Ellen Oppenlander v. Curators of the University of Missouri

(Modifying Award and Decision of Administrative Law Judge)

Injury No.: 07-009720

Employee: Ellen Oppenlander

Employer: Curators of the University of Missouri

Insurer: Curators of the University of Missouri c/o Corporate Claims Management

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

This cause has been submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480 RSMo. { }^{1}$ We have reviewed the evidence and briefs, heard oral argument, and considered the whole record. Pursuant to § 286.090 RSMo, the Commission modifies the award and decision of the administrative law judge (ALJ) dated January 25, 2012.

On February 5, 2007, employee slipped and fell at work, causing her to hit the left side of her head on a metal bed frame. Employee suffered a head injury as a result of this accident. Employee had also injured her head just over two weeks prior to the February 5, 2007, incident, on January 20, 2007, when she slipped and fell on her icy residential driveway. Employee proceeded to final hearing of her claims against employer and the Second Injury Fund for the February 5, 2007, incident.

The ALJ found that employee is permanently and totally disabled solely as a result of the February 5, 2007, work injury. The ALJ found employer liable for employee's past medical expenses, future medical care, and permanent total disability benefits. The ALJ found no Second Injury Fund liability.

Employer appealed to the Commission alleging that the ALJ erred in finding employee permanently and totally disabled. Employer argued in the alternative that if employee is permanently and totally disabled, it is due to the February 5, 2007, injury combining with employee's preexisting disabilities.

The findings of fact and stipulations of the parties were accurately recounted in the award of the ALJ and, to the extent they are not inconsistent with the findings listed below, they are incorporated and adopted by the Commission herein.

Dr. Cohen opined that as a result of the February 5, 2007, injury, employee suffered a traumatic brain injury with cognitive deficits. Dr. Cohen concluded that the work injury left her with permanent partial disability of 37 \%-38 % of the body as a whole. Dr. Cohen opined that employee sustained an additional 2 \%-3 % permanent partial disability of the body as a whole as a result of the January 20, 2007, head injury at home.

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

Dr. Halfaker opined that employee suffers from a total of 45 % permanent partial neuropsychological disability of the body as a whole. Of this 45 %, Dr. Halfaker opines that 10 % is attributable to employee's preexisting psychological problems associated with depression, anxiety, obsessive-compulsive behaviors, and borderline personality features; 8 % is attributable to the January 20, 2007, head injury; 12 % is attributable to the February 5, 2007, head injury; 10 % is attributable to an exacerbation of her preexisting depression and anxiety caused by the January 20, 2007, and February 5, 2007, head injuries; and 5\% is attributable to various contemporaneous stressors.

Employer contends that the ALJ erred in finding employee permanently and totally disabled. Section 287.020.6 RSMo ${ }^{2}$ defines "total disability" as the "inability to return to any employment...."

The test for permanent total disability is whether, given the employee's situation and condition he or she is competent to compete in the open labor market. The pivotal question is whether any employer would reasonably be expected to employ the employee in that person's present condition, reasonably expecting the employee to perform the work for which he or she is hired.

Gordon v. Tri-State Motor Transit Company, 908 S.W.2d 849, 853 (Mo.App. 1995) (citations omitted).

In this case, there are conflicting expert opinions as to whether employee is permanently and totally disabled. Dr. Crooks, Dr. Cohen, and Mr. Eldred all opined that employee is permanently and totally disabled; while Dr. Halfaker, Dr. Stillings, Dr. Hogan, Mr. England, and Mr. Weimholt all opined that employee is not permanently and totally disabled.

We find, based upon our review of employee's testimony, the voluminous medical records, the expert medical opinions, and the record as a whole, that Dr. Cohen's opinion with regard to employee's current limitations and restrictions is most credible. We further find, based upon said restrictions and limitations and the vocational expert opinions of Mr. Eldred and Mr. England (when assuming Dr. Cohen's restrictions), that employee is permanently and totally disabled. We do not find Mr. Weimholt's opinion that employee could return to work numerous jobs is credible.

The next issue we must address concerns whether employee is permanently and totally disabled solely as a result of the primary injury, or as a result of the primary injury combining with employee's preexisting disabilities.

The ALJ concluded that employee is permanently and totally disabled solely as a result of the primary injury; however, the ALJ provided little support for said conclusion. The

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[^0]: ${ }^{2}$ The ALJ inexplicably cited § 287.020.7 RSMo under the heading "APPLICABLE LAW." Section 287.020.7 RSMo defines the terms "commission" and "director." The Commission assumes that this citation was inadvertent and that the ALJ intended to cite § 287.020.6 RSMo, the subsection defining "total disability," as permanent "total disability" is an issue of contention in this case.

