Gary Weibrecht v. Gilster-Mary Lee Corporation

Commission denied employee's Motion to Submit Additional Evidence. Commission member Shalonn K. Curls dissented.

On August 24, 2020, pursuant to the Second Injury Fund's August 6, 2020, Motion for Completion of Transcript, endorsed by employee's attorney, the Commission ordered formal motions and responses, e-mails and administrative law judge minute entries relevant to employee's post-trial motions made a part of the record in this matter.

We now turn to the merits of employee's application for review. Having reviewed the evidence, read the briefs, heard the parties' arguments, 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 $\S 286.090$ RSMo, we affirm the award and decision of the administrative law judge. We further affirm the administrative law judge's rulings on employee's post-trial motions, for reasons cited in her July 2, 2019, minute entry, referenced supra.

We affirm and adopt the August 27, 2019, award and decision of Administrative Law Judge Maureen Tilley, which we attach and incorporate herein.

Given at Jefferson City, State of Missouri, this $\qquad 11th \qquad$ day of March 2021.

LABOR AND INDUSTRIAL RELATIONS COMMISSION


Robert W. Córnejo, Chairman


Reid K. Forrester, Member

DISSENTING OPINION FILED

Shalonn K. Curls, Member

Attest:


I have read the administrative law judge's award, the employee's application for review, employee's motion to submit additional evidence, and the Second Injury Fund's memorandum in opposition. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I would grant the employee's Motion to Submit Additional Evidence in this matter, as permitted by 8 CSR 20-3.030(2)(A) and (B).

Employee in this case settled his claim against the employer on June 27, 2018. Employee's claim against the Second Injury Fund for permanent total disability remained open.

Administrative Law Judge Maureen Tilley heard employee's claim against the Second Injury Fund on May 29, 2019. Employee's attorney prepared his client's case for hearing based on then current law, Gattenby v. Treasurer of Missouri-Custodian of the Second Injury Fund, 516 S.W.3d 859 (Mo. App. 2017). Gattenby held that § 287.220.2 applied to Second Injury Fund claims where, as in this case, the employee had a preexisting disability that occurred before January 1, 2014.

On June 25, 2019, the Supreme Court of Missouri issued its decision in Cosby v. Treasurer of State of Missouri as Custodian for Second Injury Fund, 579 S.W.3d 202 (Mo. banc 2019). The Cosby decision abrogated Gattenby and held that if the date of an employee's primary injury was after January 1, 2014, § 287.220.3, not 287.220.2 applied to the employee's Second Injury Fund claim.

On June 27, 2019, aware that the law controlling his client's entitlement to benefits under the Workers' Compensation Law had radically changed, and before proposed awards from the parties were due and prior to the administrative law judge's issuance of her award, employee's attorney filed a motion to reopen the record for a supplemental hearing to file additional evidence to satisfy employee's burden of proof pursuant to $\S 287.220 .3$.

The administrative law judge denied employee's motion by minute entry on July 2, 2019. She subsequently denied two additional motions employee filed requesting reconsideration of employee's earlier request to file additional evidence or in the alternative to allow employee to present an offer of proof as part of the record. On August 27, 2019, the administrative law judge issued her Final Award denying employee's claim for permanent total disability benefits against the Second Injury Fund based on a finding that employee filed to establish a claim under § 287.220.3.

The administrative law judge's refusal to allow employee to submit additional evidence prior to issuance of her award, after the Missouri Supreme Court overruled Gattenby and effectively changed employee's burden of proof, constituted a due process violation because it denied employee an opportunity to receive an award for permanent total disability benefits without a full and complete hearing. For the same reason, I dissented from Commission's July 2, 2020, order denying employee's October 31, 2019, Motion to Submit Additional Evidence to the Commission.

