Alan Borders v. Francis Howell R-III School District

Improve: Alan D. Borders

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disorder with an associated 25% psychiatric permanent partial disability of the body as a whole, as well as a pain disorder with an associated 10% psychiatric permanent partial disability of the body as a whole. Dr. Stillings also believed employee suffered from some preexisting psychiatric permanent partial disability stemming in part from the emotional and physical abuse employee endured at the hands of his father.

Dr. Smith, on the other hand, opined that the accident did not cause employee to suffer any psychiatric injury, and that employee presently suffers from the effects of preexisting somatization and personality disorders that account for what Dr. Smith described as a history of employee exaggerating his pain complaints. We note that on cross-examination, Dr. Smith conceded that she did not hew to the criteria set forth in the DSM¹ for establishing a diagnosis of somatization disorder, in that employee's history of pain complaints correlates to actual diagnosed conditions. We note also that Dr. Smith's opinions regarding employee's condition appear to stem largely from her own belief that an acute injury can never be the cause of a pain disorder, and that such issues are always personality-driven and thus preexisting by default.

After careful consideration, we find Dr. Stillings's medical causation opinion more persuasive. We find that the accident was the prevailing factor causing employee to suffer the resulting medical conditions of a herniated disc in his lumbar spine at L5-S1, a major depressive disorder, a pain disorder, and the disability associated therewith.

**Nature and extent of permanent disability**

The parties dispute whether employee is permanently and totally disabled, and if so, whether employer or the Second Injury Fund is liable for permanent total disability benefits. We defer to the administrative law judge's observations and findings with regard to employee's presentation at the hearing, and we ultimately agree with the administrative law judge that employee is permanently and totally disabled as a result of the primary injury considered in isolation, but we wish to provide some supplemental comments to clarify our reasoning.

Employer argues that the administrative law judge misunderstood Dr. Smith's testimony, pointing to the following statement on page 24 of the administrative law judge's award: "While Dr. Stillings diagnosed a pain disorder from the occurrence, Dr. Smith opined that the claimant had a disorder due to his reaction to the pain from the occurrence." Although we agree that this particular statement is somewhat unclear in that it is susceptible to a reading that suggests the administrative law judge believed Dr. Smith identified a disorder as resulting from the work injury, we are convinced from the context in which the statement appears that the administrative law judge fully understood Dr. Smith's testimony (as we do) to constitute an opinion that employee did not suffer any psychiatric injury whatsoever as a result of the accident. We have found the opinions from Dr. Smith lacking persuasive force, however.

We were more persuaded by the testimony from Dr. Stillings that employee is suffering from major depressive and pain disorders as a result of the primary injury. Combined with

¹ Diagnostic and Statistical Manual of Mental Disorders. Dr. Smith agreed that this text, developed by the American Psychiatric Association, establishes the criteria for diagnosing mental disorders.

the credible testimony from Dr. Volarich that employee should be permitted to recline when needed owing to the effects of the work injury, and the unanimous opinions from the vocational experts that this restriction renders employee unable to compete for work in the open labor market, and absent persuasive expert psychiatric evidence that employee's current experience of pain (and consequent need to lie down) is the product of the effects of employee's primary low back injury acting in combination with some partially disabling preexisting psychiatric condition of ill-being, we are convinced that the record best supports a finding that employee is permanently and totally disabled owing to the work injury considered in isolation. We so find.

We affirm and adopt the award of the administrative law judge, as supplemented herein.

The award and decision of Administrative Law Judge Edwin J. Kohner, issued May 20, 2014, is attached and incorporated by this reference.

We approve and affirm 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 $5^{\text {th }}$ day of February 2015.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

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: May 17, 2007
5. State location where accident occurred or occupational disease was contracted: St. Charles 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 throwing heavy bags of trash overhead into a trash dumpster when he twisted his back and felt pain.

1. Did accident or occupational disease cause death? No Date of death? N/A
2. Part(s) of body injured by accident or occupational disease: Low back
3. Nature and extent of any permanent disability: Permanent total disability
4. Compensation paid to-date for temporary disability: $\ 10,475.58
5. Value necessary medical aid paid to date by employer/insurer: $\ 134,551.75

1. Value necessary medical aid not furnished by employer/insurer? $\ 4,990.00
2. Employee's average weekly wages: $\ 482.73
3. Weekly compensation rate: $\ 321.82
4. Method wages computation: By agreement

1. Amount of compensation payable:

Unpaid medical expenses:

$\ 4,990.00

Permanent total disability benefits from Employer beginning September 2, 2010, for Claimant's lifetime

Indeterminate

1. Second Injury Fund liability: No

TOTAL:

Indeterminate

1. Future requirements awarded: None

Said payments to begin September 2, 2010, 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 L. Christianson, Esq.

Employee: Alan D. Borders

Injury No.: 07-063983

Dependents: N/A

Employer: Francis Howell R III School District

Additional Party: Second Injury Fund

Insurer: Missouri United School Insurance Company

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: EJK/kr

This workers' compensation case raises several issues arising out of a work-related injury in which the claimant, a school custodian, suffered a herniated disc in his low back while lifting and throwing trash bags into a trash dumpster. The issues for determination are (1) Medical causation, (2) Liability for Past Medical Expenses, (3) Future medical care, (4) Permanent disability, and (5) Liability of the Second Injury Fund. The evidence compels an award for the claimant for medical expenses, future medical care, and permanent total disability benefits.

At the hearing, the claimant and Randall Carpenter testified in person, and the claimant offered depositions of David T. Volarich, D.O., Anthony J. Margherita, M.D., Joan M. Pernoud, M.D., Wayne T. Stillings, M.D., and J. Stephen Dolan, M.A., C.R.C., a memorandum from Randall Carpenter, records from the Social Security Administration, and voluminous medical records. The defense offered depositions of James J. Coyle, M.D., Russell C. Cantrell, M.D., Stacey L. Smith, M.D., Richard D. Wetzel, Ph.D., and Karen Kane-Thaler, M.S. Ed., C.R.C., a DVD, surveillance reports, and a copy of the claimant's Face Book page. The Second Injury Fund offered a deposition of James M. England.

All