Kimberly Swierk v. Fusion Support Service, LLC.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 08-068309

Employee: Kimberly L. Swierk

Employer: Fusion Support Service, LLC.

Insurer: New Hampshire Insurance Co. c/o AIG Domestic Claims

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund (Dismissed)

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 Law. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated October 8, 2009, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Matthew D. Vacca, issued October 8, 2009, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\underline{26^{\text {th }}}$ day of January 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Hearing Date: July 9, 2009

Checked by: MDV:cw

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? No
4. Date of accident or onset of occupational disease: June 24, 2008
5. State location where accident occurred or occupational disease was contracted: 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? No
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Walking with contractor to door when contractor grabbed breast.
12. Did accident or occupational disease cause death? No Date of death?
13. Part(s) of body injured by accident or occupational disease: None
14. Nature and extent of any permanent disability: None
15. Compensation paid to-date for temporary disability: $\ 0
16. Value necessary medical aid paid to date by employer/insurer? $\ 0

Employee: Kimberly L. Swierk

Dependents: N/A

Employer: Fusion Support Service LLC

Additional Party: Second Injury Fund (dismissed)

Insurer: New Hampshire Insurance Co. c/o AIG Domestic Claims

Injury No: 08-068309

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by MDV:cw

The issues presented are accident, injury, medical causation, past and future medical care and temporary and permanent disability benefits.

1. Claimant is a 44 year old married woman with two children.
2. On June 24, 2008. Clamant was working at Employer's office with an outside contractor who was teaching her a computer program.
3. Claimant and the contractor were working by themselves. During the training, the outside contractor said he was "touchy-feely" and tried to hug Claimant. Claimant knocked his hands away and told him "no". Approximately 20 to 30 minutes after the first incident the contractor was leaving.
4. Claimant was walking toward the door, with and near the contractor, when he turned around as if to hug her again and at that time he grabbed her breast, which was covered by her business attire. Claimant immediately knocked his hands away and ran to the warehouse to tell co-employees. Claimant was upset. There was no physical injury of any type to the claimant's breast. The contractor did not strike Claimant or in any other way except as described above, touch or act inappropriately toward the Claimant. The police were called and Claimant gave a statement. The contractor was prosecuted.
5. Claimant said her Employer made her return to work on or about July $1^{\text {st }}$ or July 2, 2008. However she was unable to remain at the work place for the full day due to a panic attack. Claimant has not worked since that date either at this Employer or for any other Employer. Claimant contends she is permanently and totally disabled as a result of this incident.
6. Employee attributes the following symptoms to the work incident of June 24, 2008: panic attacks when she goes outside of her home alone, inability to sleep and Claimant cannot remember or concentrate.

