Vernis Farmer v. City of Hayti Heights

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

Injury Nos.: 07-132304 & 07-136317

**Employee:** Vernis Farmer

**Employer:** City of Hayti Heights (Settled)

**Insurer:** Travelers Casualty and Surety Company (Settled)

**Additional Party:** Treasurer of Missouri as Custodian of Second Injury Fund

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence, read the briefs, and considered the whole record, we find that the award of the administrative law judge (ALJ) denying 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 employee alleges the ALJ's decision is not supported by substantial and competent evidence based on improper admission of Second Injury Fund Exhibits B and C. Exhibits B and C consist of certified court records documenting the employee's conviction of criminal charges relating to making a false statement to obtain Social Security Disability benefits and knowingly concealing wages above the income threshold for disability payments.

Employee relies on the Missouri Supreme Court case of *State v. Barriner*. In *Barriner*, the Court overturned a criminal defendant's convictions and death sentences based on improper admission of evidence. The Court held that a finding of outcome-determinative prejudice in a jury-tried case:

> [E]xpresses a judicial conclusion that the erroneously admitted evidence so influenced the jury that, when considered with and balanced against all of the evidence properly admitted there is a reasonable probability that the jury would have reached a different conclusion but for the erroneously admitted evidence.

1 *State v. Barriner*, 34 S.W.3d 139 (Mo. 2000).

2 *Id.*, at 150 (citations omitted).

Injury Nos.: 07-132304

& 07-136317

Employee: Vernis Farmer

- 2 -

In workers' compensation proceedings, formal rules of evidence do not apply.³

Admission of incompetent evidence does not warrant reversal of a decision that is

otherwise supported by competent and substantial evidence.⁴

We agree overall with the Second Injury Fund's contention that the employee's

responses to questioning relating to prior felonies was equivocal enough to warrant

admission of Exhibits B and C.⁵ The ALJ's finding that employee lacks credibility is

amply supported by other evidence/testimony in the record that was uncontested and

not objected-to, including the employee's own admissions.

Decision

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

The March 20, 2017, award and decision of Administrative Law Judge Maureen Tilley is

attached and incorporated herein to the extent not inconsistent with this supplemental

decision.

Given at Jefferson City, State of Missouri, this 19th day of July 2018.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

³ Section 287.550 RSMo.

⁴ Jackson v. Curtiss-Wright Airplane Co. 68 S.W.3d 715, 719 (Mo. 1933); Speer v. City of Joplin, 839

S.W.3d 359, 364 (Mo. App. 1992).

⁵ See Transcript, 55, 71.

Employee: Vernis Farmer

Injury Nos. 07-132304; 07-136317

ISSUED BY DIVISION OF WORKERS' COMPENSATION

FINAL AWARD

Employee: Vernis Farmer

Injury No. 07-132304 and 07-136317

Dependents: N/A

Employer: City of Hayti Heights

Additional Party: Second Injury Fund

Insurer: Travelers Casualty and Surety Company

Hearing Date: December 19, 2016

Checked by: MT/kg

SUMMARY OF FINDINGS

1. Are any benefits awarded herein?

07-132304: No

07-136317: No

1. Was the alleged injury or alleged occupational disease compensable under Chapter 287?

07-132304: No

07-136317: No

1. Was there an accident or incident of occupational disease under the Law?

07-132304: Award denied on the issue of medical causation. Therefore, the issue is

moot. See Award.

07-136317: Award denied on the issue of medical causation. Therefore, the issue is

moot. See Award.

1. Date of alleged accident or onset of alleged occupational disease?

07-132304: December 3, 2007

07-136317: December 26, 2007

1. State location where accident occurred or occupational disease contracted:

07-132304: Pemiscot County, Missouri

07-136317: Pemiscot County, Missouri

Employee: Vernis Farmer

Injury Nos. 07-132304; 07-136317

1. Was above employee in employ of above employer at time of alleged accident or occupational disease?

07-132304: Yes

07-136317: Yes

1. Did the employer receive proper notice?

07-132304: Yes

07-136317: Moot issue. See Award.

1. Did accident or occupational disease arise out of and in the course of the employment?

07-132304: No

07-136317: No

1. Was claim for compensation filed within time required by law?

07-132304: Yes

07-136317: Moot issue. See award.

1. Was the employer insured by above insurer?

07-132304: Yes

07-136317: Yes

1. Describe work employee was doing and how accident happened or occupational disease contracted:

07-132304: Employee alleges he injured his neck trying to break up a fight between two individuals.

07-136317: Employee alleges he suffered stress and psychological issues due to working long hours.

1. Did alleged accident or alleged occupational disease cause death?

07-132304: No

07-136317: No

1. Parts of body injured by alleged accident or alleged occupational disease:

07-132304: Neck

07-136317: Psychological

1. Nature and extent of any permanent disability:

07-132304: None. Case denied.

07-136317: None. Case denied.

