Cindy Rowe v. State of Missouri-Southeast Missouri Residential Services

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

**Injury No.:** 09-097189

**Employee:** Cindy A. Rowe

**Employer:** State of Missouri-Southeast Missouri Residential Services

**Insurer:** Missouri Office of Administration

**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 read the briefs, reviewed the evidence and considered the whole record, we find that the award of the administrative law judge 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.

Employee filed a claim for compensation against employer Southeast Missouri Residential Services on December 28, 2009. On October 25, 2010, Administrative Law Judge Lawrence C. Kasten granted attorney Mark A. Cordes leave to withdraw as employee's attorney, acknowledging his $3,262.24 attorney's lien. More than four and a half years later, on June 30, 2015, Administrative Law Judge Kasten allowed attorney Daniel H. Rau to withdraw as employee's attorney of record *at employee's request*.

The Division of Workers' Compensation's docket case history minute sheets show that on December 20, 2016, Administrative Law Judge Gary L. Robbins advised employee that if employer/insurer was not paying benefits, she should try to retain another counsel or get ready for trial. Six months later, on June 20, 2017, Administrative Law Judge Robbins noted that employee "complains that she is not an attorney and does not know what to do." He again suggested that employee consult with a lawyer and warned that her claim would be subject to dismissal if it did not progress. On September 19, 2017, and December 19, 2017, employee told Administrative Law Judge Robbins that she planned to hire counsel. On March 20, 2018, employee again appeared *pro se*.

Administrative Law Judge Robbins again advised her to meet with an attorney about her claim. A final docket entry by Administrative Law Judge Robbins dated June 19, 2018, states:

> EE again strongly advised to hire attorney since case is going to hearing and ALJ explained EE will be at disadvantage since she has burden of proof and [is] not familiar with evidentiary rules. Discussed [b]urden of proof on the issues at hearing. Employer's request for hearing has been approved, and is in line to be set for hearing. ALJ stated even after case

Injury No.: 09-097189

Employee: Cindy A. Rowe

- 2 -

is set, if ee hires attorney and [her] attorney requests continuance, if [sic] will be approved for attorney to have time to get ready.

After parting ways with two different attorneys and despite repeated admonitions from Division of Workers' Compensation legal staff for nine years, employee proceeded to hearing on October 1, 2018, without legal representation.

At hearing, Administrative Law Judge Kasten sustained employer's and Second Injury Fund's objections to the following exhibits offered by employee into evidence:

1. Medical and prescription bills.
2. Employee's Trial Brief, various uncertified medical records, and medical report of Dr. Woiteshek.
3. Appointment list for ReStart of Charleston.
4. Termination letter, supervisor's statement, various uncertified medical records, and statement signed by employee.¹

The employer's and Second Injury Fund's objections to employee's exhibits included lack of certification of medical bills, failure to submit underlying medical records relating to the charges, handwriting on or redaction of parts of medical records, argument in employee's trial brief based on facts not in evidence, hearsay, and employee's failure to comply with § 287.210.7, which allows the admission of medical reports without other foundational evidence subject to compliance with specified procedures.²

The administrative law judge denied all compensation, stating:

I find the employee failed to satisfy her burden of proof on the issue of medical causation and that the employee did not meet her burden of proof that the December 9, 2009 accident was the prevailing factor in causing her medical condition and disability. I find that the December 9, 2009 accident was not the prevailing factor in causing the injury, the resulting medical condition and disability. I further find that the employee's medical condition, injury, disability and need for medical treatment are not medically causally related to the December 9, 2009 accident.

Given the employee's failure to prove a medical causal connection between her medical condition and the accident, the employee's claim for compensation against the employer and Second Injury Fund is denied.

Given the denial of the employee's claim on the issue of medical causation, the issues of previously incurred medical aid, additional or future medical aid, the nature and extent of disability and the second job wage loss are moot and will not be ruled upon.

Employee's application for review alleges the administrative law judge's award is erroneous for the following reasons: "Willfully made a materially false, fictious [sic] and

1 Award, p. 4.

2 See Transcript, 19-26.

Injury No.: 09-097189

Employee: Cindy A. Rowe

- 3 -

fraudulent [sic] statement. Failed to provide relief, and compensate the employee under Missouri law. Did not allow admissible evidence into court." Subsequent to filing her application for review, employee filed three separate motions, each titled "Motion to Submit Additional Evidence in Accordance to Rule 8 CSR 20-30303(2)."

