Christopher Carewicz v. Playcraft Pontoon Company d/b/a Richland Diversified Industries

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

Injury No.: 14-102788

Employee: Christopher C. Carewicz

Employer: Playcraft Pontoon Company

d/b/a Richland Diversified Industries

Insurer: Manufacturer's Alliance Insurance Company

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. Having reviewed the evidence, read the briefs, and considered the whole record, we find that the award of the administrative law judge (ALJ) 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. ${ }^{1}$

In a workers' compensation case, the employee carries the burden of proving all essential elements of the claim. ${ }^{2}$ The employee in this case appears to suffer from loss of focus, concentration, confusion, and memory loss. He also has a propensity to embellish, for example, testifying to head and neck pain as at a level of "10, if not a thousand", back pain at a level of from " 12 to a million," and describing his wife's hours of employment as "24/7."3 Based on inconsistencies between employee's deposition and hearing testimony and documented statements, as explained in great detail in the ALJ's award, we agree that employee's testimony is so contradictory and conflicting that it lacks probative force and is self-destructive. ${ }^{4}$ We affirm the ALJ's ultimate determination that the employee lacks credibility as to the mechanism of injury and body parts injured.

As the ALJ notes, "the record provides ample support for a finding that Claimant lacks credibility."5 In this context, we consider employer/insurer's Exhibit L, criminal records from 2002 documenting employee's guilty plea, conviction, sentencing, and probation revocation related to the crime second-degree statutory rape, unnecessary and irrelevant to a determination of the employee's credibility.

Employee's attorney objected to the admission of employer/insurer's Exhibit L on the basis that:

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[^0]: ${ }^{1}$ Page 8 of the ALJ's award incorrectly recites an excerpt from Dr. Hofer's records. We substitute the word "bilaterally" for the word "bilateral" on line 7 and "Popeye" for the word "by" in line 9 of the indented quote. See Transcript, p. 1910.

${ }^{2}$ Fischer v. Archdiocese of St. Louis-Cardinal Ritter Inst., 793 S.W.2d 195, 198 (Mo. App. 1990), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. 2003).

${ }^{3} Transcript, pp. 95-98.

{ }^{4} Sita v. Falstaff Brewing Corp., 425 S.W.2d 487, 489, (Mo. App. 1968).

{ }^{5}$ Award, p. 18.

1) Employee, now fifty-three years old, admitted his felony conviction at age of thirty-two; the evidence included in Exhibit L was unnecessary for purposes of attacking his credibility;

2) The records included in Exhibit L provided no relevant information pertaining to employee's work accident or injuries;

3) The documents did not meet the statutory requirement of a judicial proceeding.

The ALJ admitted Exhibit L into evidence on grounds it was relevant to employee's credibility by showing that employee lied to expert witnesses, including vocational expert Ms. Delores Gonzalez, "when he told them he had no history of illegal drug use." ${ }^{6}$ She noted that attested judicial records and evidence of prior criminal convictions may be admissible as provided by $\S \S 490.130$ and 491.050 RSMo and found that "A probation revocation action, which culminates in a circuit judge signing an Order sending Claimant to prison for a felony, is a judicial proceeding." ${ }^{7}$

We consider employer/insurer's Exhibit L, documenting the then thirty-two-year-old employee's admission to unlawful conduct with a sixteen-year-old female, probation revocation for failure of drug testing and noncompliance with unspecified directives of his probation officer ${ }^{8}$ irrelevant to this appeal. Employee candidly testified to his felony conviction and incarceration for statutory rape from approximately 2002 to 2007. He has been married to his current wife for fourteen years. Employee's 2002 probation revocation, based on undocumented failure of a drug test and other unspecified conduct contrary to his probation officer's directives, does not, in and of itself, establish that employee has "a history of illegal drug use." Employer/insurer produced no evidence that employee committed any drug-related crimes.

Because we find that employee's probation revocation in connection with an offense he committed nearly twenty years ago provides no relevant information pertaining to his 2014 work accident and injury claim, we strike employer/insurer's Exhibit L from the record.

We further consider evidence of employee's poor memory about his body weight, the birthdates of his children, and the name of his high school ${ }^{9}$ irrelevant to our determination that the employee lacks credibility regarding the mechanism of injury and body parts injured.

