Cassaundra Hayes v. Sweetie Pie's Upper Crust

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

**Injury No.:** 17-061793

**Employee:** Cassaundra Hayes

**Employer:** Sweetie Pie's Upper Crust

**Insurer:** Markel Insurance Company

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. We have reviewed the evidence, read the briefs, 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, the Commission affirms the award and decision of the administrative law judge for the reasons set forth below, and as supplemented or corrected herein.

The administrative law judge denied compensation on the basis that employee failed to meet her burden of proving that she sustained an accident that arose out of and in the course of her employment. The administrative law judge also found employee's testimony was not credible.

Employee's application for review alleges that she is disabled and has a walker, a leg brace, and no feeling on her left side. Employee alleges the administrative law judge did not understand her case and that employer wants her to be paid workers' compensation benefits. Employee's application for review is deficient because it does not explain why the administrative law judge's findings on the controlling issues are in error. We exercise our discretion to consider employee's appeal despite her application for review's failure to comply with Commission Rule 8 CSR 20-3.030(3)(A).

Employee's brief includes numerous medical records that are not a part of the record. Employee's brief also includes self-described disabilities consisting of hoarseness, breathing, lung and speech problems and a virus infection. Employee alleges that these conditions arose subsequent to a stroke in May of 2017 due to breathing steam at work.

Employee's brief in effect constitutes an attempt to submit additional evidence to the Commission. Motions to submit additional evidence to the Commission are subject to Commission Rule 8 CSR 20-3.030(2). This rule requires a party to demonstrate that the additional evidence offered to the Commission constitutes newly discovered evidence that with reasonable diligence could not have been produced at the hearing before the

1 8 CSR 20-3.030(3)(A) provides: 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 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.

Injury No.: 17-061793

Employee: Cassaundra Hayes

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administrative law judge. Because employee has failed to comply with this requirement, we deny her request to submit additional evidence.

**Accident and Medical Causation**

Section 287.020 RSMo provides, in relevant part, as follows:

> The word "accident" as used in this chapter shall mean an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift.

Employee's August 19, 2017, claim for compensation alleged she sustained injury while serving food at employer's restaurant on an unspecified date in 2017 when "steam from the steam table cause[d] my throat and speech a problem." Employee's claim did not reference a stroke, nor did it allege injury due to occupational disease. At hearing, employee testified she believed she filed an amended claim form that included injuries beyond those cited in her original claim. Employee did not have a copy of the alleged amended claim. Employer/insurer denied receipt of an amended claim. Division of Workers' Compensation (Division) records include only employee's original claim, made a part of the record as Employer's Exhibit A. We find that employee did not amend her August 19, 2017, claim to allege additional work injuries beyond problems with her throat and speech.

At hearing employee testified that corrosion from water and steam from the steam table she used as a server affected her throat and caused her to have a stroke on the job site. Employee alleged that since May of 2017 she has been having speech problems, loss of feeling on her left side, difficulty holding a cup with her left (dominant) hand, and slurred speech. Employee claims that she "didn't have that problem before that happened to me on the job." Employee testified she sought treatment for pain management that led to getting a cane and ultimately a walker. When the administrative law judge inquired whether employee had either a cane or walker with her, employee responded that she had left both assistive devices in her car because she was "running late."

Employee produced no witnesses. She offered an array of medical records, described in the administrative law judge's award. Employer/insurer's attorney objected to employee's proposed exhibits on the basis that the records were incomplete and/or irrelevant to the injuries listed in employee's claim for compensation. The administrative law judge properly sustained employer/insurer's objections to employee's exhibits. In consideration to the employee, the administrative law judge announced that employee's exhibits, though not admitted, would be "retained with this record for any future reference that might be needed."

The administrative law judge properly found that employee's claim failed to identify a single work shift where a traumatic event or unusual strain occurred and produced

2 Id. 16.

3 Id.

4 Transcript, 5.

TI30811195

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objective symptoms. The administrative law judge incorrectly stated, "The only injury alleged on [employee's] claim is a throat injury." As we have found, employee's claim alleged injury to her throat and speech. This minor correction to the administrative law judge's award does not affect our confidence in the administrative law judge's conclusion that claimant did not establish that she suffered an unexpected traumatic event or unusual strain identifiable by time and place of occurrence which produced at the time objective symptoms of injury from a specific event during a single work shift.

