John Adams v. Advanced Employment Concepts a/k/a Traffic Control

considering the medical report of Dr. Liss (Second Injury Fund Exhibit No. 3).

The Commission, as discussed below, finds there is a lack of competent and substantial evidence to base a finding of the presence of an actual and measurable disability at the time the work injury was sustained of such seriousness as to constitute a hindrance or obstacle to employment or re-employment. Without such proof, the claim against the Second Injury Fund must fail. Consequently, the award against the Second Injury Fund issued by the administrative law judge is reversed. This finding is dispositive of the claim, and renders moot all other allegations of error in the two Applications for Review.

Section 287.220 RSMo provides that in a case of permanent total disability, both administrative law judges and the Commission must make three findings respecting disability: (1) there must be a determination of the percentage of disability resulting from the last injury standing alone; (2) there must be a finding that there was a pre-existing permanent disability that was a hindrance or obstacle to employment or re-employment; and (3) there must be a determination that all of the injuries and conditions combined, including the last injury, have resulted in the employee being permanently and totally disabled.

In considering Second Injury Fund liability, and paraphrasing the language of the Missouri Court of Appeals, Eastern District, in the case of Messex v. Sachs Electric Company, 989 S.W.2d 206, 214 (Mo. App. E.D. 1999), the Commission must decide if there is competent and substantial evidence of a preexisting disability and if there is a failure of proof, any claim against the fund must fail. As succinctly stated by the court at pages 214 and 215:

"When a claim is made against the Fund for permanent disability compensation, statutory language and case law make it mandatory that the claimant provide evidence to support a finding, among other elements, that he had a preexisting permanent 'disability'. Section 287.220.1; Leutzinger v. Treasurer of Missouri, Custodian of Second Injury Fund, 895 S.W.2d 591 (Mo. App. E.D.1995) (emphasis added). The disability, whether known or unknown, must exist at the time the workrelated injury was sustained and be of such seriousness as to constitute a hindrance or obstacle to employment or re-employment should the employee become unemployed. Id.; Garcia v. St. Louis County, 916 S.W.2d 263, 266 (Mo. App. E.D.1995).

... Fund liability is only triggered by a finding of the presence of an actual and measurable disability at the time the work injury is sustained."

In a workers' compensation proceeding, the employee has the burden to prove by a preponderance of credible evidence all material elements of his claim, including Second Injury Fund liability. Meilves v. Morris, 422 S.W.2d 335, 339 (Mo. 1968). The employee must prove the nature and extent of any disability by a reasonable degree of certainty. Downing vs. Willamette Industries, Inc., 895 S.W.2d 650, 655 (Mo. App. 1995). In the instant case, employee's sole alleged preexisting disability is Attention Deficit Disorder (ADD).

As developed below, the Commission cannot conclude or determine that employee's alleged preexisting disability, ADD, was an actual and measurable disability at the time the work injury was sustained of such seriousness as to constitute a hindrance or obstacle to employment or re-employment.

The employee attempted to provide evidence to support that he had a preexisting permanent disability, i.e., ADD, of such seriousness to constitute a hindrance or obstacle to employment or re-employment, through the testimony of the employee himself, as well as Dr. Stillings. The Commission finds the testimony of both employee and Dr. Stillings to be fraught with such inconsistencies and contradictions, of an irreconcilable nature, as to render their testimony unbelievable, unpersuasive and unconvincing to support a finding of a preexisting disability as alleged, ADD.

In summary fashion, concerning the issue of employee's alleged preexisting disability, ADD, employee offered the following trial testimony: prior to the primary injury occurring August 31, 1999, employee experienced trouble

concentrating, and his mind tended to wander; he left school after the tenth grade because of poor grades, trouble keeping up, falling in with the "wrong crowd" and "getting into a lot of trouble"; he was held back in the sixth grade due to problems with Math and Reading; and he did not remain at the same job for any extended time, rarely over two years, because he lacked interest in showing up for his job as scheduled, he would get side-tracked, and would not stay on task.

Employee's description at trial of the concentration problems and difficulty staying on task that he suffered before the August 31, 1999, work injury is in stark contrast to the picture of employee's abilities painted by the remainder of the evidence. In contrast to employee's trial testimony, the medical records reveal that before 2003, employee never mentioned to any treating medical professional, including psychiatrists, that he experienced trouble concentrating or that his mind tended to wander. Employee initially gave Dr. Stillings a history that the reason he left school was to support his pregnant girlfriend who subsequently gave birth to his child. They eventually married. Employee admitted that no employer ever fired him from any job. Rather, the principal reason employee gave for leaving his prior employment was to accept a better paying job in order to enhance his position in life. Employee passed his GED exam and his CDL exam on his first attempt. Prior to August 31, 1999, employee consistently denied any history of mental healthcare; denied any problems concerning his occupational history; never indicated any problems staying on task; and stated he was in good shape and able to perform heavy-duty labor without problems or limitations. The bulk of the evidence, as summarized in this paragraph, impeaches employee's description of the difficulties he experienced before his work injury.

Dr. Stillings is a board certified psychiatrist who was initially retained by the employer to render psychiatric treatment for the employee subsequent to the work-related accident occurring August 31, 1999. Dr. Stillings treated the employee at the employer's request through March 20, 2001. At no time during this time frame did Dr. Stillings diagnose ADD. The diagnosis of Dr. Stillings during this time frame was primary insomnia causally related to the primary injury and an occupational problem (employee was not working), not directly related to the accident.

During this period of treatment, Dr. Stillings subjected the employee to an MMPI and the interpretation of Dr. Stillings was that employee was prone to use his subjective complaints to assume the sick role and to manipulate for secondary gain. It appeared to Dr. Stillings that employee was exaggerating his pain complaints. Dr. Stillings found that employee's cognitive functions were intact; his verbal comprehension and concentration were good; his intellectual function was in the normal range; and his insight and judgment were both intact. Dr. Stillings found that employee could return to work but excluded his former employment. There was no diagnosis, discussion, or mention whatsoever of ADD or any ADD like symptoms during the period of treatment provided at the request of the employer.

An award on hearing was issued June 24, 2002, awarding the employee benefits from the employer. The claim against the Second Injury Fund remained open. Subsequently, employee returned to Dr. Stillings at the request of employee's attorney. Dr. Stillings began additional treatment at the employee's request that continued until approximately October 2003.

In 2003, Dr. Stillings rendered a new diagnosis, i.e., because of the August 31, 1999, work injury, the employee had a depressive disorder, chronic severe and unremitting, as well as a pain disorder. Dr. Stillings was of the opinion that these two conditions caused employee lack of concentration, inability to assimilate new information, inability to stay on task, depressed mood, sleep disturbances, poor concentration, anxiety, disinterest, fatigue, focus on pain complaints, rarely leaving his house, poor personal hygiene, inability