Theodis Brown v. City of St. Louis, St. Louis County, Missouri

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 76-122112

**Employee:** Theodis Brown, Sr.

**Employers:**

- City of St. Louis, St. Louis County, Missouri

**Insurer:** Self-Insured

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

The above-entitled 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 and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated December 12, 2018, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Lorne J. Baker, issued December 12, 2018, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 24th day of July 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Rend K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incidence of occupational disease under the Law? No
4. Date of accident or onset of occupational disease: Alleged July 19, 1976
5. State location where accident occurred or occupational disease contracted: Alleged St. Louis, Missouri
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? No
7. Did employer receive proper notice? No
8. Did accident or occupational disease arise out of and in the course of the employment? No
9. Was claim for compensation filed within time required by Law? No
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident happened or occupational disease contracted: Unknown
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Alleged "head to toe"
14. Nature and extent of any permanent disability: N/A

1. Compensation paid to date for temporary disability: $\ 0.00
2. Value necessary medical aid paid to date by employer/insurer? $\ 0.00
3. Value necessary medical aid not furnished by employer/insurer? $\ 0.00
4. Employee's average weekly wages: Unknown
5. Weekly compensation rate: Unknown
6. Method wages computation: Not computed

1. Amount of compensation payable from:

Employer St. Louis City for PPD: None

Employer St. Louis City for TTD: None

Employer St. Louis County for PPD: None

Employer St. Louis County for TTD: None

1. Second Injury Fund liability: None
2. Future requirements awarded: None

Hearing Date: October 17, 2018

The matter of Theodis Brown ("Claimant") proceeded to a hearing to determine all issues. Claimant appeared pro se. Employer, St. Louis City ("City"), was represented by Attorney Thomas Goeddel. Employer, St. Louis County ("County"), was represented by Attorney Robert Fox. Assistant Attorney General Adam Sandberg represented the Second Injury Fund ("SIF").

For purposes of judicial economy, this claim was tried concurrently with Injury Numbers 15-106854 and 16-097576, which are subjects of separate Awards.

Claimant did not testify on his own behalf. Claimant offered Exhibits 1-12 with respect to all matters. Multiple objections to these exhibits were made by the City, the County and the SIF. The offer of exhibits and counsels' objections were taken under submission and the Court's rulings are made herein. The County asked the Court to consider its Motion to Dismiss with an affidavit filed on February 15, 2018 which states Claimant never has worked for Employer, County. The parties made no stipulations at the time of the hearing.

The issues to be determined are: (1) Accident (2) Arising out of and in the Course of Employment (3) Occupational Disease (4) Notice (5) Medical Causation (6) Liability for Past Medical Expenses (7) Liability for Future Medical Treatment (8) Average Weekly Wage (9) Temporary Total Disability (TTD) (10) Permanent Partial Disability (PPD) (11) Statute of Limitations (12) Liability of the Second Injury Fund

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No. 76-122112

(13) Employment with regard to St. Louis County

(14) Res Judicata

(15) Costs and fees against Claimant on behalf of City

Claimant, acting as his own counsel, asked the Court to consider, what he believed, were additional issues in this case including "the collateral source rule, the St. Louis Police pension system vesting rule...the IRS vesting rule...Public Law 94-430, the Public Safety Officer Benefit Act of 1976...and the Employee Retirement Income Security Act," among other comments made prior to the calling of any witnesses to trial.¹

Exhibits

Claimant offered the following Exhibits:

1. Memorandum and Order re: Case No. 4:12-CV-635-CEJ
2. Appointment card for physician appointment on October 17, 2018
3. BJC HealthCare Medical Bill
4. Division of Workers' Compensation Authorization to Inspect Medical Records dated August 28, 2018
5. Missouri Court of Appeals Eastern District Order of July 6, 2018 re: Injury No. 17-103761
6. Case printout of Theodis Brown, Sr. v. City of St. Louis
7. Medicare Summary Notice for Part B
8. Division of Workers' Compensation Facts for Injured Workers' booklet
9. Case.net printout re: No. 1822-CC00256 Theodis Brown v. Thomas Earl Anderson
10. Business card for Theodis Brown, Sr. (St. Louis Community College)
11. Unsigned and undated handwritten Motion to Grant Order Setting Aside Dismissal dated November 10, 1992
12. Undated and unsigned Memorandum for Mistrial and/or Summary Judgment

There were no exhibits offered by the City, County or SIF.

