Rebekah Mandina v. Glass Group

(Reversing Award and Decision of Administrative Law Judge)

Injury No.: 04-046785

Employee: Rebekah Mandina

Employer: Glass Group (Settled)

Insurer: Pennsylvania Manufacturers Insurance Company (Settled)

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

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. We have reviewed the evidence, read the parties' briefs, and considered the whole record. Pursuant to $\S 286.090$ RSMo, the Commission reverses the award and decision of Administrative Law Judge Carl Strange.

The parties asked the administrative law judge to resolve the issues of: (1) the nature and extent of employee's disability; and (2) Second Injury Fund liability.

The administrative law judge found: (1) employee suffered a temporary aggravation of her underlying panic disorder and no permanent partial disability as a result of the primary work injury; and (2) the Second Injury Fund is not liable for permanent total disability benefits.

Employee filed an Application for Review alleging the administrative law judge erred: (1) by failing to list any evidence or inconsistency in support of his finding employee was not credible; (2) in failing to consider Dr. Liss's entire testimony; and (3) in misconstruing the testimony of Dr. Pribor.

For the reasons set forth herein, we reverse the award of the administrative law judge.

Employee has suffered migraine headaches since about the eighth grade. These headaches cause photosensitivity, nausea, and debilitating pain in employee's head and neck. Employee received treatment with her family doctor in the form of medications, and missed work when she had migraines. We find that this condition amounted to a preexisting permanent partial disability of 10 % of the body as a whole.

Employee suffered considerable preexisting psychiatric problems. Employee saw Dr. Wudel in 2002 for treatment related to complaints of depression. Dr. Wudel prescribed antidepressant medications which didn't help employee. Employee next treated with Dr. Guiley in 2003 for her psychiatric complaints. Dr. Guiley diagnosed major depression with anxious features and prescribed antidepressant medications.

The parties present competing medical expert testimony as to the nature and extent of employee's preexisting psychiatric disability. Employee presents Dr. Liss, who opined that employee suffered from preexisting major depression that amounted to a permanent partial disability of 25 % of the body as a whole, and a preexisting substance abuse disorder. The Second Injury Fund, on the other hand, presents Dr. Pribor, who opined that employee suffered from the following preexisting conditions of ill: bipolar affective disorder, mixed; panic disorder with agoraphobia; cannabis abuse; and alcohol dependency. We deem credible Dr. Liss's opinion (and so find) that employee suffered preexisting major depression, and we find that this condition amounted to a permanent partial disability of 15 % of the body as a whole. We deem credible Dr. Pribor's opinion (and so find) that employee suffered preexisting panic disorder with agoraphobia, and we find that this condition amounted to a preexisting permanent partial disability of 15 % of the body as a whole.

Both doctors diagnosed substance abuse as a preexisting psychiatric condition. The evidence reveals that employee struggled with alcohol dependency and marijuana abuse beginning in her teen years. Employee quit drinking about five years before the January 18, 2012, hearing in this matter. Employee smoked marijuana daily for about 20 years, but quit approximately one year before the hearing. Employee believed smoking marijuana helped her psychiatric condition, but quit because her therapist advised her to do so. We credit both doctors on this issue and find that employee suffered a preexisting substance abuse disorder in the form of cannabis abuse and alcohol dependency, which we find amounted to a preexisting permanent partial disability of 10 % of the body as a whole.

Employee did not finish high school but has her GED and an associate's degree in criminal justice from Mineral Area College. Employee worked for employer for about nine years running a glass machine. Before the work injury, employee worked a lot of overtime and took pride in her job and her ability to support herself.

On May 21, 2004, employee's work for employer exposed her to noxious fumes that caused her to experience a burning sensation in her nose and lungs, some minor burns on her face, an episode of temporary blindness, and sensations of extreme fear and panic. She settled her claim arising from this event with employer for permanent partial disability of 12.5 % of the body as a whole referable to psychiatric injury. She pursues this claim against the Second Injury Fund.

Employee suffers from nightmares related to the May 2004 work injury. Her recollection of the event is so upsetting that she avoids thinking or talking about it, even with her therapist. She believes her psychiatric problems are considerably worse following the work injury. Dr. Liss and Dr. Pribor disagree over the issue whether employee sustained any permanent psychiatric disability as a result of the work injury.

Dr. Liss has been board-certified in psychiatry since 1974 and is an expert in posttraumatic stress disorder (PTSD). Dr. Liss serves as a consultant to the Veterans Administration in the area of PTSD, and regularly treats a number of veterans with the disorder in his own practice. Dr. Liss opined that the work injury caused employee to suffer PTSD with panic disorder and a general anxiety disorder with depression. Dr. Liss

Improve her PTSD symptoms until at least 2008.

Employer: Rebekah Mandina

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testified that employee suffered a panic attack in his office while recounting the events of May 21, 2004, for him, and that her recall of the event approached an almost hallucinatory level.

