Kent Kersten v. Jackson County, Missouri

(Modifying Award and Decision of Administrative Law Judge)

Injury No. 12-020529

Employee: Kent Kersten

Employer: Jackson County, Missouri

Insurer: Self-Insured

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480 RSMo. { }^{1}$ We have read the briefs, reviewed the evidence and considered the whole record. We find that the award of the administrative law judge denying compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge by this separate opinion.

We agree with the administrative law judge's ultimate conclusions in this matter but we write separately to disavow the administrative law judge's treatment of the testimony of two of employee's former co-workers. The administrative law judge declared that he was weighing the testimony of the two former co-workers with a "jaundiced eye" because the co-workers were terminated from employment with employer. Although we deem it appropriate in all cases to weigh evidence in a manner which takes into account potential bias and/or self-interest, we remain mindful of our obligation (and the legislative imperative of $\S 287.800 .2$ RSMo) to weigh evidence impartially. In fact, we have no reason to believe the administrative law judge weighed evidence inappropriately. To the extent the unfortunate language quoted above might suggest otherwise, we (again) disavow same.

We have objectively reviewed the evidence. Employee has failed to carry his burden that his work-related stress was the prevailing factor in causing his psychiatric disability. We believe employee's job duties as a prosecutor were inherently stressful and were undoubtedly rendered more stressful by employee's home-life stressors and preexisting psychiatric problems. But the evidence convinces us that employee was not subjected to greater work-related stress than his co-workers. This alone has been held to disqualify claimants from receipt of compensation. ${ }^{2}$ We have serious doubts as to whether the holdings in these cases can survive a strict construction analysis. ${ }^{3}$ We further find however that employee has failed to prove that he was subjected to work stressors that were extraordinary or unusual so must we find that his injury did not arise out of and in the course of employment.

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[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2011, unless otherwise indicated.

${ }^{2}$ See, for example, Williams v. Depaul Health Ctr., 996 S.W.2d 619 (Mo. App. 1999) and Sherman v. First Fin. Planners, Inc., 41 S.W.3d 633, 636 (Mo. App. 2001), both overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003).

${ }^{3}$ See § 287.120.8 RSMo, which provides, in relevant part: "Mental injury resulting from work-related stress does not arise out of and in the course of the employment, unless it is demonstrated that the stress is work related and was extraordinary and unusual. The amount of work stress shall be measured by objective standards and actual events." Given that all case law mandating a comparison of a claimant's stress exposure to that of co-workers appears to have been abrogated by $\S 287.020 .10$ RSMo (2005), and absent any statutory directive to compare a claimant's stress with that experienced by co-workers, we believe that any comparison of claimant's stress exposure to that of co-workers is only relevant as part of an overall objective analysis.

We attach the award and decision of Administrative Law Judge Mark S. Siedlik, issued July 15, 2014, and we affirm, adopt, and incorporate the administrative law judge's findings, conclusions, award and decision to the extent they are not inconsistent with our findings and conclusions herein.

Given at Jefferson City, State of Missouri, this $5^{\text {th }}$ day of March 2015.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Kent Kersten

Injury No. 12-020529

Dependents: N/A

Employer: Jackson County, Missouri

Self-Insurer: Self-Insured

Additional Party: N/A

Hearing Date: May 1, 2014

Checked by: MSS/lh

1. Are any benefits awarded herein? No.
2. Was the injury or occupational disease compensable under Chapter 287? No.
3. Was there an accident or incident of occupational disease under the Law? No.
4. Date of accident or onset of occupational disease: January 19, 2012.
5. State location where accident occurred or occupational disease was contracted: Jackson 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? No.
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: Claimant alleges mental stress at work.
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: Whole body alleged.
14. Nature and extent of any permanent disability: None.
15. Compensation paid to-date for temporary disability: -0 -

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kent Kersten

1. Value necessary medical aid paid to date by employer/insurer? None.
2. Value necessary medical aid not furnished by employer/insurer? None.
3. Employee's average weekly wages: Unknown
4. Weekly compensation rate: $\$ 727.75 / \ 425.19
5. Method wages computation: Claimant's testimony.

