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Harrington v. Employer Solutions Staffing

Court of Appeals of Missouri, Southern District, Second Division

October 16, 2015

JOHN M. HARRINGTON, Claimant-Respondent,
v.
EMPLOYER SOLUTIONS STAFFING, Employer-Appellant

APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION.

For Appellant's: Patricia L. Musick, of Springfield, Missouri and Douglas M. Greenwald, of Kansas City, Missouri.

For Respondent's: Robert T. Beezley, of Springfield, Missouri.

WILLIAM W. FRANCIS, JR., J. -- AUTHOR. DON E. BURRELL, P.J., - Concur. NANCY STEFFEN RAHMEYER, J. -- Concur.

OPINION

WILLIAM W. FRANCIS, JR., J.

John M. Harrington (" Employee" ), an employee of Employer Solutions Staffing (" Employer" ), filed a claim for compensation against Employer arising out of an injury of June 13, 2012. An Award was entered against Employer and it is from that Award Employer appeals. We affirm the Award of the Labor and Industrial Relations Commission (" Commission" ).

Factual and Procedural History

Employee was hired by Employer in Missouri for a painting job to be completed in Fort Worth, Texas. On June 13, 2012, while in Texas, Employee was painting on a ladder, when he slipped and fell several rungs off the ladder. He had immediate

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pain in his neck, upper back, and right shoulder.

Employee filed a formal claim for compensation with the Missouri Division of Workers' Compensation (" Division" ) on July 13, 2012. A hardship hearing was conducted on May 21, 2013. Employee was present with his attorney, but no appearance was made by Employer or any insurance company on behalf of Employer. The insurer was shown as " unknown."

Admitted into evidence at the hardship hearing was a certified mail notice to Employer containing the notice of hearing. The record recites that no formal claim for compensation was filed in Texas, but Employee was receiving " temporary income" from Texas Mutual Insurance Company (" Texas Mutual" ) in the amount of $776 per week.

On July 2, 2013, the administrative law judge (" ALJ" ) entered a temporary award in favor of Employee awarding him past temporary total disability benefits in the amount of $37,919.39, with continuing weekly benefits, and medical treatment.

A final hearing was conducted on June 25, 2014, before the same ALJ. Employee and his attorney appeared. Evidence at that hearing included a notice of hearing, by certified mail, to Employer advising of the June 25, 2014 final hearing. The ALJ issued a final award on July 30, 2014, which awarded benefits to Employee for unpaid temporary total disability; a penalty for Employer's failure to comply with the temporary award, pursuant to section 287.510; [1] additional temporary total disability; unreimbursed medical expenses; and a permanent partial disability award. The final award included the following specific findings of fact:

Notice of Hearing
The Missouri Division of Workers' Compensation sent notice of the final hearing by certified mail to [Employee], his counsel, and to Employer Solutions Staffing at Employer Solutions Staffing, 7301 OHMS Lane, Suite 405, Edina, Minnesota, 55439 (Court Exhibit 5). The notices, dated March 31, 2014, were mailed on April 2, 2014, as evidenced by the United States Post Office mark. The date of hearing was Jun[e] 25, 2014. [Employee]'s notice was returned to the Division because he had moved and the notice could not be forwarded (Exhibit 4). Still, [Employee] appeared with his counsel. The notice to Employer by certified mail on April 2, 2014, was not returned. Based on the only evidence in the record and the reasonable presumptions ...

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