Julie Zerwig v. Verallia/Saint Gobain, Inc.

FINAL AWARD ALLOWING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)

Injury No.: 13-022178

Employee: Julie Zerwig

Employer: Verallia/Saint Gobain, Inc.

Insurer: Travelers Insurance Co. of America

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. Having reviewed the evidence, read the parties' briefs, and considered the whole record, we find that the award of the administrative law judge allowing compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge with this supplemental opinion.

The parties asked the administrative law judge to resolve the following issues: (1) accident; (2) whether the injury arose out of and in the course of employment; (3) medical causation; (4) liability for unpaid medical expenses; (5) liability for unpaid temporary total disability benefits; and (6) liability for any permanent disability.

The administrative law judge rendered the following determinations: (1) while employer placed accident in issue, it offered no rebuttal to employee's credible testimony regarding the circumstances of the accident; (2) employee's hair loss and minor head contusion are medically causally related to the work injury; (3) employee's spine injury is not medically and causally related to the reported injury; (4) temporary total disability benefits must be denied; (5) unpaid medical expenses must be denied; and (6) employee sustained a 2 % permanent partial disability of the body referable to the head based on the facts of the accident and subjective complaints.

Employee filed a timely application for review, wherein she alleged the administrative law judge erred for the following reasons: (1) employee did not get a fair trial because the administrative law judge spoke with employer/insurer's attorney prior to the hearing, and told employee she was not going to get what she was asking for; (2) employee had a great case prepared but was so badgered by the judge, she gave up; (3) employee was not allowed to say what took place; (4) employer/insurer's attorney lied and said he had never seen the doctors' reports, so the judge did not allow them as evidence; (5) all the doctors employee has seen have agreed that her back injury happened at work because she has no prior history; and (6) the trial was unfair because employee represented herself and was inexperienced.

On July 12, 2017, the Commission received from employee a filing entitled "Additional Information for Julie Zerwig" (hereinafter "Additional Information").

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On July 17, 2017, the Commission received from employer a "Motion of Employer/Insurer to Strike the 'Additional Information' from Claimant to the Industrial Commission for Appellate Review" (hereinafter "Motion").

On July 27, 2017, the Commission received from employee a response to employer's Motion.

We first take up the issue whether employee's Additional Information may be considered as part of our review. ${ }^{1}$ Employee's Additional Information is comprised of the following: (1) a one-page type-written letter to the Commission signed by employee that amounts to unsworn testimony regarding medical treatment she underwent and other events occurring after the November 15, 2016, hearing before the administrative law judge; (2) a four-page document with the heading "Interventional Pain Institute" that appears to be a medical treatment record from Dr. Ramis Gheith for a June 8, 2017, date of service; and (3) a two-page document with the heading "Vibrant Living Chiropractic" that appears to be a medical treatment record from Dr. Michael Thompson, for a May 30, 2017, date of service.

We deem employee's submission of her Additional Information to constitute a motion to submit additional evidence to the Commission. Commission Rule 8 CSR 20-3.030(2) governs the submission of additional evidence, and provides 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. The motion to submit additional evidence shall set out specifically and in detail--

1. The nature and substance of the newly discovered evidence;
2. Names of witnesses to be produced;
3. Nature of the exhibits to be introduced;
4. Full and accurate statement of the reason the testimony or exhibits reasonably could not have been discovered or produced at the hearing before the administrative law judge;

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[^0]: ${ }^{1}$ Employee's letter included with her Additional Information suggests she believes the Commission has already approved her motion to submit additional evidence in this matter. This is incorrect. Instead, legal counsel for the Commission spoke with employee via telephone and instructed that she may send to the Commission whatever materials she wished, but thereafter the Commission would make a ruling as to whether any such materials met the regulatory requirements for submitting additional evidence.

1. Newly discovered medical evidence shall be supported by a medical report signed by the doctor and attached to the petition, shall contain a synopsis of the doctor's opinion, basis for the opinion and the reason for not submitting same at the hearing before the administrative law judge; and
2. Tender of merely cumulative evidence or additional medical examinations does not constitute a valid ground for the admission of additional evidence by the commission.

