Albert Giese v. Trans World Airlines

Injury No.: 95-195401 Employee: Albert Giese Employer: Trans World Airlines Insurer: Authorized self-insurer

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. We have reviewed the evidence and briefs, and considered the whole record. Pursuant to § 286.090 RSMo, we issue this final award and decision modifying the March 11, 2010, award and decision of the administrative law judge (ALJ). We adopt the findings, conclusions, decision, and award of the ALJ to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

The ALJ heard this matter to consider: 1) medical causation; and 2) nature and extent of any permanent disability resulting from the March 1, 1995, accident.

With respect to employee's psychiatric issues, the ALJ found that employee's "evidentiary presentation [was] neither plausible on the issue of medical causation, nor sufficiently specific so as to exclude the non-industrial health issues." Because employee's alleged permanent total disability is largely attributed to employee's psychiatric issues, the ALJ, consequently, found that permanent total disability did not result from the March 1, 1995, accident.

With respect to physical permanent partial disability resulting from the March 1, 1995, accident, the ALJ found that the "Court could reasonably expect to find a disability in the range of 10\% [permanent partial disability] to the body as a whole." However, the ALJ further found that 10\% permanent partial disability "approximates the employee's net third-party recovery and the employer's credit against any obligations in workers' compensation." Therefore, the ALJ concluded that if he awarded permanent partial disability, said disability would be offset by the credit from the third-party recovery. In sum, the ALJ did not award employee any benefits.

Employee appealed to the Commission alleging: 1) the ALJ's assessment of the nature and extent of employee's permanent disability is not supported by substantial and competent evidence; 2) the ALJ erred in not finding employee's psychiatric condition to be causally related to the March 1, 1995, accident; 3) employee is entitled to future medical care; and 4) employee's attorney is entitled to attorneys' fees in the amount of 25 % of all amounts awarded.

On March 1, 1995, as employee was arriving for work, he was involved in a vehicular accident at TWA parking lot in Platte County, Missouri. Employee had pulled his car into a parking space and was backing up to straighten his car within the space when his vehicle was struck on the driver's side by another car. Employee was wearing his seatbelt, but described striking the left side of his head against the interior door of his vehicle. Employee denied any cuts or lacerations in conjunction with this event and stated that both vehicles were drivable after the accident. Employee described an onset of neck pain at the time of the occurrence. Employee alleges physical and psychiatric permanent disabilities resulted from the March 1, 1995, accident.

On October 17, 2006, Dr. Patrick Hughes performed an independent psychiatric evaluation of employee. In reviewing employee's medical records, Dr. Hughes noted that employee suffered an apparent whiplash injury of his neck due to a March 1995 vehicular accident. MRIs of the spine indicated bulging cervical discs, and later myelograms appeared to indicate cervical central disc protrusions.

With regard to employee's psychiatric condition, Dr. Hughes stated that the most medically probable cause is an ongoing, severe major depression with psychotic features. Dr. Hughes believes employee developed two episodes of major depression, a genetically-caused, biochemical disorder of the brain that is not caused by chronic pain or cervical neck injury. He noted that depression secondary to a medical condition is caused only by medical conditions with a direct physiological link to the neuron functioning, and the conditions known to do that do not include chronic physical pain or cervical injury. Dr. Hughes went on to state that employee was gravely impaired psychiatrically, with active psychotic symptoms and, therefore, is unable to work at any gainful employment. Dr. Hughes concluded that employee's impairment cannot be causally attributed to his March 1995 accident.

On October 3, 2007, Dr. William Logan performed a psychiatric evaluation on employee. Dr. Logan found that employee was suffering from major depression and cognitive disorder, among other things. Dr. Logan concluded that, based on employee's emotional conditions related to the 1995 head injury, he would rate employee as having a 60 % whole body disability. Dr. Logan further concluded that when said psychiatric disability is combined with employee's physical limitations, it is his opinion that employee has a permanent total disability.

Dr. Logan was deposed on September 24, 2008. Dr. Logan acknowledged, on crossexamination, that employee had a number of predispositions for major depression, including a genetic history and preexisting paranoia. As evidence of the latter, Dr. Logan pointed to an episode in the 1980s when employee had voluntarily left his employment with another employer because he felt co-workers twice tried to kill him. Dr. Logan theorized that a preexisting paranoia had been worsened by the reported vehicular accident and that there are independent psychiatric issues which have developed subsequent to the 1995 accident. Dr. Logan's estimate of 60\% psychiatric disability is inclusive of all factors, including paranoia and alcohol abuse. Dr. Logan

acknowledged that causation for employee's cognitive disorder could not be established with reasonable medical certainty.

