Ab Elec., Inc. v. Franklin
| Decision Date | 04 September 2018 |
| Docket Number | WD 81156 |
| Citation | 559 S.W.3d 38 |
| Parties | AB ELECTRICAL, INC., Appellant, v. Joseph FRANKLIN, Respondent. |
| Court | Missouri Court of Appeals |
John M. Allen, St. Louis, MO, for appellant.
Joseph A. Frank, St. Louis, MO, for respondent.
Before Division One: Thomas H. Newton, Presiding Judge, Cynthia L. Martin, Judge and Gary D. Witt, Judge
AB Electrical, Inc. ("Employer") appeals the Temporary Award of the Labor and Industrial Relations Commission (the "Commission"), which awarded Joseph Franklin ("Franklin") certain worker's compensation benefits arising out of injuries he sustained as a result of a work related accident while working for Employer. Employer raises two claims of error. We dismiss the appeal.
On December 7, 2015, Franklin, within the scope of his employment with Employer, was working on a scaffolding performing plaster work when, for unknown reasons, Franklin fell from the scaffolding suffering injuries to his head
, neck, and back. A co-worker of Franklin's, Mike Mayabb ("Mayabb") was on site at the time but not on the scaffold as he had gotten down to get more plaster. There were no safety railings on the scaffolding and neither employee was wearing a safety harness. Franklin was transported to the hospital where he was diagnosed with "a subdural hematoma with features of basal skull fracture and a comminuted fracture of the occipital bone and features of cerebral edema." He underwent left craniotomy surgery to remove a portion of his skull to relieve pressure from the swelling. His medical records indicate he was "very critical and [he] has a very poor prognosis." As part of his diagnosis and treatment the medical staff conducted a drug test of his urine, which showed that Franklin had THC in his system which he had ingested at some point prior to his fall.
Franklin sought coverage for his injuries through The Worker's Compensation Law.1 A hearing on temporary benefits was held before an Administrative Law Judge ("ALJ") on August 18, 2016. Employer contended that Franklin had smoked marijuana on the job site and impairment from the drug was the proximate cause of Franklin's fall and injuries resulting in a forfeiture of benefits or penalty under section 287.120.6. Franklin argued that, although he had no memory from the day of the accident, he would not have used marijuana before work or at work. Further, Franklin argues that the drug test was a screening test not a confirmatory test and therefore scientifically insufficient to establish when the marijuana was consumed or to establish that the THC in his system would have impaired him.
Mayabb testified that he saw Franklin take two hits of marijuana off of a pipe in the parking lot of the job site around 9 a.m. on the day of the accident. The accident occurred around 3 p.m.
The ALJ found that Franklin used marijuana in violation of Employer's policy on drug use and that Franklin's drug use was the proximate cause of his injury. The ALJ therefore concluded that, pursuant to section 287.120.6(2), the employee forfeited any benefits he would have been entitled to under The Worker's Compensation Law, including the cost of medical treatment. Franklin appealed the ALJ's decision to the Commission.
Paul Cary ("Cary"), a forensic toxicologist testified that the urine test administered to Franklin was a screening test and is a qualitative study not a quantitative test. The screen performed on Franklin's urine detects carboxy THC, a metabolite or breakdown product of Delta 9 THC. Carboxy metabolites are physiologically inactive and have no relationship to concentration of THC in the blood. The test would only establish that marijuana was ingested sometime in the prior ten days. He testified that in his scientific opinion any conclusion from this test that Franklin was impaired by ingestion of marijuana at the time of the accident would be mere speculation and that any attempt to reach such a conclusion based on the urine test in this case would be "inappropriate and without scientific foundation."
Employer's expert Christopher Long ("Long"), a forensic toxicologist, testified that it was his opinion that Franklin was impaired based on the urine test and the testimony of Mayabb that he witnessed Franklin smoke marijuana prior to the accident. On cross examination he acknowledged that the urine screen, in and of itself, cannot be used to determine impairment. The urine screen in this case tested for carboxy THC which is pharmacologically inactive and has absolutely no effect on humans. The THC detected by this test could have been ingested up to a week prior to the test. He also acknowledged that he had previously testified under oath in another matter that ingestion of marijuana would not result in impairment five hours after its ingestion unless "someone had a Rastafarian-type stogie."
