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Kathy Finnell v. Jackson County, Missouri

Decision date: April 28, 201511 pages

Summary

The Labor and Industrial Relations Commission affirmed the administrative law judge's award denying workers' compensation to Kathy Finnell, finding she did not sustain a compensable accident or occupational disease arising out of her employment on August 21, 2003. The commission corrected clerical errors in the original award and clarified that psychological disability allegedly resulting from an alleged assault at the prosecutor's office was not causally related to work.

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Caption

FINAL AWARD DENYING COMPENSATION (Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)
Injury No. 03-093088
Employee:Kathy Finnell
Employer:Jackson County, Missouri
Insurer:Self-Insured
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 $\S 287.480 RSMo. { }^{1}$ 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 as modified herein.

We offer this supplemental opinion to correct typographical errors in the administrative law judge's award and to explain in some detail our agreement with the conclusions of the administrative law judge.

Discussion

We correct three clerical errors in the administrative law judge's award. Page one and two of the award pose multiple questions designed to elicit from the administrative law judge a summary of the award. Question 2 asks "Was the injury or occupational disease compensable under Chapter 287?" Question 3 asks "Was there an accident or incident of occupational disease under the Law?" The administrative law judge answered "yes" to Questions 2 and 3. The remainder of the award makes plain the administrative law judge found employee did not sustain a compensable accident or incident of occupational disease and the answer to Questions 2 and 3 should be "no." We modify the answers to Questions 2 and 3 to "No."

In the final paragraph of page seven of the award, the administrative law judge states "As such, I find [employee] did not sustain a compensable accident that arose out of and in the course of her employment on August 21, 2003. [Employee] appears to suffer from disability due to psychological issues, but I do find the conditions are causally related to work or a specific accident such as alleged on August 21, 2003. Other issues considered for the Court's consideration are moot and require no additional discussion." It is clear from the first and third sentences reprinted above that the second sentence should read "[Employee] appears to suffer from disability due to psychological issues, but I do not find

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[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2003 (effective as of August 28, 2003), unless otherwise indicated.

the conditions are causally related to work or a specific accident such as alleged on August 21, 2003" and we so modify the award.

The administrative law judge notes that employee alleges that she was the victim of an assault and battery with a door, which battery occurred "during normal business hours as the staff and attorneys within a large, urban prosecutor's office went about their business." The administrative law judge then expresses her view that "[w]hile a claimant's own testimony can be sufficient proof of accident, this claimant's allegations, if accurate, should be supported by an ample amount of corroborating evidence." The administrative law judge goes on to state, "In examining the records as a whole, therefore, this Court is mindful that a case of this nature should not stand on the single testimony of one witness given the complexity of the issues and theories alleged." We do not know what the administrative law judge meant when she referred to this matter as "a case of this nature."

Whatever the administrative law judge's meaning, we disavow what appears to us an overbroad suggestion that there exists any general rule that cases like the instant case cannot "stand on the single testimony of one witness." The law is well-settled that a claimant's testimony alone, if believed, constitutes substantial evidence to establish that a claimant sustained an injury arising by accident. ${ }^{2}$ Naturally, corroborating evidence may be necessary to support a claimant's testimony where the claimant's ability to objectively perceive or recall events is impaired by medical conditions but there is no universal rule of law that an accident cannot be proven by the testimony of a claimant.

Notwithstanding our disagreement with the administrative law judge's assertion discussed above, we agree with her overall assessment of the testimonial evidence. More specifically, after comparing the testimony of Mr. Hughes, Ms. Hamilton, Ms. Cervantes, and Ms. Cosby, against employee's testimony, we find employee's testimony lacking in persuasive force. Even if we gave weight to her testimony, at best employee's testimony might support a finding that employee sustained a very minor trauma at work. But there is no evidence of any significant physical injury or any reason to believe, from any objective standpoint, that employee was subject to or had reason to fear any violence or threat of harm.

We offer a final word about the expert opinions regarding the medical causation of employee's psychological condition. The medical causation opinions of Drs. Logan or Varanka appear to be based on assumptions not supported by the record. Specifically, Dr. Logan's opinion is founded upon employee's description that her co-worker raised his hands to employee, screamed at employee, grabbed employee, pushed employee, and shut a door on employee's arm and torso. Dr. Varanka's opinion is founded upon employee's description that employee was pushed and shoved into a door. We do not believe employee's co-worker pushed/shoved employee, grabbed employee, or closed a door on any part of employee's body. Consequently, the causation opinions of Drs. Logan and Varanka are insufficient to sustain employee's burden of proof that the work event caused employee's current psychological conditions.

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[^0]: ${ }^{2}$ See Parrott v. HQ, Inc., 907 S.W.2d 236, 245 (Mo. App. 1995).

