Janith English v. Odyssey Healthcare

(Reversing Award and Decision of Administrative Law Judge)

Injury No.: 06-057634

Employee: Janith K. English

Employer: Odyssey Healthcare (Settled)

Insurer: Ace American Insurance Co. (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, heard the parties' arguments, and considered the whole record. Pursuant to $\S 286.090$ RSMo, we reverse the award and decision of the administrative law judge.

The parties asked the administrative law judge to determine the following issues: (1) whether employee sustained an accident that occurred within the course and scope of her employment on June 29, 2006; and (2) the liability of the Second Injury Fund.

The administrative law judge rendered the following findings and conclusions: (1) the accident of June 29, 2006, occurred in the course and scope of employee's employment with employer; and (2) the Second Injury Fund is not liable for benefits because the last injury considered alone rendered employee permanently and totally disabled.

Employee filed a timely Application for Review with the Commission alleging the administrative law judge erred in finding employee is permanently and totally disabled as a result of the primary injury considered alone.

For the reasons stated herein, we reverse the award and decision of the administrative law judge.

Preexisting conditions of ill-being

Employee suffers from poor vision. On September 8, 2003, employee's ophthalmologist, Dr. Rolfe Becker, diagnosed retinal scarring and cataracts in both eyes, and a macular lesion on the left. On January 4, 2005, Dr. Becker wrote a letter on employee's behalf requesting that employer make attempts to accommodate employee's difficulty with reading owing to her poor vision. Employee is unable to read more than half a page at a time before she needs to take a break to rest her eyes. Employee has significant trouble driving in the dark; employer accommodated this condition by not requiring employee to drive at night. We find that employee suffered considerable preexisting permanent partial disability referable to poor vision.

Employee suffers from depression, for which she has taken prescribed antidepressant medications since 1992. Employee first sought treatment for depression in 1965. In 1967 and again in the early 1970s, employee was hospitalized in connection with treatments for depression. A previous employer fired employee after she confided to a patient that she suffered from depression. Employee's psychiatric expert, Dr. John Pro, confirmed that employee suffered from preexisting major depressive disorder. In light of employee's longstanding use of antidepressant medications, her loss of a job in connection with the disorder, and multiple hospitalizations, we find that employee suffered a preexisting 25\% permanent partial disability of the body as a whole referable to depression.

Employee had numbness and pain in her right hand before the primary injury which caused her difficulty performing her work duties as a nurse such as taking a pulse and charting. As part of her treatment for the primary injury, employee underwent an EMG study on August 14, 2006, that revealed severe right carpal tunnel syndrome. Employee's medical expert, Dr. P. Brent Koprivica, opined that employee's carpal tunnel syndrome preexisted the primary injury and amounted to a 30 % permanent partial disability of the right wrist. We find persuasive Dr. Koprivica's testimony that employee had significant permanent partial disability referable to her right wrist prior to her work injury. In light of testimony, however, that suggest employee's level of symptomatology referable to the right wrist is significantly enhanced as a result of non-physiological factors, we find employee suffered a 15\% preexisting permanent partial disability referable to her right wrist as a result of carpal tunnel syndrome.

Employee worked for employer as a registered nurse and case manager. On June 29, 2006, employee drove from the nursing home where she was working for employer to the home of a patient where employee was to provide nursing services on behalf of employer. While en route to the patient's home, another driver sideswiped employee's vehicle, colliding with her car and forcing her onto a median.

Employee declined emergency medical treatment at the scene, and instead waited for her husband to take her to St. Luke's Hospital, where she arrived about two hours after the accident. There, treating physicians diagnosed a cervical strain, prescribed Lortab, Ativan, and Naproxen, and released employee to follow up with her primary care physician. Thereafter, employee sought treatment with employer's authorized physicians, who diagnosed cervical, thoracic, and lumbar strains, as well as right sciatic inflammation. Employee underwent a course of physical therapy and a series of epidural steroid injections, but continued to suffer from considerable neck and low back pain. During the initial course of this treatment, employee performed some light duty work for the employer, but on July 12, 2006, employee's supervisors determined it was too much of a risk to have employee in the workplace and placed her instead on FMLA leave.

Despite her continued pain complaints, employee wanted to return to her full duty work for employer, and asked the authorized physician, Dr. Ira Fishman, to release her without restrictions. Dr. Fishman relayed this information to the employer and insurer, who requested that employee first complete a functional capacity evaluation (FCE). On October 10, 2006, employee completed the FCE. Dr. Fishman reviewed the results of the

FCE and noted that employee had given a valid effort, but that the FCE suggested employee would not be able to tolerate the demands of her regular duties with employer.

