Shelly Dale v. Washington University

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

Injury No. 09-099305

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 filings, 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.

On February 28, 2020, an administrative law judge issued an award denying compensation to employee in this workers' compensation claim. On March 6, 2020, employee filed a timely application for review with the Labor and Industrial Relations Commission (Commission).

On March 18, 2020, employer filed with the Commission an answer to employee's application for review. Therein, employer argues that employee's application for review fails to comply with Commission rule 8 CSR 20-3.030(3)(A), and requests that we therefore dismiss the application for review.

The Commission allowed employee 15 days to respond to the request by employer that his application for review be dismissed. To date, the Commission has not received any response from employee.

Commission rule 8 CSR 20 3.030(3)(A) provides, in relevant part, as follows:

> 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.

Employee's application for review states the following, in its entirety:

> The [ALJ] erred in not ruling that [EE]'s fall and resulting Injuries more likely than not resulted in her Injuries. The [ALJ] erred in not considering [EE]'s competent, credible, and persuasive medical evidence of causation and resulting permanent disability. The [ALJ] erred in excluding the report of Dr. Hinton.

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At minimum, our rule requires an applicant for review to identify the administrative law judge's particular findings and/or conclusions with which the applicant disagrees, and to state specifically why the applicant disagrees with them. As the court held in *Taluc v. TWA*, 34 S.W.3d 831, 834 (Mo. App. 2000), the Commission is not required to "figure out on its own" the issues an applicant for review wishes to contest, and is authorized to dismiss applications that are insufficiently specific.

It appears employee is challenging the administrative law judge's evidentiary rulings. Employee fails, however, to identify a single reason why such rulings were in error. To proceed with a review of the administrative law judge's evidentiary rulings absent a specific allegation or argument why said rulings were in error would inappropriately place the Commission in the role of advocate for the employee.

We conclude that employee's application for review fails to satisfy the minimum requirements under Commission rule 8 CSR 20-3.030(3)(A). Therefore, we grant the request by employer, and dismiss employee's application for review.

Additionally, employer's cross application for review that it filed with this Commission on March 5, 2020 does not affect our decision to affirm the administrative law judge's award, because it does not disagree with the administrative law judge's ultimate disposition of this case, and only disputes findings of facts #3 and #8, which it finds to be contradictory.

We therefore change the administrative law judge's response in finding of fact #8 ([d]id accident or occupational disease arise out of and in the course of the employment?) from "yes" to "no" so that it does not appear to contradict the "no" response within finding of fact #3 ([w]as there an accident or incident of occupational disease under the [l]aw?).

We affirm and adopt the award of the administrative law judge as supplemented herein. The award and decision of Administrative Law Judge Karla O. Boresi is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

Given at Jefferson City, State of Missouri, this 29th day of July 2020.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Shalonn K. Curls, Member

Secretary

Injury No. 09-099305

**Employee:** Shelly Dale

**Dependents:** N/A

**Employer:** Washington University

**Additional Party:** Second Injury Fund

**Insurer:** Colleges and University Trust c/o Cannon Cochran Management Services

**Hearing Date:** November 6, 2019

**Injury No.:** 09-099305

**Before the Division of Workers' Compensation**

**Department of Labor and Industrial Relations of Missouri**

**Jefferson City, Missouri**

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? No
4. Date of accident or onset of occupational disease: December 10, 2009
5. State location where accident occurred or occupational disease was contracted: St. Louis, Missouri
6. Was above 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: Claimant clocked out, left Employer's building, and slipped on a metal grate outside the building.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Body as a whole - low back
14. Nature and extent of any permanent disability: None
15. Compensation paid to-date for temporary disability: None

Issued by DIVISION OF WORKERS' COMPENSATION

Injury # 09-099305

1. Value necessary medical aid paid to date by employer/insurer? None

1. Value necessary medical aid not furnished by employer/insurer? None

1. Employee's average weekly wages: 351.06

1. Weekly compensation rate: 234.04/$234.04

1. Method wages computation: By agreement and using the table

COMPENSATION PAYABLE

1. Amount of compensation payable from the Second Injury Fund: NONE

Said payments to begin immediately 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 25% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Law Offices of MacArthur Moten, P.C.