Employee: Gary M. Weibrecht

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Employee's request complied with 8 CSR 20-3.03092)(A) and (B) in that it specified the names and substance of employee's newly discovered evidence, consisting of medical and vocational evidence as well as testimony by employee establishing that a preexisting, compensable back injury combined with his primary injury on July 19, 2016, to result in permanent total disability thus satisfying employee's burden of proof under § 287.220.3. These exhibits and testimony could not reasonably have been discovered and produced at the administrative law judge's May 29, 2019, hearing because employee's attorney had no reasonable basis to anticipate either the timing or the substance of the Supreme Court's decision in *Cosby*. Employee's attorney further complied with § 287.210.5 by sending a copy of Dr. Paul Hinton's July 17, 2019, medical report, attached to employee's motion, to the Second Injury Fund's attorney more than seven days prior to Dr. Hinton's deposition.

Employee's additional evidence is not cumulative. The new evidence employee requested leave to offer was not relevant at the time of the administrative law judge's hearing but, as a result of *Cosby*, it is now relevant and necessary to address the more stringent requirements for a permanent total disability claim against the Second Injury Fund pursuant to § 287.220.3.

In my opinion, the administrative law judge's denial of employee's post-trial motions to submit additional evidence and this body's subsequent refusal to allow employee's request to submit additional evidence to the Commission constitutes an abuse of discretion and violates due process. The admission of additional evidence under the circumstances of this case, which involves an unforeseen change in employee's burden of proof, is necessary to further the interests of justice. I dissent from the majority's endorsement of the administrative law judge's award denying compensation and its denial of employee's request to submit additional evidence relevant to the standard for proving Second Injury Fund liability pursuant to 287.220.3, as established in *Cosby*, *supra*.

Shalonn K. Curls

Shalonn K. Curls, Member

Employee: Gary M. Weibrecht Injury No. 16-063011

Dependents: N/A

Employer: Gilster-Mary Lee Corp. (settled)

Additional Party: Second Injury Fund

Insurer: Self-Insured / ESIS, TPA

Appearances: Jack H. Knowlan, Jr., attorney for the employee.

Keyla Rhoades, attorney for the Second Injury Fund.

Hearing Date: May 29, 2019 Checked by: MT/kg

1. Are any benefits awarded herein? No

1. Was the injury or occupational disease compensable under Chapter 287? Yes

1. Was there an accident or incident of occupational disease under the Law? Yes

1. Date of accident or onset of occupational disease: July 19, 2016

1. State location where accident occurred or occupational disease contracted: DeWitt,

Arkansas (principal place of employment in Perryville, Missouri)

1. Was Employee employed by Employer at time of alleged accident or occupational disease?

Yes

1. Did the employer receive proper notice? Yes

1. Did the accident or occupational disease arise out of and in the course of the employment?

Yes

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

1. Was the employer insured by the above named insurer? Yes (self-insured)

1

Employee: Gary Weibrecht

Injury No. 16-063011

1. Describe the work employee was doing and how the accident happened or the occupational disease contracted: Employee was jacking up a trailer. The dolly leg popped out of gear causing the employee to fall and injure his low back.

1. Did accident or occupational disease cause death? No

1. Parts of body injured by accident or occupational disease: Low back

1. Nature and extent of any permanent disability: 36.25% permanent partial disability of his body as a whole referable to the low back

1. Compensation paid to date for temporary total disability: $21,870.00

1. Value of necessary medical aid paid to date by the employer-insurer: $166,298.25

1. Value of necessary medical aid not furnished by employer-insurer: N/A

1. Employee's average weekly wage: 1,473.16

1. Weekly compensation rate: 911.27 for TTD and PTD and $477.33 for PPD

1. Method of wage computation: By agreement

1. Amount of compensation payable: None

1. Second Injury Fund liability: No

1. Future requirements awarded: N/A

On May 29, 2019, the employee, Gary Weibrecht, appeared in person and by his attorney, Jack H. Knowlan, Jr., for a hearing for a final award. The Second Injury Fund was represented at the hearing by Assistant Attorney General, Keyla Rhoades. At the time of the hearing,