Employee: Donald Mayse
Injury No. 02-149305
psychiatric impairment. He did, however, find the Claimant had below normal intelligence with specific reading, writing and math learning disorders. Dr. Pro rated Claimant's psychological "impairment" at " 23 percent whole person." He also stated Claimant could not be expected to return to a 40 -hour work week due to his pain and orthopedic impairment.
Dr. Keith Allen, a licensed psychologist, was one of the experts who believed the Claimant suffered from a depressive disorder as well as a pain disorder, a reading disorder, a mathematics disorder and a disorder of written expression. Dr. Allen did not express any opinions with regard to the cause of the Claimant's depression and chronic pain.
Allan Schmidt, the Ph.D. psychologist who examined the Claimant on March 15, 2007, reviewed numerous records and reports and performed several tests in arriving at his conclusions. He took a family and social history of the Claimant and noted in his deposition that he had to read the test to the Claimant because of the Claimant's inability to read. Based on the results of these psychological tests, Dr. Schmidt also found the Claimant had both a pain disorder and depression. He found that the Claimant had a verbal IQ of 74 , which was in the fourth overall percentile, and a visual IQ of 85 , which is in the sixteenth percentile. He found the Claimant's intelligence was in the borderline range between low average to mentally retarded. Because of these innate deficiencies, Dr. Schmidt opined that the Claimant would have a more difficult time learning new information than a person in the average intelligence range. Other tests indicated to Dr. Schmidt that the Claimant had extremely low math and reading skills. He found that the Claimant had a reading disorder and a written expression disorder. Dr. Schmidt explained that Claimant's reading was lower than would be expected based on his overall IQ and that was indicative of a learning disability. Dr. Schmidt noted remarkable efforts on the part of the Claimant in trying to learn to read but simply was not able to due to his learning disability.
Dr. Schmidt found that the Claimant's pain disorder was enhanced by his psychological condition which he found largely preexisted his 2002 injury. He testified that he identified chronic poor skills for dealing with stress. The reading and written expression disorders that Dr. Schmidt identified as well as Claimant's being functionally illiterate were clearly preexisting conditions. Dr. Schmidt gave the Claimant an overall psychological disability of 30 percent of which 15 percent existed prior to his injury and 15 percent as a result of his injury. He further explained that the 15 percent preexisting the injury took into account the Claimant's "low intellectual functioning, his learning disabilities, his history as what he would characterize as depression that fluctuated, general low skills in dealing with life's stresses, that sort of thing." See Deposition of Allan Schmidt, p. 12. Both Dr. Schmidt and Ms. Titterington found that Claimant had psychological disability resulting from the accident but also had preexisting psychological disability.
In order to determine both the physical as well as the psychological disability resulting from the 2002 accident, it is virtually impossible not to consider Claimant's physical and mental condition before the 2002 accident. I say this because of some of the testimony by Dr. Schmidt and Dr. Koprivica regarding the synergistic effect of the current disability when combined with the prior disability. For example, Ms. Titterington indicates that the Claimant would not be employable on the open labor market if he had to periodically lie down during the course of the day. She admitted, and the evidence clearly demonstrates, that the Claimant did not need to lie down on the job prior to the accident of 2002. However, as Dr. Koprivica pointed out in his deposition, there was a contribution of the pathology in Claimant's low back that predated the
work injury which combined with the work injury to cause many of the Claimant's problems. See Koprivica deposition, p. 36. Similarly, while the Claimant may not have had any active psychological symptomatic depression prior to 2002, he had significant learning disabilities and borderline intellectual functioning. Several of the experts addressed the fact that the Claimant's inability to deal with the effects of his physical condition was in part caused by his limited intellectual functioning. Nonetheless, the law requires that I determine the amount of disability resulting from the last accident alone.
I find based on the evidence presented that the Claimant sustained both physical and psychological disability as a result of the last accident. I find that he sustained 15 percent permanent partial disability to the body as a whole as a result of the physical injury alone. I find that he aggravated a preexisting degenerative condition to his low back and as a result of the aggravation has significant disability and limitations. I further find that the Claimant does indeed have a pain disorder as well as depression. I do not believe that the Claimant had any symptomatic and permanent depression prior to the 2002 accident. While he clearly had a very difficult childhood and dealt with taunts about his inability to read and write and perform at grade level, I do not believe there is evidence that he had any type of clinical symptomatic depression before 2002. I do believe that after the 2002 accident he, indeed, has some depression and I also find that he does have a pain disorder. I find that the extent of the pain disorder and the depression is 15 percent to the body as a whole. I make this finding based on the expert evidence presented in the case.
