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 a solid understanding of employee's capabilities and limitations, her opinion is more credible than the vocational opinion of Mr. England.

The expert testimony of Dr. Cohen, Dr. Liss, and Ms. Abrams as supported by the medical records in evidence, clearly establishes that employee is permanently and totally disabled due to the disability resultant from the work injury in combination with the preexisting disabilities attributable to his PTSD and his ankle disability.

The testimony of Dr. Cohen and Dr. Liss stands uncontradicted as neither employer nor the Second Injury Fund offered expert testimony to rebut the testimony of Drs. Cohen or Liss.

"[T]he Commission may not arbitrarily disregard and ignore competent, substantial and undisputed evidence of witnesses who are not shown by the record to have been impeached, and the Commission may not base their finding upon conjecture or their own mere personal opinion unsupported by sufficient competent evidence."

Houston v. Roadway Express, Inc., 133 S.W.3d 173, 179 (Mo. App. 2004) citing Corp v. Joplin Cement Co., 337 S.W.2d 252, 258 (Mo. banc 1960).

The Second Injury Fund argues that the PTSD is not a preexisting disability for Second Injury Fund purposes because employee's PTSD did not interfere with the performance of his jobs before the primary injury.

[A] preexisting permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed...

Section 287.220.1 RSMo (2000)

The class of qualifying preexisting disabilities is not limited to those disabilities that hindered an employee in the performance of the job he was doing when he was injured. The second phrase of the definition must be given meaning and it is that clause that covers employee's PTSD symptoms in this case.

Before the employee's primary injury, he was performing manual labor. As the above list of physical restrictions makes plain, employee can no longer perform manual labor. Employee is now restricted to light duty jobs where cognitive capabilities come to the fore. Employee's cognitive disabilities related to his PTSD (memory, lack of concentration, inability to focus) have long been a hindrance and obstacle to his securing light or sedentary work but employee did not have to seek that type of work because he was physically fit to perform manual labor. These longstanding cognitive difficulties resultant from the PTSD were a hindrance and obstacle to employee obtaining reemployment in light duty work after he was rendered unable to continue manual labor.

On another matter, the Second Injury Fund misstates Dr. Liss' testimony on a material issue. The Second Injury Fund asserts, "Dr. Liss found claimant 100\% disabled from PTSD alone." This assertion also appears in the Award at Finding of Fact \#11. This assertion appears to be false. The cited portion of the transcript is quoted below.

Q. Now, in your diagnosis on page three of your report - I'm talking about the January 20, 2006, report that I believe was Exhibit 2 in this morning's deposition - you say that now - that Mr. Sutton is unemployable. Whose opinion of unemployability are you relying upon for that?

A. The record.

Q. I'm sorry. I didn't hear you.

A. The records.

Q. Okay. Just the medical records?

A. The medical records associated with his injury.

Q: Okay. And so if you have somebody that has PTSD and as diagnosed by the Veteran's Administration and they become unemployable, do they then qualify for hundred percent disability?

A. Yes, sir.

Q: Okay. And it doesn't matter what the cause of that unemployable disability is? I guess I'm confused by that. So if he was just totally disabled by this accident in 2000, would he then become unemployable - 100 percent disabled for the Veteran's Administration purposes.

A. Yes.

Q. Okay. And that's true even if it's this 2000 workplace injury standing alone that caused him to become totally disabled?

A. No, because that would not be service connected.

Q. Oh, okay. So if he became totally disabled by an injury that was not service connected, then he doesn't become 100\% disabled for Veteran's Administration purposes?

A. That's correct.

Nowhere in this exchange does Dr. Liss suggest employee is 100\% disabled by PTSD alone. Nor does he make the suggestion anywhere else in his testimony. The administrative law judge's finding on this point is erroneous.

Employee has established that he suffered from preexisting PTSD of such seriousness as to constitute a hindrance or obstacle to employment or reemployment. The physical disabilities employee suffered by the work injury combine with the disabilities caused by his preexisting PTSD to render employee permanently and totally disabled. Employee has established through expert medical and vocational testimony that he is unable to compete in the open labor market due to a combination of his primary injury and his preexisting conditions. Employee has established that he is entitled to permanent total disability benefits from the Second Injury Fund.

