Carolyn Brooks v. Missouri Attorney General

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds 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. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated September 3, 2008. The award and decision of Chief Administrative Law Judge Victorine R. Mahon, issued September 3, 2008, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

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

Given at Jefferson City, State of Missouri, this 3rd day of April 2009.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Employee: Carolyn Brooks

Injury No. 04-147025

Dependents: N/A

Employer: Missouri Attorney General / Central

Accident Reporting Office (Settled)

Additional Party: Treasurer of Missouri, as custodian of the Second Injury Fund

Insurer: (Settled)

Hearing Date: June 24, 2008

Record Closed July 24, 2008. Checked by: VRM/meb

1. Are any benefits awarded herein? Yes.
2. Was the injury or occupational disease compensable under Chapter 287? Yes.
3. Was there an accident or incident of occupational disease under the Law? Yes.
4. Date of accident or onset of occupational disease: June 27, 2004.
5. State location where accident occurred or occupational disease was contracted: Springfield, Missouri.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did employer receive proper notice? Yes.
8. Did accident or occupational disease arise out of and in the course of the employment? Yes.
9. Was claim for compensation filed within time required by Law? Yes.
10. Was employer insured by above insurer? Self-Insured.
11. Describe work employee was doing and how accident occurred or occupational

Carolyn Brooks (Claimant) was injured while working as a secretary at the Office of the Missouri Attorney General in Springfield, Missouri. She settled her claim against the employer (primary injury). This hearing, conducted on June 24, 2008, pertained solely to the nature and extent of any liability from the Second Injury Fund. Claimant appeared in person and by her attorney of record, Randy Alberhasky. The Second Injury Fund was represented by Patrick Platter.

The parties agreed to an average weekly wage rate of 438.46, yielding a compensation rate of 292.32. The parties recognized a prior settlement of $20,000 on the primary claim, which equates to 17.1 percent of the body as a whole disability or 68.4 weeks.

The following were offered by Employee and Admitted:

- Doctors Hospital, 12 pages, certified 10/20/2005

- Hand Therapy & Orthopedic Rehab, 3 pages, certified 3/5/2007

- Harsham Chiropractic Clinic, 5 pages, certified 10/26/2005

- Healthtracks, 6 pages, certified 12/19/2007

- Orthopedic Specialist of Springfield, 36 pages, certified 10/17/2005

- Orthopedic Specialist of Springfield, 21 pages, certified 12/20/2006

- Orthopedic Specialist of Springfield, 33 pages, certified 10/23/2006

- Orthopedic Specialist of Springfield, 9 pages, certified 3/29/2007

- Smith Glynn Callaway Clinic, 60 pages, certified 11/18/2005

- St. John’s Health Center, 200 pages, certified 1/30/2008 (objection - not admitted)

- St. John’s Health Center, 72 pages, certified 10/25/2005

- St. John’s Health Center, 9 pages, certified 10/26/2005

- Smith Glynn Callaway Clinic, 5 pages, certified 12/19/2007

- Smith Glynn Callaway Clinic, 19 pages, certified 10/14/2005

- Smith Glynn Callaway Clinic, 32 pages, certified 3/6/2008

- St. John’s Clinic, Psychiatry, 47 pages, certified 10/10/2005

- St. John’s Clinic, Psychiatry, 82 pages, certified 11/17/2007

- Springfield Neurological & Spine Institute, 3 pages, certified 9/12/2006

- St. John’s Fremont Clinic, 3 pages, certified 6/19/2008

- Claim

- Answer Employer/Insurer

- Answer, Second Injury Fund

- Letters

- Wilbur T. Swearingin, CRC, report 6/16/2006

- Contract for Compromise and Release (Employer)

- Prior California Workers’ Compensation File (medical records objected to & not admitted)

- Dr. P. Brent Koprivica and exhibits

BB. Dr. John D. Pro and exhibits

The following were offered by Second Injury Fund and admitted:

1. Deposition of James M. England, Jr.

- Personnel File - Office of the Attorney General, State of Missouri

- Description of Post Traumatic Stress Disorder (DSM-IV-TR)

- Description of Major Depressive Disorder (DSM-IV-TR)

- SSA Function Report - Adult

- SSA Disability Report - Appeal

- Medical Records - St. John's Health Center/Dr. Michael Whetstone

- Medical Records - St. John's Clinic of Psychiatry (Dr. Thomas Kuich)

- Medical Records - St. John's BHC (Monica Kile)

- Letter to Attorney Alberhasky from Dr. Kuich dated June 13th, 2008.

