Lettie Moore v. Bi-State Development Agency

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

**Employee:** Lettie Moore

**Employer:** Bi-State Development Agency (settled)

**Insurer:** Self-Insured (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 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.

The administrative law judge ruled that a report from Dr. J.H. Morrow, Jr., was not admissible pursuant to § 287.210.7, RSMo, because Dr. Morrow was not available for cross-examination. However, a summary of Dr. Morrow's report by another medical practitioner was admitted into evidence without objection.

The administrative law judge also ruled that the Second Injury Fund is not liable for benefits because employee did not establish a 50-week permanent partial disability that was a hindrance or obstacle to employment and employee did not establish synergy.

On January 7, 2020, employee filed an application for review raising the sole issue: "The Administrative Law Judge was wrong to not allow Certified Division of Workers' Compensation Records into evidence."

**Section 287.210.7, RSMo, provides:**

1. The testimony of a treating or examining physician may be submitted in evidence on the issues in controversy by a complete medical report and shall be admissible without other foundational evidence subject to compliance with the following procedures. The party intending to submit a complete medical report in evidence shall give notice at least sixty days prior to the hearing to all parties and shall provide reasonable opportunity to all parties to obtain cross-examination testimony of the physician by deposition. The party offering the report must make the physician available for cross-examination testimony by deposition not later than seven days before the matter is set for hearing. Nothing herein shall prevent the parties from agreeing to admit medical reports or records by consent.

(emphasis added).

MNKOI 0000811646

Injury No. 08-072414

Employee: Lettie Moore

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In this matter, Dr. Morrow was not subject to cross-examination because he was deceased. Therefore, the provisions of § 287.210, RSMo, were not met.

Section 287.210.7 eliminates the hearsay objection to medical records in workers' compensation proceedings. However, a claimant's failure to comply with Section 287.210.7 subjects medical records to the foundational requirements for the introduction of the documentary evidence as business records, as well as objections such as relevancy or an inadequate source of information.

Burchfield v. Renard Paper Co., 405 S.W.3d 589, 592 (Mo. App. 2013).

Although this is the sole issue on appeal, we do not need to determine whether Dr. Morrow's report should have been admitted into evidence or not. Employee did not appeal the other conclusions in this matter: that the Second Injury Fund is not liable for benefits because employee did not establish a 50-week permanent partial disability that was a hindrance or obstacle to employment and employee did not establish synergy.

Even if we conclude that the administrative law judge should have admitted Dr. Morrow's report into evidence, the existence of the report in evidence does not per se establish a 50-week permanent partial disability that was a hindrance or obstacle to employment. Furthermore, Dr. Morrow's report does not per se establish a synergistic effect with the primary injury. These other issues are controlling.

Absent an appeal to these controlling issues, we are not persuaded to alter the decision of the administrative law judge and deny the claim. All other issues are moot.

**Decision**

We affirm and adopt the award of the administrative law judge as supplemented herein.

The award and decision of Administrative Law Judge Suzette Carlisle, dated December 19, 2019, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this 15th day of May 2020.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

S. Kiki Curls

Attest:

Shalonn K. Curls, Member

Secretary

Employee: Lottie Moore

Injury No.: 08-072414

Dependents: N/A

Employer: Bi-State Development Agency (Settled)

Additional Second Injury Fund

Insurer: Self-Insured (Settled)

Hearing Date: October 1, 2019

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: SC: MK

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: February 2, 2008
5. State location where accident occurred or occupational disease was contracted: St. Louis City
6. Was employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: While driving a bus for work, Claimant developed a blood clot in her right leg.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Right hip
14. Nature and extent of any permanent disability: 44.5 % permanent partial disability of the right hip.
15. Compensation paid to-date for temporary disability: $\ 9,542.61
16. Value of necessary medical aid paid to date by employer/insurer? $\ 726.08

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 08-072414

Employee: Michael Butler

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

1. Employee's average weekly wages: Sufficient for the rate listed in number 19 below

1. Weekly compensation rate: $389.04

1. Method wages computation: Stipulated by the parties

**COMPENSATION PAYABLE**

1. Amount of compensation payable:

Settled with the Employer/Insurer prior to hearing.