1. Amount of compensation payable: None.
2. Second Injury Fund liability: N/A
3. Future requirements awarded: None.

Employee: Kent Kersten

Injury No. 12-020529

Dependents: N/A

Employer: Jackson County, Missouri

Self-Insurer: Self-Insured

Additional Party: N/A

Hearing Date: May 1, 2014

Checked by: MSS/lh

This case comes on for hearing before Administrative Law Judge Siedlik in Kansas City, Missouri, on May 1, 2014. The Claimant Kent Kersten was present with his counsel Mr. Carl Kimbrell. The Employer and Insurer were represented by their counsel Ms. Tracey Chappell. This case involves injuries alleged on or about January 19, 2012, while the Claimant was in the employ of Jackson County, Missouri, and sustained injury by accident arising out of and in the course and scope of employment in Jackson County. At the time of the injuries the parties were subject to the Missouri Workers' Compensation Law and the Employer's liability was self-insured. The Employer had notice of an injury and claims were timely filed.

There have been no benefits paid to date. The issues to be resolved at the hearing are:

1) Accident;

2) Whether the accident arose out of and in the course and scope of employment;

3) Medical causation;

4) The need for future medical care;

5) The compensation rate;

6) The nature and extent of temporary total disability; and

7) The nature and extent of permanent disability.

The evidence at trial consisted of the Claimant's testimony in person together with Mr. John Cullom, Mr. David Mitchell, Mr. James Klobnak, Ms. Jennifer Phillips, and Dr. Todd P. Hill, D.O. Claimant had marked exhibits A through M and all were admitted into evidence with the exception of Claimant's Exhibit I, which was not admitted, and Claimant's Exhibit K, which although marked was never offered. The Employer and Insurer offered their Exhibit No. 1, the report of Dr. Hughes, which was admitted into evidence.

The Claimant testified that he began his employment with the Jackson County Prosecutor's Office in August of 2003, and his employment ended in March 2012. The Claimant was employed as a full-time assistant prosecutor handling trial dockets and various other court dockets involving child custody matters, drunk drivers, probation revocation, and any other duties assigned to the Jackson County Prosecutor's Office for disposition. The Claimant testified he initially started with a Family Support Division caseload docket and in 2006 was reassigned to a warrant desk. In January 2008, the Claimant was assigned to Criminal Activities Forfeiture Act docket and in 2010 was assigned additional

responsibilities of handling probation violation dockets for which the Claimant testified he made appearances on two different probation violation dockets.

The Claimant was of the opinion that the increased docket loads to which he was exposed caused extreme mental stress and at some point in approximately 2010 the Claimant asked to be relieved of trial docket duties. The Claimant continued to have docket responsibilities for a variety of dockets involving property matters, probation violations, and DUI's. The Claimant testified in 2011 he requested from his supervisor Dawn Parsons relief from what he described as the crushing number of dockets. It is at this time the Claimant had already been relieved of trial duties and was only assigned docket call matters. Claimant's request for additional assistance was refused. The Claimant testified in late 2011 he began to experience physical symptoms related to what he felt was extreme stressful situations placed on him by his employer. The Claimant testified he experienced tremors, which would only subside once he left work. The Claimant testified in late December of 2011 the tremors became constant and would not subside. The Claimant also mentioned periods of excessive sweating while at work. The Claimant further testified to experiencing severe headaches and memory problems and that on Sunday evenings thinking about the work week ahead he would begin to vomit a number of times. The Claimant in December of 2011 sought help from the physicians at the University of Kansas Medical Center and was eventually referred to the psychiatric department where he received treatment and was prescribed several anti-depressant type drugs. The Claimant testified his work continued to be affected by his depression and other symptoms and that he had episodes of being unable to respond to simple questions while in court because of issues with concentration and attention. The Claimant was discharged on March 29, 2012 for poor performance. The Claimant testified he continued to treat with the physicians at the University of Kansas Medical Center until his insurance benefits expired and thereafter was accepted as a patient at Swop Health Services. The Claimant testified he continues to receive treatment from Swope Health Services and is prescribed a significant number of medications including anti-depressant drugs.

The Claimant testified he has been unable to work since being discharged in March of 2012, and that he has difficulty remembering things and sleeps and stays confined in the bedroom on his home for 10 to 12 hours per day. The Claimant testified he is unable to be out around crowds of people and stays confined as much as possible. The Claimant testified he rarely watches television because the change in volume when commercials come on TV startles him and that he only reads the newspapers or does research on his computer. The Claimant testified he is unable to even answer the telephone because of the loud noises of the phone ringing and his inability to write down messages.

The Claimant on cross-examination admitted that he had periodically sought psychiatric treatment as early as 2003 at the end of a relationship. The Claimant was medicated for a period of time but indicated that he felt that had resolved and the medication was discontinued. The Claimant in 2008 experienced major trauma in his home lif