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 material. Employee was honorably discharged. In 1985, Employee served in the National Guard in Torrence, California for about one year.

Employee's first job after the military was with a Chicago corporation as a security officer. He worked there from 1987-1994. In 1996, Employee was working for a Chicago hotel, Palmer House Hilton, as a security officer. He states that he injured his neck when he fell down about fifteen steps. Employee testified that he paid for any treatment received due to this injury.

Employee was unemployed until 1998. He went back to work for a Memphis corporation as custom protection. He only worked at this job for about two months and testified that he resigned due to dizzy spells and his body hurting. Employee applied for Social Security Disability benefits in 1998, which was approved. VA records report that Employee had a CT scan of his lumbar spine in 1998, which showed no abnormality.

In 2001, Employee was hired by the City of Hayti Heights to serve as police chief. In this position, Employee's duties included supervising police officers, issuing traffic tickets, conducting investigations, responding to routine or emergency calls, completing daily logs, and reviewing all tickets and reports.

While working for the City of Hayti Heights, Employee states he was sitting in a chair that fell back and he again injured his neck in 2002. Employee settled this claim for 3.2% body

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

as a whole for the neck and back. Employer paid no medical expenses and disputed all liability as a result of this claim. Employee states that his employer did not provide any treatment for this injury and any treatment received was through the VA.

In 2003, Social Security learned that Employee had been working since 2001 as the Chief of Police for Hayti Heights. It was determined that Employee owed over $15,000 to Social Security. In 2004, Social Security stopped his disability payments. A month later, Employee reported that he had not been working due to his medical condition and requested expedited reinstatement of his benefits. Social Security granted this request and reinstated his disability benefits, subject to a reduction in order to repay the earlier overpaid amount.

In 2004, a VA doctor indicates that Employee might be looking for disability for his neck pain but the doctor advised that he could not "write any disability regarding his neck pain." Employee continued to work for the City of Hayti Heights. He alleges that he fell down on his knees during a pursuit in 2005. Employee was seen in the emergency room and diagnosed with bilateral contusions and a left abrasion of the knees.

In 2006, Employee reported to Social Security that he had resumed part-time desk duties at the police department and was only receiving $800 per month in income. According to Employee's testimony, he was the Chief of Police during the entire time that he was employed with the City of Hayti Heights.

On or about December 3, 2007, Employee alleges that he was injured when he was trying to break up a fight between two individuals. He states he was in between them with his arms outstretched. He states he injured his neck during this incident. Employee continued to work and could not recall if he sought any treatment until he went to the VA hospital regarding his mental injury claim. Employee testified that his employer provided no medical treatment for this injury and any treatment would have been through the VA. Employee settled this claim with the employer for 12.5% body as a whole referable to the neck. Employer paid no medical expenses and disputed all issues.

On December 20, 2007, the VA records show that Employee presented to the urgent care complaining of back and neck pain. However, it states that Employee reported no recent injury. In fact, the first mention of this December 3, 2007 injury was on February 25, 2008, and the doctor notes that he can find no neurological deficit and no operation is needed for his neck based on the prior MRI's.

Employee alleges that he suffered mental stress and psychological issues as a result of his employment. The claim alleges the date of this occupational disease as December 26, 2007. Employee states that on December 27, 2007, he asked his wife to take him to the VA hospital in Poplar Bluff. Employee was admitted to the hospital for several days. Upon discharge, he was referred for psychological evaluation and treatment by the VA. Employee testified that he had never received any psychological treatment prior to this date, which is confirmed by the medical records.

Employee: Vernis Farmer

Injury Nos. 07-132304; 07-136317

For this claim, the original claim for compensation was filed on August 13, 2010 as to the Employer only, alleging the date of injury as unknown. A report of injury was filed on September 2, 2010 showing the last date worked as December 26, 2007, and the date the employer was notified as August 17, 2010. On May 7, 2015, this claim was amended, alleging the date of injury as December 26, 2007 and adding a claim against the Second Injury Fund, which would be eight years after the alleged injury. Employee settled this claim with the Employer for 9.3% body as a whole due to psychiatric injury.

After this time, it is unclear how much Employee continued to work for the City of Hayti Heights or what duties he had. Employee testified that he last worked for the City of Hayti Heights in January 2009. VA records report that Employee advised in November 2009 that he was "currently on paid leave from the police force."

In 2009, Social Security received an anonymous tip that Employee was earning more than what he had reported. After an investigation, it was determined that Employee had been paid well over the limit set by Social Security. Employee was indicted and found guilty of making a false statement to obtain social security benefits. He was sentenced to 21 months in federal prison.