We affirm all compensation awarded by the administrative law judge. In addition to the compensation awarded by the administrative law judge, we award permanent total disability benefits in the weekly amount of $\ 287.68 from the Second Injury Fund to employee beginning August 28, 2002, until modified by law.

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

The award and decision of Administrative Law Judge Cornelius Lane, issued January 29, 2007, is attached and incorporated by this reference except to the extent modified herein.

Given at Jefferson City, State of Missouri, this $24^{\text {th }}$ day September 2007.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Employee: George Sutton

Injury No.: 00-159732

Dependents: N/A

Employer: City of St. Louis

Additional Party:

Insurer: Self-Insured

Hearing Date: October 24, 2006

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Second Injury Fund Relations of Missouri

Jefferson City, Missouri

Checked by: CTL; mk

1. Are any benefits awarded herein? Yes.
2. Was the injury or occupational disease compensable under Chapter 287? Yes.

1. Was there an accident or incident of occupational disease under the Law? Yes.
2. Date of accident or onset of occupational disease: 11/21/00.
3. State location where accident occurred or occupational disease was contracted: St. Louis, MO.
4. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
5. Did employer receive proper notice? Yes.
6. Did accident or occupational disease arise out of and in the course of the employment? Yes.
7. Was claim for compensation filed within time required by Law? Yes.
8. Was employer insured by above insurer? Self.
9. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant's left arm was crushed in a heavy duty truck tailgate.
10. Did accident or occupational disease cause death? No. Date of death? N/A.
11. Part(s) of body injured by accident or occupational disease: Left arm and right wrist.
12. Nature and extent of any permanent disability: 70\% of claimant's left arm at the elbow, 210 level and 15\% of the right wrist at 175 level.
13. Compensation paid to-date for temporary disability: $\ 6,720.08.
14. Value necessary medical aid paid to date by employer/insurer? $\ 65,511.68.

Employee: George Sutton

Injury No.: 00-159732

1. Value necessary medical aid not furnished by employer/insurer?
2. Employee's average weekly wages: $\ 422.50.
3. Weekly compensation rate: $\$ 281.68 / \ 281.68.
4. Method wages computation: Stipulated.

1. Amount of compensation payable:

Unpaid medical expenses:

weeks of temporary total disability (or temporary partial disability)

Weeks of permanent partial disability from Employer:

70 % of the left arm at 210 level at 281.68 per week $\ 41,406.96.

15 % of right wrist at 175 level at 281.68 per week $\ 7,394.10.

25 weeks of disfigurement from Employer at $\ 281.68 per week $\ 7,042.00.

1. Second Injury Fund liability: Yes

Claimant had a pre-existing permanent partial disability of 20 % of the left ankle at 155 week level for a total of 31 weeks plus 173.25 weeks for the primary injury for a total of 204.25 weeks of permanent partial disability. The combined disabilities of the pre-existing and primary injuries produce disability of 15 % greater than of the combined injuries thus the Second Injury Fund is responsible for 30.43 weeks at $\ 281.68 per week for a total of $\ 8,627.85.

TOTAL:

1. Future requirements awarded:

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Mark Floyd.

Employee: George Sutton

Injury No.: 01-160583

Dependents: N/A

Employer: City of St. Louis

Additional Party: Second Injury Fund

Insurer: Self-Insured

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: CTL; mk

A hearing was held on October 24, 2006. The claimant, George Sutton, was represented by Attorney Mark Floyd and the employer, The City of St. Louis, was represented by Attorney Robert L. Lyng, and the Second Injury Fund was represented by Joe Diekemper, an Assistant Attorney General.

1. Claimant sustained a compensable injury arising out of and in the course of his employment with the employer on or about November 21, 2000;
2. Claimant's compensation rate is $\ 281.68 per week for permanent total disability and for permanent partial disability.

1. Nature and extent of the permanent disability that the claimant sustained as a result of his injury of November 21, 2000;
2. What, if any, liability there is for the Second Injury Fund.

bone fractures and an application of hardware to achieve and retain alignment of the fractured bones. A few days after the surgery claimant was released from the hospital.

