocks" are typically used to define "severe" vibration events. Mr. Mitchell used standards to measure the vibration exposure. His testing revealed that jarring was present, but only for a tiny portion of the waveform for less than two seconds of jarring over 4.3 hours. As explained, the employee's exposure to jarring would have been extremely limited both while driving a cement mixer and performing normal job duties, which the employee described as requiring him to bend and kneel "a little