According to the VA medical records, Employee was injured at the Federal Courthouse in October 2009, when an elevator door closed and hit him on the left side. Employee later went to the VA hospital. The records state that Employee reported having multiple problems since this injury and that he started using a cane for ambulation. In November 2009, Employee reported being involved in a motor vehicle accident. It was noted that Employee was wearing a neck brace.

On December 3, 2009, Employee was seen by Dr. David Volarich for an independent medical evaluation. Dr. Volarich assessed a 15% permanent partial disability to the cervical spine due to the December 3, 2007 injury, 25% permanent partial disability to the cervical spine due to the pre-existing chronic cervical syndrome, 25% permanent partial disability to the low back due to the chronic lumbar syndrome, 20% permanent partial disability to each knee due to the pre-existing patellofemoral syndrome. Dr. Volarich deferred any assessment of psychiatric disability to a psychiatrist. Dr. Volarich also recommended that Employee be evaluated by a vocational expert to determine if he could return to work. If not, he felt that Employee was permanently and totally disabled as a result of the December 3, 2007 injury in combination with his pre-existing medical conditions including his psychiatric illnesses.

Dr. Volarich recommended the following restrictions for Employee's spine: avoid all bending, twisting, lifting, pushing, pulling, carrying, climbing and other similar tasks; lifting should be limited to 15-20 pounds on an occasional basis and should not lift overhead or away from the body; avoid remaining in a fixed position for any more than 30 minutes at a time; change positions frequently to maximize comfort and rest when needed. With respect to the spine and knees prior to the 2007 injury, Dr. Volarich recommended restrictions that Employee should limit activities to tolerance.

TI11611188

In his deposition testimony, Dr. Volarich indicated that he did not review any medical records from the VA hospital in St. Louis and the last record he reviewed was from June 4, 2009. Dr. Volarich was unaware of the subsequent injuries that Employee had reported to the VA that occurred in 2009, i.e. the elevator accident, even though Employee's evaluation was only two months after the date of this incident. Dr. Volarich confirmed that Employee was not using a cervical collar at the time of his evaluation.

On January 27, 2010, an MRI was taken of the employee's spine to determine if there was any surgical intervention needed. The MRI of the cervical and lumbar spine revealed degenerative disc disease but no surgical intervention was recommended.

On July 1, 2010, the VA records note an inquiry made by Employee wanting documentation from the VA regarding the light duty he was placed on in 2005. The records state that in March 2005, Employee was placed on light duty but he was to return in three months. However, Employee never returned for that three month appointment and had later appointments in 2005, which indicate Employee had returned to full-duty employment. Based upon this, Dr. Hochreiter concluded that Employee had not been placed on light duty beyond the three month time mentioned above.

In August 2010, Dr. Martielli reported a psychotherapy session with Employee, in which the doctor assessed that the therapy sessions were not going to be productive, as Employee did not want him to comment but only to listen to his problems. Dr. Martielli could not recommend continuing with therapy sessions. On August 23, 2010, records state, "Vet's story of occupational injury and ensuing change in status of his job (medical leave, disability, etc.) is unclear and vet at times gives contradictory information and dates."

Employee was evaluated on September 2, 2010, at the VA, and inconsistent findings were noted on the physical exam. The evaluator suspected that Employee was not presenting all information. In addition, the evaluator stated, "[e]ither the veteran is floridly psychotic and has some spectrum of schizoaffective disorder, bipolar disorder, or severe depression with psychosis or the other end, he is malingering...I tend to lean more towards the later - which is malingering."

On August 9, 2013, Employee contacted Dr. Jerrell Driver, a licensed psychologist, to perform a psychiatric evaluation in connection with his worker's compensation claim. Dr. Driver followed up with Employee on August 19, 2013. For the initial evaluation, Dr. Driver administered the MMPI, reviewed medical records provided by Employee, and conducted an interview with Employee. Dr. Driver testified that it was difficult to ascertain a good history from the Employee as there were inconsistencies or his statements would be confusing.

Dr. Driver further testified that there were inconsistencies in the reports from the Employee when compared to the VA records. He stated Employee was reporting psychotic symptoms of such a level as to be debilitating. Dr. Driver further opines that the results of the MMPI were invalid based upon the nature of the responses, which suggested that he would have been unable to work in any capacity and these symptoms would have been present over a long period of time.

Employee: Vernis Farmer

Injury Nos. 07-132304; 07-136317

Employee saw Susan Shea on December 4, 2014, for a vocational evaluation. Ms. Shea concluded that Employee was unable to secure and maintain employment in the open labor market due to the medical records and the symptoms and limitations reported by Employee. Ms. Shea also listed as a reason that Employee could not be employed as psychiatric illness. Ms. Shea further opined that this would be due to a combination of the December 2007 injury with his pre-existing injuries and conditions. It is not clear which injury she is referencing as there were two injuries alleged in December of 2007.