1. Initially, Claimant sought medical treatment from Suburban West Internal Medicine. She had been treated at this location by various group staff for general internal medicine issues since 1995. Claimant saw Dr. Douglas Dripps three times between 7/02/08 and 09/24/08. Suburban West Internal Medical referred her for counseling to Sharon Marbarger. Claimant saw Ms. Marbarger one time.
2. On September 24, 2008, Dr. Dripps referred Claimant to Dr. Dawn Holemon for psychiatric treatment. Claimant saw Dr. Holemon six times between 09/24/08 and 12/16/08. Dr. Holemon recommended that Claimant seek and receive ongoing psychological therapy.
3. Thereafter, Claimant has on a weekly basis seen a therapist named Kim Solteziak who was referred to her by her insurance through Medicaid. Claimant's health insurance has paid and is paying for all the above treatment.
4. Claimant has a medical history of prior psychiatric and similar medical complaints since 1995 which include sleep problems, panic attacks, work/home stress, anxiety, heart pounding, and work loss from anxiety concerning all of the above. The medical records from Suburban West Internal Medicine indicate she has had prior similar symptoms and complaints since she originally began treating there and also again episodically in January 1995, October 2002, July 2007, and most recently in January 2008. These symptoms predate the work event.
5. Claimant at different times from January to July 1995 had various symptoms including marital stress, fatigue, mood swings, insomnia, vertigo (dizziness), heart pounding, and difficulty breathing (no pattern). Claimant was totally unable to work from February through July 11, 1995 due to psychiatric complaints. Again, these predate the work incident.
6. In October 2002, Claimant again saw Dr. Furukawa due to stress at work. Claimant felt on the verge of collapse, close to a nervous breakdown, her life seemed to be spiraling out of control, she was always close to tears, she felt very angry, had heart pounding and emotional stress. Dr. Furukawa kept Claimant incapacitated and off work due to psyche problems until November 6, 2002. Again, this was prior to the work incident.
7. In July 2007, Claimant again saw Dr. Furukawa complaining of depression and stress at home and at work as well as sleeping problems.
8. Six months before the work incident, on January 14, 2008, Claimant called Suburban West Internal Medicine and it was noted she had emotion problems, anxiety and depression and felt her "world is falling apart".
9. Clamant has a significant history of relationships with abusive men. This began at an early age when she was physically and sexually abused by an uncle (Dr. Holemon's records). Thereafter, she had a physically abusive boyfriend. She has had various separations from her alcoholic husband who is emotionally abusive. After a five year separation, he returned to the family home in July 2008 right into the midst of this work incident. That reconciliation failed and Claimant and husband are again separated and

Claimant has moved in with her sister. Claimant testified her family life is not stressful and tumultuous.

1. Dr. Douglass Dripps believes Claimant was unable to work during the period of July 2, 2008 through November 07, 2008 and signed off on work notes to that effect.
2. The Employer/Insurer submitted the deposition testimony of Wayne Stillings M.D. Dr. Stillings is a medical doctor specializing in and board certified in psychiatry since 1978/1979. Dr. Stillings regularly diagnoses and treats the conditions from which Claimant suffers and which he diagnosed in Claimant. (Depo. 6-7, Ex. A (CV).
3. Dr. Stillings diagnosed Claimant with the following pre-existing chronic ongoing medical conditions; relational problem (chronic ongoing marital discord, alcoholic and emotionally abusive husband, panic disorder, personality disorder, NOS (not otherwise specified) with depressive, somatoform, schizoid, avoidant, obsessive/compulsive personality traits. (Depo, 12-19, Ex. B pg. 12-13).
4. Dr. Stillings believes Claimant had significant pre-existing psychiatric problems with associated psychiatric disability. (Depo. 31-33); the prevailing factor in causing claimant's psychiatric symptoms on and since June 24, 2008 is her underlying chronic pre-existing conditions, not the June 24, 2008 work incident. (Depo. 31-33).
5. At best, Dr. Stillings believes the work incident of June 24, 2008 was at most a triggering or precipitating event. (Depo. 31-33) The work event of June 24, 2008 was temporarily upsetting, but it resulted in no need for psychiatric treatment and no permanent psychiatric condition or malfunction.
6. Dr. Stillings suggests Claimant is in need of psychiatric treatment to address her current symptoms, but those symptoms are primarily caused by her underlying chaotic life and chronic and ongoing pre-existing conditions, not the June 24, 2008 work event. (Depo. 40-41, Ex. B pg. 12-13).
7. Dr. Stillings explains his opinions as follows: Ms. Swierk has possessed an underlying pre-existing panic disorder since at least 1995. It is the nature of her panic disorder that it is chronic and that it waxes and wanes. It had previously caused major work disruptions. Her medical records from October 2002 and July 2007 are consistent with this diagnosis. (Depo. 15-17).
8. Claimant will project her own psychiatric problems onto the work place and try to blame the work place as the cause of all her problems when in fact it is her psychiatric problems or inability to deal with events that cause her stress at work. This is corroborated by her belief that her family life is not chaotic or stressful. Claimant is not well adjusted, well equipped to deal with life and not functioning adequately at home or work; she struggles in both spheres of her life. (Depo.