The administrative law judge's finding that employee did not sustain an accident rendered all other issues moot. However, we find the administrative law judge correctly noted that employee failed to establish a causal connection between working at a steam table and alleged problems relating to throat, stroke, speech, and loss of feeling on her left side. There is no medical evidence in the record that employee suffers from any medical condition that is medically causally related to a work injury.

Employee testified in person before the administrative law judge. The administrative law judge relied upon her firsthand observations of employee's testimony regarding the issue of employee's credibility. As pointed out in the administrative law judge's award, employee identified the nature of her injury differently at hearing than in her Claim for Compensation. This impaired employee's credibility. Employee's ability to participate in the hearing at the Division's St. Louis office without the assistance of a cane or walker—devices she claimed were medically necessary—further compromised her believability. After careful consideration, we are not persuaded to disturb the administrative law judge's credibility determination.

We affirm the decision of the administrative law judge as supplemented herein. The decision of Administrative Law Judge Suzette Carlisle, issued September 6, 2019, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this 21st day of February, 2020.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Shalonn K. Curls, Member

Shalonn K. Curls, Member

Secretary

5 Award, p. 7.

Employee: Cassaundra Hayes

Dependents: N/A

Employer: Sweetie Pie's Upper Crust

Additional N/A

Insurer: Markel Insurance Company, c/o Markel

Service Inc.

Injury No.: 17-061793

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Hearing Date: June 19, 2019

Checked by: SC:

FINDINGS OF FACT AND RULINGS OF LAW

1. Are any benefits awarded herein? No

1. Was the injury or occupational disease compensable under Chapter 287? No

1. Was there an accident or incident of occupational disease under the Law? No

1. Date of accident or onset of occupational disease: Alleged May 31, 2017

1. State location where accident occurred or occupational disease was contracted: St. Louis City

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

1. Did employer receive proper notice? N/A¹

1. Did accident or occupational disease arise out of and in the course of the employment? No

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

1. Was the employer insured by the above insurer? Yes

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

While serving food from a steam table at work, Claimant alleged the steam landed on her face and caused

throat problems.

1. Did accident or occupational disease cause death? No

1. Part(s) of body injured by accident or occupational disease: Alleged throat

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

1. Compensation paid to-date for temporary disability: $0

1. Value necessary medical aid paid to date by employer/insurer? $0

¹ At the start of the hearing, the parties identified notice as an issue in the case. The undersigned administrative law

judge found Claimant did not meet her burden to show an accident occurred. Therefore, the notice issue is moot.

WC-32-R1 (6-91)

Page 1

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 17-061793

Employee: Cassaundra Hayes

1. Value necessary medical aid not furnished by employer/insurer? N/A

1. Employee's average weekly wages: 356.25

1. Weekly compensation rate: 237.50

1. Method wages computation: Stipulated

COMPENSATION PAYABLE

1. Amount of compensation payable: NONE

1. Second Injury Fund liability: No

TOTAL: NONE

1. Future requirements awarded: N/A

Said payments to begin and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of N/A of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: N/A

WC-32-R1 (6-81)

Page 2

On June 19, 2019, Ms. Cassaundra Hayes ("Claimant") appeared in person (pro se), before the undersigned administrative law judge, for a hearing at the Missouri Division of Workers' Compensation ("DWC"), St. Louis office. Claimant seeks permanent partial disability ("PPD") benefits from Sweetie Pie's Upper Crust ("Employer") and Markel Insurance Company.

Attorney Rebecca Long appeared for the Employer and Insurer and entered her appearance. The Second Injury Fund is not a party to this case. The record closed on June 19, 2019 after presentation of all the evidence. Memorandums of law were due to the court by July 10, 2019. Court Reporter Maria Krawat transcribed the proceedings.

Venue is proper in St. Louis and jurisdiction properly lies with the DWC.

The parties stipulated that on May 31, 2017:

1. Claimant worked for the Employer in St. Louis City;
2. Employer and Claimant operated under the Missouri Workers' Compensation Law;^{2}
3. Employer's liability was fully insured;
4. A claim for compensation was timely filed;
5. Claimant's average weekly wage was $356.25
6. The compensation rate for PPD and temporary total disability ("TTD") benefits is $237.50; and

^{2} Any references in this award to the Employer also refer to the Insurer unless otherwise stated. All references in this award are to the 2005 MO Rev Stat, unless otherwise stated.

