Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be reversed.
On August 13, 2012, this sheriff's deputy was ascending a staircase at employer's premises when he fell and suffered serious injuries including herniated discs in his cervical spine. The parties have agreed that compensability in this case turns on whether employee, as he testified, received a dispatch call on his radio which caused him to take his eyes off the stairs and lose his footing. The administrative law judge and now the majority of this Commission have determined that employee was not truthful in his testimony, relying upon the absence of any mention of the dispatch call in the contemporaneous medical records. I disagree with this finding for a number of reasons.
Perhaps most importantly, the administrative law judge and the majority ignore the case law which holds that " $[t]$ here is no requirement that the medical records report employment as the source of injury." Daly v. Powell Distrib., Inc., 328 S.W.3d 254, 259 (Mo. App. 2010). There are many good reasons for this rule, the most compelling of which is that the unsworn statements of the oftentimes unidentified individuals within the healthcare system who create these records simply are not entitled to more weight than the sworn and cross-examined testimony of an employee before an administrative law judge. Even if employee didn't tell his healthcare providers that he fell because he received a radio dispatch, I fail to see how this impacts employee's credibility. Unless employee were a workers' compensation practitioner following the cutting edge of Missouri cases discussing whether various injuries may be deemed to arise out of and in the course of employment, he would have no reason to find such a detail important.
In a similar vein, I note that the administrative law judge and the employer fault employee for announcing his understanding, during his testimony, that if an employee falls at work, the employer is supposed to pay. So employee is clearly unaware of the holdings in cases such as Johme v. St. John's Mercy Healthcare, 366 S.W.3d 504 (May 29, 2012) and Miller v. Mo. Highway \& Transp. Comm'n, 287 S.W.3d 671 (Mo. 2009). But what does this have to do with the question whether employee is lying about receiving a radio dispatch? The answer is nothing. The answer is that the administrative law judge and majority are more interested in pondering questions of law than realistically asking themselves whether this sheriff's deputy is actually attempting to perpetrate workers' compensation fraud.
Employee has served as a sheriff's deputy for employer for about 9 years. Before that, he worked for various police departments and served in the United States armed forces as an active naval military policeman for 10 years. Claimant now works regularly as a bailiff in the Circuit Court of Sullivan County, providing security for judges and courtroom personnel and escorting prisoners from jail to the courthouse. Employer's own witness, Jackie Morris, who serves as the Sullivan County Clerk, testified that she has never known employee to be dishonest or unreliable, and that she has no reason to disbelieve employee's statement that he received a dispatch on his radio when he fell.
Scientific American 12/06/2021
Injury No.: 12-064760
Employee: Gregory Frazier
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Clearly, employee's professional history has required him to maintain a high level of honesty and integrity. Employee is regularly called upon to testify in court, and employer entrusts employee with the safety of judges and courtroom employees on a daily basis. Yet in order to avoid paying benefits on this claim, employer now depicts employee as a liar who will commit perjury. I am frankly astonished at this.
I am convinced that employee fell because he received a dispatch on his radio which distracted him and caused him to lose his footing. I would reverse the award of the administrative law judge and enter a temporary award ordering employer to provide employee with medical care, temporary total disability benefits, and all other benefits to which he is entitled under the Missouri Workers' Compensation Law. Because the majority has determined otherwise, I respectfully dissent from the Commission's decision.
Curtis E. Chick, Jr., Member