I do not find, however, that as a result of the 30 percent disability attributable to the last accident the Claimant would have been unable to compete for gainful employment. This is an individual who prides himself on working and would do whatever he could to be gainfully employed. I do not believe that the type of injury he sustained to his back would have limited him to the extent that it has were it not for his prior back condition. I base this conclusion on the testimony of Dr. Koprivica. I also find that the Claimant's depression and psychological response to his physical condition would not have been so severe were it not for his learning disabilities and his low intellectual capacity. I rely on Dr. Schmidt's and Dr. Pro's opinions in making this conclusion. Even with the chronic pain syndrome and depression caused by the 2002 accident, this individual could have gone back to a lighter type of work if he were able to gain vocational educational training. This individual, however, is extremely limited by his preexisting intellectual capacities and learning disabilities. This is what I find takes him out of the job market when coupled with his disabilities from the last accident.
I therefore find that the Claimant has established that he sustained permanent partial disability resulting from the last accident in the amount of 30 percent to the body as a whole. I further find that the effects of this injury, i.e., this disability, would not in and of itself prevent the Claimant from competing for gainful employment.
I also find the Claimant has established that some of his preexisting conditions were hindrances to his employment, i.e., his prior back and right knee condition, and his psychological/intellectual condition. Claimant sustained a work-related injury to his low back in 1993 for which he settled his claim for 16 percent to the body as a whole. As with the 2002 accident, he did not undergo surgery for the 1993 injury either but was treated conservatively. I find that prior to the 2002 injury the Claimant had symptomatic degenerative disc disease that was producing chronic back pain, and I further find that it impacted him vocationally; e.g., I
make these findings based on his testimony, the prior workers' compensation records admitted into evidence and the testimony of Dr. Koprivica.
Claimant also had a right knee injury which occurred while working at Jeff Honer Roofing in 1999. He was injured when he missed a rung in a ladder with his left foot and hyperflexed and injured his right knee. Again, no surgery was performed. He was identified as having a bony injury with a contusion to the medial tibial condyle and he has had chronic right knee pain that was ongoing since then. Again, based on the Claimant's testimony and the deposition testimony of Dr. Koprivica, I find that this condition was also a hindrance to his actual employment and an obstacle to reemployment. I do not find this was as significant as the prior back injury, however. The record is replete with evidence of both Claimant's prior back condition and knee condition impacting on his actual job duties as well as them being obstacles to reemployment. (E.g., Claimant had co-workers help him on ladders, carrying heavy items up for him, using 10 -inch cushions to sit on roofs while others were pounding due to vibrational pain.)
I find that the Claimant had 16 percent permanent partial disability to the body as a whole referable to his lumbar condition and 15 percent permanent partial disability to the right lower extremity at the 160 -week level prior to the 2002 accident.
I find, however, that the most significant disability the Claimant had prior to his 2002 injury was his low level intelligence and aptitude as well as his learning disabilities. Claimant clearly has mental learning disabilities and limitations that have significantly impacted him his entire life and in every aspect of his life. He has repeatedly tried to learn how to read and has simply been unable to. All the experts agree he is functionally illiterate and no one has suggested that he should try or is able to get further academic education and/or learn to read at this point in his life. And although I have not found that the Claimant had any depression prior to the 2002 accident, I find that a great deal of his current depression is based on the fact that he cannot return to work. Again, I find one of the major components of why the Claimant cannot return to work is his decreased intellectual capacity and learning disabilities. These learning disabilities were clearly significant hindrances to his employment. At Sheffield Steel, Claimant was unable to perform a new job because he couldn't read the job manual instructions. He was unable to read a computer-generated order form at a fast food restaurant and, thus, could not successfully perform his job as a cook. Because of his reading learning disability, Claimant's illiteracy is a permanent condition. It is not something he can change; he has tried to do so throughout his life and has been unsuccessful. This has continued to be an obstacle to his employment and reemployment.