1. Compensation paid to date for temporary total disability:

07-132304: None

07-136317: None

1. Value necessary medical aid paid to date by Employer-Insurer:

07-132304: None

07-136317: None

1. Value necessary medical aid not furnished by Employer-insurer: 07-132304: None 07-136317: None

1. Employee's average weekly wage: 07-132304: 452.72 07-136317: 300.00

1. Weekly compensation rate: 07-132304: TTD/PTD/PPD: $301.81 07-136317: TTD/PTD/PPD: $200.00

1. Method wages computation: 07-132304: By agreement 07-136317: By agreement

1. Amount of compensation payable: 07-132304: None 07-136317: None

1. Second Injury Fund liability: 07-132304: None 07-136317: None

1. Future requirements awarded: 07-132304: None 07-136317: None

On December 19, 2016, the employee, Vernis Farmer, appeared in person and with his attorney, Michael Moroni, for a hearing for a final award. The primary cases had previously been settled; therefore, an attorney for the employer-insurer was not present. The Second Injury Fund was represented by Assistant Attorney General, Crystal Williams. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with the findings of fact and rulings of law, are set forth below as follows:

1. Covered Employer: Employer was operating under and subject to the provisions of the Missouri Workers' Compensation Act and was either fully insured by the insurer above or was a duly qualified self-insured employer for all claims.
2. Covered Employee: On or about December 3, 2007, Employee was an employee of the employer and was working under the Workers' Compensation Act.
3. Notice: Employer had notice of Claimant's accident.
4. Statute of Limitations: Employee's claim was filed within the time allowed by law.
5. Average weekly wage and rate: Employee's average weekly wage is $\ 452.72 and Employee's rate is $\ 301.81.
6. Medical aid furnished by Employer-Insurer: Employee was furnished no medical aid by Employer-Insurer.
7. Temporary disability paid by Employer-Insurer: Employee was paid no temporary disability by Employer-Insurer.

1. Covered Employer: Employer was operating under and subject to the provisions of the Missouri Workers' Compensation Act and was either fully insured by the insurer above or was a duly qualified self-insured employer for all claims.
2. Covered Employee: On or about December 26, 2007, Employee was an employee of the employer and was working under the Workers' Compensation Act.
3. Average weekly wage and rate: Parties stipulated that Employee's average weekly wage was $\ 300 and Employee's rate was $\ 200.
4. Medical aid furnished by Employer-Insurer: Parties stipulate that Employee was furnished no medical aid by Employer-Insurer.
5. Temporary total disability provided by Employer Insurer: Parties stipulate that Employee was paid no temporary disability by Employer-Insurer.

07-132304

1. Accident: Whether Employee sustained an accident on or about December 3, 2007, that arose out of and in the course of his employment.
2. Medical causation: Whether Employee's injury was medically causally related to the

**Injury Nos. 07-132304; 07-136317**

accident.

1. Liability of the Second Injury Fund: The liability of the Second Injury Fund for permanent total disability or in the alternative, permanent partial disability.

1. Accident or Occupational disease: Whether Employee sustained an occupational disease on or about December 26, 2007, that arose out of and in the course of his employment.
2. Notice: Whether Employer had notice of Employee's alleged occupational disease.
3. Statute of limitations: Whether Employee's claim was filed within the time allowed by law.
4. Medical causation: Whether Employee's injury was medically causally related to the accident.
5. Liability of the Second Injury Fund: The liability of the Second Injury Fund for permanent total disability or in the alternative, permanent partial disability.

The following exhibits were offered and admitted into evidence:

1. Deposition of Dr. Volarich with exhibits
2. Deposition of Susan Shea with exhibits
3. VA Records
4. Not admitted
5. VA Medical records
6. VA Medical Records Dr. Gesmundo
7. SSD decision 1998
8. Withdrawn
9. Army Discharge Documents
10. Pay Stub
11. Not admitted
12. Not admitted
13. Radiology Report- knee 2016
14. Not admitted
15. Stipulation For Compromise Settlement for injury number 07-136317
16. Division Records
17. SSD Statement 2014
18. VA Records
19. Not admitted
20. Withdrawn
21. VA Records Dr. Kar Hung
22. VA Records Mental health issues
23. VA Records 2010
24. VA Records 2010
25. Illinois Workers Comp Settlement information 1997 claim

Employee: Vernis Farmer

Injury Nos. 07-132304; 07-136317

1. Withdrawn

1. VA Record regarding cane

1. Certificates

1. Not admitted

During the hearing, the employee also offered exhibits 4, 11, 12, 14, 19, and 29 into evidence. The Second Injury Fund objected to the admission of these exhibits. The Second Injury Fund's objections were sustained. The employee's attorney made offers of proof for these exhibits after the objections to the admission of these exhibits were sustained.

Second Injury Fund's Exhibits

A. Deposition of Dr. Jerrell Driver

B. Certified Court Records from 8th Circuit Court of Appeals

C. Certified Court Records from US District Court of Eastern Missouri

D. Video

FINDINGS OF FACT:

The employee, Vernis Farmer, hereinafter referenced as "Employee," is 58 years of age, having been born on January 24, 1958. Employee resides in Pemiscot County, Missouri. Employee graduated high school in 1976. Employee was in the army from 1976-1979, left for a while because his father was dying, and returned to the military from 1980-1984. For his first tour, Employee was a gunner sergeant and had combat training. During his second tour, Employee was involved with the military police, which included patrol, investigation, security, and top secret mat