As a factual matter, we find the expert medical opinions of Drs. Russell Cantrell and Robert Bernardi, and treating surgeon Dr. Scott Hofer, more credible and persuasive than medical opinions offered by employee's experts Drs. Robert Poetz, Paul Hinton, and R. Peter Mirkin. We credit vocational expert Mr. Bob Hosutt's opinion as more persuasive than Ms. Gonzalez's opinion.

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[^0]: ${ }^{6} Award, p. 19.

{ }^{7} Id.

{ }^{8} Transcript, p. 2908.

{ }^{9}$ Id., pp. 110-111, 175-176, 182-190.

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Our decision herein does not detract from the ALJ's otherwise thorough and well-reasoned analysis of the issues involved in this appeal and her fair resolution of the employee's claim.

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

The award and decision of Administrative Law Judge Victorine R. Mahon, issued March 2, 2021, is attached and incorporated by this reference.

We approve and affirm the administrative law judge's allowance of attorney's fee as being fair and reasonable.

Given at Jefferson City, State of Missouri, this 4th day of November 2021.


**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Shalonn K. Curls, Member

Attest:

Secretary

Claimant: Christopher C. Carewicz

Injury No. 14 - 102788

Dependents: Carrie Carewicz

Employer: Richland Diversified Industries, dba. Play Craft Pontoon, LLC

Insurer: Manufacturer's Alliance Ins. Co. TPA Gallagher Bassett

Hearing Date: December 10, 2020

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

1. Are any benefits awarded herein? Yes.
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: August 4, 2014.
5. State location where accident occurred or occupational disease was contracted: Richland, Pulaski County, Missouri; Venue for hearing stipulated in Springfield, Greene County, Missouri.
6. Was above Claimant 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 Claimant was doing and how accident occurred or occupational disease contracted: Claimant and a coworker were lifting a pontoon log when the coworker dropped his end of the log causing injury to Claimant's right arm.
12. Did accident or occupational disease cause death? No. Date of death? N/A.
13. Part(s) of body injured by accident or occupational disease: Right arm and right shoulder.
14. Nature and extent of any permanent disability: 35 percent of the right arm at the 232 -week level.
15. Compensation paid to date for temporary disability: $\ 3,140.00.
16. Value necessary medical aid paid to date by employer/insurer? $\ 28,411.99.

Issued by MISSOURI DIVISION OF WORKERS' COMPENSATION

Claimant: Christopher C. Carewicz

1. Value necessary medical aid not furnished by employer/insurer? None.
2. Claimant's average weekly wages: $\ 326.55.
3. Weekly compensation rate: $\ 217.83 for all purposes.
4. Method wages computation: By stipulation.

1. Amount of compensation payable:

For Temporary Total Disability (per Award)

From 11/24/2014 through 1/17/2015

7 and $5 / 7 weeks x \$ 217.83=$

\ 1,680.74$

For Underpayment of Temporary Total Disability (per Stipulation)

From 8/4/2014 through 11/23/2014 (16 weeks)

\$ 345.38

For Temporary Partial Disability (per Stipulation)

From 1/18/2015 through 4/7/2015

$112 / 7 weeks x \$ 88.09=$

\ 994.54

For Loss of Teeth

3.75 weeks x \ 217.83

\ 816.86

For Permanent Partial Disability:

35 percent \times 232=81.20 weeks

81.20 weeks x \$ 217.83=$

1. Second Injury Fund liability: Not applicable.
2. Future requirements awarded: None.

This Award is subject to modification and review as provided by law.

Interest shall apply as provided by law.

The compensation awarded to the Claimant shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the Claimant: Ronald D. Edelman.

Claimant: Christopher C. Carewicz

Injury No. 14-102788

Dependents: Carrie Carewicz

Employer: Richland Diversified Industries, dba.

Play Craft Pontoon, LLC

Address: 201 S. 1st Street, New York 11, N.Y. 10017

Address: 201 S. 2nd Street, New York 11, N.Y. 10018

Address: 201 S. 3rd Street, New York 11, N.Y. 10019

Address: 201 S. 4th Street, New York 11, N.Y. 10020

Address: 201 S. 5th Street, New York 11, N.Y. 10021

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Address: 201 S. 2nd Street, New York 11, N.Y. 1002