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 objections to employee's exhibits 1, 2, 3, and 4. No evidence in the transcript or in the Division of Workers' Compensation's records supports employee's claim of corruption, fraud, noncompliance or unethical and conspiratorial conduct by the administrative law judge and employer's attorney.

We affirm the administrative law judge's ultimate decision, based on the competent and substantial evidence in the record, that employee failed to establish a medical causal relationship between her December 9, 2009, work accident and current medical condition.

**Conclusion**

We deny employee's requests to submit additional evidence. We affirm and adopt the award of the administrative law judge, as supplemented herein.

The award and decision of Administrative Law Judge Lawrence C. Kasten, issued December 20, 2018, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this 25th day of July 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

**Employee:** Cindy A. Rowe

**Dependents:** N/A

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

**Additional Party:** Second Injury Fund

**Insurer:** Self-Insured through the Missouri Office of Administration/CARO

**Appearances:**

- Cindy Rowe, Pro Se employee.

- Assistant Attorneys General Crystal Williams and Rachel Harris, attorneys for the employer.

- Assistant Attorney General Keyla Rhoades, attorney for the Second Injury Fund.

- Mark Cordes, the employee's former attorney

**Hearing Date:** October 1, 2018

**Checked by:** LCK/kg

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 incident of occupational disease under the Law? Accident admitted but not compensable due to lack of medical causation.
4. Date of accident or onset of occupational disease? December 9, 2009.
5. State location where accident occurred or occupational disease contracted: Mississippi County, Missouri.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did the employer receive proper notice? Yes.

Employee: Cindy Rowe

Injury No. 09-097189

1. Did accident or occupational disease arise out of and in the course of the employment? Yes but claim denied due to lack of evidence on medical causation.

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

1. Was the employer insured by above insurer? Self-Insured.

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

1. Did accident or occupational disease cause death? No.

1. Parts of body injured by accident or occupational disease: N/A.

1. Nature and extent of any permanent disability: N/A.

1. Compensation paid to date for temporary total disability: 2,387.15

1. Value necessary medical aid paid to date by the employer-insurer: 4,508.20

1. Value necessary medical aid not furnished by the employer-insurer: None.

1. Employee's average weekly wage: 642.69

1. Weekly compensation rate: 428.46 for temporary total disability and permanent total disability. $422.97 for permanent partial disability.

1. Method wages computation: By agreement.

1. Amount of compensation payable: None.

1. Second Injury Fund liability: None.

1. Future requirements awarded: None.

Page 2

On October 1, 2018, the employee, Cindy A. Rowe, appeared in person for a hearing for a final award. The employer was represented by Assistant Attorneys General Crystal Williams and Rachel Harris. The Second Injury Fund was represented by Assistant Attorney General Keyla Rhoades. The employee's former attorney Mark Cordes was present to assert his attorney's lien. The parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with a statement of the findings of fact and rulings of law, are set forth below as follows:

1. The State of Missouri-Southeast Missouri Residential Services was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and was duly qualified as a self-insured employer through the Missouri Office of Administration/CARO.
2. On or about December 9, 2009, Cindy Rowe was an employee of the State of MissouriSoutheast Missouri Residential Services and was working under the Workers' Compensation Act.
3. On or about December 9, 2009, the employee sustained an accident arising out of and in the course of her employment.
4. The employer had notice of the employee's accident as required by law.
5. The employee's claim was filed within the time allowed by law.
6. The employee's average weekly wage was $\ 642.69. The rate of compensation for temporary total disability and permanent total disability is $\ 428.46 per week. The rate of compensation for permanent partial disability is $\ 422.97 per week.
7. The employer paid $\ 4,508.20 in medical aid.
8. The employer paid $\ 2,387.15 in temporary total disability benefits for $54 / 7$ weeks from December 10, 2009, through January 17, 2010.
9. With regard to the attorney's lien of the employee's former attorney Mark Cordes, the employee and Mr. Cordes agreed to an attorney's lien in the amount of $\ 2,148.24 for $\ 1,000.00 attorney's fee and expenses and costs in the amount of $\ 1,148.24.

1. Medical causation
2. Claim for previously incurred medical aid
3. Application for Direct Payment filed by Southeast Missouri Hospital for \$5,178.24
4. Claim for additional or future medical aid
5. Nature and extent of disability
6. Second Injury Fund Second Job Wage Loss

Employee: Cindy Rowe

Injury No. 09-097189

The employee offered the following exhibits 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.

