Lois Dampier v. Curators of the University of Missouri

reasonable and ultimately more persuasive than the competing expert testimony. With that said, we wish to make clear that we find wholly unpersuasive Dr. Hughes's position, expressed elsewhere in his testimony, that a physical or orthopedic injury falling short of direct trauma to the brain itself cannot cause any major psychiatric injury regardless of the sequelae that may be produced by such an injury. We affirm the administrative law judge on this point not because we accept this absolutist position from Dr. Hughes, but rather because we are simply not persuaded that the accident was the prevailing factor causing employee to sustain any psychiatric disability.

Finally, we note the evidence that employee has an I.Q. of 70 (a condition diagnosable under the DSM-IV as "borderline intellectual functioning") and that the vocational expert Wilbur Swearingen persuasively testified that this preexisting condition would prevent employee from vocational education or retraining. We also note the evidence of significant preexisting degenerative disc disease as demonstrated on the diagnostic studies, and that employee sought medical care for her neck, shoulder, and back prior to the work injury in the form of chiropractic treatment and treatment with Dr. Wallace at University Hospital Family Medicine Clinic. Especially in light of the effect that these preexisting conditions have on employee's overall vocational presentation, we are unable to reach a finding that employee is permanently and totally disabled as a result of the last injury considered alone.

We affirm and adopt the award of the administrative law judge with this supplemental opinion.

The award and decision of Administrative Law Judge Robert J. Dierkes, issued April 10, 2013, is attached and incorporated by this reference.

The Commission approves and affirms as fair and reasonable the administrative law judge's allowance of a 25% lien in favor of employee's attorney on compensation awarded herein.

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

Given at Jefferson City, State of Missouri, this 10th day of April 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Lois Dampier

Injury No. 05-105502

Dependents:

Before the

Employer: Curators of the University of Missouri

DIVISION OF WORKERS' COMPENSATION

Additional Party: None.

Department of Labor and Industrial

Relations of Missouri

Insurer: Self-insured

Jefferson City, Missouri

Hearing Date: January 10, 2013

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: October 17, 2005.
5. State location where accident occurred or occupational disease was contracted: 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? Employer is self-insured.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee was lifting and transferring a heavy bag of trash.
12. Did accident or occupational disease cause death? No. Date of death? N/A.
13. Part(s) of body injured by accident or occupational disease: neck and low back.
14. Nature and extent of any permanent disability: 20 % permanent partial disability of the body as a whole.
15. Compensation paid to-date for temporary disability: $\ 1,365.54.
16. Value necessary medical aid paid to date by employer/insurer? $\ 4,419.56.
17. Value necessary medical aid not furnished by employer/insurer? Unknown.

Employee: Lois Dampier

1. Employee's average weekly wages: $\ 411.33.
2. Weekly compensation rate: $\ 274.22.
3. Method wages computation: Stipulation.

1. From Employer:

80 weeks of permanent partial disability benefits:

$\ 21,937.60

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

Employee: Lois Dampier

Injury No. 05-105502

Dependents:

Employer: Curators of the University of Missouri

Additional Party: None.

Insurer: Self-insured

Hearing Date: January 10, 2013

The evidentiary hearing in this case was held on January 10, 2013 in Columbia. The parties requested leave to file post-hearing briefs, which leave was granted, and the case was submitted on April 2, 2013. The hearing was held to determine the following issues:

1. Whether the work-related accident of October 17, 2005 was the prevailing factor in the cause of any or all of the injuries and/or conditions alleged in the evidence;
2. Whether the claim for psychiatric injury is barred by the statute of limitations;
3. Whether the notice requirement of $\S 287.420$ serves as a bar to the claim for psychiatric injury;
4. The nature and extent of disability, if any, attributable to the work related accident of October 17, 2005;
5. Employer's liability, if any, for permanent partial disability benefits or permanent total disability benefits;
6. Employer's liability, if any, for payment for Claimant's past medical treatment;
7. Whether Employer shall be ordered to pay temporary total disability ("TTD") benefits, and, if so, for what period(s) of time; and
8. The liability, if any, of Employer-Insurer for future medical benefits pursuant to Section 287.140, RSMo.

The parties stipulated as follows:

1. That the Missouri Division of Workers' Compensation has jurisdiction over this case;
2. That venue for the evidentiary hearing is proper in Boone County;
3. That both Employer and Employee were covered under the Missouri Workers' Compensation Law at all relevant times;
4. That Claimant's average weekly wage is $\ 411.33, with compensation rates of $\ 274.22 for temporary total disability benefits and permanent total disability benefits and $\ 274.22 for permanent partial disability benefits;
5. That Employer has paid $\ 4,419.56 in medical benefits and $\ 1,365.54 in temporary total disability benefits; and
6. That the University of Missouri was an authorized self-insured for Missouri Workers' Compensation purposes at all relevant times.

The evidence consisted of the testimony of Claimant, Lois Dampier; the testimony of Wilbur Swearingin, a certified vocational rehabilitation counselor; the testimony of Thomas Dampier; and the exhibits listed below.

A - Curriculum Vitae of Dr. Koprivica;

B - Reports of Dr. Koprivica;

B1 - Report of August 19, 2006

B2 - Report of July 12, 2009

1 - Original Claim for Compensation receipt of which was acknowledged by the Division of Workers' Compensation on May 25, 2006;