Victoria Myers v. Truman Medical Center

The word "accident" as used in this chapter shall, unless a different meaning is clearly indicated by the context, be construed to mean an unexpected or unforeseen identifiable event or series of events happening suddenly and violently, with or without human fault, and producing at the time objective symptoms of an injury.

We defer to and adopt as our own the administrative law judge's finding that employee made a credible witness on the issue of accident, and we agree that her testimony regarding the event is amply supported by the medical treatment records. We conclude employee suffered an "accident" as defined above, because her fall on December 20, 2004, unquestionably amounted to an unexpected and unforeseen identifiable event that happened suddenly and violently and produced objective symptoms of an injury.

The administrative law judge thoroughly summarized the facts pertinent to the primary injury, employee's preexisting conditions of ill-being, employee's medical history, and the testimony provided by the evaluating experts. Accordingly, we hereby adopt and incorporate the administrative law judge's findings as to these matters to the extent they are not inconsistent with our own herein. We also deem appropriate and hereby adopt as our own the administrative law judge's determinations with respect to the nature and extent of permanent partial disability referable to employee's preexisting conditions of illbeing as well as the primary injury.

Turning to the question of permanent total disability, however, we note that in reaching his determination that employee is not permanently and totally disabled, the administrative law judge substantially relied on the fact that employee has been working as a substitute school nurse since 2011. We acknowledge that the administrative law judge's findings are not without support on this record, but we ultimately disagree for the following reasons.

First, we note that the administrative law judge did not find that employee lacked credibility regarding her disabilities and limitations referable to her preexisting conditions of ill-being or the effects of the primary injury. Employee thoroughly described her preexisting limitations referable to her bilateral knees, as well as her psychiatric history involving panic attacks and depression, and described how these conditions affected her work as a neonatal nurse. Employee also provided detailed testimony regarding the effects of the work injury. There is no evidence, or reason to believe, that employee is exaggerating her symptoms; her testimony is well-documented and corroborated by the voluminous medical treatment records in evidence. We find that employee's testimony on these topics is credible.

Second, we note that each of the medical, vocational, and psychological experts to address the issue opined that employee is permanently and totally disabled. Dr. Michael Poppa believes employee is permanently and totally disabled due to a combination of the disability from her primary injury and the preexisting disability with regard to her knees, anxiety, and depression. The psychologist Dr. James Jackson opined that employee is permanently and totally disabled in light of the combination of employee's preexisting psychiatric conditions with the effects of the work injury. The vocational expert Michael Dreiling testified that it is not reasonable to expect any employer to hire employee, and that she would not be able to sustain employment in any event.

After leaving her job with employer in January 2007, employee did not work anywhere in any capacity until March or April 2011, when, at the suggestion of a friend from her church, she began accepting assignments to work as a substitute school nurse. Employee very credibly and extensively testified (and we so find) that she sought out this work because she felt a pressing need to use her nursing skills to recapture some sense of identity and self-worth, which she felt had been taken away after she was unable to continue in her job for employer. Employee's depression after leaving her job with employer was so bad that she was often unable to get out of bed, she "didn't know who [she] was anymore," Transcript, page 90, and her psychiatric condition deteriorated to the extent that her marriage ended. Working as a substitute school nurse provided employee with a muchneeded sense of purpose.

It is well-settled in Missouri that an employee's ability to engage in part-time, sporadic, or otherwise limited employment is not necessarily preclusive of a finding that the employee is permanently and totally disabled. See, e.g., Molder v. Mo. State Treasurer, 342 S.W.3d 406 (Mo. App. 2011), noting that "[c]ertainly the ability to perform some work is relevant to th[e] [total disability] determination, but it is not dispositive. To the contrary, a number of cases have recognized that a claimant can be totally disabled even if able to perform sporadic or light duty work." Id. at 412 (citations omitted). Employee averaged only about one day of work per week in this capacity, but sometimes did not work for as long as a month. She typically only worked for part of a day to fill in for a nurse who had to leave for an appointment or who became ill. Sometimes employee had to decline an assignment owing to her psychiatric condition.

Employee did try working full-time during an eight-week period when a school nurse left for maternity leave, but this caused her to experience a lot of swelling and pain in her right knee which prompted a need for additional medical treatment, including a new prescription for anti-inflammatory medication (which employee continues to take) as well as a full-leg brace. ${ }^{1}$ Employee turned down any offer to work full-time as a school nurse because she felt she would be unable to consistently report for work on a daily basis owing to her psychiatric limitations. "A claimant is capable of forming an opinion as to whether she is able to work, and her testimony alone is sufficient evidence on which to base an award of ... total disability." Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 249 (Mo. 2003).

Although the record lacks evidence to support a finding that employee was materially accommodated in her work as a substitute school nurse following the December 2004 primary injury, we are of the opinion that this work was too limited and sporadic to undercut the persuasive value of the essentially unanimous opinions from the experts on the issue of permanent total disability. We are especially persuaded by employee's testimony that her attempts to work full-time caused a significant exacerbation in her symptoms and prompted a need for additional medical care. Accordingly, we credit the testimony from Drs. Poppa and Jackson, as well as the testimony from Mr. Dreiling, and find that, at the time she reached maximum medical improvement from the effects of the

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[^0]: ${ }^{1}$ The administrative law judge suggested that employee's knee problems should not be considered because they (unsurprisingly) worsened in the time between the December 2004 primary injury and the 2014 hearing in this matter. We disagree. On September 2, 2004, employee's primary care physician Dr. Kevin Fitzmaurice noted that employee had severe degenerative joint disease of both knees and opined she may need a knee replacement "soon." Transcript, page 1776.

work injury on October 26, 2006, ${ }^{2}$ employee was unable to compete for any type of employment in the open labor market owing to the combination of the effects of her preexisting disabilities with the disability resulting from the primary injury.

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, the employee must show that she suffers from "a preexisting permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed..." Id. The Missouri courts have articulated the following test for determining whether a preexisting disability constitutes a "hindrance or obstacle to employment":

[T]he proper focus of the inquiry is not on the extent to which the condition has caused difficulty in the past; it is on the potential that the condition may combine with a work-related injury in the future so as to cause a greater degree of disability than would have resulted in the absence of the condition.

Knisley v. Charleswood Corp., 211 S.W.3d 629, 637 (Mo. App. 2007)(citation omitted).

We have adopted the administrative law judge's findings that employee suffered from preexisting permanent partially disabling conditions referable to her bilateral knees and her psychiatric history. We are convinced these conditions were serious enough to constitute hindrances or obstacles to employment. This is because we are convinced employee's preexisting conditions had the potential to combine with a future work injury to result in worse disability than would have resulted in the absence of these preexisting conditions. See Wuebbeling v. West County Drywall, 898 S.W.2d 615, 620 (Mo. App. 1995).

Fund liability for PTD under Section 287.220 .1 occurs when [the employee] establishes that he is permanentl