Dr. Pribor obtained her board-certification in psychiatry in 1991 and is a former student of Dr. Liss's. Dr. Pribor disagrees with Dr. Liss regarding the diagnosis of PTSD. Dr. Pribor believes the work injury did not cause employee to develop PTSD because employee's symptoms are more consistent with her preexisting psychiatric conditions. Dr. Pribor believes the work injury temporarily aggravated employee's preexisting panic disorder with agoraphobia, but otherwise did not cause her any psychiatric injury, and that employee ultimately suffered no permanent disability as a result of the work injury.

The administrative law judge reasoned that Dr. Liss lacks credibility because Dr. Liss acknowledged that employee missed some work and actively treated for psychiatric problems before the work injury, but nevertheless opined that employee's preexisting psychiatric problems were not a "hindrance." Award, page 4. We disagree with this analysis for two reasons. First, Dr. Liss is a medical expert, not a lawyer. That Dr. Liss may not understand the workers' compensation term of art "hindrance or obstacle to employment" does not, in our view, diminish his extensive qualifications in the area of researching, diagnosing, and treating PTSD. Second, the administrative law judge's credibility determination rests on the mistaken assumption that, for purposes of § 287.220.1 RSMo, the issue whether employee's preexisting conditions were hindrances or obstacles to her employment turns upon the extent of her past difficulties. This is not the proper focus of the inquiry, as we will discuss in more detail below.

We find Dr. Liss more credible than Dr. Pribor on the issue whether employee sustained PTSD and permanent disability as a result of the work injury. We find that employee's work was a substantial factor causing employee to suffer PTSD as diagnosed by Dr. Liss, along with an associated permanent partial disability to the extent of 15% of the body as a whole.

The parties have failed to suggest a date that employee reached maximum medical improvement from the effects of the work injury. As a result, we have been constrained to search the medical record for evidence relevant to this critical finding. Employee, in her brief, asks for permanent total disability benefits commencing on June 21, 2004, but fails to explain why we should find that she reached maximum medical improvement on that date. That date corresponds to employee's last treatment with Dr. Wudel, but the record reveals employee thereafter sought additional psychiatric treatment which helped to improve her PTSD symptoms until at least 2008.

We note that Dr. Chen, employee's treating psychiatrist from 2005 to 2008, recorded a gradual improvement in employee's PTSD symptoms with subsequent visits, until his note from April 24, 2008, in which he recorded employee's PTSD symptoms as follows: "residual PTSD sx nightmares." On May 22, 2008, in the last treatment note we have from Dr. Chen, the doctor recorded the same complaint: "residual PTSD sx nightmares." In light of this evidence, we find employee reached maximum medical improvement from the work injury on April 24, 2008, the last day that the treatment record reveals an improvement in her PTSD symptoms.

Employee tried to return to work for employer in June 2004, but suffered a panic attack or psychiatric episode in which she experienced a recurrence of the extreme terror and temporary blindness from the May 2004 primary injury. Employee lost consciousness and woke up in an ambulance. After this, employee did not try to return to work for employer, and eventually lost her job. Without insurance, employee could not continue her psychiatric treatments, and her situation deteriorated. Employee spent nine months without leaving her house until thoughts of suicide prompted her to finally check herself into a psychiatric hospital in March 2005.

Employee currently attends therapy sessions with her psychiatrist once a week and a mental health worker visits her home at least that often. Employee never leaves home unless she is accompanied by the mental health worker. Employee testified that she is afraid of being outside her home and of interacting with other people. Specifically, she fears she will lose her eyesight again and hurt someone. Employee has not worked since reaching maximum medical improvement from the primary injury.

Dr. Pribor devoted part of her report to cataloguing a number of inconsistent statements by employee to treating doctors regarding her mental health problems, personal life, substance abuse, and level of disability. We acknowledge the list of inconsistencies from Dr. Pribor, but it appears to us that many of these items, if not all of them, are more consistent with memory problems and changes in mood and perception referable to employee's longstanding psychiatric and substance abuse problems, rather than evidence of dishonesty. For example, Dr. Pribor notes that employee told one doctor that her marriage had been difficult for a long time, while reporting to Dr. Pribor that her marriage was terrific until the work injury. But employee's psychiatric conditions (and the various combinations of psychotropic medications doctors prescribed to treat those conditions) may have caused her to experience vastly different emotions about the strength of her marriage from day to day, so describing it differently to different doctors would not necessarily make her untruthful. Other contradictions appear to be examples of a poor memory, which is consistent with employee's longstanding substance abuse disorder. Ultimately, we find employee's testimony at the hearing to be credible regarding her current psychiatric complaints and disabilities.

Dr. Liss opined that employee is permanently and totally disabled owing to a combination of the primary injury and employee's preexisting conditions of ill.