The employer and the Second Injury Fund objected to these exhibits being admitted into evidence. The objections were sustained. Employee Exhibits 1, 2, 3 and 4 were not admitted into evidence. An Offer of Proof for the four exhibits was accepted. Employee Exhibits 1, 2, 3 and 4 will be part of the transcript for Appellate purposes.

The employee offered the following exhibit which was admitted into evidence without objection:

1. Requisition for Workers' Compensation Claims and Notice of Commencement/Termination of Compensation Form.

The employer and Second Injury Fund did not offer any exhibits. Judicial Notice of the contents of the Division's file for the employee was taken.

At the hearing, the employee requested a voluntary Order of Party Dismissal as to Sikeston Regional Center only. Said Order of Party Dismissal was issued on October 10, 2018.

Cindy Rowe, the employee.

The employee filed her Brief on October 30, 2018. On October 31, 2018, the Division received letters from the employer and the Second Injury Fund stating that they would not be filing Briefs. On November 5, 2018, the Division received a letter from the employee responding to the letters from the employer and the Second Injury Fund.

The employee testified that she was born on December 28, 1977, and was 40 years old at the time of the hearing. In 2002, she received a B.S. in Sociology. She is able to use a computer and used one in school and at her job. She uses a cell phone and iPad mini.

Page 4

**Injury No. 09-097189**

The employee testified that in May of 2000, she was involved in a motor vehicle accident. Her car flipped and she injured her neck. She has records to prove she only had a whiplash strain and no disc out of place. She did not pursue any case against the other driver who worked for Walmart. She was fully rehabilitated after the 2000 motor vehicle accident.

The employee testified that on December 9, 2009, as a result of a puddle of water on the floor, she fell while exiting the main building kitchen area. As she fell, her left hand was extended and she tried to catch herself and slammed down on her left side. She felt pressure in her back, reported the injury to her immediate supervisor, and emailed everyone to let them know she fell and was going home. When she got up the next day, she had a lot of pain and pressure. She went to work and let her supervisors know she was in a lot of pain and filled out a report. She was sent to Ferguson Medical and saw Dr. Bryant. He did x-rays and stated the x-rays showed spams.

The Requisition for Workers' Compensation Claims showed that the employer's risk manager requested $1,346.59 in temporary total disability for 3 1/7 weeks from December 10, 2009 through December 31, 2009. The Notice of Commencement/Termination of Compensation showed that on January 4, 2010, the employee was paid $1,346.59.

The employee testified that due to the injuries from the December 9, 2009 fall, she saw Dr. Kitchens, a neurosurgeon who examined her and ordered physical therapy in January. The therapy was not approved until February. Her first therapy took place in February, a few days prior to her second appointment with Dr. Kitchens. She had several more therapy sessions. Dr. Kitchens sent her back to work without restrictions but she was not able to lift or sit for a prolonged period of time which has continued to present. She had radiating pain in her arm.

The employee testified that she received a termination letter from her supervisor during the time she was receiving therapy. She had received a work excuse from a doctor that she could not return to work, but lost her job due to the injury because she was not able to return to work. Her job involved working with mentally and physically handicapped individuals with behavioral issues who could be very violent. Due to the dangerous work environment, she was putting her life in danger trying to go back to work. She was no longer able to run after the clients and restrain them which put her in more danger.

The employee testified that after she was terminated she continued to seek and receive treatment. She was treated by Dr. Tipton and at Regional Brain and Spine. She had steroid injections. She received treatment from Southeast Hospital and her debt to the hospital was discharged in bankruptcy court. She was examined by Dr. Woiteshek who diagnosed a severe sprain of the cervical and thoracic spine.

The employee testified that she was injured at work on December 9, 2009, and sustained injuries that led to her disability and being terminated. The work-related fall on December 9, 2009, caused her injury and all of her problems. Since the accident she has had left shoulder pain.

Page 5

**Injury No. 09-097189**

There are many instances where she cannot carry out daily activities due to inability to extend her arm and back. She can no longer swim, play basketball, or play tennis. She is more of a recluse due to the injury. It is frustrating that she cannot do everyday life things. She has frustration at being injured at work; not being able to perform a full-time job; and not being able to work and be employable. After her termination, she applied for social security disability and reported that she was injured at work on December 9, 2009. Although she initially had an attorney for the social security case, she ended up representing herself. She receives $910.00 a month which is not enough to be pretending to be injured. She was never the type person to sit around and would be working if she could.