Employee: Shelly Dale

Departments: N/A

Employer: Washington University

Additional Party: Second Injury Fund

Insurer: Colleges and University Trust c/o Cannon

Cochran Management Services

Hearing Date: November 6, 2019

Injury No.: 09-099305

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

A Hearing was held in the above-referenced matter on November 6, 2019. Shelly Dale ("Claimant") appeared in person and was represented by counsel, Mr. Steve Brooks on behalf of MacArthur Moten, P.C. Washington University ("Employer") and its insurer, Colleges and University Trust c/o Cannon Cochran Management Services ("Insurer"), were represented by Mr. David Ware and Ms. Mary Anne Lindsey. Assistant Attorney General Da-Niel Cunningham represented the Second Injury Fund ("Fund").

Prior to the start of the Hearing, the admissibility of Dr. Paul Hinton's report was raised as an issue. When the report was not admitted, Claimant moved for a continuance to secure the deposition of Dr. Hinton. The admissibility of Dr. Hinton's report, and the denial of Claimant's request for a continuance, will be discussed in detail later in this Award.

The parties stipulated to the following facts:

1. Claimant and Employer were operating under and subject to the provisions of the Missouri Workers' Compensation Law;
2. On or about December 10, 2009, Claimant sustained an accident;
3. Claimant was an employee of Employer;
4. Claimant provided Employer with proper notice of her accident;
5. Claimant filed her Claim for Compensation in a timely manner;
6. At the relevant time, Claimant earned an average weekly wage of $\ 351.06, for applicable rates of compensation of $\ 234.04 for total disability benefits, and $\ 234.04 for permanent partial disability benefits;
7. Employer and Insurer did not pay any temporary total disability benefits;
8. Employer and Insurer did not pay any medical benefits;
9. Venue for the Hearing in this matter is proper at the St. Louis office of the Missouri Division of Workers' Compensation.

The issues to be resolved at this Hearing are:

1. Did Claimant's accident arise out of and in the course and scope of her employment?
2. Was Claimant's accident the prevailing factor in causing both the resulting medical condition and disability?
3. Is Employer/Insurer liable for past medical bills?
4. Is Employer/Insurer liable for future medical care?
5. What is the nature and extent of Claimant's disability?
6. What liability, if any, falls on the Second Injury Fund?
7. Is Dr. Hinton's medical report admissible under Section 287.210.7?

Claimant offered and had admitted into evidence, the following Exhibits:

Exhibit 1: Fax to David Ware

Exhibit 2: Fax to Da-Niel Cunningham

Employer/Insurer offered and had admitted into evidence, the following Exhibits:

Exhibit A: Curriculum vitae of Dr. Daniel Kitchens

Exhibit B: Report of Dr. Daniel Kitchens, dated July 5, 2016

Exhibit C: Supplemental report of Dr. Daniel Kitchens, dated October 19, 2016

Exhibit D: Report of Dr. Russel Cantrell, dated November 11, 2009

Exhibit E: Report of Dr. Russell Cantrell, dated May 4, 2010

Exhibit H: Medical records and report of Dr. Bruce Schlafly

Exhibit I: Medical records of Dr. Fatoki

Exhibit J: Medical records of Christian Hospital

Exhibit M: Medical records of Pain Management \& Spine Specialists

Exhibit N: Medical records of Dr. Peter Mirkin

Exhibit P: Medical records of Dr. Ravindra Shitut

Exhibit Q: Medical records of Dr. Selam Deutschmann

Exhibit R: Medical records of Dr. Siddharth Kaul

Exhibit S: Medical records of Spine and Wellness Center

Exhibit T: Medical records of St. Luke's Hospital

Exhibit U: Medical records of Dr. William Hoffman

Exhibit V: Records of the Division of Workers' Compensation Exhibit W: Letter from CMS regarding conditional payments Exhibit X: Request for Hearing

The Fund offered and had admitted into evidence, the following Exhibits:

Exhibit I: Letter from Da-Niel Cunningham, dated January 24, 2017

Exhibit II: Letter from Da-Niel Cunningham, dated February 1, 2017

Exhibit III: Section 287.210.7 RSMo (2005) notice for Dr. Cantrell's report

Exhibit IV: Section 287.210.7 RSMo (2005) notice for Dr. Kitchens' report

Claimant offered, but did not have admitted into evidence, the following Exhibit:

Exhibit 3: Report of Dr. Paul Hinton

Employer/Insurer offered, but did not have entered into evidence, the following Exhibits:

Exhibit F: Medical records of BarnesCare

Exhibit G: Medical records of Dr. David Brown

Exhibit K: