Stacey Blackshear v. Adecco

(Modifying Award and Decision of Administrative Law Judge)

Injury No.: 05-084246

Employee: Stacey Blackshear

Employer: Adecco

Insurer: American Home Assurance Company

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, heard the parties' arguments, and considered the whole record. Pursuant to $\S 286.090$ RSMo, we modify the award and decision of the administrative law judge. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

The administrative law judge's award sets forth the stipulations of the parties and the administrative law judge's findings of fact as to the issues disputed at the hearing. We adopt and incorporate those findings to the extent that they are not inconsistent with the modifications set forth in our award. Consequently, we make only those findings of fact pertinent to our modification herein.

Dr. Stillings rated the total psychiatric disability employee sustained as a result of the work injury at 40 % permanent partial disability of the body as a whole; Dr. Bassett, meanwhile, rated employee's psychiatric injury at 25 % of the body as a whole.

Dr. Volarich rated employee's physical disability resulting from the work injury at 70\% permanent partial disability of the body as a whole referable to the low back; Dr. Robson, meanwhile, rated the low back injury at 25 % of the body as a whole.

We find that employee's disability resulting from the work injury amounts to 85 % permanent partial disability of the body as a whole referable to employee's low back, radicular symptoms, and psychiatric complaints.

The medical experts who testified in this matter agreed that employee suffered from some preexisting permanent and partially disabling psychiatric conditions, although they disagreed somewhat on the particular diagnoses and disabling extent of these conditions. The administrative law judge thoroughly summarized the findings of Drs. Bassett and

Employee: Stacey Blackshear

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Stillings in his award; there is no need to recount them here. There is, however, a need for affirmative findings as to what conditions employee actually suffered from as of the time of the primary injury.

We find most persuasive the diagnoses and opinions from Dr. Bassett with respect to employee's preexisting conditions. We find that, as of August 23, 2005, employee suffered from preexisting mood disorder; bipolar disorder; anxiety disorder with features of posttraumatic stress disorder, social phobia, panic attacks, and agoraphobia; and somatoform disorder. We adopt Dr. Bassett's opinion rating employee's preexisting psychiatric disability at 25% of the body as a whole.

**Permanent total disability**

Both vocational experts that testified in this matter agreed that employee's permanent total disability results from a combination of employee's preexisting limitations and the effects of the primary injury. Karen Kane-Thaler and Timothy Lalk each opined that employee's inability to compete for work in the open labor market is due to her psychiatric and physical disabilities prior to the work accident, in combination with the effects of the work injury. Dr. Bassett also opined that employee is permanently and totally disabled owing to the combination of employee's preexisting psychiatric problems and the effects of the work injury. Dr. Bassett explained that employee's symptoms and pain complaints following the work injury were enhanced by employee's pre-injury (and ongoing) somatoform disorder.

We find persuasive the opinions of Mr. Lalk, Ms. Kane-Thaler, and Dr. Basset with respect to the cause of employee's permanent total disability.

**Average weekly wage**

Employee's first day working for employer was June 12, 2005. Her work injury occurred on August 23, 2005. Employee only worked for employer for 11 calendar weeks immediately preceding the week in which employee was injured. During those weeks, employee earned $4,151.13.

Employee credibly testified that she missed some regularly scheduled days of work prior to August 23, 2005, due to migraine headaches; her medical records confirm this. We find that employee was absent for 6 regular or scheduled work days during the 11 weeks she worked for employer before the work injury.

**Conclusions of Law**

**Average weekly wage and rate of compensation**

Section 287.250.1 RSMo provides, in relevant part, as follows:

Except as otherwise provided for in this chapter, the method of computing an injured employee's average weekly earnings which will serve as the basis for compensation provided for in this chapter shall be as follows:

...

(4) If the wages were fixed by the day, hour, or by the output of the employee, the average weekly wage shall be computed by dividing by thirteen the wages earned while actually employed by the employer in each of the last thirteen calendar weeks immediately preceding the week in which the employee was injured or if actually employed by the employer for less than thirteen weeks, by the number of calendar weeks, or any portion of a week, during which the employee was actually employed by the employer. For purposes of computing the average weekly wage pursuant to this subdivision, absence of five regular or scheduled work days, even if not in the same calendar week, shall be considered as absence for a calendar week. If the employee commenced employment on a day other than the beginning of a calendar week, such calendar week and the wages earned during such week shall be excluded in computing the average weekly wage pursuant to this subdivision; ...

Pursuant to the foregoing section, it is improper to include in the calculation of employee's average weekly wage the wages that she earned during the week that she was injured. We have found that employee's first day working for employer was June 12, 2005, and that her work injury occurred on August 23, 2005. Employee only worked for employer for 11 calendar weeks immediately preceding the week in which employee was injured. During those weeks, employee earned $\ 4,151.13.

We have found that employee was absent for 6 regular or scheduled work days during the 11 week time period at issue. Accordingly, we will divide the $\ 4,151.13 employee earned during the 11 week time period by 10 . This yields an average weekly wage of $\ 415.11, which corresponds under $\S \S 287.170 and 287.190 RSMo to rates of \ 276.74 for both permanent partial and temporary total disability benefits.

Employee worked 34 weeks for 4 hours per day at a rate of $\ 11.00 per hour, earning $\ 220.00 each week. The appropriate rate for temporary partial disability during this time period pursuant to $\S 287.180 RSMo was \ 130.07.

Our conclusions with respect to the calculation of employee's average weekly wage and compensation rates necessarily affect the administrative law judge's award of a credit for employer's overpayment of temporary total and temporary partial disability benefits. As recounted in the administrative law judge's recitation of the parties' stipulations, employer paid employee temporary total disability benefits for 89 weeks at a rate of $\ 293.34 per week, and temporary partial disability benefits for 34 weeks at a rate of $\ 146.67.

The appropriate compensation rate for temporary total disability benefits was $\ 276.74, so employer overpaid employee $\ 16.60 in temporary total disability benefits for 89 weeks, for a total of $\ 1,477.40. The appropriate compensation rate for temporary partial disability benefits was $\ 130.07, so employer overpaid employee $\ 16.60 in temporary partial disability benefits for 34 weeks, for a total of $\ 564.40.

In addition, the parties stipulated that employee received a $\ 209.55 overpayment of temporary total disability benefits during the time period of March 31, 2010, through April 4, 2010.

Employer's total overpayment credit is $\ 2,251.35.

Section 287.190 RSMo provides for the payment of permanent partial disability benefits in connection with employee's compensable work injury. We have found that employee sustained an 85 % permanent partial disability of the body as a whole as a result of the primary injury. This amounts to 340 weeks of permanent partial disability at the rate of $\ 276.74. We conclude, therefore, that employer is liable for $\ 94,091.60 in permanent partial disability benefits.

Section 287.220 RSMo creates the Second Injury Fund and provides when and what compensation shall be paid in "all cases of permanent disability where there has been previous disability." As a preliminary matter, the employee must show that she suffers from "a preexisting permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed..." Id. The Missouri courts have articulated the following test for determining whether a preexisting disability constitutes a "hindrance or obstacle to employment":

[T]he proper focus of the inquiry is not on the extent to which the condition has caused difficulty in the past; it is on the potential that the condition may combine with a work-related injury in the future so as to cause a greater degree of disability than would have resulted in the absence of the condition.

Knisley v. Charleswood Corp., 211 S.W.3d 629, 637 (Mo. App. 2007)(citation omitted).

We have found that employee suffered from preexisting permanent partially disabling psychiatric conditions at the time she sustained the work injury. We are convinced these conditions were serious enough to constitute hindrances or obstacles to employment. This is because we are convinced employee's preexisting psychiatric conditions had the potential to combine with a future work injury to result in worse disability than would have resulted in the absence of the conditions. See Wuebbeling v. West County Drywall, 898 S.W.2d 615, 620 (Mo. App. 1995).

Having found that employee suffered from preexisting permanent partially disabling conditions that amounted to hindrances or obstacles to employment, we turn to the question whether the Second Injury Fund is liable for permanent total disability benefits. In order to prove her entitlement to such an award, employee must establish that: (1) she suffered a permanent partial disability as a result of the last compensable injury; and (2) that disability has combined with a prior permanent partial disability to result in total permanent disability. ABB Power T \& D Co. v. Kempker, 236 S.W.3d 43, 50 (Mo. App.

2007). Section 287.220 .1 requires us to first determine the compensation liability of the employer for the last injury, considered alone. If employee is permanently and totally disabled due to the last injury considered in isolation, the employer, not the Second Injury Fund, is responsible for the entire amount of compensation. "Pre-existing disabilities are irrelevant until the employer's liability for the last injury is determined." Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 248 (Mo. 2003).

We have found employee sustained an 85 % permanent partial disability of the body as a whole as a result of the primary injury, and credited the expert opinions from Mr. Lalk, Ms. Kane-Thaler, and Dr. Basset that employee's permanent total disability results from a combination of her preexisting psychiatric disability with the effects of the primary injury. We find that employee is not permanently and totally disabled as a result of the last injury considered in isolation.

We wish to note that ther