Surajeta Nikoletic v. Green Park Nursing Home

**Injury No.:** 05-129528

**Employer:** Surajeta Nikoletic

The findings of fact and stipulations of the parties are set forth in the award of the administrative law judge. We have incorporated those findings to the extent that they are not inconsistent with the modifications set forth in our award. Therefore, we address only those findings of fact pertinent to our modification herein.

Before the work injury in November 2005, employee experienced psychiatric and emotional problems as a result of her traumatic experiences during the Bosnian war. During the war, claimant lost family members, suffered a miscarriage, and lived under the constant fear that she and her family would be killed. Employee experienced flashbacks, crying spells, and depression, which led her to seek psychiatric treatment from her family physician, Dr. Staten. On January 28, 2005, Dr. Staten placed claimant on Fluoxetine, a medication used to treat major depression. Dr. Staten saw claimant three more times for depression before the work injury in November 2005.

On January 3, 2008, Dr. Wolfgram examined employee at the request of employee's attorney. Dr. Wolfgram used a translator to interview employee; he also interviewed employee's husband. Dr. Wolfgram opined that, prior to the work injury of November 2005, employee suffered from post traumatic stress disorder (PTSD) attributable to her Bosnian war experiences, somatization disorder and recurrent mild to moderate depression disorder without psychotic features. Dr. Wolfgram assigned a 15% permanent partial disability of the body as a whole to each of these preexisting conditions. Dr. Wolfgram attributed employee's PTSD to her experiences during the Bosnian war.

On July 9, 2008, Dr. Stillings evaluated employee on behalf of employer. Dr. Stillings used an interpreter to interview employee. Dr. Stillings performed three psychiatric tests and opined that employee suffered from preexisting PTSD attributable to her Bosnian war experiences with secondary depression and personality disorder. Dr. Stillings assigned a 20% permanent partial disability of the body as a whole to the preexisting PTSD and 10% to the preexisting depression and personality disorder.

We find the opinions of Dr. Stillings and Dr. Wolfgram persuasive regarding employee's preexisting psychiatric disabilities attributable to her Bosnian war experiences. We find employee suffered a 20% permanent partial disability of the body as a whole referable to her preexisting PTSD and a 10% permanent partial disability of the body as a whole referable to her preexisting depression and personality disorder.

Employee suffered a compensable work injury on November 20, 2005, when she hurt her neck attempting to lift a patient. On September 6, 2006, Dr. Mirkin, employee's treating physician, determined that employee was at maximum medical improvement for the work injury. Dr. Mirkin opined that employee was not permanently and totally

**Injury No.:** 05-129529

Injury No.: 05-129528

Employee: Surajeta Nikoletic

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disabled and could return to her old job if she was motivated to do so. Dr. Mirkin opined that employee suffered a 10% permanent partial disability of the body as a whole referable to the neck, and a 5% or 10% permanent partial disability of the left eye, as a result of the work injury. With regard to future medical care, Dr. Mirkin stated there was a small chance that employee could develop degenerative changes at another level of her spine that may require treatment.

We find Dr. Mirkin more credible than Dr. Shuter (the other doctor who rated employee's cervical spine and left eye disabilities); we find that employee reached maximum medical improvement for the work injury on September 6, 2006, and that she sustained permanent partial disability of the body as a whole referable to the cervical spine as a result of the work injury. We consider Dr. Mirkin's rating of the cervical spine somewhat conservative; we find that employee sustained a 20% permanent partial disability of the body as a whole referable to the cervical spine. We find Dr. Mirkin's rating as to permanent partial disability of the left eye lacking in credibility: Dr. Mirkin forthrightly admitted that he does not typically rate eyes and that he was surprised when he was asked to do so. We find Dr. Pernoud more credible with regard to the left eye; Dr. Pernoud's records indicate that she found employee to have sustained no loss of visual acuity as a result of the work injury. Accordingly, we find no permanent partial disability referable to employee's left eye condition. We find credible Dr. Mirkin's opinion that employee may need future medical care as a result of the cervical fusion.

Dr. Wolfgram opined that the November 2005 work injury resulted in employee developing a pain disorder, major depressive disorder, and a "reactivation" of employee's preexisting PTSD; Dr. Wolfgram assigned a 20% permanent partial disability of the body as a whole to each condition. Dr. Wolfgram explained that the work injury triggered employee's preexisting PTSD with the result that memories and emotions from the war resurfaced. Ultimately, Dr. Wolfgram opined that employee was permanently and totally disabled due to a combination of her psychiatric problems both preexisting and resulting from the work injury.

Dr. Stillings opined that employee's preexisting PTSD was aggravated by the November 2005 work injury to the extent that employee sustained an additional 2% permanent partial disability of the body as a whole as a result of the work injury. Dr. Stillings observed that, during his interview, employee displayed no psychological distress regarding the work injury or its sequelae. Regarding the Bosnian war, however, employee displayed significant psychological stress: employee was hysterical, labile, and tearful, and was difficult to assess because of her affective presentation. Dr. Stillings opined that employee's reports of auditory and visual hallucinations may have been hysterical presentations rather than truly psychotic symptoms. In the event employee was not truly psychotic, Dr. Stillings opined that, from a psychiatric standpoint, employee was at maximum medical improvement and was able to return to work without restrictions, and that the work injury of November 2005 was not the prevailing factor in employee's need for further psychiatric treatment. However, if employee was having true psychotic symptoms, Dr. Stillings opined that she was permanently and totally disabled due to her non-work-related psychiatric conditions. In his deposition dated January 4, 2010, Dr. Stillings opined that he was then of the opinion that employee was most likely psychotic.

Dr. Brockman provided her testimony in this matter at the request of employee's attorney. Dr. Brockman first saw employee in October 2007 and was employee's treating psychiatrist. Dr. Brockman assigned a 5\% permanent partial disability of the body as a whole to employee's preexisting depression. Dr. Brockman did not diagnose preexisting PTSD, because she did not think employee displayed the required symptoms. Dr. Brockman did not diagnose preexisting personality disorder, citing employee's ability to hold a job and maintain stable relationships prior to the work injury. Ultimately, Dr. Brockman opined that the work injury was the prevailing factor in employee's current psychiatric condition and inability to compete for employment.

We find a number of problems with Dr. Brockman's opinions in this case. Dr. Brockman did not perform any of the psychiatric testing that Dr. Stillings performed. Unlike the other psychiatrists to offer their opinions in this case, Dr. Brockman did not use an interpreter to interview employee. Dr. Brockman admitted that there were a number of instances in which there were difficulties communicating with employee, including misunderstandings and inconsistencies in reporting symptoms. We are most concerned with the fact that Dr. Brockman appears to have had very limited knowledge of employee's Bosnian war experiences. Specifically, Dr. Brockman admitted that she never discussed employee's miscarriage, flashbacks, recurring nightmares, or that employee experienced depression as far back as 2002. Incredibly, Dr. Brockman testified that if employee had never experienced the Bosnian war, employee would be in the same condition that she is in today.

Because Dr. Brockman rendered her findings without a full understanding of employee's war experiences and her history of emotional and psychiatric difficulties predating the work injury, we consider Dr. Brockman's opinions to be of little value as to the nature and extent of disability attributable to the work injury. On the other hand, we find the opinions and testimony of Dr. Stillings credible. We find that, as a result of the work injury, employee sustained a 2 % permanent partial disability of the body as a whole referable to aggravation of her preexisting PTSD. We find that the work injury is not the prevailing factor in employee's need for fu