Dr. Sidney Cantrell examined employee on September 26, 2007, and provided an independent medical evaluation report dated March 11, 2008. After a review of employee's medical records and a systems limited history and physical examination, Dr. Cantrell concluded that employee suffered herniated discs with spinal stenosis and foraminal stenosis as a direct result of the motor vehicle accident suffered in the parking lot at work. Dr. Cantrell also believes that he has a traumatic brain injury with post concussion syndrome. With regard to employee's physical complaints, Dr. Cantrell estimated that employee is 25 % permanently partially disabled of the body as a whole.

In addition, Dr. Cantrell took notice of Dr. William Logan's psychiatric report and found that employee is permanently totally disabled. Dr. Cantrell does not believe employee will ever be able to be gainfully employed in the open job market.

Dr. Jerome Hanson is a neurosurgeon and was one of employee's treating physicians from 1996 through 1999. Dr. Hanson first examined employee on May 21, 1996, and upon reviewing diagnostic films, concluded that employee had degenerative changes at C5-7, cervical spondylosis at C5-6, and a small disc herniation at C6-7. Dr. Hanson stated that the changes seen on employee's MRI and cervical spine x-rays may simply be consistent with his age and work-related activities and other activities of daily living and are not, by definition, indication of some pathologic injury to his cervical spine. Dr. Hanson would not say whether the March 1, 1995, accident did, or did not contribute to employee's cervical condition.

With regard to employee's psychiatric condition, we agree with the ALJ's conclusion that employee failed to provide a plausible evidentiary presentation on the issue of medical causation. As Dr. Logan acknowledged, employee's paranoia episode in the 1980s is clear evidence that employee suffered from some preexisting psychiatric issues. A determination that the March 1, 1995, accident enhanced said preexisting psychiatric issues, or that some independent psychiatric disability resulted from that accident, would be based on mere speculation. There is nothing in the record that definitively supports a conclusion that employee's psychiatric condition was enhanced or caused by the March 1, 1995, accident and, therefore, we adopt the ALJ's determination with regard to that issue.

With regard to employee's alleged physical disabilities resulting from the accident, the ALJ found that a 10 % permanent partial disability to the body as a whole would be a reasonable rating. However, the ALJ concluded that because said 10\% permanent partial disability is likely what employee's net third-party recovery and the employer's credit against any obligations in workers' compensation would be, there is no reason to award permanent partial disability benefits to employee.

The fact that an award of workers' compensation benefits to an employee may be subject to an employer's right of subrogation as provided by $\S 287.150$ due to a third

party recovery, does not discharge the duty of the Division or Commission from issuing its award. The workers' compensation benefits awarded will be distributed or apportioned to the parties pursuant to the provisions of $\S 287.150$.

With regard to the nature and extent of employee's physical disabilities, only Drs. Cantrell and Hanson examined employee's cervical condition. Dr. Cantrell concluded that employee suffered herniated discs with spinal stenosis and foraminal stenosis as a direct result of the motor vehicle accident suffered in the parking lot at work. Dr. Hanson concluded that employee had degenerative changes at C5-7, cervical spondylosis at C5-6, and a small disc herniation at C6-7, but would not say whether the March 1, 1995, accident did, or did not contribute to employee's cervical condition.

Both doctors agreed that employee's cervical spine is permanently partially disabled. Dr. Cantrell provided an affirmative opinion that employee's cervical condition was caused by the March 1, 1995, accident. However, Dr. Hanson would not provide an opinion as to the effect, if any, that the accident had on employee's cervical spine. We find Dr. Cantrell's affirmative opinion that the March 1, 1995, accident caused employee to suffer permanent partial disability of the body as a whole to be more convincing than Dr. Hanson's weak conclusion that employee's cervical condition may be solely the result of degenerative changes.

Although we agree with Dr. Cantrell's opinion that the March 1, 1995, accident caused employee some permanent partial disability, we disagree with Dr. Cantrell's rating amount of 25 % permanent partial disability of the body as a whole. We find, as did the ALJ, that based upon the weight of the medical records and evidence as a whole, employee is only 10 % permanently partially disabled of the body as a whole rated at the cervical spine as a direct result of the March 1, 1995, accident.

We note that the parties have stipulated to employee having received a net third-party recovery of $\ 9,612.50 from the same event and that, pursuant to $\S 287.150, employee's workers' compensation award is subject to a credit in said amount. { }^{1} Therefore, we find, based upon a weekly compensation rate of \ 249.48, employee shall be awarded $\ 366.70 in permanent partial disability benefits ( $\$ 366.70=\ 9,979.20 PPD - \$9,612.50 net third-party recovery).

We modify the award of the administrative law judge and find that employee shall be awarded $\ 366.70 in permanent partial disability benefits. This amount represents our award of 10 % permanent partial disability of the body as a whole rated at the cervical spine less the credit of $\ 9,612.50 for employee's net third-party recovery. In all other respects, we affirm the award.

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[^0]: ${ }^{1}$ The parties' stipulation to employee's net third party rec