Lynda Edwards v. Allens Home Care Services, Incorporated

Any past due compensation shall bear interest as provided by law.

The April 4, 2011, award and decision of Administrative Law Judge Gary L. Robbins is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $13^{\text {th }}$ day of March 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

James Avery, Member

DISSENTING OPINION FILED

Curtis E. Chick, Jr., Member

Attest:

Secretary

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on 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 believe employee has shown she is permanently and totally disabled for the reason that the disability associated with her pre-existing bipolar disorder combines with the disability caused by her work injury in such a manner that no reasonable employer could be expected to hire employee in her current condition.

Employee has experienced symptoms of bipolar disorder for at least twenty years. She testified credibly that the effects of the disorder may have long made it difficult for her to work in positions where she is responsible for multiple people; be it patients or subordinates. In her field of nursing, she had particular difficulty keeping track of all the information necessary to appropriately monitor and record care. It was for that reason that she pursued private duty nursing such as the job at which she was injured. Even with a single patient for which to care, employee had to engage in frequent note-taking to ensure she maintained an accurate patient care chart.

When I consider the limitations imposed by employee's surgically-fused back combined with the obstacles to employment caused by employee's bipolar condition, I am convinced employee cannot return to any work in the field of nursing.

I am mindful that "total disability" means the inability to return to any regular employment and not merely mean inability to return to the employment in which the claimant was engaged at the time of the accident. ${ }^{6}$ But, contrary to the administrative law judge and the majority of this Commission, I believe employee is unable to secure and maintain any regular employment and that she has shown this is due to disabilities caused by her preexisting bipolar disorder combined with the physical limitations of her back condition.

Dr. Berkin and Dr. Ball are both of the opinion that employee is unable to compete in the open labor market due to a combination of the cognitive/mental difficulties caused by her preexisting bipolar condition and the limitations caused by her back injury. The administrative law judge discounts their opinions because employee worked after she recovered from her back surgeries.

Consider the jobs employee tried after her surgeries.

Employee returned to work with the young patient she cared for at the time of her injury, but she no longer performed the duties of turning, lifting, or bathing the patient - essential duties of a private duty nurse. She was not physically performing the duties of this job due to the work injury.

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[^0]: ${ }^{6}$ Molder v. Mo. State Treasurer, 342 S.W.3d 406, 411 (Mo. App. 2011).

Employee got work as a medication technician, but she was unable to keep track of the dispensation of the medications in the manner in which they must be tracked. She was not mentally capable of performing the duties of this job due to her preexisting condition.

Employee worked in a supported position at a sheltered workshop but such work is certainly not work in the open labor market.

On his own, the administrative law judge developed some evidence regarding an imaginary job not otherwise established by the medical or vocational evidence offered by the parties; the administrative law judge concluded that employee might be able to greet customers at a retail store if afforded the opportunity to alternate sitting and standing. But there is no evidence in the record that any employer -- including Wal-Mart -- hires workers exclusively to welcome customers. This hypothetical position is not shown to be available in the open labor market.

The bottom line is this: Before her back injury, employee was able to perform all the duties of at least one job in the open labor market -- private duty nursing -notwithstanding the obstacles posed by her bipolar disorder. After the back injury, that open market job is no longer available to employee. And the evidence does not show that any other job is available to her, either.

No reasonable employer, in the ordinary course of business, would be expected to hire employee in her current condition and this is due to the combination of her preexisting cognitive/mental disabilities and her work-related physical disabilities. The Second Injury Fund is liable to employee for permanent total disabilities for her lifetime. The administrative law judge and Commission majority err by holding otherwise.

For the foregoing reasons, I respectfully dissent from the decision of the majority of the Commission.

Curtis E. Chick, Jr., Member

Employee: Lynda R. Edwards

Injury No. 04-024054

Dependents: N/A

Employer: Allens Home Care Services Incorporated

Additional Party: Second Injury Fund

Insurer: Travelers Commercial Casualty

Hearing Date: January 5, 2011 Checked by: GLR/rf

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? March 4, 2004.
5. State location where accident occurred or occupational disease contracted: Bollinger County, Missouri.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did the employers receive proper notice? Yes.
8. Did the accidents or occupational diseases arise out of and in the course of the employment? Yes.
9. Were the claims for compensation filed within time required by law? Yes.
10. Were the employers insured by above insurers? Yes.

1. Describe work employee was doing and how accident happened or occupational disease contracted: The employee was lifting a seven year old child out of a bathtub and hurt her back and body as a whole.
2. Did accident or occupational disease cause death? No.
3. Parts of body injured by accident or occupational disease: Back and body as a whole.
4. Nature and extent of any permanent disability: See Award. The employee settled her primary case with the employer-insurer for 40% permanent partial disability to the body as a whole.
5. Compensation paid to date for temporary total disability: 14,140.71.
6. Value necessary medical aid paid to date by employer-insurer: 62,572.21.
7. Value necessary medical aid not furnished by employer-insurer: 0.
8. Employee's average weekly wage: 640.00.
9. Weekly compensation rate: 426.66 per week for temporary total and permanent total disability. 347.05 per week for permanent partial disability.
10. Method wages computation: By agreement.
11. Amount of compensation payable: See Award.
12. Second Injury Fund liability: See Award.
13. Future requirements awarded: None.

The Compensation awarded to the employee 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 employee: Gary G. Matheny.

On January 5, 2011, the employee, Lynda R. Edwards, appeared in person and by her attorney, Gary M. Matheny for a hearing for a final ward. The employer-insurer was not represented at the hearing as they had already settled their case with the employee. Assistant Attorney General Frank A. Rodman represented the Second Injury Fund. The Court took judicial notice of all of the records contained within the files of the Division of Workers' Compensation. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with a statement of the findings of fact and rulings of law, are set forth below as follows:

1. The employer was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and liability was fully insured by Travelers Commercial Casualty.
2. On or about the date of the alleged accident or occupational disease the employee was an employee of Allens Home Care Services Incorporated and was working under the Workers' Compensation Act.
3. On or about March 4, 2004, the employee sustained an accident or occupational disease that arose out of and in the course of her employment.
4. The employer had notice of the employee's accident.
5. The employee's claim was filed within the time allowed by law.
6. The employee's average weekly wage is $\ 640.00. Her rate for temporary total disability and permanent total disability is $\ 426.66 per week. Her rate for permanent partial disability is $\ 347.05 per week.
7. The employee's injury was medically causally re