Pamela Simpson v. Board of Education of the City of St. Louis

(Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)

Injury No.: 07-095109

Employee: Pamela Simpson

Employer: Board of Education of the City of St. Louis

Insurer: Self-Insured c/o Cannon Cochran Management Services

This workers' compensation case is submitted to the Labor and Industrial Relations Commission for review as provided by $\S 287.480 RSMo. { }^{1}$ Having reviewed the evidence, read the parties' briefs, heard the parties' arguments and considered the whole record, we find 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 § 286.090 RSMo, we affirm the award and decision of the administrative law judge by this supplemental opinion. The October 1, 2010, award and decision of Administrative Law Judge Margaret D. Landolt is attached and incorporated by this reference.

We offer this supplemental opinion to address employer's sole point on appeal. In particular, employer argues that the administrative law judge's opinion is in error because the administrative law judge awarded disability and medical expenses based upon the opinion of a psychologist, Dr. Shaw, testifying within a reasonable degree of psychiatric certainty. Employee responds that employer has waived its objection to Dr. Shaw's opinion evidence because employer did not object to the introduction of Dr. Shaw's deposition and report.

Employer contends that § 287.190.6(2) RSMo, as amended in 2005, added two new elements to a worker's burden of proof as regards permanent partial disability; the worker must show that the permanent partial disability has been demonstrated and certified by a physician, and, 2) the worker must produce opinion evidence regarding compensability and disability that is a medical opinion(s) given with medical certainty. We disagree.

As to the first alleged new element, employer asserts that only an individual licensed as a physician under Chapter 334 RSMo may demonstrate and certify a permanent partial disability under the statute. We agree that this provision describes demonstrations and certifications to be performed only by a physician. But we do not believe the provision creates a new statutory element, without proof of which employee's claim must fail.

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[^0]: ${ }^{1}$ References are to the Revised Statutes of Missouri 2006, unless otherwise indicated.

The subsection does not describe or define "demonstrated" or "certified" for the purposes of the subsection. Nor does the subsection provide a sanction for a worker's failure to produce evidence that a physician has so demonstrated or certified.

"[T]he use of 'shall' in a statute does not inevitably render compliance mandatory, when the legislature has not prescribed a sanction for noncompliance." State ex rel. Fischer v. Brooks, 150 S.W.3d 284 (Mo. banc 2004). Depending on context, "shall" may prescribe a mandatory duty, as in State v. Teer, 275 S.W.3d 258 (Mo. banc 2009), but it may be considered only directory. Id. "[D]etermining if the word 'shall' is mandatory or directory requires courts to review the context of the statute and to ascertain legislative intent." Id. ${ }^{2}

We find nothing in \S 287.190 or elsewhere in Chapter 287 describing sanctions for noncompliance with \S 287.190 .6(2)$ RSMo. We conclude that the provision requiring that permanent disability be demonstrated and certified by a physician is directory.

As to the second alleged requirement, employer asserts that the administrative law judge's award cannot be founded upon the opinion of a psychologist. As support, employer directs us to the provision that reads, "[m]edical opinions addressing compensability and disability shall be stated within a reasonable degree of medical certainty."

Dr. Shaw did not offer a medical opinion; she offered her opinion as a licensed psychologist. Dr. Shaw's testimony does not run afoul of the statute. During deposition, employee's counsel asked Dr. Shaw if her opinion was given "within a reasonable degree of psychiatric testimony," to which Dr. Shaw answered affirmatively. We decline employer's invitation to transform Dr. Shaw's persuasive psychological opinion into an impermissible medical opinion based solely on that brief exchange, particularly since employer's counsel did not raise an objection during the deposition.

Further, if we were to accept employer's premise that every claim for permanent disability must be supported by a medical opinion, we would render nearly meaningless the portion of $\S 287.200$ RSMo providing compensation for permanent total disability benefits because the determination of whether an injured worker is permanently and totally disabled is not solely a medical question.

