The administrative law judge found that employee is not permanently and totally disabled, based on a finding that employee's testimony regarding his complaints lacks credibility, and a finding that Dr. Tate and Mr. England provided the more credible opinions regarding the issue of permanent total disability. Although the record certainly provides ample support for that result, we disagree for the following reasons.
Employee suffers from well-documented cognitive limitations and psychiatric difficulties. Employee attended special education courses in school until he entered the labor market after the fifth or sixth grade. Employee's testimony at the hearing reveals that he has a poor memory; employee was unable to recite his own Social Security number. Both psychiatric experts who testified agreed that employee suffers from an anxiety disorder, although the doctors disagree whether it was preexisting. We find particularly persuasive the testimony from Dr. Harbit that, although the primary injury did not cause employee's anxiety condition, the primary injury has certainly become the focus of employee's anxiety, to the extent that he now attributes all of his problems to that event. We interpret this as an opinion from Dr. Harbit that there is a synergistic interaction between employee's preexisting psychiatric disability and the effects of the primary injury.
Employee's denial of preexisting complaints and attribution of all of his problems to the primary injury thus appears to be a byproduct of cognitive and psychiatric difficulties, rather than any conscious attempt to mislead. Seen in this light, employee's poor memory and inconsistent testimony lend support to the opinions from both Drs. Harbit and Stillings that employee's cognitive and psychiatric problems significantly impact his employability. We note that Dr. Harbit went so far as to express her belief that employee is permanently and totally disabled on the basis of his preexisting conditions and lifelong cognitive limitations alone.
In light of the fact employee was working up to 60 hours per week performing heavy-duty work for employer at the time of the primary injury, and because "a test for probable future employment cannot change the fact of past employment" Laturno v. Carnahan, 640 S.W.2d 470, 473 (Mo. App. 1982), we do not find persuasive Dr. Harbit's suggestion that employee was permanently and totally disabled before the primary injury. We do, however, find persuasive her opinion that employee suffered from preexisting borderline intellectual functioning and an anxiety disorder at the time of the primary injury, and that these diagnoses amounted to permanent disabling conditions that significantly impacted his employability. We also accept Dr. Harbit's opinions that employee did not suffer any additional psychiatric disability due to the primary injury, that employer has no liability for future psychiatric care, and that there is a synergistic effect between employee's preexisting psychiatric disability and the effects of the primary injury.
Mr. Dolan opined that employee is permanently and totally disabled owing to a combination of his preexisting cognitive and psychiatric problems and the effects of the primary injury. Mr. Dolan pointed to decades of experience in working with individuals with low IQs, and explained that individuals with very low intellectual functioning are dependent upon their physicality to get through the world. A physical injury is thus far more devastating to such an individual, as they've lost their sole asset in terms of employability. Turning to the
Injury No.: 02-128697
Employee: Bennie Johnston
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opinions from Mr. England, we note that he opined that if the fact-finder accepts the opinions from Drs. Volarich and from Dr. Stillings (who, like Dr. Harbit, opined that employee suffers from considerable preexisting psychiatric disability) employee is permanently and totally disabled owing to a combination of his preexisting conditions with the effects of the primary injury. In this respect, Mr. England's testimony does not strike us as significantly inconsistent with that of Mr. Dolan.
In light of our findings with respect to employee's preexisting psychiatric and cognitive disabilities, we deem Mr. Dolan's ultimate opinions regarding permanent total disability to be the most persuasive on this record. Accordingly, we adopt Mr. Dolan's opinion that employee is permanently and totally disabled owing to a combination of his preexisting disabling conditions and the effects of the primary injury. We find that employee reached maximum medical improvement from the effects of the primary injury on February 14, 2003.