Claimant Carolyn Brooks is 54 years of age. She has been married to Robert Brooks for more than 20 years. They have a teenage son. Claimant has worked most of her adult life in a number of secretarial and administrative occupations both in California and Missouri. In the 1980's she worked for the Los Angeles Sheriff's Department in California and she suffered a work-related traumatic psychological injury. The injury resulted in her missing several months of work and receiving extensive therapy. She obtained a disability settlement in the amount of 24 percent to the body as a whole under California Workers' Compensation Law. After the settlement, she engaged in a multitude of jobs, but would leave each one after a period of time because she became unhappy with her supervisors or co-workers. She attended college and obtained a bachelor's degree.

Thereafter, she attempted to open her own childcare facility. She ended that enterprise because she could not get along with the parents. After moving to Missouri in the late 1990's, she attempted to start a business making documentary videos with her husband; but the venture never

made money. She also worked with a not-for-profit organization writing grant applications, but had interpersonnel problems and left. She worked for a newspaper as well, but that job did not last more than a few months. She tried working through a temporary agency as a secretary/administrator at several different temporary jobs, including one with the Office of the Missouri Attorney General in Springfield, Missouri. This latter position turned into a full-time, permanent job in 2002.

Claimant's job with the Attorney General required her to primarily type, complete medical summaries, file, and answer phones. At first she got along well and did not have problems at work. During 2003 she became unhappy with the people with whom she was working and fell into a deep depression. She ultimately admitted herself for psychiatric care in September of 2003, remaining for several days. She had suicidal ideations and began receiving treatment for her longstanding psychiatric problems under the care of Dr. Kuich, a psychiatrist. She took a leave of absence, but returned to work in December of 2003. She continued to miss a significant number of days from work, but did not formally leave her employment again until Dr. Kuich took her off work for psychiatric reasons on July 27, 2004. As Claimant did not return to work, this is also the last date that Claimant was exposed to the hazards of her occupational disease or repetitive trauma to her upper extremities.

The repetitive trauma injuries manifested in late 2003 or early 2004. Claimant began experiencing problems with pain and numbness in her hands. Results from electrodiagnostic studies in March of 2003 were positive for nerve entrapment. Claimant reported the symptoms to her employer and began receiving authorized care through Dr. Swango, who ultimately performed three surgeries. On August 4, 2004, Claimant was placed on limited work status with no use of her right hand. She had a right carpal tunnel release performed on October 7, 2004 (at which time she was taken off work one week), left carpal tunnel release on January 6,

2005 (at which time she was taken off work one week). Dr. Swango assigned a 10 percent impairment rating to each wrist on April 18, 2005. Dr. Swango also performed a left ulnar nerve transposition.on November 14, 2006 (at which time Claimant again was ordered to remain off work). Dr. Swango released Claimant to return to work on November 29, 2006. On February 5, 2007, Dr. Swango placed Claimant at maximum medical improvement, without an additional rating, and released Claimant to full duty.

While under the care of Dr. Kuich, Claimant testified that she did not feel capable of working from a psychiatric point from July of 2004 through 2006, as she was receiving therapy and undergoing frequent medication changes. As she began to stabilize through the help of medications and therapy, she remained active in her church and in Boy Scouts, providing volunteer bookkeeping for the organization. By the fall of 2007, she had improved to the point where Dr. Kuich began to reduce her medications. Her nightmares had decreased and she was feeling less depressed. By March of 2007, she had improved so much that Dr. Kuich informed her dis