Sherry Sellars v. Orkin Pest Control

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations 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 January 8, 2010 with this supplemental opinion. The award and decision of Administrative Law Judge Carl Mueller, issued January 8, 2010, is attached and incorporated by this reference.

We offer this supplemental opinion to explain in some detail our agreement with the conclusions of the administrative law judge. The administrative law judge found the employer/insurer liable to the employee for permanent total disability benefits as well as future medical care and treatment necessary to cure and relieve employee from the effects of the injury sustained on April 30, 2007. The parties stipulated that the injury was due to an accident arising out of and in the course of employment.

Employer/insurer principally alleges the administrative law judge erred by his emphasis of subjective over objective medical findings constituting a misapplication of law concerning section 287.190.6(2) RSMo. The relevant part of such statutory section is as follows:

In determining compensability and disability, where inconsistent or conflicting medical opinion exist, objective medical findings shall prevail over subjective medical findings. Objective medical findings are those findings demonstrable on physical examination or by appropriate tests or diagnostic procedures.

The administrative law judge concluded that employee's permanent disability due to this accident was attributable to the combination of the employee's resultant physical disability and mental disability/psychic disability.

The instant case is conveniently characterized as one involving a physical accident or trauma resulting in both physical disability and mental disability i.e., a physical-mental case.

The physical accident or trauma, a motor vehicle accident, among other things, caused a compression fracture at T-12 necessitating surgery consisting of a partial bilateral T11-T12 hemilaminotomy, pedicle screw instrumentation and rods, posterolateral fusion with a left iliac crest graft and local bone graft. These physical findings are indisputable and certainly objective in nature. By its very nature, an alleged psychic disability is principally subjective, but no less compensable if proven.

The gist of the employer's appeal appears to be that in reaching the final conclusions of permanent total disability, the administrative law judge misapplied section 287.190.6(2) RSMo, by emphasizing subjective findings over objective findings.

In reviewing the file, we did not ascertain that the objective medical findings were in dispute. However, the presence or absence of objective findings subsequent to an injury does not make an alleged psychic disability compensable or noncompensable. The fact finder must review and weigh the entire record and make credibility findings.

The issue before the Commission is whether or not the administrative law judge may have committed err in analyzing the mental aspect or disabling psychic condition resultant from the accident.

In other words, is the subjective nature of employee's alleged psychic disability beyond the objective findings of the actual injury sustained, and if so, how would this interplay with section 287.190.6(2) RSMo?

Perhaps, another way of putting it is whether or not employee's psychological/mental complaints are out of proportion to the actual physical injury sustained.

This is a mental injury type case due to a physical stimulus, and we would emphasize the fact that mental injuries are real, but it must by the same token be stressed that malingering is real, an argument posited by employer/insurer. "Compensation neurosis" which must be distinguished from conscious malingering may take the form of an unconscious desire to obtain or prolong compensation, or perhaps of sheer anxiety over the outcome of compensation litigation; in either case producing a genuine neurosis disabling the employee. Understating the obvious, the line between neurosis and malingering is not always sharply defined.

The fact of resultant disability by reason of pain does exist. The inability of physicians to put their fingers on the exact physical cause or objective finding does not result in casting a claim overboard. With all of the knowledge now possessed by the medical profession it is certainly a matter of common knowledge that sometimes the diagnosis of human illness baffles the greatest medical minds. Mental disability cases involve all kinds of mixtures of neurosis leaving psychiatrists/psychologists and fact finders with the unenviable task of sorting out which is the really operative fact.

In the ultimate and final analysis, the problem must be left to the skill and experience of medical and psychiatric/psychological experts and of compensation tribunals/administrative law judges to carry out the ultimate fact findings.