Employee's first motion to submit additional evidence, filed with the Commission on February 27, 2019, submits records purporting to document employee's employment at Keidra's Caring Center LLC at the time of employee's December 9, 2009, injury. Employee claims these records constitute newly discovered evidence because employee was not aware of the details of the Second Injury Fund claim for second job wage loss opened on her behalf prior to the October 1, 2018, hearing. The Second Injury Fund's response notes that employer's May 24, 2018, Request for Hearing—Final Award specifically listed "Fund liability for second job wage loss" as an issue to be resolved by hearing.

Employee's second motion, filed with the Commission on April 5, 2019, identifies records relating to "Proof of Service", employee's work schedule at Keidra's Caring Center, e-mail communications between representatives of the Office of Attorney General and employee's former attorneys in 2014, and certified mail employee purportedly received from employer's attorney Crystal L. Williams dated June 21, 2017.

Employee's April 5, 2019, motion alleges, "Although it is the petitioner's job to mount a defense of her case, the petitioner couldn't reasonably bring every document to court given her physical condition. She wasn't aware of how to proceed and didn't have the proper knowledge of how to proceed with her claim. The petitioner intended to seek out counsel up until the day of court. The petitioner continuously attempted to obtain counsel that would represent her best interest, but failed to do so. She has been forced to represent herself and is attempting to learn legal proceedings in a limited time." 3

Employee's third, April 9, 2019, motion to submit additional evidence characterizes a brief employee allegedly certified and mailed on October 29, 2018, nearly a month after the October 1, 2018, hearing to employer's attorney Crystal Williams as newly discovered evidence.

Employee alleges that her motions to submit additional evidence substantiate corruption, fraud, and noncompliance as well as unethical and conspiratorial conduct by the administrative law judge and employer's attorney.

Law

8 CSR 20-3.030(3)(A), which provides, in part:

An applicant for review of any final award, order or decision of the administrative law judge shall state specifically in the application the reason the applicant believes the findings and conclusions of the administrative law judge on the controlling issues are not properly

3 Motion to Submit Additional Evidence in Accordance to Rules 8 CSR 20-3.030(2), filed April 5, 2019, pp. 3-4.

Injury No.: 09-097189

Employee: Cindy A. Rowe

- 4 -

supported. It shall not be sufficient merely to state that the decision of the administrative law judge on any particular issue is not supported by competent and substantial evidence.

Commission Rule 8 CSR 20-3.030(2) governs motions to submit additional evidence to the Commission. This rule states, in part:

(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.

(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. The commission shall have discretion, after notice to the parties, to extend or accelerate the briefing schedule.

Discussion

As a threshold issue, employee's application for review fails to comply with the Commission Rule 8 CSR 20-3.030(3)(A), requiring that an appellant identify what actions or rulings are to be reviewed and specifically state why they constitute reversible error. Employee's application consists entirely of vague accusations that fail to intelligibly disclose the specific issues she is pursuing on appeal. See *Quarles v. Richman Gordman Stores, Inc.* 68 S.W. 3d 452, 454 (Mo. App. 2001). These deficiencies compel us to search employee's brief and the record to determine and clarify employee's assertions, wasting judicial resources and creating the danger that we will interpret employee's contention differently than she intended or opposing parties understand. See *Wilson v. Carnahan*, 25 S.W.3d 664, 667 (Mo. App. 2000). However, in that no party has objected to the sufficiency of employee's application for review, we consider her three motions to submit additional evidence and the merits of her appeal.

Employee's motions to submit additional evidence fail to comply with Commission Rule 8 CSR 20-3.030(2) in that they fail to identify evidence employee could not have produced at the time of trial through the exercise of reasonable diligence. Employee's motions are, in essence, an effort to retry her case before the Commission. Employee's failure to retain counsel to represent her interest in this matter does not excuse deficiencies in the evidence she submitted at hearing in support of her claim. A pro se litigant such as employee is held to the same procedural rules as attorneys and is not entitled to preferential treatment regarding compliance. See *Quarles, supra*. We

Injury No.: 09-097189

Employee: Cindy A. Rowe

- 5 -

find that acceptance of the additional evidence identified in employee's three motions would not further the interests of justice.

Addressing the merits of employee's appeal, we find as a matter of law that the administrative law judge properly sustained the employer's and Second Injury Fund's evidentiary o