In the case of Roby v. Tarlton, the Court upheld the Commission's finding of permanent total disability against the Employer rather than the Fund when the only resulting disability from the last accident involved a leg injury. In that case, the Claimant had a low IQ and was unable to read or write. In that case, the Claimant failed to establish that Mr. Roby's preexisting low intelligence was industrially disabling. The Administrative Law Judge found no evidence that his preexisting low intelligence adversely affected his pre-injury employment history. The Court of Appeals concluded, after its review of the record, that there was sufficient to support the Commission's decision. In that case, the Employee simply failed to establish that his low intelligence affected his earning capacity and failed to show that his low intelligence had not been a hindrance to his ability to work. The facts in this case are more similar to the facts in
Laturno v. Carnahan wherein the Court affirmed the imposition of liability on the Second Injury Fund. In Laturno v. Carnahan, 640 S.W. 2d 470 (Mo. App. 1982), the Claimant had several preexisting disabilities, the main one being a lifelong mental retardation. Expert testimony in that case established that his mental retardation had reduced him to doing simple manual tasks as an unskilled laborer and under close supervision. In that case, the Court found there was sufficient evidence to impose Second Injury Fund liability because the Claimant had established that his preexisting condition was industrially disabling. The standard applicable, as was discussed earlier in the case at bar, is not "industrial disability" but "hindrance to employment."
Two extremely instructive cases with regard to proving that a disability is a hindrance or obstacle to employment are E.W. v Kansas City Missouri School District, 89 S.W.3d 527 (Mo. App. 2002) and Loven v. Green County, 63 S.W.3d 278 (Mo. App. 2001). In the first case, Judge Breckinridge wrote that in order to determine whether a preexisting disability constitutes a hindrance or obstacle to the employee's employment, the Commission should focus on the potential that the preexisting injury may combine with a future work-related injury to result in a greater degree of disability than would have resulted if there had been no such prior condition. In addition, there must be a finding of the presence of an actual and measurable disability at the time the work injury is sustained. In E.W. v. Kansas City School District, the preexisting disability was also a mental disability. The Court found that the Claimant had satisfied her burden of showing that her preexisting disability was a "hindrance to her employment" and therefore reversed the finding of the Commission that had found permanent total disability against the Employer. The Court remanded the case to the Commission to assign Second Injury Fund liability for permanent total disability. In the Loven case, the Claimant's preexisting obesity was not deemed to be a hindrance to his employment. Based primarily on the Claimant's testimony about how his obesity had in no way had a negative effect on his employment, the Court found that the Claimant had failed to prove the presence of an actual and measurable disability at the time the work injury was sustained. The evidence in this case clearly indicates Mr. Mayse's physical and psychological disabilities existing at the time the last accident occurred in 2002 were obstacles to his employment and would certainly have been obstacles to reemployment.
Finally, I find that the Claimant has established that he is unable to compete for gainful employment due to the effects of his 2002 injury when combined with his preexisting physical and psychological disabilities. Claimant was born on 11/17/65 and never graduated from high school. Although the Claimant thinks he received a diploma from Truman High School, the evidence in this case simply does not justify that conclusion. Both Claimant's education and his job skills are extremely limited. He has virtually no ability to acquire more education or training. Therefore, based on the foregoing analysis regarding the Claimant's physical condition and psychological condition, I find that it is unreasonable to expect any employer in the normal course of business to hire the Claimant or expect the Claimant to perform the duties of gainful employment. I therefore find the Second Injury Fund is liable for permanent total disability benefits in this case.
Beginning November 7, 2003, the Second Injury Fund shall pay $\ 28.37 per week (the difference between the permanent total disability rate of $\ 368.49 and the permanent partial disability rate of $\ 340.12 ) for 176-3/7ths weeks (the period of time the Employer would have paid permanent partial disability of $\ 340.12 under Missouri law as represented by their settlement of $\ 60,000 ) and thereafter $\ 368.49 per week for Claimant's lifetime.
The compensation awarded to the Claimant shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of Mr. Frank Eppright, Employee’s attorney, for necessary legal services rendered.
Date: ___________________________ Made by: ___________________________
Rebecca S. Magruder
*Administrative Law Judge*
*Division of Workers’ Compensation*
This award is dated, attested to and transmitted to the parties this ______ day of _______________ 2010, by:
____________________________
Naomi Pearson
*Division of Workers’ Compensation*