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 the requirements of Section 287.210.7 would have denied Employer its right to cross-examine the medical professionals who authored the reports.

Id. at 592.

In other words, the administrative law judge was not acting to deny employee a fair hearing when he sustained employer's objections to the materials she proffered. Instead, he was fulfilling his duty to ensure that both parties received a fair hearing. He was also applying the relevant and controlling case law in this area. For these reasons, we must, and do hereby, affirm the administrative law judge's evidentiary rulings.

Because we further agree with the administrative law judge's finding that employee has failed to meet her burden of proof with regard to medical causation of any of her additional claimed injuries, we decline to disturb his finding that employee sustained a 2 % permanent partial disability of the body as a whole as a result of the accident.

We affirm and adopt the award of the administrative law judge as supplemented herein.

The award and decision of Administrative Law Judge Joseph E. Denigan, issued February 10, 2017, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this $11^{\text {th }}$ day of December 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

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: April 2, 2013
5. State location where accident occurred or occupational disease contracted: St. Louis County (alleged)
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 happened or occupational disease contracted: Claimant caught her hair in conveyor rollers while crawling underneath the machinery.
12. Did accident or occupational disease cause death? N/A Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: head, neck
14. Nature and extent of any permanent disability: 2 % PPD of the body referable to head.
15. Compensation paid to-date for temporary disability: None (stipulated)
16. Value necessary medical aid paid to date by employer/insurer? \$7,314.10 (stipulated)

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 746.40
3. Weekly compensation rate: $\$ 497.60 / \ 497.60
4. Method wages computation: Stipulation

1. Amount of compensation payable:

8 weeks of PPD from Employer $\ 3,980.80

1. Second Injury Fund liability: None

TOTAL:

$\ 3,980.80

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 the 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 the claimant: pro se

Hearing Date: November 15, 2016

Checked by: JED

This case involves a disputed head injury resulting to Claimant with an alleged accident date of April 2, 2013. Employer/Insurer admit Claimant was employed on said date and that any liability is fully insured. The Second Injury Fund ("SIF") is not a party to this claim. Claimant proceeds, pro se, accompanied by her husband, who did not testify. Employer/Insurer is represented by counsel. Exhibits 1 through 6 were excluded from evidence. Exhibit A was admitted.

1. accident;
2. whether injury arose out of and in the course of employment;
3. medical causation;
4. liability for unpaid medical expenses;
5. liability for unpaid TTD benefits (lost time calendar stipulated);
6. liability for permanent partial disability.

1. Claimant testified that she worked for Employer stocking an automated box machine in which the boxes ejected onto a conveyor line. Full production required Claimant to lift up to 1000 pounds a day.
2. Claimant testified she injured herself at work on April 2, 2013. Claimant filed her Claim for Compensation with the Division on March 31, 2014.
3. Claimant caught her hair in the machine equipment she was operating and was extricated only with the help of fellow employees, including her husband, who backed up the machine, thereby, avoiding the necessity of cutting her hair. Claimant stated she lost hair and was "totally bald" on the left side of her head. She also bumped her head. Claimant did not exhibit any scalp disfigurement at trial.

1. Claimant was understandably very upset and apparently went to the emergency room by ambulance where she was treated and released.
2. Claimant did not testify that she lost time from work following this incident. The parties stipulated two period of lost time both of which were in 2014 (or 9 months post-accident):

January 14, 2014 through June 29, 2014, and

September 7, 2014 through October 4, 2015

1. Claimant stated she was on (prescription) Flexeril but there are no admissible records in evidence that give reliable context to this assertion or otherwise corroborate this treatment. It was unclear when she was on this drug or for what symptoms.
2. Claimant stated she was having "explosions" in her head and she understood her doctor told her that her head was "reattaching" but, again, there are no admissible records in evidence, or admissible opinion evidence, that give reliable context to this assertion, or otherwise corroborate this treatment. She stated, "[i]t was literally like fireworks going off in my head." She repeated her recall of the doctor's statement, "your head is reattaching."
3. Claimanat also complained of low back and leg pain for which she stated she recieved injections. These treatments occurred in 2014.
4. It is necessarily inferred from the stipulated paid medical expenses that Claimant did undergo some treatment, but the evidence contains no demand on Employer by Claimant for treatment after her release from the emergency room. While Employer stipulated that medical benefits were paid, it is noteworthy that the stipulation contains neither provider names nor service date(s).
5. Claimant sought to read from narrative opinion reports from physicians but was unable to continue because her excerpt readings were interrupted by well-taken objections by Employer's attorney.
6. Claimant sought to read from a three and a half page narrative document that she prepared herself but, again, her reading was interrupted by proper objections by Employer's attorney.
7. Claimant's testimony credibly described the accident event. However, her testimony regarding treatment of spinal injuries was disjointed and lacked chronology giving it coherence. The treatment occurred nearly one year after the reported accident. This was not reliable testimony without additional facts from treatment records that would provide foundation.
8. Claimant did not offer admissible expert opinion evidence either by report or deposition.

