Charlene Conlan v. Southwestern Bell Telephone, LP

(Affirming Award and Decision of Administrative Law Judge)

Injury No. 06-098170

Employee: Charlene K. Conlan

Employer: Southwestern Bell Telephone, LP

Insurer: Self-Insured

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated April 16, 2015. The award and decision of Administrative Law Judge L. Timothy Wilson, issued April 16, 2015, is attached and incorporated by this reference.

The Commission further approves and affirms 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 $20^{\text {th }}$ day of November 2015.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Charlene K. Conlan

Injury No. 06-098170

Dependents: $\quad \mathrm{N} / \mathrm{A}

Employer: Southwestern Bell Telephone, LP

Insurer: \quad \mathrm{N} / \mathrm{A}$ (Self-insured Employer)

Additional Party: Treasurer of Missouri, as the Custodian of the Second Injury Fund

Hearing Date: February 3, 2015

Checked by: LTW

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: October 13, 2006
5. State location where accident occurred or occupational disease was contracted: Greene 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: While engaged in employment with the Employer, and while the Employee was attempting to ride an elevator on Employer's property to her fifth floor office, the elevator malfunctioned after Employee pushed floor button 5. This malfunction resulted in all floor buttons to light-up, the door shut, and the elevator rose to the $6^{\text {th }}$ floor; then the elevator doors opened briefly, but slammed shut. Upon slamming the doors, the whole elevator jerked and Employee fell to the floor; while the elevator dropped to the fifth floor. In falling to the floor, Employee hit her head on the steel rail situated on the wall and tried to reach out with her left hand to catch herself. When Employee stood up, she was situated on the fifth floor and the doors were not opening. Employee remained stuck on the elevator for approximately one hour. As a consequence of this work incident, Employee sustained physical injuries to her head and neck (mild concussion and neck strain) and to her left wrist (left wrist strain). Also, as a consequence of this work incident, Employee sustained a mental injury in the nature of Post-Traumatic Stress Disorder.
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: Head, Neck, Left Wrist \& Body as a Whole (Mental Injury)

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Charlene K. Conlan

1. Nature and extent of any permanent disability: Permanent Total Disability
2. Compensation paid to-date for temporary disability: $\ 410.78
3. Value necessary medical aid paid to date by employer/insurer? $\ 7,153.72
4. Value necessary medical aid not furnished by employer/insurer? $\ 11,742.14
5. Employee's average weekly wages: $\ 1,015.23
6. Weekly compensation rate: $\ 676.82 (TTD / PTD) \& $\ 376.55 (PPD)
7. Method wages computation: Stipulation

1. Amount of compensation payable:

Unpaid medical expenses:

$\ 11,742.14

Future medical care:

(See Award)

(Employee is entitled to future medical care from Employer and Insurer.)

Weeks of temporary total disability (or temporary partial disability):

$\ 81,194.38

(This sum represents $1204 / 7$ weeks of TTD, payable for the period of Oct. 14, 2006, to Feb. 4, 2009, less credit for the prior payment of $\ 410.78.)

Weeks of permanent partial disability from Employer / Insurer:

Weeks of disfigurement from Employer / Insurer:

Permanent total disability benefits from Employer / Insurer: (See Award)

(Employee is entitled to permanent total disability benefits from Employer and Insurer beginning Feb. 4, 2009, at the rate of $\ 676.82 per week, for Employee's lifetime.)

1. Second Injury Fund liability: N/A

TOTAL: \$676.82 PER WEEK, EFFECTIVE FEBRUARY 4, 2009, AND CONTINUING FOR EMPLOYEE'S LIFETIME, PLUS FUTURE MEDICAL CARE

1. Future requirements awarded: Future medical and permanent total disability benefits

Said payments to begin immediately 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 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: John Newman, Esq.

Employee: Charlene K. Conlan

Injury No. 06-098170

Dependents: N/A

Employer: Southwestern Bell Telephone, LP

Insurer: N/A (Self-insured Employer)

Additional Party: Treasurer of Missouri, as the Custodian of the Second Injury Fund

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on February 3, 2015. The parties were afforded an opportunity to submit briefs or proposed awards, resulting in the record being completed and submitted to the undersigned on or about March 9, 2015.

The employee appeared personally and through her attorney, John Newman, Esq. The employer appeared through its attorney, Shari Lockhart. The Second Injury Fund appeared through its attorney, Cara Harris, Assistant Attorney General.

The parties entered into a stipulation of facts. The stipulation is as follows:

(1) On or about October 13, 2006, Southwestern Bell Telephone, LP ${ }^{1}$ was an employer operating under and subject to The Missouri Workers' Compensation Law, and during this time was fully self-insured, with the benefits being administered by Sedgwick Claims Management Services.

(2) On the alleged injury date of October 13, 2006, Charlene K. Conlan was an employee of the employer, and was working under and subject to The Missouri Workers' Compensation Law.

(3) On or about October 13, 2006, the employee sustained an accident, which arose out of and in the course of her employment with the employer.

(4) The above-referenced employment and accident of October 13, 2006, occurred in Greene County, Missouri. The parties agree to venue lying in Greene County, Missouri. Venue is proper.

(5) The employee notified the employer of her injury as required by Section, 287.420, RSMo.

[^0]

[^0]: ${ }^{1}$ The parties use the names "Southwestern Bell Telephone, LP" and "AT\&T" interchangeably. The Report of Injury identifies the employer as both AT\&T, Inc. and Southwestern Bell Telephone Co.

(6) The Claim for Compensation was filed within the time prescribed by Section 287.430, RSMo.

(7) At the time of the alleged accident of October 13, 2006, the employee's average weekly wage was $\ 1,015.23, which is sufficient to allow a compensation rate of $\ 676.82 for temporary total disability compensation / permanent total disability compensation, and a compensation rate of $\ 376.55 for permanent partial disability compensation.

(8) Temporary disability compensation has been provided to the employee in the amount of $\ 410.78.

(9) The employer has provided medical treatment to the employee, having paid $\ 7,153.72 in medical expenses.

The issues to be resolved by hearing include:

(1) Whether the claimed accident of October 13, 2006, caused the injuries and disabilities for which benefits are now being claimed?

(2) Whether the employer is obligated to pay for certain past medical care and expenses?

(3) Whether the employee has sustained injuries that will require additional or future medical care in order to cure and relieve the employee from the effects of the injuries?

(4) What is the applicable maximum medical improvement ("MMI") date?

(5) Whether the employee is entitled to temporary total disability compensation?

(6) Whether the employee sustained any permanent disability as a consequence of the claimed accident of October 13, 2006; and, if so, what is the nature and extent of the disability?

(7) Whether the Treasurer of Missouri, as the Custodian of the Second Injury Fund, is liable for payment of additional permanent partial disability compensation or permanent total disability compensation?

The employee testified at the hearing in support of her claim. Also, the employee presented at the hearing of this case the testimony of three additional witnesses - Wilbur Swearingin, CRC; Anthony Conlan (son); and Daniel Conlan (husband). In addition, the employee offered for admission the following exhibits:

Exhibit A Curriculum Vitae of David Volarich, D.O.

Exhibit B Medical Report of David Volarich, D.O. (August 1, 2007)

Exhibit C Addendum to IME of August 1, 2007

Exhibit D Medical Bill Review \& Attachment

Exhibit E Deposition of David Volarich, D.O. (July 1, 2008)

Exhibit F Medical Records

Tab 1 Medical Records from Donald K. Hopewell, M.D.

Tab 2 Medical Records from Burrell, Inc.

Tab 3 Medical Records from Doctors Hospital - South Clinic

Tab 4 Medical Records from MRI of Springfield

Tab 5 Medical Records from Doctors Hospital - South

Tab 6 Medical Records from Skaggs Community Health Center

Tab 7 Medical Records from Kenneth S. Sharlin, M.D.

Tab 8 Medical Records from Peak Performance Physical Therapy \& Rehabilitation

Tab 9 Medical Records from Orthopaedic Specialists of Springfield

Tab 10 Medical Records from Doctors Hospital of Springfield

Tab 11 Medical Records from Kenneth S. Sharlin, M.D.

Tab 12 Medical Records from Fordland Clinic, Inc.

Exhibit G Curriculum Vitae of Dale A. Halfaker, Ph. D.

Exhibit H Neuropsychological Report of Dale A. Halfaker, Ph.D.

Exhibit I Deposition of Dale A. Halfaker, Ph.D. (Aug. 24, 2011)

Exhibit J Deposition of Dale A. Halfaker, Ph.D. (Aug. 20, 2014)

Exhibit K Curriculum Vitae of Wilbur Swearingin, CRC

Exhibit L Vocational Report of Wilbur Swearingin, CRC

Exhibit M Deposition of Charlene Conlan (April 27, 2007)

Exhibit N Deposition of Charlene Conlan (September 3, 2013)

The exhibits were received and admitted into evidence.

The employer did not present any witnesses at the hearing of this case. The employer, however, offered for admission the following exhibits:

Exhibit 1 Deposition of Ted A. Lennard, M.D. (Nov. 20, 2013)

(Inclusive of Deposition Exhibits)

Exhibit 2 Deposition of Michael Jarvis, M.D. (Sept. 19, 2013)

(Inclusive of Deposition Exhibits)

Exhibit 3 Deposition of James England, Jr. (Jan. 16, 2014)

(Inclusive of Deposition Exhibits)

Exhibit 4... Medical Report of Chris Fevurly, M.D., CIME (Filed Sept. 26, 2013)

(Inclusive of Attachments to Report)

Exhibit 5 Medical Records from Ozarks Community Hospital

The exhibits were received and admitted into evidence.

The Second Injury Fund did not present any witnesses or offer any additional exhibits at the hearing of this case.

In addition, the parties identified several documents filed with the Division of Workers' Compensation, which were made part of a single exhibit identified as the Legal File. The undersigned took administrative or judicial notice of the documents contained in the Legal File, which include:

- Notice of Hearing

- Amended Answer of Employer/Insurer to Claim for Compensation

- Answer of Second Injury Fund to Claim for Compensation

- Answer of Employer/Insurer to Claim for Compensation

- Claim for Compensation

- Report of Injury

All exhibits appear as the exhibits were received and admitted into evidence at the evidentiary hearing. There has been no alteration (including highlighting or underscoring) of any exhibit by the undersigned judge.

The employee, Charlene K. Conlan, is 61 years of age, having been born on February 1, 1954. Ms. Conlan and her husband, Daniel Conlan, have been married for approximately 44 years. The couple resides in Rogersville, Missouri, and together own approximately 40 acres of land.

Ms. Conlan attended public schools in California, Texas, Florida and Georgia. She graduated from Doughtery High School, Albany, Georgia in 1972. In the early 1990s Ms. Conlan took a business course for the self-employee, which involved a vocational school class in Albany, Georgia. Ms. Conlan has no other post-high school education.

Shortly after graduating from high school, Ms. Conlan obtained employment with AT\&T, working as a directory assistance operator, and later as a long-distance operator. She worked in this employment for approximately 5 to 6 years. In or around 1974 Ms. Conlan gave birth to her first child. She then left her employment with AT\&T, and became a full-time homemaker and stay-at-home mom. The couple, however, lived on a farm and operated the farm as a family. Over the next 14 years, Ms. Conlan and her husband had 7 children; the youngest child was born in 1988 .

In or around 1990 Ms. Conlan and her husband purchased a bakery in Albany, Georgia. The bakery was situated in a Mall, similar in size to the mall located in Springfield, Missouri. The bakery produced and sold baked goods. As a bakery situated in the Mall, the bakery was required to be open for business from 8:00 a.m. to 9:00 p.m., 7 days a week. The bakery closed for only three days out of the year, and even on these days the couple had to go into the bakery and work in order to prepare the baked food for the next day.

As a business operation, Ms. Conlan performed all aspects of the business, including the baking of the products, ordering and purchasing of supplies, selling products or serving as a cashier, and handling the financial and managerial aspects of the business. The nature of her

responsibilities required Ms. Conlan to be at the store every day. According to Ms. Conlan, for a 9-year period she was at the bakery every day -- "I was tied to the business every day for nine years." Tired of working every day, in or around 1999 Ms. Conlan and her husband sold the bakery. Shortly after selling the bakery, in approximately 2000, Ms.Conlan and her husband sold their home and moved to Rogersville, Missouri.

Subsequent to moving to the State of Missouri, Ms. Conlan obtained employment with Apex, a telemarketing company. In this employment, Ms. Conlan worked as a full-time employee selling vacations. She engaged in this employment for approximately 6 months. She then obtained full-time employment with MCI, selling over the telephone long-distance plans. She continued in this employment for approximately 1 year.

In or around 2001, Ms. Conlan obtained full-time employment with the employer, Southwestern Bell Telephone, LP. This employment required Ms. Conlan to answer customer questions and to sell products while on the telephone with the customers. She engaged in this employment for approximately 6 years. Notably, the work performed by Ms. Conlan for Southwestern Bell Telephone involved rapid pace work, using multiple computer screens, key boards and a mouse.

In explaining the nature of her work, Ms. Conlan testified that the customer telephone calls were received "call to call." The telephone calls were separated by a second, requiring her to continue to respond to customer questions and to sell products without interruption in similar sequence all day. As a financial incentive, she and other similarly situated employees received debit cards to certain retail stores as bonus payments.

Ms. Conlan continued in this employment until suffering a work injury on October 13, 2006. Following the October 13, 2006, incident, Ms. Conlan never returned to work with the employer; nor has she obtained other employment. The employer, Southwestern Bell Telephone terminated Ms. Conlan from their employment on May 11, 2007.

Prior to sustaining the work injury of October 13, 2006, Ms. Conlan presented wtih certain medical conditions, which include:

- Right \& Left Wrist: In or around March 2006, Ms. Conlan sustained an occupational injury in the nature of repetitive trauma. As a consequence of this incident, Ms. Conlan underwent a left carpal tunnel release on May 10, 2006. She later underwent a right carpal tunnel release on March 29, 2007. This incident of bilateral carpal tunnel syndrome relates to a Missouri Workers' Compensation claim, involving Injury No. 06-118437.

