Andrew O'Brien v. The Language Tree

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

Injury No.: 19-059371

Employee: Andrew T. O'Brien

Employer: The Language Tree

a/k/a The Language Tree Learning Center and

The Learning Tree Learning Center

Insurer: Missouri Employers Mutual Insurance

This Award is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the administrative law judge's award is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the administrative law judge's award and decision in the above-cited injury claim with this supplemental opinion.

As a preliminary matter, we address the employee's contention that the administrative law judge erred in admitting Employer/Insurer's Exhibit D, data published on the National Centers for Environmental Information relating to snowfall observations at the Boone County Regional Airport and the University of Missouri in Columbia on January 18, 2019, because this document was not certified or authenticated as a record of an office book of the United States or a sister state under $\S 490.220 RSMo. { }^{1}$

Section 536.070(6) RSMo provides, in pertinent part, "Agencies shall take official notice of all matters of which courts take judicial notice." Courts have held that judicial notice may be taken of the information on a government website because this information is "not subject to reasonable dispute" and "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Ananias v. Stratton, 2012 U. S. Dist. LEXIS 57817, at 6 (CD III. April 25, 2012). See also Jeffrey Bellin \& Andrew Guthrie Ferguson, Trial by Google: Judicial Notice in the Information Age, 108 Nw. U.L. Rev. 1137, 1160 (2014). We consider § 536.070(6) RSMo and case law that specifically addresses the admissibility of information posted on a government website controlling on the issue of the admissibility of Employer/Insurer's Exhibit D. Based on these authorities we find Employer/Insurer's Exhibit D to be selfauthenticating and therefore properly admitted into evidence by the administrative law judge. This holding is consistent with our recent ruling in the appeal of Rommal Whitefoot v. Bass Pro Outdoor World LB/Safety National Casualty and Treasurer of Missouri as Custodian of Second Injury Fund, Inj. No. 18-022201 (LIRC October 25, 2022).

We affirm the administrative law judge's denial of the employee's January 18, 2019, injury claim based on her first-hand credibility assessment of the employee's testimony

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[^0]: ${ }^{1}$ Section 490.220 (RSMo 1939 §1825) provides, "All records and exemplifications of office books, kept in any public office of the United States, or of a sister state, not appertaining to a court, shall be evidence in this state, if attested by the keeper of said record or books, and the seal of his office, if there be a seal."

Improvee: O'Brien, Andrew T.

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regarding the alleged work injury, the medical records in evidence, and data recording snowfall on that date from the National Center for Environment Information's website. We concur with the administrative law judge's finding that the employee's testimony regarding the alleged work incident lacked credibility because it was inconsistent and because the employee failed to identify a time and place of occurrence as required by § 287.020.2 RSMo. The employee, therefore, failed to establish that a work accident on January 18, 2019 resulted in an injury to his left elbow.

We further find that even assuming the employee was involved in an incident at work on January 18, 2019, he failed to establish that a work-related event on that date was the prevailing factor in causing both his resulting medical condition and disability.

Section 287.020.3(1) RSMo provides, in pertinent part, "An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. "The prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability."

We find the medical causation opinion regarding the employee's left elbow condition from Dr. Luke S. Choi, an orthopedic surgeon, to be the most persuasive and credible. We find Dr. Choi's opinion more persuasive and credible than the view of the employee's expert Dr. Steven S. Charapata.

Dr. Choi opined:

> In my medical opinion, the prevailing factor, the primary factor in relation to any other factor still remains [the employee's] pre-existing injury to his left elbow requiring surgical fixation and the prominent hardware. The fact that he had prominent hardware, which Mr. O'Brien had issues with prior to 2019, is the primary reason that his wound broke down rather than ... shoveling the snow over two days for a total of three hours.

In my medical opinion, the progressive nature of the prominent hardware is the primary culprit and the primary factor in relation to any other factor as to the subsequent need for Mr. O'Brien's subsequent need for surgery. The initial review of the medical records from January 21, 2019 noted that Mr. O'Brien had chronic swelling of the elbow since his [2006] surgery, which clearly shows that there was an irritation of his hardware against his skin. In summary, in my opinion the work-related activities as described to me, specifically shoveling of the snow over a two-day period for a total of three hours is an example of a work-related activity being the precipitating factor, triggering factor as opposed to be[ing] a prevailing factor. Transcript, pp. 220-221.

Assuming arguendo that a work event as alleged in the employee's claim occurred on January 18, 2019, based on Dr. Choi's expert opinion, we find that the incident was not

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The prevailing factor causing the employee's medical condition and disability. Therefore, we find that no compensable accident occurred on January 18, 2019.