On January 17, 2007, Dr. Fishman released employee at maximum medical improvement, and opined that as a result of her cervical, thoracic, and lumbar strains, employee suffered a 10% permanent partial disability of the body as a whole. Dr. Fishman identified the following permanent physical restrictions for employee: no pushing over 90 pounds and no pulling over 100 pounds; only occasional squatting, bending, stooping, walking, standing, and sitting; no lifting from floor to waist, no lifting greater than 50 pounds from 12 inches above the floor to waist, and no lifting greater than 40 pounds from waist to shoulder; and no carrying more than a maximum of 25 pounds. Because of these restrictions and the results of the FCE, employer did not permit employee to return to work, and employee has not returned to any other employment.

Employee continues to suffer from what she perceives to be very high levels of neck and low back pain that she relates to the primary injury. Dr. Koprivica opined that the primary injury caused employee to suffer cervical, thoracic, and lumbar injuries which he rated at a combined 20% permanent partial disability of the body as a whole, as well as what he described as "marked functional overlay" with possible chronic pain syndrome deriving from psychological sources. Dr. Pro, employee's psychiatric expert, opined the primary injury aggravated employee's preexisting depression and also caused employee to develop chronic pain syndrome.

After careful consideration, we find that employee suffered a 15% permanent partial disability of the body as a whole referable to lumbar, thoracic, and cervical strains as a result of the primary injury. We are persuaded by Dr. Pro's testimony that the primary injury aggravated employee's depression, and we find that this injury amounts to an additional 5% permanent partial disability of the body as a whole.

In his report, employee's vocational expert Michael Dreiling opined that employee is permanently and totally disabled. We are persuaded by this essentially uncontested opinion from Mr. Dreiling; the more difficult question is whether employee's permanent total disability results from the primary injury considered alone, or the primary injury in combination with employee's preexisting conditions of ill-being. Mr. Dreiling did not specifically address this question in his report, but opined at his deposition that if employee needs to lie down during the day as a result of pain from the primary injury, employee is permanently and totally disabled as a result of the primary injury considered alone. Similarly, Dr. Koprivica provided a conditional opinion that if a psychiatric expert validated employee's chronic pain disorder, he would opine that employee is permanently and totally disabled as a result of the primary injury considered alone, because employee's subjective postural limitations (i.e. her perceived need to lie down during the day, and limitations referable to sitting and standing) did not arise until after the primary injury.

A close examination of Dr. Pro's testimony thus becomes necessary. Dr. Pro opined employee developed a chronic pain disorder after the primary injury to the extent of 19% permanent partial disability of the body as a whole. Dr. Pro's report suggests that the

primary injury is the "prevailing cause" of the chronic pain disorder, but Dr. Pro also opined that employee's depression is "driving her pain experience." Transcript, pages 1006-07. As we have noted above, Dr. Pro identified a preexisting major depressive disorder, and we have found that employee suffered a 25 % permanent partial disability of the body as a whole referable to preexisting depression in light of her multiple hospitalizations, longstanding use of antidepressant medications, and loss of a job in connection with the disorder.

We have found that the primary injury resulted in 15\% permanent partial disability of the body as a whole referable to back and neck strains, and only a 5\% permanent partial disability of the body as a whole referable to aggravation of employee's preexisting major depressive disorder. After careful consideration, we simply are not persuaded that these injuries, standing alone, are sufficient to result in permanent total disability. Specifically, we do not believe such injuries would have produced severely disabling psychiatric symptoms in the absence of employee's preexisting disabling depressive illness. We find that employee is permanently and totally disabled as a result of the primary injury in combination with her preexisting conditions of ill-being.

The parties asked the administrative law judge to determine whether employee "sustained an accident that occurred within the course and scope of her employment on June 29, 2006." See Transcript, page 3. It appears that the parties mean to dispute whether employee suffered an injury arising out of and in the course of her employment. Section 287.020.3(2) RSMo provides, as follows:

An injury shall be deemed to arise out of and in the course of the employment only if:

(a) It is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; and

(b) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life.

The courts have interpreted the foregoing language to involve a "causal connection" test that employees must satisfy in order to prove that an injury has arisen out of and in the course of the employment. Johme v. St. John's Mercy Healthcare, 366 S.W.3d 504, 510-11 (Mo. 2012).

We have found that on June 29, 2006, employee was driving from the nursing home where she was working for employer to the home of a patient where employee was to provide nursing services on behalf of employer,