John Mattison v. High Hill Christian Assembly

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 02-019294

Employee: John Mattison

Employer: High Hill Christian Assembly (Settled)

Insurer: Brotherhood Mutual Insurance Company (Settled)

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

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to $\S 286.090$ RSMo, the Commission affirms the award and decision of the administrative law judge dated December 10, 2013. The award and decision of Chief Administrative Law Judge Robert J. Dierkes, issued December 10, 2013, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

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

Given at Jefferson City, State of Missouri, this $\qquad 19^{\text {th }} \qquad$ day of August 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

DISSENTING OPINION FILED

Curtis E. Chick, Jr., Member

Attest:

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I am convinced that the decision of the administrative law judge is in error and that the decision should be modified to award permanent total disability benefits from the Second Injury Fund.

Employee suffers from a number of preexisting disabling conditions. In 1982, employee suffered a left knee injury which ultimately cost him his career as a Navy mechanic. Employee underwent a medial compartment arthrotomy in 1982, an arthroscopic debridement in 1995, and finally a total left knee replacement in 1999. During the course of employee's work for employer, employee's left knee was constantly swollen and he would have to ice it at the end of the day.

In 1993, employee slipped and fell in a drug store, suffering an injury to his right shoulder. Employee suffered from rotator cuff tendinitis thereafter.

Employee has suffered from anxiety, depression, and anger issues from a young age. These conditions affected employee's concentration at work and negatively impacted his interactions with coworkers and supervisors. At times, employee had to take off work in order to deal with his depression. In 1993 and again in 1994, doctors prescribed Xanax and Zoloft, but employee stopped taking these medications because he didn't like the way they made him feel.

Employee suffered two hernias in the past, one of which was surgically corrected. Employee has to be careful with lifting in light of these conditions.

Employee performed maintenance work at employer's summer camp. Employee's duties included plumbing and electrical work, mowing, upkeep on the pool, and working on the dormitories. On January 3, 2002, employee was cutting limbs from a downed tree, when the tree rolled. One of the limbs caught employee and threw him approximately 12 feet into the air. As a result, employee sustained a severe left wrist strain/sprain injury resulting in extensor tendinopathy, as well as a severe left knee contusion with aggravation of employee's postsurgical condition.

In his appeal to this Commission, employee argues he is permanently and totally disabled due to a combination of the last work injury and his preexisting disabling conditions. Section 287.220 RSMo creates the Second Injury Fund and provides when and what compensation shall be paid from the fund in "all cases of permanent disability where there has been previous disability." For the Fund to be liable for permanent total disability benefits, employee must establish that: (1) she suffered from 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).

Employee presented expert medical testimony from Drs. David Volarich and Wayne Stillings, who each opined that employee is unable to be employed in the open labor market due to a combination of the primary injury and his preexisting conditions of ill-being. Employee also

Improve: John Mattison

- 3 -

provided expert vocational testimony from Stephen Dolan, who opined that employee is

unemployable based on a combination of the primary injury and employee's preexisting

conditions. The Second Injury Fund did not present any contrary evidence. Yet, the

administrative law judge disregarded the unanimous opinions from the expert witnesses, in

favor of his own lay opinion that employee doesn't have any psychiatric disability, and is not

permanently and totally disabled because he was able to secure some sporadic part-time

work after the primary injury.

I disagree with the administrative law judge's (and the majority's) choice to disregard

the unanimous expert opinion evidence regarding employee's ability to work. I would

find that employee met his burden under § 287.220 RSMo of establishing that he is

permanently and totally disabled due to a combination of the January 2002 injury and

his preexisting disabling conditions. I would modify the decision of the administrative

law judge and award permanent total disability benefits from the Second Injury Fund.

Because the majority has determined otherwise, I respectfully dissent.

Curtis E. Chick, Jr., Member

Employee: John Mattison

Injury No. 02-019294

Dependents:

Before the

Employer: High Hill Christian Assembly (settled)

DIVISION OF WORKERS' COMPENSATION

Additional Party: Second Injury Fund

Department of Labor and Industrial

Relations of Missouri

Insurer: Brotherhood Mutual Insurance Company (settled)

Jefferson City, Missouri

Hearing Date: September 9, 2013

Checked by: RJD/njp

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: January 3, 2002.
5. State location where accident occurred or occupational disease was contracted: Montgomery 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? Yes.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee was injured while cutting a tree as a part of his duties as maintenance director.
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: Left wrist; left knee.
14. Nature and extent of any permanent disability: 15 % permanent partial disability of the left wrist and 15 % permanent partial disability of the left knee. Employee is also awarded additional permanent partial disability benefits of 34.7175 weeks from the Second Injury Fund.
15. Compensation paid to-date for temporary disability: None.
16. Value necessary medical aid paid to date by employer/insurer? $\ 9,165.81.