Ms. Shea noted that Employee was not using a wheelchair at the time of her evaluation but was using a cane. However, there was no discussion with the employee on his use of a wheelchair, as Ms. Shea did not review the records until after her meeting with Employee.

On August 8, 2015, Employee had a cervical MRI performed at the VA. The MRI report noted some mild disc bulges at C4-5 and C5-6 but there were no lateralizing disc herniations, spinal canal stenosis or neural foramen stenosis seen. It also noted that there was no significant change from the previous examination. On August 14, 2015, a doctor from the VA called Employee and advised him of his MRI results and stated "there is mild disc bulging, but no herniation or obvious pathology that would be expected to cause his symptoms."

In 2016, Employee had imaging done at the VA for both knees. The impression on both was mild degenerative arthritis with involvement of the patella.

On February 9, 2016, a video was obtained which showed Employee's activities on that date. Initially the employee was in a wheelchair in the video. The video eventually showed the employee ambulating without the assistance of a wheelchair.

Employee testified that his current complaints include pain in his spine. He stated that his back wants to go out and is "cutting off signal to his legs." He has difficulty sleeping and walking. He continues to use a wheelchair and cane for ambulation. Employee testified that he was told he had to use these because he was a high fall risk. However, the VA records indicate that Employee was actually encouraged to stop using these assistive devices.

RULINGS OF LAW:

07-132304

Issue 2: Medical Causation-Whether Employee's injury was medically causally related to the accident.

Employee may have been involved in an altercation as he described, but it is not clear that the incident in question resulted in any injury.

Employee was convicted of making a false statement in order to obtain social security disability benefits. However, that was not the first time. Employee was caught once before and was required to pay back funds. Furthermore, Employee did not report an incident that occurred

10

TI11980180

Employee: Vernis Farmer

Injury Nos. 07-132304; 07-136317

in October of 2009 (subsequent to alleged accident but prior to the evaluation, in which Employee was given a cervical collar for that incident) to Dr. Volarich during his Independent Medical Evaluation. Based on all of the evidence presented, I find that Employee was not a credible witness.

Dr. Volarich acknowledged that he based part of his findings and disability ratings on the complaints that Employee gave to him concerning the employee's condition. Dr. Volarich also acknowledged that Employee did not tell him about the injury to his neck that occurred on October 27, 2009. Dr. Volarich further acknowledged that he would need to re-examine Employee and look at the records to see if the subsequent injury changed his opinion. It is important to note that Employee was never re-examined by Dr. Volarich. Therefore, Dr. Volarich's opinions on this case were made without knowledge of the October 27, 2009 incident that injured Employee's neck. Based on all of the evidence presented, I find that the opinion regarding Dr. Volarich on the issue of medical causation is not credible or persuasive. Based on all of the evidence presented, I find that Employee did not meet his burden of proof that work was the prevailing factor in causing Employee's neck injury. Furthermore, I find that Employee did not meet his burden of proof that his injury was medically causally related to an accident that occurred on December 3, 2007. Based on this finding, Employee's claim for compensation is denied.

Based on the denial of the claim, the other issues in this case are moot, and shall not be ruled upon.

The only expert evidence presented on this issue was by Dr. Volarich. Dr. Volarich's opinion regarding causation is not credible as he was relying on the reported symptoms and history as provided by the claimant, which has been established as not trustworthy.

07-136317

Issue 4: Medical Causation-Whether Employee's injury was medically causally related to the occupational disease.

Dr. Volarich deferred to a psychiatrist or psychologist for any determinations of mental disability. Dr. Jerrell Driver was the only psychologist to provide any testimony in this case. Dr. Driver testified that Claimant's responses to the MMPI were such that if it was taken as valid, Claimant would have to be severely psychotic and unable to function. In addition, Dr. Driver was unable to obtain a clear history of events and was unable to determine what, if anything, was contributing to his mental condition.

The medical records presented from the VA do not establish this relationship, as the records only document that Employee was reporting that he was stressed from working long hours but there was no definitive evaluation or doctor that provided any diagnosis or link that it was Employee's job that was causing any mental disability.

Based on all of the evidence presented, Employee did not meet his burden of proof that work was the prevailing factor in causing his alleged psychological issues. Furthermore,

11

Employee: Vernis Farmer

Injury Nos. 07-132304; 07-136317

Employee did not meet his burden of proof that his alleged psychological injury was medically causally related to an occupational disease. Based on this finding, Employee's claim for compensation is denied.

Based on the denial of the claim, the other issues in this case are moot, and shall not be ruled upon.

12


Made by:


Maureen Tilley

Administrative La

Division of Workers' Compensation