Scott Tillis v. City of St. Louis

Injury No. 08-009726

Employee: Scott J. Tillis

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On September 10, 2014, the Commission received "Employer/Self-Insured's Memorandum in Opposition to Employee's Request for the Admittance of New and Supporting Evidence for a Review," wherein employer/insurer set forth its opposition to employee's Motion.

On September 15, 2014, the Commission received "Respondent Treasurer's Memorandum in Opposition to Petitioner's Request for Admittance of New and Supporting Evidence," wherein the Second Injury Fund set forth its opposition to employee's Motion.

Commission Rule 8 CSR 20-3.030(2) governs the submission of additional evidence, and provides, in relevant part, as follows:

(A) After an application for review has been filed with the commission, any interested party may file a motion to submit additional evidence to the commission. The hearing of additional evidence by the commission shall not be granted except upon the ground of newly discovered evidence which with reasonable diligence could not have been produced at the hearing before the administrative law judge.

To the extent employee's reference to the "full case file" means the legal file created by the Division of Workers' Compensation (Division), we note that this legal file, which contains docket entries, orders, notices, and other documents created by or filed with the Division during the pendency of employee's claim before the Division, is already included in the materials forwarded to the Commission by the Division. We hereby take administrative notice of that file.

With respect to employee's request to submit testimony from his former attorneys and two administrative law judges that were involved in this matter, we gather from employee's Motion that he seeks to submit this evidence primarily to challenge the administrative law judge's rulings that his hearsay evidence was not admissible. Employee alleges that he was surprised to face hearsay objections to his offers of various exhibits at the hearing before the administrative law judge.

We conclude that a party exercising reasonable diligence for purposes of 8 CSR 20-3.030(2)(A) would either offer evidence at the hearing that did not amount to hearsay, or prepare to face hearsay objections. While employee's surprise at facing hearsay objections may indeed have been genuine, it simply is not a proper basis for the submission of additional evidence, and cannot satisfy the requirements of our rule. We are not unsympathetic to employee's obvious unfamiliarity with the requirements of § 287.210 RSMo, but the Missouri courts consistently instruct that we cannot change the rules of evidence for pro se litigants. *Burchfield v. Renard Paper Co.*, 405 S.W.3d 589, 592 (Mo. App. 2013).

For this reason, we must deny employee's request to submit additional evidence. In reviewing the merits of employee's appeal, we have considered only the evidence offered and received into the record during the hearing before the administrative law judge, as well as the legal file forwarded to us by the Division.

We deny employee's request to submit additional evidence. We affirm and adopt as our own the award and decision of the administrative law judge.

The award and decision of Administrative Law Judge Joseph E. Denigan, issued June 26, 2014, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $7^{\text {th }}$ day of November 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: February 9, 2008
5. State location where accident occurred or occupational disease was contracted: St. Louis County
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee inured his shoulder during physical altercation with a crime suspect.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: right shoulder
14. Nature and extent of any permanent disability: 15 % PPD right shoulder
15. Compensation paid to-date for temporary disability: $\ 354.05
16. Value necessary medical aid paid to date by employer/insurer? $\ 1,806.42

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: Unknown
3. Weekly compensation rate: $\$ 772.53 / \ 404.66
4. Method wages computation: Stipulation.

1. Amount of compensation payable:

34.8 weeks of permanent partial disability from Employer $\ 14,082.17

1. Second Injury Fund liability: None

TOTAL:

$\ 14,082.17

1. Future requirements awarded: None

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to Claimant shall be subject to a lien in the amount of N/A of all payments hereunder in favor of the following attorney for necessary legal services rendered to Claimant:

$\mathrm{N} / \mathrm{A}$

Employee: | Scott J. Tillis, pro se |

Injury No.: 08-009726

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JED

This case involves a compensable right shoulder injury resulting to Claimant with the reported accident date of February 9, 2008. Employer admits Claimant was employed on said date and that any liability was fully insured. The Second Injury Fund ("SIF") is a party to this claim. The Employer and SIF are represented by counsel. Claimant proceeds pro se.

1. Liability for medical expenses;
2. Permanent partial disability;
3. Need for future medical care;
4. Nature and extent of Second Injury Fund liability.

1. Claimant was an employee of the St. Louis Police Department for 7 years when the injury occurred and was a patrol officer.
2. On the reported accident date claimant was affecting an arrest when the subject of the arrest resisted which resulted in a struggle with Claimant, resulting in an injury to his right arm, shoulder and hand.
3. Claimant was directed for treatment by the police department to Dr. Mark Miller and was diagnosed with a torn posterior labrum of the right shoulder.
4. Surgery was performed by Dr. Miller on April 21, 2008 and physical therapy was begun shortly thereafter.

1. After completion of physical therapy Dr. Miller indicated that he did not believe Claimant had regained sufficient range of motion and strength in his right shoulder to resume unrestricted duties and he was assigned restrictions at that time.
2. On July 1, 2008, Claimant reported to the Barnes Care Clinic with complaints of pain in the right ring finger which he related to this reported injury.
3. On July 15, 2008, Claimant was referred to Dr. David Brown for treatment of his right ring finger and that was diagnosed as a PIP joint sprain.
4. Claimant returned to Dr. Miller on February 18, 2009 complaining of increased pain in his right shoulder. Dr. Miller ordered an MRI arthrogram and performed a cortisone injection at that time.
5. The MRI arthrogram was completed on February 27, 2009 and Dr. Miller interpreted the MRI as showing no changes from the one performed after the surgery.
6. An independent medical examination was performed by Dr. Thomas Musich at the request of Claimant's attorney and Dr. Musich assigned permanent partial disability ratings referable to the right shoulder and the right ring finger.
7. Claimant returned to work in November of 2009 on a limited duty capacity.
8. Dr. Russell Cantrell performed an independent medical examination of Claimant on March 7, 2010 and recommended further treatment for a possible ulnar neuropathy or cervical radiculopathy.
9. Dr. Bernard Randolph performed an independent medical examination of Claimant on April 2, 2010 and placed him at maximum medical improvement with regard to his right shoulder.
10. Dr. Sandra Tate performed an independent medical examination on April 13, 2010 and placed him at maximum medical improvement.
11. Dr. Peter Mirkin examined Claimant on July 24, 2010 and recommended that