Jeanetta Wilkerson v. Missouri Department of Corrections

Consequently, we make only those findings of fact and conclusions of law pertinent to our modifications herein.

The administrative law judge credited the testimony from the Second Injury Fund's expert Dr. Michael Jarvis, and found that the accident of March 21, 2009, was not the prevailing factor causing employee to suffer any additional psychiatric injury. After careful consideration, we agree with this finding. Employee's personal life before the work injury was marked by years of physical and emotional abuse, familial chaos, and interpersonal strife; and the expert psychiatric witnesses generally agree that employee suffered from preexisting major depression and a personality disorder. In our view, the prevailing factor causing employee's current psychiatric disability is the contribution from her psychiatric diagnoses leading up to the work injury.

On the other hand, while we agree with the administrative law judge that Dr. Jarvis's opinions in this matter are generally credible, we cannot agree with Dr. Jarvis's testimony that there is no causal connection between the work injury and the subsequent, rapid deterioration in employee's psychiatric condition. This is because employee's preexisting psychiatric disability appears to have been in a state of remission at the time of the work injury of March 21, 2009, but it is clear from this record that employee's psychiatric disability following that event has increased to the extent that it poses a serious hindrance and obstacle to employment. In light of this evidence, we find that the accident of March 21, 2009, was a significant (if not the prevailing) factor in causing employee to suffer additional permanent partial psychiatric disability.

Section 287.220 RSMo creates the Second Injury Fund and provides when and what compensation shall be paid in "all cases of permanent disability where there has been previous disability." As a preliminary matter, we must ascertain the nature and extent of permanent disability referable to the primary injury considered alone. ABB Power T \& D Co. v. Kempker, 236 S.W.3d 43, 50 (Mo. App. 2007). We defer to and adopt as our own the administrative law judge's conclusion that the accident of March 21, 2009, was the prevailing factor causing employee to suffer head and neck injuries, but we find his disability rating to be somewhat inadequate. We find instead that the accident was the prevailing factor causing employee to suffer head and neck injuries with an associated 25 % permanent partial disability of the body as a whole.

The administrative law judge found that, at the time of the accident of March 21, 2009, employee suffered a 15 % preexisting permanent partial disability of the body as a whole referable to psychiatric conditions. We agree that employee suffered preexisting permanent partial disability referable to her psychiatric conditions; the administrative law judge's rating of 15 % of the body as a whole strikes us as reasonable. We disagree, however, with the administrative law judge's finding that employee's preexisting psychiatric disability does not combine with the effects of the work injury to render her permanently and totally disabled. Although the accident may not have been the prevailing factor causing employee to suffer additional permanent partial psychiatric disability, we are most persuaded by the opinions from Dr. Cohen and Phillip Eldred that

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that would be due for permanent total disability under section 287.200 out of ... the "Second Injury Fund."

(emphasis added).

The courts have declared that "the Second Injury Fund is not liable for any progression of claimant's preexisting disabilities not caused by claimant's last injury," Garcia v. St. Louis County, 916 S.W.2d 263, 266 (Mo. App. 1995)(emphasis added), but the cases applying this rule do not specify the degree of causation required, or that such must be sufficient that the employer would be liable under Chapter 287 for additional compensation. While employee's proof of causation may be insufficient to support an award of permanent partial disability benefits from the employer for psychiatric injury, nothing in the abovequoted language from $\S 287.220$ suggests employee's claim against the Second Injury Fund for permanent total disability must be rejected as a result. Instead, the statutory language specifically contemplates additional disability resulting from a combination effect whenever an employee's preexisting disabilities interact with the last injury to result in greater disability. We are of the opinion that, for purposes of establishing this combination effect, it is sufficient if the work injury is shown (as here) to have a significant causal relationship to progression of the preexisting disability, even if the accident is less than a prevailing factor in causing such progression.

Ultimately, the relevant question for our purposes is whether the last injury and employee's previous psychiatric disability "together result" in permanent total disability. See § 287.220.1, above. We have credited the testimony from Dr. Cohen and Mr. Eldred that employee is permanently and totally disabled owing to the combination of the effects of the work injury and her preexisting psychiatric disability. We discern nothing in the relevant case law that would prevent us from applying the plain language of $\S 287.220$ RSMo (which, of course, we must strictly construe) to assess compensation liability against the Second Injury Fund on the basis of the combinative effect between employee's preexisting disability and the last injury, which, in our view, "together result" in her permanent total disability.

For the foregoing reasons, we conclude employee is permanently and totally disabled owing to a combination of her preexisting disabling conditions in combination with the effects of the work injury. The Second Injury Fund is liable for permanent total disability benefits.

The last sentence of the sixth full paragraph on page 35 of the administrative law judge's award states, as follows: "I further find that the injury to the employee's head and heck and the resulting medical conditions and disability are medically causally related to the March 21, 2009 work accident." We correct the foregoing to state, as follows: "I further find that the injury to the employee's head and neck and the resulting medical conditions and disability are medically causally related to the March 21, 2009, work accident."

The last sentence of the second full paragraph of page 19 of the administrative law judge's award states, as follows: "When she saw Dr. Jarvis on June 11, 2012, she told him a

specific name of who threw the ball but did not tell him that it was Paul Lee Vunn." We correct the foregoing to state, as follows: "Dr. Jarvis's report of June 27, 2012, suggests employee told him the inmate who threw the ball was Paul Lee Vunn."

We modify the award of the administrative law judge as to the issues of (1) medical causation; and (2) Second Injury Fund liability.

The Second Injury Fund is liable for weekly permanent total disability benefits beginning January 11, 2012, ${ }^{1} at the stipulated weekly permanent total disability rate of \ 368.77. The weekly payments shall continue for employee's lifetime, or until modified by law.

The award and decision of Chief Administrative Law Judge Lawrence C. Kasten, issued November 17, 2014, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

The Commission approves and affirms the administrative law judge's allowance of an 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 $11^{\text {th }}$ day of June 2015.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

DISSENTING OPINION FILED

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

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[^0]: ${ }^{1}$ Employee reached maximum medical improvement from the effects of the work injury on February 10, 2010, and we have determined that the primary injury caused employee to suffer a 25 % permanent partial disability of the body as a whole. Permanent total disability benefits thus begin from the Second Injury Fund 100 weeks later on January 11, 2012, in order to give effect to the language of $\S 287.220$ RSMo requiring us to account for the (theoretical) payments from the employer of permanent partial disability benefits at the same weekly compensation rate.

Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the Commission errs in applying § 287.220 RSMo to a