These supplemental findings do not detract from the administrative law judge's denial of the employee's January 18, 2019 injury claim based on her first-hand credibility assessment of his testimony regarding an alleged work injury on that date, in conjunction with medical records in evidence and weather data from the National Centers for Environmental Information website.

The Award and Decision of Administrative Law Judge Melodie A. Powell dated January 20, 2022, is attached and incorporated herein to the extent not inconsistent with this supplemental opinion.

Given at Jefferson City, State of Missouri, this 19th day of January 2023.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Rodney J. Campbell, Chairman

DISSENTING OPINION FILED

Shalonn K. Curls, Member

Kathryn Swart, Member

Attest:

*Karla A. Hogg*

Secretary

Whether the employee's January 18, 2019 work event was a compensable accident under the Missouri Workers' Compensation Law

Section 287.020.2 RSMo defines "accident" as "an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift. An injury is not compensable because work was a triggering or precipitating factor."

The employee, Andrew O'Brien, described a specific event that occurred when he was shoveling snow on his employer's walkways and parking lot, causing a sudden onset of symptoms in his arm. More specifically, he described pain in his left arm and reported that he noticed a wound in the area of the elbow when he changed out of his clothes upon returning home from work. Based on this testimony, the employee's January 18, 2019 work event meets the definition of an accident causing injury arising out of and in the course of his employment as a teacher's assistant at the employer's school.

The administrative law judge erred in relying on a National Centers for Environmental Information (NCEI) report recording no observed active snowfall on January 18, 2019 in certain areas of Boone County, to discredit the employee's account of a work event involving shoveling snow that day. The employer/insurer's Exhibit D documented the observation of 10.4 inches of snowfall on Friday, January 11, 2019 at the Columbia Regional Airport. It also documented the observation of 11.8 inches of snowfall at the Columbia University of Missouri on Saturday, January 12, 2019. The employer/insurer specifically avoided requesting data relating to snow depth on January 18, 2019. For this reason, the administrative law judge erred in relying on the information cited in Employer/Insurer's Exhibit D to discredit the employee's version of events and disparage his credibility.

The employer/insurer presented no evidence contradicting that:

1. There was snow on the ground at Mr. O'Brien's place of employment on January 18, 2019.
2. Mr. O'Brien shoveled snow on January 18, 2019 while in the course and scope of his employment.
3. While shoveling snow Mr. O'Brien's arm hardware broke through his skin.

The employer/insurer failed to call any witnesses to refute or disprove the employee's claim that he was shoveling snow at work when the hardware in his arm broke through his skin. Even the employer's Report of Injury, of which the Commission may take administrative notice, substantiates the employee's version of events. The report documents notice on January 20, 2019, to the employer of a work occurrence described as "While shoveling snow with a shovel . . . [t]he metal plate in this elbow was exposed . . .."

The evidence supports the fact that the employee was shoveling snow on January 18, 2019, whether his recollection that it was actively snowing was correct or not.

The employer/insurer's failure to call any co-workers to refute the employee's claim raises an inference that co-workers' testimony would have been adverse to the employer's case.

Although the medical records of January 21, 2019 indicated that Mr. O'Brien reported that his wound had broken open two days before, potentially placing the date of injury on Saturday, January 19, 2019, the same set of records also indicate that the employee reported to doctors that his injury was caused while shoveling snow at work. Mr. O'Brien's recollection in the hospital emergency room of the number of days it had been since the hardware broke through his arm can be attributed to a mere miscalculation (or potentially a minor misreporting by the hospital) rather than an intentional lack of truthfulness. Indeed, Mr. O'Brien's estimate in this case when he presented to the hospital was merely one day off. All of the other evidence in the record, including references in the medical records to shoveling snow, text messages between the employee and his supervisor, and photos of his injury, point to the injury occurring on January 18, 2019 while he was shoveling snow at work. The employee has thus met his burden to prove the date his injury occurred. Any other references to a different date on which the injury occurred, including the notes in Dr. Steven G. Charapata's March 12, 2020 report are attributable to a mistake in the date of injury reported in the original claim for compensation, which was later corrected by an amended filing after additional information was obtained confirming the date of injury.

Medical causal connection between the employee's January 18, 2019 work injury and left elbow wound

Section 287.020.3(1) RSMo defines the term "injury" as:

[A]n injury which has arisen out of and in the course of employment. An injury by accident is compensable only if the accident was the prevailing factor in causing both the resul