Dr. Hughes also offered some psychiatric opinions we cannot endorse. But Dr. Hughes is the only of the three psychiatric experts to offer an opinion regarding whether a work altercation during which employee was not physically threatened (as we have found the altercation in this case to be) would cause employee's psychological conditions, including post-traumatic stress disorder. Dr. Hughes testified it would not and we accept his opinion in this regard.

Award

We affirm the administrative law judge's award denying compensation in this matter, as supplemented and corrected herein.

We attach the September 2, 2014, award and decision of Administrative Law Judge Lisa Meiners by this reference and we affirm and adopt the administrative law judge's findings, conclusions, award and decision to the extent they are not inconsistent with this award.

Given at Jefferson City, State of Missouri, this $28^{\text {th }}$ day of April 2015.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

FINAL AWARD

Employee: Kathy Finnell

Injury No. 03-093088

Employer: Jackson County, Missouri

Insurer: Self-Insured/Alternative Risk Services

Additional Party: State Treasurer as Custodian of the Second Injury Fund

Hearing: June 24, 2014

Checked by: LM/pd

FINDINGS OF FACT AND RULINGS OF LAW

  1. Are any benefits awarded herein? No
  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: August 21, 2003
  5. State location where accident occurred or occupational disease was contracted: Kansas City, 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: Alleged work place assault and battery
  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: allegedly left upper extremity, left ribcage, body as a whole, psyche
  1. Nature and extent of any permanent disability: None
  2. Compensation paid to date for temporary disability: $\ 0.00
  3. Value necessary medical aid paid to date by employer/insurer? $\ 0.00
  4. Value necessary medical aid not furnished by employer/insurer? $\ 0.00
  5. Employee's average weekly wages: $\$ 1,000.00+
  6. Weekly compensation rate: \$ 662.23 / \ 347.05
  7. Method wages computation: By agreement

COMPENSATION PAYABLE

  1. Amount of compensation payable:

Medical paid: $\ 0.00

Unpaid medical expenses: $\ 0.00

Temporary total disability (or temporary partial disability) $\ 0.00

Unpaid temporary total disability from Employer. $\ 0.00

Permanent partial disability benefits from Employer. $\ 0.00

  1. Second Injury Liability: N/A

0 weeks of permanent partial disability from Second Injury Fund. $\ 0.00

Uninsured medical/death benefits. $\ 0.00

Permanent total disability benefits from Second Injury Fund. $\ 0.00

$\qquad weeks differential ( \qquad ) payable by Second Injury Fund for \qquad weeks beginning \qquad and thereafter for Claimant's lifetime. \ 0.00

TOTAL: $\quad \ 0.00

  1. Future requirements awarded: N/A

The compensation awarded to the Claimant shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of Mr. Scott Mach, Employee's attorney, for necessary legal services rendered.

FINDINGS OF FACT AND RULINGS OF LAW

Employee: Kathy Finnell

Injury No. 03-093088

Employer: Jackson County, Missouri

Insurer: Self-Insured/Alternative Risk Services

Additional Party: State Treasurer as Custodian of the Second Injury Fund

Hearing: June 24, 2014

Checked by: LM/pd

Kathy Finnell is a 52-year-old woman who lives in Kansas City, Missouri. She has two daughters and is married; however, she is currently separated and living with her mother.

M. Finnell grew up in Kansas City attending and graduating from Southeast High School in 1980, then on to Williams College with a degree in sociology. After college she worked for Pitney Bowes as a sales representative and then for Honeywell in Washington D.C. In 1988 Ms. Finnell went to law school at Georgetown and graduated with her J.D.

Ms. Finnell returned to the Kansas City area to work at the Public Defender's office for 2 years. She then moved to the Jackson County Prosecutor's Office in 1993 at the warrant desk. In 1996 she briefly went to the Law office of Arthur Bensen as a civil rights plaintiff's attorney where she tried several cases, one in particular ending in a verdict of over $\ 1 million dollars in her client's favor

She eventually returned to the Jackson County Prosecutor's Office where she was hired to be in the Community Prosecution Unit. While in this position, Ms. Finnell injured her left shoulder while at work, had rotator cuff surgery, and settled that claim for 17.5 % to the left shoulder. She only missed work due to this injury while she was treating for it. Otherwise, she was able to work full time and was in good health. In 2003, the Jackson County Prosecutor, Mike Sanders, promoted Ms. Finnell to Chief Trial Assistant in the Drug Unit. In that capacity, she supervised numerous attorneys including Julie Hamilton, Stefan Hughes and David Fry. As a supervisor, Ms. Finnell testified to having difficulties with Ms. Hamilton.

Ms. Finnell was in good health and was able to perform the functions of her job. She did begin having numbness and tingling in her hands and began getting carpal tunnel trea

Full decision text continues in the plain-text archive copy.

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