George Sutton v. City of St. Louis

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. We have reviewed the evidence, read the briefs of the parties, and considered the whole record. We find that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Act, except as modified herein. Pursuant to section 286.090 RSMo, we issue this final award and decision modifying the January 29, 2007, award and decision of the administrative law judge. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

The following facts are summarized from the administrative law judge's findings of fact: On November 21, 2000, employee sustained a severe crush injury to his left forearm in a work-related accident when his arm was caught and crushed in a heavy-duty tailgate. Employee was treated and returned to work on light duty on or about March 20, 2001. Employer terminated employee's employment on February 2, 2002, because employer had no light duty available.

Due to overuse of his right upper extremity after the injury to his left arm, employee sustained carpal tunnel syndrome as a result of the work injury. Dr. Sudekum performed a right carpal tunnel release and right open ulnar tunnel release. On August 28, 2002, Dr. Sudekum released employee to full, unrestricted duty.

On January 29, 2007, the administrative law judge issued his award of compensation. On February 9, 2007, employee filed his Application for Review. The Application for Review stated:

The administrative law judge's award, decision or order is erroneous for the following specific reasons: The administrative law judge found:

1) Claimant was not permanently totally disabled. 2) Claimant's PTSD did not preexist the primary injury. 3) The ALJ did not find any disability to claimant's low back due to primary or pre-existing injuries.

The administrative law judge made no findings regarding employee's alleged back condition. Employee testified that he had problems with his back before the work injury. He testified that after the work injury, the pain in his back was worse and he suffered pain radiating down his leg. Employee testified he noticed the increased back symptoms within a couple weeks of the work accident and informed his VA doctors of the pain. The VA medical records first mention a complaint of back pain some five months after the work injury.

In his report (including his supplemental reports), Dr. Cohen opined that as a result of the work accident employee sustained a crush injury to left forearm, a lumbrosacral strain, and overuse disorder of his right upper extremity. As

regards the low back, Dr. Cohen testified that x-rays of employee's lumbar spine showed a narrowing at L5-S1 that Dr. Cohen believed was consistent with the disc degeneration you would expect to find in a man of employee's age and work history. Dr. Cohen believes the preexisting condition predisposed employee to acute injury with trauma to his back. Dr. Cohen believes that employee jerked his back while caught in the hydraulic gate resulting in a 20\% permanent partial disability of the body as a whole due to a lumbrosacral strain.

Employee concedes he had back problems before the work accident. Dr. Cohen testified that the x-rays revealed a narrowing at L5-S1 indicating disc degeneration but he identified no other abnormalities. The medical records do not reveal a complaint of back problems associated with the work injury until 5 months after the injury. The absence of a mention of back complaints for 5 months persuades us that employee suffered no injury to his lumbar spine as a result of the work injury. We conclude, however, based upon evidence summarized above that employee had a preexisting degenerative disc condition at the time of the work injury.

As they relate to post-traumatic stress disorder or PTSD, employee's allegations of error are rooted in the following administrative law judge's findings:

1. The severity of the PTSD problem the [employee] has was significantly more severe after the primary injury of $11 / 21 / 2000$ and thus would not be considered a pre-existing injury to the primary injury.
2. From all the evidence I think it is quite clear that the employee's PTSD problem became worse after the primary injury and thus should not be included as a pre-existing disability.
3. Dr. Wayne and Mr. England, a vocational expert, testified very credible that the [employee] is not permanently and totally disabled as a result of the primary injury in combination with his pre-existing condition.

The administrative law judge concluded that employee's primary injuries to his left and right upper extremities combined with a pre-existing ankle condition such that employee was entitled to an award of enhanced permanent partial disability against the Second Injury Fund.

Employee alleges that at the time of the work injury he also suffered from the pre-existing condition of PTSD. Employee alleges that when his condition of PTSD is properly considered as a pre-existing condition, he is permanently and totally disabled due to a combination of his primary injury and his preexisting conditions.

"To determine if claimant is totally disabled, the central question is whether, in the ordinary course of business, any employer would reasonably be expected to hire claimant in his present physical condition." Ransburg v. Great Plains Drilling, 22 S.W.3d 726, 732 (Mo.App. 2000); see also Massey v. Missouri Butcher \& Cafe Supply, 890 S.W.2d 761, 763 (Mo.App. 1995).

Pavia v. Smitty's Supermarket, 118 S.W.3d 228, 234 (Mo. App. 2003).