In the instant case, the physical and objective findings due to the accident or trauma were thoroughly discussed by the administrative law judge in the award. Subsequently the administrative law judge analyzed the testimony of the employee and weighed her credibility in light of the physical injury sustained and her psychic disability complaints, and also weighed the testimony of the medical experts and psychiatric/psychological experts, and reached his ultimate conclusions based on his credibility findings. The employee's subjective complaints, inherent in a psychic disability claim, were thoroughly reviewed and analyzed, based on the objective findings, and the testimony of the various experts compared and contrasted.

The experts based their opinions on the objective findings resultant from the accident along with employee's subjective complaints. Employee's psychological expert was of the opinion that employee's physical accident or trauma augmented or increased her pre-existing

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mental/psychic disability precipitating greater permanent disability. Using essentially the same set of facts, employer's psychiatric expert disagreed, and opined that employee's mental disorder was unaffected by the accident.

The administrative law judge found the employee's psychological expert, Dr. Schmidt, more credible than the employer's psychiatric expert, Dr. Hughes. In so doing, the administrative law judge ultimately concluded that employee did sustain a psychic disability due to the physical accident, and awarded appropriate workers' compensation benefits. We would further note that Dr. Schmidt subjected employee to a battery of tests and utilized the answers in forming his opinions as to employee's ultimate psychic disability and relationship to the work related accident. On the other hand, employer's psychiatric expert, Dr. Hughes, did not conduct any tests but only interviewed the employee and reviewed medical records.

In conclusion, it is our opinion the administrative law judge did comply with the statutory requisites of section 287.190.6(2) RSMo, and reviewed the entire record ultimately giving more credence to the employee's testimony, and the opinions of employee's psychological expert, Dr. Schmidt, in reaching the ultimate conclusion concerning the employee's permanent total disability.

In so doing, the administrative law judge fully considered employee's objective findings and their effect in determining employee's disability. Accordingly, I agree with the conclusion of the administrative law judge that the employee was permanently totally disabled solely on account of the accident occurring April 30, 2007, and appropriate workers' compensation benefits were awarded.

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 13th day of August 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: Sherry Sellars

Injury No: 07-042070

Dependents: N/A

Employer: Orkin Pest Control

Additional Party: State Treasurer as Custodian of the Second Injury Fund

Insurer: Old Republic Ins. Co.

Hearing Date: November 23, 2009

Checked by: RCM/rm

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: April 30, 2007
5. State location where accident occurred or occupational disease was contracted: Lee's Summit, Jackson County, 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? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee, while in the scope and course of her employment, was driving a vehicle and was struck by another vehicle and injured her head, neck, back, mental and emotional psyche.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Body as a whole
14. Nature and extent of any permanent disability: Permanent and total disability.
15. Compensation paid to-date for temporary disability: $\ 5,951.37 ( $\ 5,733.20 in TTD and $\ 218.17 in TPD)
16. Value necessary medical aid paid to date by employer/insurer? $\ 15,270.34.

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 586.01 per week.
3. Weekly compensation rate: $\ 390.67 for permanent total disability, $\ 376.55 for permanent partial disability
4. Method wages computation: By stipulation.
5. Amount of compensation payable:

Medical Expenses

Medical Already Incurred. $\ 15,270.34

Less credit for expenses already paid $\ 15,270.34)

Total Medical due. $\ 0.00

$155 / 7 s weeks at \$ 390.67 / week (May 1 through August 19, 2007).... \ 6,139.10

Less credit for benefits already paid. $\ 5,733.20)

Total TTD due $\ 405.90

$\$ 376.55 / week commencing January 26, 2008 for the employee's life. \qquad$ Indeterminate

Indeterminate

1. Second Injury Fund liability: None.
2. Future requirements awarded: Medical treatment to cure and relieve the Employee from the effects of the work injury of April 30, 2007 to her mental and emotional psyche as recommended by Dr. Allan Schmidt, PhD; and, for pain management as recommended by Dr. Charles Donohoe.

Said payments to begin as of date of this award and to be payable and be subject to modification and review as provided by law.

The disability compensation awarded to Ms. Sellars shall be subject to a twenty-five percent (25\%) lien, plus expenses, in favor o