1. Value necessary medical aid not furnished by employer/insurer? Unknown.
2. Employee's average weekly wages: Sufficient for maximum permanent partial disability rate.
3. Weekly compensation rate: $\ 329.42 for permanent partial disability.
4. Method wages computation: Section 287.250 .2

From Second Injury Fund: 34.7175 weeks of permanent partial disability benefits, totaling \$11,436.64.

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

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Dean Christianson

Employee: John Mattison

Injury No. 02-019294

Dependents:

Employee: | High Hill Christian Assembly (settled) |

The evidentiary hearing in this case was held on September 9, 2013 in Mexico, Missouri. The hearing was held to determine the liability of the Second Injury Fund, if any, for permanent partial disability benefits or permanent total disability benefits. Additional issues to be decided were: average weekly wage, compensation rates, and dependency. The parties requested leave to file post-hearing briefs, which leave was granted. The case was submitted on October 18, 2013.

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 Montgomery County and adjoining counties, including Audrain County;
3. That the claim for compensation was filed within the time allowed by the statute of limitations, Section 287.430, RSMo;
4. That both Employer and Employee were covered under the Missouri Workers' Compensation Law at all relevant times;
5. That Claimant, John Mattison, sustained an accident arising out of and in the course of his employment with High Hill Christian Assembly on January 3, 2002;
6. That the notice requirement of Section 287.420 does not serve as a bar to the claim for compensation in this case.

The evidence consisted of the testimony of Claimant, John Mattison, as well as the deposition testimony of Claimant; the deposition testimony of J. Stephen Dolan, a certified rehabilitation counselor; medical records; the deposition testimony and medical reports of Dr. David T. Volarich; certified records of the Missouri Division of Workers' Compensation; Certificate of Marriage; and certain correspondence.

In addition to those facts and the legal conclusions to which the parties stipulated, I find the following facts and make the following rulings of law:

1. Claimant, John Mattison, was born on November 22, 1960;
2. Claimant has an 11th grade education and obtained a GED in 1986;
3. Claimant was in the United States Navy from 1978 to 1986;
4. While in the United States Navy, Claimant took classes to become a master diesel mechanic and also took classes on diesel engine construction;
5. In 1982, Claimant injured his left knee in the Navy while playing softball;
6. In 1986, Claimant left the United States Navy due to his left knee injury;
7. In 1986, Claimant received an "honorable discharge with medical condition" from the United States Navy;
8. Claimant testified that he was devastated with the loss of his position with the United States Navy, testifying that "the Navy was my life", "a part of me died that day", and "I had nothing else to fall back on";
9. Nevertheless, from 1987 to 1995, Claimant worked as a civilian at the Great Lakes Training Center as a galley worker and stationary engineer;
10. Claimant drove a dump truck for Stubbs Trucking for approximately 3 months in 1996 and for two months in 1998;
11. Claimant also performed a few "odd jobs" in 1996, 1997 and 1998;
12. In 1999 Claimant underwent a left total knee replacement; Claimant testified that his left knee was "wonderful" post-surgery;
13. After the left total knee replacement surgery, Claimant worked for Employer on a volunteer basis for several months and, beginning in April 2000, Claimant worked as a paid employee;
14. Claimant's work for Employer was as a "maintenance director" which included plumbing, carpentry, electrical work, and maintenance of the pool, dormitories and grounds;
15. Claimant was a full-time employee beginning in April 2000, working as much as 90 hours a week;
16. In 2001, Claimant's right knee "popped" when he was in a swimming pool;
17. In 1992, Claimant underwent hernia repair surgery for an umbilical hernia;
18. In January 1993, Claimant injured his right shoulder, and received an injection in the right shoulder in February 1993;

1. In 2005 Claimant was diagnosed with a right hip fracture;
2. Claimant was diagnosed with borderline type II diabetes in 2006 and is on diabetes medication currently;
3. After leaving his employment with Employer, Claimant worked for a few months for Bud's Rental, working approximately 27 hours per week;
4. In the summer of 2003, Claimant drove a dump truck for Tri-County Trucking for two or three months, working 40 hour weeks;
5. In the spring and summer of 2004, Claimant worked as a mechanic at Mayo Auto Clinic, working "short weeks", i.e., less than 40 hours per week;
6. In the summer and fall of 2004, Claimant drove a dump truck for Wildschutz Trucking Company, working 40 hour weeks; Claimant "took the winter layoff" and again drove for Wildschutz in the spring of 2005, working 40 hour weeks; Claimant told Stephen Dolan that he left Wildschutz "because of too much left hand pain";
7. In 2005, Claimant began receiving Social Security Disability benefits;
8. Dr. David Volarich opined that Claimant sustained a permanent partial disability of 25 % of the left wrist and a permanent partial disability of 25 % of the left knee as a result of the work-related accident of January 3, 2002;
9. Dr. David Volarich opined that Claimant is permanently and totally disabled; in this regard, his report of July 9, 2012 states:

It is my own opinion that Mr. Mattison is unable to engage in any substantial gainful activity nor can he be expected to perform in an ongoing working capacity in the future. It is my opinion that he cannot be reasonably expected to perform in an ongoing basis eight hours per day, five days per week throughout the work year. It is also my opinion that he is unable to continue in his line of employment that he last held as a maintenance director for High Hill Christian Assembly nor can he be expected to work on a full-time basis in a similar job.