Section 287.200 .1 does not require a claimant to distinguish each disability and assign a separate percentage for each of several pre-existing disabilities to prevail on a claim for permanent total disability. Rather, a claimant must establish the extent, or percentage, of the permanent partial disability resulting from the last injury only, and prove that the combination of the last injury and the pre-existing disabilities resulted in permanent total disability.

Knisley v. Charleswood Corp., 211 S.W.3d 629, 635 (Mo. App. 2007) (citations omitted).

The administrative law judge's award is erroneous in that the administrative law judge understates the severity of employee's preexisting PTSD as diagnosed and reported before the primary injury. Dr. Kline evaluated employee on January 13, 2000. Dr. Kline noted that, although there had apparently been disagreement over the years regarding employee's psychiatric diagnosis, employee had previously been diagnosed with PTSD on more than one occasion. The purpose of the consult with Dr. Kline was to clarify employee's diagnosis and reinstate appropriate treatment. Contrary to the administrative law judge's Finding of Fact \#10, Dr. Kline concluded that employee's symptoms revealed that employee was suffering from PTSD and that the severity of employee's overall condition was in the mild to moderate range. Dr. Kline briefly mentioned that employee experienced other symptoms (not the PTSD symptoms), but Dr. Kline did not deem those other symptoms socially or industrially disabling.

Dr. Cohen considered the symptoms reported by employee at the time of his VA assessment by Dr. Kline as well as Dr. Kline's observations and impressions. In particular, the VA report reveals employee suffered nightmares four times per week; employee suffered sleep disturbances; employee had intrusive thoughts of Vietnam; employee avoided crowds and movies; and employee became tearful and distressed when discussing Vietnam. Based upon those symptoms, observations, and impressions, Dr. Cohen concluded that as of the time of the VA assessment in January 2000 employee was suffering a significant amount of disability as a result of his PTSD. Dr. Cohen believes that employee's pre-existing PTSD constituted a hindrance or obstacle to employment and that employee's pre-existing PTSD combines with his primary injuries to render employee permanently and totally disabled.

Dr. Liss is a psychiatrist with considerable experience evaluating veterans suffering from PTSD. Dr. Liss evaluated employee on January 20, 2006, after reviewing the voluminous medical records, including the aforementioned VA records. Based upon his review and his evaluation of employee, Dr. Liss formed the opinion that employee suffered a 50 % permanent partial disability of the body as a whole attributable to the PTSD. Dr. Liss believes that employee's condition of PTSD is a hindrance or obstacle to employment because it interferes with sleep, concentration, memory, focus, attention, relationships and mood, among other things. Contrary to the administrative law judge's Finding of Fact \#11, Dr. Liss testified that employee's symptoms in January 2000, as reported in Dr. Kline's report, were no less than when Dr. Liss evaluated employee in January 2006.

Finding of Fact \#15 is troubling. No "Dr. Wayne" testified live or by deposition in this matter. The record contains status reports of Dr. Andrew Wayne's treatment of employee. In the last of these reports, Dr. Andrew Wayne rates only the disability of employee's right upper extremity attributable to the primary injury.

Mr. England's opinion that employee is employable carries little weight because Mr. England failed to take into consideration any limitations or restrictions resultant from employee's PTSD, back, left ankle, and right hand because he was unaware of them. Mr. England conceded that if Dr. Liss' assessment of the cognitive and concentration difficulties caused by the sleep disturbances brought on by employee's PTSD was accurate, such difficulties would combine with employee's physical restrictions to render employee unable to work. As made clear by the VA records, employee was reporting frequent sleep disturbances before the primary injury.

Ms. Abrams is of the opinion that employee is permanently and totally disabled due to a "combination of factors that existed before the primary injury plus all of his medical which would incorporate injuries before the primary injury, the primary injury as well as his military posttraumatic stress." Ms. Abrams considered all of employee's medical conditions as well as his vocational capacities in concluding that he is not able to obtain a new job in the open labor market. Among the vocational factors she considered were employee's intellectual capabilities, cognitive difficulties, limited work experience (manual only), and age. Among the physical restrictions she considered:

- employee's inability to work in extreme temperatures (ankle, left arm);

- employee's lifting limitations (arms, back);

- employee's limitations on bending, stooping, and twisting (back);

- employee's need to alternate between sitting and standing (back);

- employee's inability to work forcefully with hands, wrists and palms (carpal tunnel syndrome, arms);

Ms. Abrams concluded that employee was only physically capable of performing light duty, semi-skilled work but that due to the vocational factors identified above, he was not employable in that capacity. Because Ms. Abrams vocational opinion is based upon