FINDINGS OF FACT

Exhibits

Claimant offered Exhibits 1-12. Multiple objections to these exhibits were made by the City, County and SIF, including objections based on the relevance of said exhibits. Additional objections to these exhibits provided by the SIF included Objection to Lack of Business Records Affidavit. All objections are sustained with regard to relevance to Claimant's Exhibits 1-12. As such, all other objections are moot.

¹ The Court takes judicial notice of Chapter 287 of the Missouri Revised Statutes and its contents therein. Only those issues subject to Chapter 287 were considered as the Court lacks jurisdiction to consider any other alleged issues.

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No. 76-122112

The Court notes Claimant's Exhibits 11 and 12 are "Motions". Claimant seeks to have admitted as exhibits. Exhibit 11 is a Motion to Set Aside a Dismissal and Motion for Summary Judgment. However, these documents are so poorly written and illegible, they are incomprehensible. Having no legal basis to support said motions, these motions are denied.

Claimant did not testify, called no witnesses to testify (either lay or expert), did not offer any evidence of a work injury or occupational disease, and did not offer any medical evidence. He did not offer any evidence of employment with either Employer. Claimant rested his case without producing a prima facie case to support his claim. Claimant indicated prematurely, at counsels' table, that he would appeal the matter despite the fact that the Court had not rendered a decision in any of the three pending matters. Neither Employer nor SIF offered any evidence.

Section 287.808, provides "the burden of proving an entitlement to compensation under this chapter is on the employee or dependent." In a workers' compensation claim, Claimant has the sole burden of proving all material elements of his claim. *Meilves v. Morris*, 422 S.W.2d 335 (Mo.Div.2 1968). In order to meet this burden and have a compensable injury, Claimant must show he was injured as a result of an accident or occupational disease which arose out of and in the course of the employment, establishing essential elements including causal connection between the alleged incident and injury. *Johnson v. City of Kirksville*, 855 S.W.2d 396 (Mo.App. 1993). In the present case, the essential elements must include evidence Claimant was an employee of STLCC, was in the course and scope of employment on July 19, 1976, that an accident or occupational disease occurred and that the incident in question is the prevailing factor in causing the condition and resulting disability. Claimant must also establish he provided proper notice of the alleged injury under Section 287.420.

Here, Claimant has offered no testimony or other evidence to help this Court decide the issues in his favor. Claimant has offered no evidence of any injury or occupational disease occurring on or about July 19, 1976. Claimant provided no evidence of an Employee/Employer relationship between himself and the City² or County. Claimant offered no evidence of the occurrence of a work injury. He provided no medical records or expert reports showing any injuries occurred. Claimant failed to prove medical causation between any alleged work accident or occupational disease and any purported injury. Claimant further failed to prove he provided timely notice of any such injury to either the City or County. These and other foundational issues, which must be determined for a compensable injury, were never established.

Further, in cases where there is a claim against the Fund, there are additional elements for those claims to succeed. Claimant must prove he has preexisting permanent partial disability. Yet Claimant has offered no evidence of any work injury, occupational diseases, or resulting disability, whether from the alleged work injury or any prior conditions. As such, there is no credible or competent basis for finding any liability on Employers, City, County, or the SIF. Claimant's

2 The Court notes Employer, City, did not affirmatively indicate the issue of Employer/Employee relationship.

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No. 76-122112

request for benefits against all parties is denied. Hearing no evidence, Employer, City's, demand

for costs and fees is denied. All other issues are moot.

I certify that on 12-12-18

I delivered a copy of the foregoing award

to the parties to the case. A complete

record of the method of delivery and date

of service upon which it is received with

the execution award in the Division's case file.

By __________________________

Made by:

_________________________

Lorne J. Baker

Administrative Law Judge

Division of Workers' Compensation

_________________________

Lorne J. Baker

Administrative Law Judge

Division of Workers' Compensation