The employee testified that she has had economic hardship, sadness, crying and frustration due to the December 9, 2009 accident and injury. There has been a lot of non-compliance that she has dealt with which has hindered her from getting the treatment that she needs. She is going to need treatment including medicine for the rest of her life. Her life has been put on hold and she wants proper treatment so she can get better.

The employer and the Second Injury Fund are disputing that the employee's injury is medically causally related to the December 9, 2009 accident.

The burden of proof is on the claimant to prove all material elements of his or her claim. See *Marcus v. Steel Constructors, Inc.*, 434 S.W.2d 475 (Mo. 1968) and *Walsh v. Treasurer of the State of Missouri*, 953 S.W.2d 632, 637 (Mo. App. 1997). The claimant has the burden to prove that the injuries arose out of and in the course of employment. See *Smith v. Donco Construction*, 182 S.W.3d 693, 699 (Mo. App. 2006).

The employee has the burden of proof that she suffered an accidental work-related injury and that the accident was the prevailing factor in causing both the resulting medical condition and disability. See *Armstrong v. Tetra Pak, Inc.*, 391 S.W.3d (Mo. App. 2012) and *Bond v. Site Line Surveying*, 322 S.W.3d 165 (Mo. App. 2010). A work injury is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. See *Gordon v. City of Ellisville*, 268 S.W.3d 454 (Mo. App. 2008).

The employee has the burden of proving both that there was an accident and that there is a medical causal relationship between the accident, the injuries, and the medical treatment for which she is seeking compensation. See *Dolan v. Bandera's Café and Bar*, 800 S.W.2d 163 (Mo. App. 1990). It has long been accepted that there is a distinction between an accident and an injury. The employee must prove that she had an injury and that the injury was caused by an accident which arose out of and in the course of her employment. Thus, the "accident" is the cause, and the "injury" is the result. See *Errante v. Fisher Body Div., General Motors Corp.*, 374 S.W.2d 521 (Mo. App. 1964).

Page 6

**Injury No. 09-097189**

Medical causation that is not a matter of common knowledge or experience must be established by scientific or medical evidence showing the relationship between the complained of condition and the asserted cause of the condition. See *Bond v. Site Line Surveying*, 322 S.W.3d 165, 170 (Mo. App. 2010). In order to prove a medical causal relationship between the accident and the medical conditions, the employee in cases such as this one involving any significant medical complexity must offer competent medical testimony to satisfy her burden of proof. See *Brundrige v. Boehringer Ingelheim*, 812 S.W.2d 200 (Mo. App. 1991) and *Downs v. A.C.F. Industries, Inc.*, 460 S.W.2d 293 (Mo. App. 1973).

There was no medical evidence or medical testimony admitted into evidence to satisfy the employee's burden to prove a medical causal relationship between the accident and the medical condition.

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.

Southeast Missouri Hospital filed an original Application for Direct Payment with the Division on October 25, 2010, with the amount requested of $2,624.56. Southeast Missouri Hospital filed an amended Application for Direct Payment with the Division on April 6, 2011, with the amount requested of $5,178.24.

Under Section 287.140.13(6) RSMo, a health care provider whose services have been authorized in advance by the employer or insurer may give notice to the division of a claim for services provided for a work-related injury that is covered by this chapter.

The Applications filed by Southeast Missouri Hospital left blank the name and title of the person giving authorization for the services and the date authorization was given. Although notified of the hearing, Southeast Missouri Hospital failed to appear. There was no evidence that the treatment was authorized in advance by the employer. I find that Southeast Missouri Hospital did not meet its burden of proof that its services were authorized in advance.

Page 7

**Injury No. 09-097189**

Based on the denial of the claim for compensation due to the employee's failure to prove a medical causal connection between her medical condition and the accident, I find that the medical services provided were not for a compensable work-related injury. Southeast Missouri Hospital's Application for Direct Payment is denied.

Based on the employee's claim for compensation being denied, the attorney's lien of the employee's former attorney, Mark Cordes is denied.


Made by:

Lawrence C. Kasten

Chief Administrative Law Judge

Division of Workers' Compensation