Jeanette Jones v. Washington University

On June 27, 2006, the Missouri Court of Appeals for the Eastern District issued an opinion reversing the December 1, 2005, Final Award of the Labor and Industrial Relations Commission (Commission) in the abovereferenced case. By mandate issued October 6, 2006, the Court remanded this matter to the Commission with instructions to apply section 287.120.1 RSMo (2000) to determine whether employee sustained an accidental injury arising out of and in the course of her employment and, if necessary, to address the remaining issues for determination in accordance with the Court’s opinion delivered June 27, 2006.Jones v. Washington University and Treasurer of the State of Missouri, ED87373, 199 S.W. 3d 793 (Mo. App. E.D 2006).

Pursuant to the Court’s opinion and mandate, we issue this new award reversing the award and decision of the administrative law judge dated April 19, 2005.

We adopt the administrative law judge’s findings regarding the incident giving rise to this claim to the extent they are not inconsistent with our award and decision herein. Briefly, on Saturday, December 30, 2000, employee was working for employer as a licensed practical nurse administering dialysis treatment. A male patient, unexpectedly and without provocation, reached his hand inside employee’s top and grabbed her breast. Employee alleges mental injury as a result of the December 30, 2000, incident.

The administrative law judge analyzed this claim under section 287.120.8 RSMo, and denied the claim. We affirmed the administrative law judge’s reasoning. The Court reversed, concluding:

Claimant's claim of mental injury was based upon the physical assault that occurred on December 30, 2000. Claimant's claim is for mental injury resulting from a traumatic incident, one which included the physical contact or impact of Patient grabbing Claimant's breast, not from work-related stress. Therefore, by its terms, Section 287.120.8 does not apply to Claimant's claim, and she was not required to prove that the stress was extraordinary and unusual.

Jones v. Washington University, 199 S.W.3d 793, 796 (Mo. App. E.D. 2006).

Accordingly, we apply section 287.120.1 to determine whether claimant sustained an accidental injury arising out of and in the course of her employment. Section 287.120.1 reads as follows:

Every employer subject to the provisions of this chapter shall be liable, irrespective of negligence, to

furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident arising out of and in the course of his employment, and shall be released from all other liability therefor whatsoever, whether to the employee or any other person. The term "accident" as used in this section shall include, but not be limited to, injury or death of the employee caused by the unprovoked violence or assault against the employee by any person.

The parties stipulated that employee sustained an accident on December 30, 2000. The threshold issue we must determine is whether the accident and alleged injury arose out of and in the course of employment. Section 287.020.3(2) provides:

An injury shall be deemed to arise out of and in the course of the employment only if:

(a) It is reasonably apparent, upon consideration of all the circumstances, that the employment is a substantial factor in causing the injury; and

(b) It can be seen to have followed as a natural incident of the work; and

(c) It can be fairly traced to the employment as a proximate cause; and

(d) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life;

Missouri courts have long ruled that "arising out of" and "in the course of employment" are separate tests:

"'Arising out of' and 'in the course of' employment are two separate tests, and both must be met before an employee is entitled to compensation." Simmons v. Bob Mears Wholesale Florist, 167 S.W.3d 222, 225 (Mo. App. 2005) (quoting Abel v. Mike Russell's Std. Serv., 924 S.W.2d 502, 503 (Mo. banc 1996)). "To meet the test of an injury 'arising out of' the employment, the injury must be a natural and reasonable incident of the employment, and there must be a causal connection between the nature of the duties or conditions under which employee is required to perform and the resulting injury." Id. "'In the course of employment' refers to the time, place and circumstance of an employee's injury." Id.

Kuykendall v. Gates Rubber Co., 207 S.W.3d 694, 704 (Mo. App. 2006).

Employee has met both tests. The unwanted touching and mental injury arose out of and in the course of employee's employment. At the time of the traumatic touching incident, employee was undoubtedly in a place required by her employment performing activities required by her employment. But for the performance of her employment duties, employee would not have been in a vulnerable physical position in relation to offending patient such that the patient could touch her in the manner in which she was touched. Employee would not be equally exposed to the hazard of such a touching in her non-employment life. Finally, the testimony of Dr. Liss and Dr. Stillings establish that the December 30, 2000, touching incident was the substantial factor in causing employee to suffer mental injury (although they do not agree on the diagnosis of the resulting condition.)

Based upon the foregoing, we conclude that employee suffered a mental injury arising out and in the course of her employment.

The Commission concludes and determines that employee is permanently partially disabled as a result of her work-related mental injury. Competent and substantial evidence supports our conclusion that employee suffered adjustment disorder as a result of the December 30, 2000 work incident. Although alternate diagnoses were rendered by her psychiatrists, the most competent evidence persuades this Commission that the only mental condition linked to the December 30, 2000 incident is the adjustment disorder. We believe all other mental conditions were either pre-existing or were not a result of the work incident.