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 for N/A of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Attorney Gary Matheny.

WC-32-R1 (6-51)

Page 2

On October 1, 2019, Ms. Lettie Moore ("Claimant") appeared in person 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 benefits from the Second Injury Fund ("SIF").

Attorney Gary Matheny appeared on behalf of Claimant. Assistant Attorney General ("AAG") David Drescher appeared on behalf of SIF. The record closed on October 1, 2019 after presentation of all the evidence. Memorandums of law were due to the court by October 29, 2019. Court Reporter Maria Krawat transcribed the court proceedings.

Prior to the start of the hearing, Bi-State Development Agency, the self-insured Employer, settled their claims with Claimant for 44.5 percent permanent partial disability ("PPD") of the right hip on March 19, 2012, and did not participate in the hearing.

At the start of the hearing, Claimant voluntarily dismissed the following cases that were set for hearing; Injury Numbers 13-084870 and 15-092890.

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

The parties stipulated that on February 2, 2008:

1. Claimant worked for the Employer;
2. Claimant sustained an occupational disease injury that arose out of and in the course of his employment in St. Louis City;

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 08-072414

1. Employer and Claimant operated under the Missouri Workers' Compensation Law;¹

1. Employer's liability was fully self-insured;

1. Employer had proper notice of an injury;

1. A Claim for Compensation was timely filed;

1. Claimant's average weekly wage was sufficient for a compensation rate of $389.04 per week for permanent PPD benefits;

1. Employer paid medical benefits totaling 9,542.61 (17 weeks); and

1. Employer paid medical benefits totaling 726.08.

ISSUES

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

1. Is Dr. Morrow's report dated December 12, 1989 admissible as part of the DWC records contained in Claimant's Exhibit 2? Answer: No.

1. What is the nature and extent of SIF liability for PPD benefits, if any? None.

EXHIBITS

Claimant offered the following exhibits that were admitted into evidence without objection:

Exhibit 1 - Deposition of Dr. Shawn Berkin

Exhibit 2 - DWC certified records²

Exhibit 3 - St. Mary's Hospital records dated March 2008 to November 2010

Exhibit 4 - SSM Neurosciences St. Mary's Hospital, January 2016

Exhibit 5 - St. Louis University Hospital records, 2015 to 2017

AAG Drescher raised a hearsay objection to the admission of Dr. J.H. Morrow's report dated December 12, 1989 because Dr. Morrow is deceased and was never cross-examined. Claimant asserted the records are certified DWC records. Therefore, Dr. Morrow's report should be considered for the weight of the evidence, and not the admissibility of the report. The objection was preserved and the parties were asked to brief the issue. Claimant's Exhibits one through five were admitted. After a review of the evidence, Dr. Morrow's report was excluded as discussed in this award.

Any marks or highlights contained in the above exhibits were made before they became a part of this record and were not made by the undersigned administrative law judge.

¹ Any references in this award to the Employer also refers to the Insurer unless otherwise stated. All references in this award are to the 2005 Mo Rev Stat., unless otherwise stated.

² Exhibit 2 was admitted except for Dr. Morrow's report. The report was retained but not admitted.

WC-32-R1 (6-01)

Page 4

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 08-072414

The SIF offered no Exhibits.

Around 2004, Claimant testified she sustained a herniated disc at C6-C7 while driving a bus for work. Claimant testified she developed headaches, numbness and tingling in her fingers, limited range of motion of her neck, and swelling in her neck and shoulder. While driving, Claimant needed to turn her body in different directions in order to see. Claimant testified neck symptoms caused her to miss work. She received chiropractic treatment. To relieve pain, Claimant testified she had three trigger point injections, took medication and had physical therapy.

In 2008, Claimant worked as a bus driver for the Employer. She tr