1. After the claimant left the hospital his employer referred him to care of Dr. Chris Kostman who saw him on December 7, 2000 .
2. After Dr. Kostman gave claimant physical therapy and around March 20, 2001 the claimant returned to work on light duty and the claimant worked in light until February 2, 2002. The City of St. Louis did not have any light duty employment in the Refuse Department. The claimant was unable to do anything but light duty and he lost work as of February 2, 2002.
3. Drs. Kostman and Andrew Wayne in November 2001 placed the claimant under primary restriction of no lifting over 10 to 15 pounds with the left arm and was to avoid lifting with his left arm more than 12 times per hour.
4. Claimant in the year 2002 reported right hand symptoms indicative of carpal tunnel syndrome and the employer's doctor, Dr. Anthony Sudekum, found that claimant's right hand problem was in part related to the work-related injury due to the fact of overuse as a result of the left arm injury. On July 17, 2002 Dr. Sudekum performed open carpal tunnel release and right open ulnar tunnel release on claimant.
5. Claimant also approximately 5 months after the primary injury started having complaints in the low back; however, he did not receive any treatment for the low back.
6. Prior to claimant's primary injury of November 21, 2000 claimant had fractured his left ankle in 1987 which required surgical repair with screws and pins. Claimant testified that his left ankle on occasion swells up and hurts if he stands on it too long and has problems when the weather changes.
7. Prior to the primary injury of November 21, 2000 the claimant had been diagnosed with post traumatic stress disorder as a result of his service in Vietnam and the primary symptoms are sleep disturbance and nightmares. The claimant also testified he tries to avoid crowds, going out in public alone, discussion about war, and becomes very stressed when he is around other individuals.
8. The Veterans Administration Hospital records in January 2000 was diagnosed with having mild-to-moderate PTSD and as part of the records a VA doctor, Dr. Kline, stated claimant's severity does not appear to be significantly disabling in social or industrial capacity.
9. A Dr. Liss evaluated the claimant on behalf of the claimant's attorney on January 21, 2006 and Dr. Liss in his testimony stated claimant to be 100 % disabled from the Vietnam War PTSD alone. Dr. Liss also testified to the severity and extent of disability from claimant's PTSD was less in 2000 when he was examined at the Veterans Administration Hospital.
10. The severity of the PTSD problem the claimant 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.
11. There is no evidence that the PTSD caused the claimant to lose any work prior to the primary injury nor is there any evidence of his lifestyle and performance at work was effected by the PTSD prior to the primary injury.
12. From all the evidence I think it is quite clear that the claimant's PTSD problem became worse after the primary injury and thus should not be included as a pre-existing disability.
13. Dr. Wayne and Mr. England, a vocational expert, testified very credible that the claimant is not permanently and totally disabled as a result of the primary injury in combination with his pre-existing condition.

1. Claimant, as a result of his primary injury sustained on November 21, 2000 sustained permanent partial disability in the amount of 70 % of the left upper extremity at the elbow, 210 week level at $\ 281.68 per week for a total of $\ 41,406.96 payable by the employer.
2. Employee as a result of the primary injury sustained on November 21, 2000 sustained 15\% permanent partial disability of the right upper extremity at the wrist, 175 week level for a total of $\ 7,394.10 payable by the employer.
3. Employee sustained 25 weeks of disfigurement of the left arm at $\ 281.68 per week for a total of $\ 7,042.00 payable by the employer.
4. Claimant's pre-existing injury in 1987 attributed to a comminuted fracture of his left ankle has a permanent partial disability of 20 % measured at the ankle, 155 week level, for a total of 31 weeks plus 204.25 weeks for the primary injury producing disability of 15 % greater than sum of primary injuries and pre-existing for additional disability of 30.63 weeks at

Date: $\qquad Made by: \qquad$

Cornelius T. Lane

Administrative Law Judge

Division of Workers' Compensation

A true copy: Attest:

Patricia "Pat" Secrest

Director

Division of Workers' Compensation