Based upon my medical assessment alone, it is my opinion that Mr. Mattison is permanently and totally disabled as a direct result of the work-related injuries of $1 / 3 / 02$ in combination with his pre-existing medical conditions. It is my opinion that he was permanently and totally disabled effective $1 / 05$ when a vocational assessment determined he was unable to return to work and this was also the time that he received social security benefits. I note that he tried to get back to work on three different occasions the most recent in 11/07 but was never able to work more than a couple of months at three different jobs. I note that he is 51 years old (approaching advanced age), has an education limited to the 11th grade but note that he earned a GED, note that he has worked as a laborer or truck driver the majority of his working career, that he has been unable to get back to work since 11/07, and has received social security benefits.

1. The last treatment Claimant received for the injuries he sustained in the work related accident of January 3, 2002 was on March 4, 2003 when Dr. Rummel released Claimant from his care; Claimant was 42 years of age on March 4, 2003;

1. In January 2005 Claimant was 44 years of age;
2. On September 26, 2012, Claimant was evaluated by Dr. Wayne Stillings, a board certified psychiatrist; Dr. Stillings noted that Claimant related a long history of being "an anxious and nervous individual", which caused disruption at all his places of employment; Dr. Stillings noted that Claimant underwent a court-ordered evaluation by a psychiatrist for 15 minutes in 1990, apparently as a part of divorce/custody proceedings; Dr. Stillings noted that Claimant was seen by a general practitioner in October 1993 for depression and conflict at work (while Claimant was employed with a civilian defense contractor) and was placed on an antidepressant and anti-anxiety medication; Dr. Stillings noted that Claimant took the medication for one day and discontinued them because of side effects; Dr. Stillings also noted that Claimant informed him that, apparently also during October 1993, he saw a doctor whom he believed was evaluating him for depression and anxiety, but Claimant did not return to that doctor "because he was not a Christian";
3. Dr. Stillings also noted that in 2005 Claimant began receiving treatment at the VA Hospital in Columbia, Missouri, and received psychotherapy from a psychologist; Claimant was also prescribed Zoloft and Klonopin, but did not take the medications because of side effects; Dr. Stillings also noted that Claimant found the psychotherapy somewhat helpful in reducing his anxiety but not particularly helpful in reducing his depression; Dr. Stillings also noted that Claimant discontinued receiving mental health care at the VA Hospital in 2008;
4. Dr. Stillings opined that Claimant had psychiatric disabilities pre-existing the January 3, 2002 work injury, those being generalized anxiety disorder ( 10 % permanent partial disability of the body as a whole), major depressive disorder ( 10 % permanent partial disability of the body as a whole), pain disorder ( 10 % permanent partial disability of the body as a whole), parent-child relational problem ( 10 % permanent partial disability of the body as a whole), and personality disorder ( 5 % permanent partial disability of the body as a whole);
5. Dr. Stillings opined that, as a result of the January 3, 2002 work injury, Claimant sustained aggravation of his pre-existing psychiatric conditions, resulting in additional disability, as follows: aggravation of generalized anxiety disorder (an additional 10 % permanent partial disability of the body as a whole), aggravation of major depressive disorder (an additional 10\% permanent partial disability of the body as a whole), aggravation of pain disorder (an additional 10\% permanent partial disability of the body as a whole); Dr. Stillings further opined that Claimant is permanently and totally disabled due to a combination of pre-existing conditions and the work injury of January 3, 2002;
6. Dr. Stillings' opinions regarding Claimant's pre-existing psychiatric disabilities are not credible as they are based almost entirely on Claimant's self-serving history and not on medical records or any objective criteria; Dr. Stillings' opinions regarding the pre-existing psychiatric disabilities also lack credibility in light of Claimant's steady work history prior to January 3, 2002 including working 90 hour weeks for Employer, and also in light of an almost total lack of mental health treatment prior to January 3, 2002;
7. On February 13, 2002, Claimant completed a depression screening; Claimant answered "NO" for whether he felt depressed for two or more weeks in the past

The Treasurer of the State of Missouri, as custodian of the Second Injury Fund, is ordered to pay Claimant the sum of $11,436.64 for permanent partial disability benefits.

Claimant's attorney, Dean Christianson, is allowed 25\% of the benefits awarded herein as and for necessary attorney's fees, and the amount of such fees shall constitute a lien on those benefits.

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

Made by $\quad / \mathrm{s} /$ Robert J. Dierkes 12/10/13

Robert J. Dierkes

Chief Administrative Law Judge

Division of Workers' Compensation