The term "total disability" means the inability to return to any employment and not merely the inability to return to the employment in which the employee was engaged at the time of the accident. Section 287.020.7 [redesignated sub. 6]. The test for permanent total disability is the worker's ability to compete in the open labor market in that it measures the worker's potential for returning to employment. The pivotal question is whether an employer can reasonably be expected to hire this employee, given his

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[^0]: ${ }^{2}$ State ex rel. State v. Parkinson, 280 S.W.3d 70, 76 (Mo. 2009).

present physical condition, and reasonably expect him to successfully perform the work. ${ }^{3}$

The answer to the pivotal permanent total disability question is not solely a medical determination. In fact, it is common for physicians to offer their opinion on the disability resultant from a worker's physical conditions, while deferring to a vocational expert as to whether the worker is totally disabled. We do not believe it was the intention of our legislature to place a nearly insurmountable evidentiary hurdle before the most seriously disabled workers.

Finally, we find it highly unlikely that by the enactment of § 287.190.6 the legislature intended to summarily exclude from our consideration the expert opinion of every nonphysician mental health or vocational professional. We find it more likely that the language of the subsection is directed solely to proof of disabilities resulting from physical injuries.

We affirm the award and decision of the administrative law judge, as supplemented herein.

We approve and affirm 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 $26^{\text {th }}$ day of May 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

SEPARATE OPINION FILED

John J. Hickey, Member

Attest:

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[^0]: ${ }^{3}$ Sutton v. Vee Jay Cement Contr. Co., 37 S.W.3d 803, 811 (Mo. App. 2000), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003).

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based upon my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be modified.

I join in the majority's supplementation of the administrative law judge's award to reject employer's point on appeal.

I write separately to express my opinion that the administrative law judge awarded insufficient permanent partial disability benefits. I find credible Dr. Shaw's opinion that employee sustained a 40% permanent partial disability as a result of her work injury and I would so award.

John J. Hickey, Member

Employee: Pamela Simpson

Injury No.: 07-095109

Dependents: N/A

Before the

Employer: Board of Education of the City of St. Louis

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Additional Party: N/A

Insurer: Self-Insured C/O Cannon Cochran Management Services

Hearing Date: August 5, 2010

Checked by: MDL

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: September 7, 2007
5. State location where accident occurred or occupational disease was contracted: St. Louis, 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: While Employee was teaching school she was assaulted by a student
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Body as a whole - psychiatric
14. Nature and extent of any permanent disability: 12.5 % PPD of the body as a whole - psychiatric
15. Compensation paid to-date for temporary disability: $\ 26,127.67
16. Value necessary medical aid paid to date by employer/insurer? $\ 3,875.84

Employee: Pamela Simpson

Injury No.: 07-095109

1. Value necessary medical aid not furnished by employer/insurer? $\ 2,156.66
2. Employee's average weekly wages: $\ 949.27
3. Weekly compensation rate: $\$ 632.85 / \ 389.04
4. Method wages computation: stipulation

1. Amount of compensation payable:

Unpaid medical expenses: $\ 2,156.66

25-3/7 weeks of temporary total disability $\ 16,092.47

50 weeks of permanent partial disability from Employer $\ 19,452.00

TOTAL: $\ 37,701.13

1. Future requirements awarded: None

Said payments to begin and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Ms. Colleen J. Vetter.

Employee: Pamela Simpson

Departments: N/A

Employer: Board of Education of the City of St. Louis

Additional Party: N/A

Insurer: Self-Insured C/O Cannon Cochran Management Services

Injury No.: 07-095109

Before the

Division of Workers' Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: MDL

A hearing was held on August 5, 2010 at the Division of Workers' Compensation in the City of St. Louis, Missouri. Pamela Simpson ("Claimant") was represent ("Employer"), which is self-insured C/O Cannon Cochran Management Services, was represented by Mr. Harvey Taylor. Ms. Vetter requested a fee of 25 % of Claimant's award.

The parties stipulated that on or about September 7, 2007, Claimant sustained an accidental injury arising out of and in the course and scope of employment; Claimant was an employee of Employer; venue is proper in the City of St. Louis, Missouri; Employer received proper notice of the injury; and the claim was timely filed. The parties further stipulated Claimant was earning an average weekly wage of $\ 949.27 which resulted in rates of compensation of $\ 632.85 for Temporary Total Disability ("TTD") benefits, and $\ 389.04 for Permanent Partial Disability ("PPD") benefits. Employer paid TTD benefits of \$26,127.67 from September 10, 2007 to June 25, 2008. Employer also paid medical benefits of \$3,875.84.

The issues for determination by hearing are whether Employer is liable for reimbursement of medical expenses of $\ 2,156.66; whether Employer is liable for past TTD benefits from June 26, 2008 to December 20, 2008;