(B) The commission shall consider the motion to submit additional evidence and any answer of opposing parties without oral argument of the parties and enter an order either granting or denying the motion. If the motion is granted, the opposing party(ies) shall be permitted to present rebuttal evidence. As a matter of policy, the commission is opposed to the submission of additional evidence except where it furthers the interests of justice. Therefore, all available evidence shall be introduced at the hearing before the administrative law judge.

We conclude that employee's Additional Information does not satisfy the requirements of the foregoing rule. Employee submits what appear to be records relating to medical treatment she underwent following the hearing before the administrative law judge, as well as statements that amount to her own unsworn testimony regarding same. However, the motion does not comply with the requirements set forth above regarding submission of newly discovered medical evidence. Specifically, employee has not demonstrated that the interests of justice require that we consider what appear to be merely cumulative or additional medical examinations.

For the foregoing reasons, employee's motion to submit additional evidence is denied. We have not considered the above-described items constituting employee's Additional Information in the course of reaching our decision in this matter.

We have carefully reviewed the transcript of the hearing before the administrative law judge in this matter. ${ }^{2}$ We conclude that the administrative law judge did not deprive employee a fair hearing. This is because the transcript of the hearing reveals the administrative law judge provided employee a full and fair opportunity to advance whatever properly admissible evidence she possessed to support her claim. That the

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[^0]: ${ }^{2}$ We acknowledge that employee asserts the administrative law judge made an improper, off-the-record comment to her before the hearing began, suggesting employee wouldn't "get what she was asking for." We note that Chapter 287, and the regulations promulgated by the Division of Workers' Compensation, contemplate a role for administrative law judges that includes providing pretrial mediation services to the parties, see e.g., § 287.460 RSMo. This and other provisions of Chapter 287 manifest an obvious legislative preference for encouraging settlement of claims, wherever possible. Consequently, we would not deem it improper for an administrative law judge to caution an unrepresented employee, who wished to proceed to hearing on a complex issue of medical causation without properly admissible expert medical opinion evidence that the outcome of such hearing might not be in accordance with her expectations. To the contrary, such a cautionary admonition would appear to serve the demands of justice, by giving the unrepresented employee a final chance to reconsider whether proceeding to hearing would be in her best interest.

Amphioye: 13-022178

Employee: Julie Zerwig

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administrative law judge ultimately concluded that employee's exhibits were inadmissible does not compel a conclusion the hearing itself was not fair. To the contrary, we conclude that the administrative law judge's exclusion of employee's exhibits upon proper objections from employer's counsel was not only appropriate and fair to both parties, but also necessary in light of the controlling case law on this topic.

It appears that employee may have misunderstood the basis of the objections from employer's counsel. Employee sought to admit purported medical records from treating physicians that were not certified as required under § 287.140.7 RSMo, and purported medical opinions that were not offered in conformity with the statutory requirements for a complete medical report under § 287.210 RSMo. As a result, to overrule the objections from employer's counsel and admit these documents into evidence would have worked the effect of depriving employer a fair hearing, because employer did not have an opportunity to cross-examine the makers of the various statements contained in the documents employee offered into evidence.

We acknowledge employee's unfamiliarity with Chapter 287 and its requirements with regard to the proffer of documentary medical evidence, but the Missouri courts have consistently instructed that we cannot change the rules of evidence for injured workers who choose to represent themselves at a hearing before an administrative law judge. A situation much like the one before us was addressed by the court in *Burchfield v. Renard Paper Co.*, 405 S.W.3d 589 (Mo. App. 2013). As the court explained:

> While it is true that workers' compensation proceedings do not strictly apply the technical rules of evidence, evidentiary foundation is not an overly technical rule of evidence, nor is it a rule of evidence that is suspended in workers' compensation proceedings. Section 287.210.7 eliminates the hearsay objection to medical records in workers' compensation proceedings. However, a claimant's failure to comply with Section 287.210.7 subjects medical records to the foundational requirements for the introduction of the documentary evidence as business records, as well as objections such as relevancy or an inadequate source of information.

> Burchfield did not comply with the requirements set forth in Section 287.210.7 when he sought to introduce his medical records into evidence. Therefore, Burchfield needed to establish a proper foundation for the medical records he sought to admit into evidence through the testimony of a witness familiar with the records. The record is clear that Burchfield did not adduce evidence or testimony sufficient to satisfy the foundational requirements for admission of the medical records. As the ALJ properly concluded, allowing admission of the medical records either without proper foundation established through witness testimony or without compliance with