WC-32-R1 (6-81)

1. Employer paid no medical or TTD benefits.

At the start of the hearing, the parties identified the following issues for disposition:

1. Did Claimant sustain a work-related accident?
2. Did the accident arise out of and in the course of her employment?
3. Did the Employer receive proper notice of a work related accident?
4. What is the nature and extent of the Employer's liability for PPD benefits, if any?

At the start of the hearing, the Employer made the following objections and the court issued the rulings below. All of Claimant's exhibits were retained but they were not admitted into evidence for the reasons stated below:

Training

Rehabilitation | Incomplete, not relevant, back, knees and left wrist after a motor vehicle accident not claimed. | Knees were a part of the work injury but not claimed. | Not admitted but retained. Not relevant. Body parts listed were not pled on the claim form. |

EXHIBITS/OBJECTIONS (Continued)

Claimant made no objection to Employer's Exhibit A, and the exhibit was admitted. Any marks or highlights contained in the above exhibits were placed there before they became a part of this record.

Claimant worked for Employer as a cashier and server. As a server, Claimant worked at a steam table. While serving food, Claimant constantly felt steam on her face from the steam table. Claimant poured water into the steam table to keep the food hot. A dial controlled the temperature of the steam but Claimant did not adjust the dial.

Claimant testified corrosion from the water and steam from the steam table affected her throat and caused her to have a stroke. Claimant further testified:

"....is that if the water is low or if the waters in there are not, if it's, if something's metal and it's rusted out in the inside of a metal steam table it'll have a affect on, not saying everybody, but it had an affect on myself as far as my throat and, and me having a stroke on the job 'cause that's what happened."

While at work in May 2017, Claimant testified she had difficulty with speech and she lost feeling on her left side. Claimant reported her symptoms to a co-employee. Later, Claimant's friends noticed she had a slur. Employer refused Claimant's request for medical treatment. Claimant further testified the Employer knew about her condition.

Claimant asked the Employer for time off from work to see the doctor. Claimant received treatment for pain management and speech therapy. Claimant's doctor provided an off-work slip. Claimant pays for her medical treatment.

Claimant's complaints include speech problems, loss of feeling on her left side, difficulty writing with her left hand and holding a cup (Claimant is left hand dominant). She drops things from her left hand and she uses a cane and a walker. Claimant testified she left both devices in the car on the day of the hearing because she was running late. Recently, Claimant fitted for a permanent brace for her left foot and ankle.

Section 287.020.2 defines "accident" as an "unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift. An injury is not compensable because work was a triggering or precipitating factor.

Section 287.020 .3 provides:

1) Defines "injury" as an injury that has arisen out of and in the course of employment. An injury by accident is compensable only if the accident was the prevailing factor that caused the resulting medical condition and disability. "The prevailing factor" is defined as the primary factor, in relation to any other, that caused the resulting medical condition and disability.

2) An injury shall be deemed to arise out of and in the course of the employment only if:

a) It is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor that caused the injury, and

b) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal non-employment life.

287.020.3. Compensation is denied when injuries are caused directly or indirectly from idiopathic sources.

The general rule is that an injury is one that "arises out of" the employment if it is a natural and reasonable incident thereof and it is "in the course of employment" if the action occurs within a period of employment at a place where the employee may reasonably fulfill the employment duties. Custer v. Hartford Ins. Co., 174 S.W.3d 602, 610 (Mo. App. 2005). (Citations omitted). The two tests are separate. Both tests must be met before an employee is entitled to compensation. Id. (Citations omitted).

Claimant did not establish that she sustained an unexpected traumatic event or unusual strain, identified by time and place, which produced at the time, objective symptoms of injury from a specific event during a single work shift.

The claim form lists the date of accident as "2017." The claim form does not identify a single work shift where a traumatic event or unusual stain occurred and produced objective symptoms. The record contains no diagnosis for a throat injury or evidence of a traumatic event to Claimant's throat from steam inhaled while she served food at the steam table. Claimant presented no medical or scientific evidence that rust, corrosion or water from the steam table where she worked affected her throat and caused her to have a stroke.

In addition, Claimant failed to prove a causal connection between working at the steam table and her alleged problems with her throat, stroke, speech, and loss of feeling on her left side. The only injury alleged on the claim is a throat injury, which Claimant did not prove.

1. Claimant's testimony is not credible.
2. Claimant did not meet her burden to prove she sustained an accident that arose out of and in the course of her employment.
3. A finding that Claimant did not sustain an accident renders moot all other issues.