Employee sought treatment after the December 30, 2000 incident and was diagnosed and received

treatment for depression and post traumatic stress disorder. Dr. Stillings was of the opinion that employee did not qualify for the diagnosis of post traumatic stress disorder for multiple reasons; essentially, because she was not subjected to a life-threatening event or traumatic stressor in the workplace of the nature and severity which could possibly produce post traumatic stress disorder. In addition, he believed the nature and extent of the work incident was insufficient to explain the severity of her current psychiatric illness and her level of disability. However, Dr. Stillings agreed that employee suffered from depression and rendered a diagnosis of major depressive disorder with psychosis, adjustment disorder, as well as schizoid and avoidant personality traits. Dr. Stillings based his medical opinions on employee's medical history, medical records, and psychological testing.

Dr. Stillings opined that the December 30, 2000 work incident was not a substantial factor in causing or aggravating her depressive disorder; however, that it was a substantial factor in causing her adjustment disorder. He found a 2-3 % permanent partial psychiatric disability in relation to her adjustment disorder. We find Dr. Stillings opinion to be the most persuasive, credible, and worthy of belief.

After careful review of the record as a whole, we find that employee suffered 5\% permanent partial psychiatric disability to the body as a whole due to her adjustment disorder.

In order for there to be Second Injury Fund liability, employee has the burden of proving that she had a preexisting permanent partial disability of such seriousness as to constitute a hindrance or obstacle to her employment or reemployment, and that such pre-existing disability existed at the time the work-related injury was sustained. Tidwell v. Kloster Co., 8 S.W.3d 585, 589 (Mo. App. E.D. 1999). However, there is no evidence indicating that employee's pre-existing conditions, physical or mental, were a hindrance or obstacle to her employment as she maintained employment up and until the December 30, 2000 work incident. Dr. Stillings suggested that employee's mental condition worsened over time. Even so, the Second Injury Fund is not responsible for progression of pre-existing conditions. Lammert v. Vess Beverages, Inc., 968 S.W.2d 720, 725 (Mo. App. E.D. 1998). There is no evidence that any pre-existing disability combined with the work-related injury to create a disability greater than the work injury alone; therefore, we find the Fund is not liable.

Pursuant to section 287.170 RSMo, compensation must be paid to an injured employee during the continuance of temporary total disability. The burden of proving entitlement to temporary total disability lies with employee. Boyles v. USA Rebar Placement, 26 S.W.3d 418, 424 (Mo. App. W.D. 2000).

Temporary total disability payments are intended to cover healing periods and are unwarranted beyond the point at which the employee is capable of returning to work. Id. The act contemplates that temporary total disability is to be paid prior to the time when the employee can return to work, his condition stabilizes, or his condition has reached a point of maximum medical progress. Schuster v. Division of Employment Security, 972 S.W.2d 377, 381 (Mo. App. E.D. 1998).

As to the issue of temporary total disability, Dr. Stillings placed employee at maximum medical improvement (MMI) as of April 2001, on account of this injury, and the Commission accepts his opinion as being most credible. Dr. Stillings testified that he did not believe that the work incident was severe enough to cause employee to miss work. Accordingly, employee is not entitled to temporary total disability benefits. Employee's inability, if any, to return to the labor market, was not attributable to the mental injury resulting from the December 30, 2000 incident.

With regard to the issue of past medical expenses, employee submitted into evidence medical bills and expenses received after her December 30, 2000 injury. We find that the treatment employee received from Psych Care Consultants was necessary for the treatment of her work-related adjustment disorder, as Dr.

Stillings opined that such treatment was appropriate to treat that condition. Employee was treated by both a counselor and psychiatrist at Psych Care Consultants for a total of six visits. The total cost of her treatment at Psych Care Consultants equaled $\ 465. Therefore, the Commission awards employee past medical expenses totaling $\ 465 for her work-related injury.

With regard to future medical benefits, there is a consensus among medical experts that employee would benefit from ongoing psychiatric care; but Dr. Stillings is of the opinion that such care would not provide any benefit for her work-related adjustment disorder. In cases involving the award of future medical benefits, the medical care must flow from the accident before the employer is to be held responsible. Landers v. Chrysler Corp., 963 S.W.2d 275, 283 (Mo. App. E.D. 1997). Dr. Stillings stated that by definition, adjustment disorders resolve within six months of the life event that caused the disorder. Dr. Stillings believed that employee reached MMI by April 2001 based on a review of her medical records. Dr. Stillings opined that any treatment after April 2001, the date employee reached MMI, was not relate