ALJ cites Drs. Crooks, Cohen, and Halfaker's testimony in support of her finding that the February 5, 2007, work injury impacted employee's cognitive abilities, but she fails to cite to a medical expert opinion, or explain in any way, how the cognitive abilities solely affected by the February 5, 2007, work injury resulted in employee's permanent total disability. The ALJ simply concludes, in contrast to the opinions of the very experts she relies on, that "[n]o preexisting permanent disability is found." We find that the competent and substantial evidence supports a finding that employee had significant preexisting disabilities and, therefore, find that this case requires further analysis.

In evaluating cases involving preexisting disabilities, the employer's liability must first be considered in isolation before determining Second Injury Fund liability. Kizior v. Trans World Airlines, 5 S.W.3d 195 (Mo. App. W.D. 1999), overruled on other grounds, Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003). In Kizior, the Court set out a step-by-step test for determining Second Injury Fund liability:

Section 287.220.1 contains four distinct steps in calculating the compensation due an employee, and from what source, in cases involving permanent disability: (1) the employer's liability is considered in isolation 'the employer at the time of the last injury shall be liable only for the degree or percentage of disability which would have resulted from the last injury had there been no preexisting disability'; (2) Next, the degree or percentage of the employee's disability attributable to all injuries existing at the time of the accident is considered; (3) The degree or percentage of disability existing prior to the last injury, combined with the disability resulting from the last injury, considered alone, is deducted from the combined disability; and (4) The balance becomes the responsibility of the Second Injury Fund.

Kizior, 5 S.W.3d at 200.

Dr. Cohen and Dr. Halfaker are the only doctors who provided ratings as to employee's permanent disability sustained as a result of the primary injury. As listed above, Dr. Cohen concluded that the work injury left employee with permanent partial disability of 37 \%-38 % of the body as a whole; whereas Dr. Halfaker concluded that the primary injury resulted in employee sustaining 12 % permanent partial disability of the body as a whole.

We find, based upon the totality of the evidence, that as a result of the primary injury, employee sustained 30 % permanent partial disability of the body as a whole. We reject the ALJ's conclusion that employee is permanently and totally disabled solely as a result of the primary injury. The record contains no medical expert opinion stating that employee is permanently and totally disabled solely as a result of the primary injury. In fact, of the experts the ALJ relied on in coming to said conclusion (Dr. Crooks, Dr. Cohen, Dr. Halfaker, and Mr. Eldred), three of them (Dr. Crooks, Dr. Cohen, and Mr. Eldred) affirmatively opined that employee is permanently and totally disabled as a result of the primary injury combining with employee's preexisting disabilities, and one of them (Dr. Halfaker) believed employee is merely permanently partially disabled even after combining the primary injury with employee's preexisting disabilities.

For the foregoing reasons, we modify the award of the ALJ and find that as a result of the primary injury, employee sustained 30 % permanent partial disability of the body as a whole. We further find that employee is permanently and totally disabled due to the combination of the disability from her February 5, 2007, work injury with her preexisting disabilities.

Beginning March 29, 2008, ${ }^{3} employer shall pay employee 120 weeks ^{4}$ of permanent partial disability benefits. During said 120 weeks, the Second Injury Fund shall pay to employee $\ 342.32, the difference between employee's PTD rate and her PPD rate. ${ }^{5} Thereafter, the Second Injury Fund shall pay to employee \ 718.87 for the remainder of employee's life, or until modified by law.

The award and decision of Administrative Law Judge Hannelore D. Fischer issued January 25, 2012, is attached hereto and incorporated herein to the extent it is not inconsistent with this decision and award.

The Commission further approves and affirms the ALJ's allowance of attorney's fee as being fair and reasonable.

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

Given at Jefferson City, State of Missouri, this $\qquad 3^{\text {rd }} \qquad$ day of October 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

V A C A N T

Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

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[^0]: ${ }^{3}$ We find Dr. Crooks' opinion that employee reached maximum medical improvement on March 28, 2008, credible.

${ }^{4} 120 weeks =.30 \times 400 weeks.

{ }^{5} \$ 718.87-\ 376.55.

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: February 5, 2007.
5. State location where accident occurred or occupational disease was contracted: Columbia, Boone County, 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.