Claimant apparently lost no time from work in the weeks and months following this incident. She did not testify to having lost any time after the accident and she stipulated to 2 periods of lost time each of which did not occur until 2014.

Claimant asserts she injured her head and her low back due to the accident. Missouri law requires that an injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. While Employer placed accident in issue, it offered no rebuttal to Claimant's credible statement that she caught her hair in the machinery and that some hair was torn from her scalp while also bumping her head.

Claimant testified that various physicians treated her spine symptoms. However, beyond the accident and minor injury evidence, the record lacks admissible medical records from which a better understanding of the injuries sustained may be discerned. Claimant's three-pages of notes are self-serving; personally prepared notes do not have the reliability of a business (medical) record that is prepared in the course of treatment, by an uninterested party, without regard to litigation. Even business records must be properly certified.

Claimant was given wide latitude during her narrative testimony, including an offer of proof, much of which depended on the admissibility of treatment records which were excluded from evidence upon proper evidentiary objections. See Burchfield v. Renard Paper Company, Inc., 405 S.W.3d 589 (Mo.App. E.D. 2013). Separately, medical causation, which is not within the common knowledge or experience of lay understanding, must be established by scientific or medical evidence showing the cause and effect relationship between the complained of condition and the asserted cause. McGrath v. Satellite Sprinkler's Sys., 877 S.W.2d 704, 708 (Mo. App. 1994).

Evidence of injury is typically founded by corroborating, contemporaneous medical records reflecting, and memorializing, work-related symptoms following the accident. Claimant did not offer admissible medical records supporting her claim of injury and disability. In addition, her claims lacked foundation in that it was asserted spinal injuries were claimed without a qualified expert giving opinion from proper medical records regarding causation and permanent disability.

Here, Claimant's testimony lacked chronology in her recitation of treatment for her spine and her claim of disabling symptoms lacked contemporaneity with the reported injury of April 2, 2013. It requires expert testimony to connect the 9 month time period between accident and disabling symptoms and, separately, the determination of complex diagnosis for the stipulated periods of lost time. The same is true to connect the prescriptions drugs she claimed she took.

Claimant did not have disabling spine symptoms (i.e. lost time) until 2014, or 9 months after the accident. It is not generally reasonable that serious spinal injury would take 9 months to manifest itself in disabling symptoms of pain and limitation. The hair loss and minor head contusion are within the scope of lay opinion and represent minimal permanent injury.

Accordingly, the parties stipulate, and Claimant testified, that no lost time from work occurred until 9 months after the accident. Lost time would be evidence of disabling symptoms from her reported injury. Claimant's hair loss and minor head contusion are medically causally related to the work injury. However, the evidence compels a finding Claimant's spine injury is not medically and causally related to the reported injury.

For the same reasons that Claimant's medical causation proof is not sufficient and must be denied, TTD benefits and medical expenses must similarly be denied.

As stated above, there is no medical treatment record in evidence, or bills, from which to analyze the issue of unpaid medical expenses. Even regarding medical treatment that would be within the scope of lay opinion, there is no evidentiary basis from which to conclude that Employer is liable for any unpaid medical expenses.

Accordingly, on the basis of the substantial competent evidence contained within the whole record, Claimant is found to have sustained a 2 percent permanent partial disability of the body referable to the head based on the facts of the accident and subjective complaints. No greater amount of permanent partial disability benefits may be awarded without expert evidence. No other benefits are awarded.

Date: $\qquad

Made by: \qquad$

Joseph E. Denigan

Administrative Law Judge