Kathryn Crowley v. Clarcor/General Electric

$\S 287.210(7)$, RSMo, provides an exception that applies to treating physicians, but not to a PhD toxicologist.

1. The ALJ erred in allowing into evidence the testimony from the employer's witnesses because such testimony was hearsay, lacked foundation, and was not previously provided in response to a request for documents and statements pursuant to $\S 287.215, RSMo, or a subpoena pursuant to \S 287.560$, RSMo.

The employee's brief includes no arguments in support of points 1, 6, 9, and 10. Accordingly, we deem that the employee waived these points on appeal.

Section 287.170.4, RSMo, prohibits an award of TTD benefits when "the employee is terminated from post-injury employment based upon the employee's post-injury misconduct[.]" The term "post-injury" refers to events occurring after the injury at issue with the workers' compensation claim. This statute applies here because the employee continued to work for the employer postinjury and was discharged for post-injury misconduct.

The ALJ specifically found that the employee had "an acute injury on November 19, 2014, to her left wrist." Award, p. 27. The employer followed its policies by requiring a drug test. The ALJ also found "most persuasive" the opinions of toxicologist John Vasiliades, PhD, that based on the test results "there's no question [the employee] took D-methamphetamine" and that the only prescription drug the employee reported would not have caused that positive test result. Award, p. 22, 28. Due to the positive drug test results, the employer discharged the employee for misconduct. As both the employment and the positive drug tests occurred after the primary injury, the ALJ found that the employee "was terminated from post-injury employment based upon post-injury misconduct." Award, p. 29.

In her brief, the employee argues that the term "injury" in "post-injury misconduct" does not refer to the primary injury for the workers' compensation claim, but rather, the alleged acute injury on November 19, 2014, that triggered the employer's requirement for the employee to submit to the drug testing. The employee argues that even if the employee used illegal drugs, such usage was prior to the alleged acute injury; therefore, the alleged misconduct was pre-injury and not post-injury.

The employee further argues that the employer used the alleged acute injury as a pretext to require a drug test. This was the first instance in the employee's 30-year career with the employer where she had to submit to a drug test.

We do not find the employee's arguments persuasive. The term "injury" in the statute does not refer to the employee's November 19, 2014, acute injury, but refers to the primary injury for which the employee seeks workers' compensation benefits. This interpretation is also shared in a dissenting opinion by Judge Teitelman of the Missouri Supreme Court, who disapproved of the plain language of $\S 287.170 .4$, RSMo, because it indicates that the post-injury misconduct refers to misconduct after the primary workers' compensation injury. Accordingly, the postinjury misconduct, "by virtue of being post-injury, could not have been a factor in causing the injury." Mo. All. for Retired Ams. v. DOL \& Indus. Rels., Div. of Worker's Comp., 277 S.W.3d 670, 686 (Mo. 2009) (J. Teitelman, dissenting). Judge Teitelman continued to note that "[t]he statute does not even require that the employer's decision to terminate the injured employee is reasonable or non-pretextual." Id.

We agree with the ALJ's findings and conclusions that the employer terminated the employee's post-injury employment due to post-injury misconduct. Accordingly, the employee is not entitled to TTD due to the provisions of $\S 287.170 .4, RSMo, strictly construed. Therefore, the employee's points 2,3,4$, and 7 fail as they regard TTD benefits. The employee is not entitled to any additional TTD, any doubling of TTD, or any previously paid TTD that the employer paid in compliance with an October 5, 2015, Temporary Award. The employer is entitled to a credit for such previously paid TTD in the amount of $\ 49,833.19.

In her point 5, the employee argues that the ALJ erred in finding that the employee's psychiatric condition did not arise out of and in the course of employment. The basis for this argument is as follows:

Nowhere in the transcript does the Employer or The Second Injury Fund counsel ask the Administrative Law Judge to list causation as an issue. Therefore, the Administrative Law Judge's analysis of the case in this regard should be struck and not considered in this appeal. The only issue is the nature and extent of Ms. Crowley's disability, not the cause of her disability.

Appellant's Brief, p. 13.

The employee did not raise this particular issue in her application for review. Accordingly, we decline to consider it. See 8 CSR 20-3.030(3)(A) and Treasurer of the State v. Mickelberry, 606 S.W.3d 150 (Mo. App. 2020).

Regarding the ALJ's determination that the employee was not PTD, we do not disturb the ALJ's findings relating to the credibility and persuasiveness of the medical and vocational expert opinions produced at hearing and her conclusion that the employee was able to compete in the open labor market and was not PTD.

In her point 8, the employee argues that the ALJ erred in failing to admit into evidence records from the SSA because such were admissible under Missouri law, specifically by $\S 490.210$, RSMo, which provides an exception to the hearsay rule. The employee did not raise the issue of whether the employee's SSA records were admissible under $\S 490.210$, RSMo, at the hearing and therefore did not preserve this issue for appeal. We note, in addition, that the employer/insurer's objections to the employee's SSA records were not based on hearsay.

At the hearing, the ALJ sustained the employer/insurer's objections to the admission of records from the SSA on the grounds of (1) relevance because the determination of disability for social security matters uses a different standard than determinations of disability in workers' compensation matters and (2) "that there are opinions stated therein, including reports regarding her disability, and we were not provided with a 60-day letter of these opinions and so it is not a full medical report, so to the extent that any statements regarding opinions contained within those records would be inadmissible as opinion evidence." Transcript, p. 9.

Section 287.210.7, RSMo, provides, in pertinent part:

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 notice shall include a copy of the report and all the clinical and treatment records of the physician including copies of all records and reports received by the physician from other health care providers.

We conclude that the ALJ did not err in sustaining the employer/insurer's objections. The employee did not follow the provisions of § 287.210.7, RSMo, in attempting to introduce into the record medical opinions that formed the basis for a decision of the SSA.

Furthermore, the employee is not prejudiced by the exclusion of these records, which also contain the employee's statements regarding her own condition because the employee was able to testify at the workers' compensation hearing regarding her own condition.

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

The award and decision of Administrative Law Judge Melody A. Powell is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

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

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $\qquad 28th \qquad$ day of January, 2022.


LABOR AND INDUSTRIAL RELATIONS COMMISSION


DISSENTING OPINION FILED

Shalonn K. Curls, Member

Attest:


I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge (ALJ) should be modified to conform to the Temporary or Partial Award issued on October 5, 2015.

The employee Kathryn Crowl