The Commission reversed the ALJ's award and decision, finding that Employer did not meet its burden of proving by competent and substantial evidence that Franklin violated Employer's substance abuse policy by ingesting a non-prescribed controlled substance in the workplace or that the THC in his system was the proximate cause of his injuries. The Commission found Mayabb's testimony that he saw Franklin smoke marijuana at the job site prior to the accident not to be credible, noting that his testimony in this regard was "laden with inconsistencies." The Commission found credible Mayabb's testimony that he worked next to Franklin throughout the day and saw no signs that he was intoxicated or impaired in any way. The Commission found the evidence insufficient to establish that Franklin's "injury was either sustained in conjunction with, or proximately caused by his use of any unlawful or controlled drug at work." The Commission concluded that the award was not subject to the penalty or forfeiture provisions of section 287.120.6.
The Commission awarded Franklin temporary total disability benefits and ordered Employer to pay past medical expenses arising from this injury. The award provided that Employer is to be responsible for future medical treatments as necessary and deemed the award "temporary or partial" and left the matter open until a final award is issued.
This appeal followed.
We must begin by determining whether this Court has the statutory authority to review this appeal. "Appellate review of workers' compensation cases requires express statutory authorization." Williams v. Tyson Foods Inc. , 530 S.W.3d 522, 523 (Mo. App. W.D. 2017). Section 287.495.1 only authorizes appellate review of a "final award." Id.
A final award is one which disposes of the entire controversy between the parties to the claim. Finality is found when the commission arrives at a terminal, complete resolution of the case before it. An order lacks finality where it remains tentative, provisional, contingent subject to recall, revision or reconsideration by the commission.
Smith v. Semo Tank & Supply Co. , 99 S.W.3d 11, 13 (Mo. App. E.D. 2002) (internal citations omitted).
The Commission titled its judgment "Temporary Award Allowing Compensation." The Commission noted:
This award is only temporary or partial. It is subject to further order, and the proceedings are hereby continued and kept open until a final award can be made. All parties should be aware of the provisions of § 287.510 RSMo.
Employer argues that this appeal is still permitted under a judicially created exception to the general rule of finality in temporary worker's compensation awards.
To review this case we need to trace the origins of the allowances and limitations of the right to appeal temporary or partial awards under the Worker's Compensation Law. Prior to 1987, there was substantial case law which noted that no statutory authority exists for judicial review of temporary or partial awards made pursuant to section 287.5102 and its statutory predecessors. State ex rel. Faris v. Eversole , 332 S.W.2d 879 (Mo. banc 1960) ; State ex rel. Prescott Laundry Co. v. Mo. Workmen's Comp. Comm'n , 320 Mo. 1156, 10 S.W.2d 916 (Mo. banc 1928) ; Boatner v. Slusher, Inc. , 614 S.W.2d 35 (Mo. App. S.D. 1981) ; State ex rel. New Amsterdam Cas. Co. v. Richardson , 61 S.W.2d 409 (Mo. App. 1933). A final award for the purposes of section 287.490.1 is "one which fully disposes of the entire controversy between the parties[.]" State ex rel. Faris , 332 S.W.2d at 881.
In 1987, the Southern District of this court was faced with the review of a temporary award of permanent total disability for an employee. Smith v. Ozark Lead Co. , 741 S.W.2d 802, 808-10 (Mo. App. S.D. 1987), overruled on other grounds by Hampton v. Big Boy Steel Erection , 121 S.W.3d 220 (Mo. banc 2003). In Smith , the questions regarding disability and right to compensation had been finally decided eleven years prior. Id. at 803-04. The parties were in agreement that the claimant was entitled to compensation and allowance for nursing care, the sole dispute was as to the amount due for the required nursing care. Id. at 807 The Court found that the only reason that the award was not final, and thus unappealable, was because the award was subject to future modification based on future disputes regarding the ongoing medical expenses. Id. at 810. Thus, the Court found that the award was subject to appellate review because "the Commission's award fully disposes of the entire controversy that existed between the parties as of the date of the award." Id. at 811.
Agreeing with the analysis in Smith , the Missouri Supreme Court overruled prior precedent and found appellate authority to review claims of permanent total disability because, despite being denominated temporary, they were, in fact in the nature of final decisions. Abrams v. Ohio Pacific Exp. , 819 S.W.2d 338, 343 (Mo. banc 1991), overruled on other grounds by Hampton , 121 S.W.3d 220. In Abrams , again faced with a case of an award of permanent total disability...
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