At the time of the evidentiary hearing in Injury No. 06-098170, Ms. Conlan and the employer had not settled the underlying claim filed against the employer. However, prior to commencement of the evidentiary hearing, Ms. Conlan and the employer had agreed to enter into a Stipulation for Compromise Settlement resolving the bilateral

carpal tunnel syndrome claim, and further agreeing to submit the settlement agreement by mail for approval.

- Hypothyroidism: This condition is treated with Synthroid. Additionally, Ms. Conlan is noted to present with a preexisting medical history involving elevated lipids, restless leg syndrome, and excess androgen.

- Anxiety: In 2005 Ms. Conlan presented to her primary care physician, Marsha Taylor, M.D., with complaints of chest pain, shortness of breath, and being in a high stress job. The medical notations of Dr. Taylor make reference to Ms. Conlan suffering bilateral carpal tunnel syndrome, headaches, anxiety and depression. The reference to "anxiety" and "depression" included the additional reference of this being related to her job.

On or about April 6, 2006, Ms. Conlan presented to Dr. Taylor, and a discussion was held regarding FMLA papers and Ms. Conlan going on short term disability. The office note of this day included reference to Ms. Conlan suffering from "restless leg syndrome" for the past two years, and anxiety / panic attacks. A medical note dated September 7, 2006, included a similar reference to discussion involving FMLA (or FMLA being amended), as well as Ms. Conlan presenting with bilateral carpal tunnel syndrome, "restless leg syndrome," insomnia, and anxiety / panic attacks. Additionally, there was reference to a recommendation that Ms. Conlan undergo right carpal tunnel surgery.

On October 13, 2006, while engaged in employment and performing her work duties with the employer, Southwestern Bell Telephone, Ms. Conlan sustained multiple injuries to her body as a whole, which occurred as the result of a malfunctioning elevator. In describing this incident, Ms. Conlan notes that on October 13, 2006, she arrived at work at approximately 6:15 a.m. She arrived early in order to familiarize herself with the codes that were used in her job. According to Ms. Conlan and her son Tony, the codes at Southwestern Bell change quite often and due to the pace of taking incoming calls, the customer service representatives need to be familiar with the codes to be able to complete promptly their job.

Upon arriving at the office, which is situated in a high rise office building owned by the employer, she got into an elevator and pushed button " 5 " to go to her floor. At the time, she noted that all buttons lit up, the door shut, and the elevator went up to a floor that showed " 6 ." The elevator doors opened briefly, but then slammed shut, the whole elevator jerked, and she fell to the floor; the elevator dropped to the fifth floor. In falling to the floor Ms. Conlan states that she fell sideways to her left and tried to catch herself with her left hand. On the way down, she hit her head, probably on the steel rail situated on the wall. (The medical records, according to Dr. Volarich, suggest that Ms. Conlan momentarily lost consciousness.) When she stood up, she was situated on the $5^{\text {th }}$ floor and the doors were not opening.

Immediately thereafter, and alert to her circumstance of being unable to exit the elevator, Ms. Conlan began to experience a feeling described by her as "claustrophobia and panic anxiety." According to Ms. Conlan, she got on the emergency phone but no one answered the

phone. She then got her cell phone, and called her husband and informed him of being trapped in the elevator. As she was on the phone with her husband, Ms. Conlan began to cry and scream into the phone. Ms. Conlan's husband provided Ms. Conlan with the emergency telephone number of her supervisor, but in calling this number she did not get a response.

Ms. Conlan was trapped in the elevator for approximately one hour. During this time, according to Ms. Conlan, she became a wreck emotionally, as she began to cry and scream for help, and was unable to communicate with anyone. In her 2007 deposition Ms. Conlan testified that she could not breathe; however, at the evidentiary hearing she denied not being able to breathe. Eventually, a fellow employee situated in the building became aware of Ms. Conlan's circumstance and obtained assistance. After being alone in the elevator for approximately one hour, individuals were able to open partially the elevator doors, which allowed Ms. Conlan to squeeze through the doors and exit the elevator.

Ms. Conlan attempted to return to work, but unable to stop crying, she could do nothing more than sit at her desk. Seeing Ms. Conlan unable to work, Ms. Conlan's supervisor told her to pull herself together and login. Ms. Conlan, however, was unable to login and begin work. Instead, with permission from her supervisor, Ms. Conlan telephoned her daughter and got a ride to her daughter's apartment, where she rested on the sofa for a period of time. At the agreed upon time, Ms. Conlan returned to the employer's office building and attempted to return to work. However, as before, Ms. Conlan was unable to login and engage in her assigned work duties. After being at the office for approximately 15 minutes, but unable to work, she departed the workplace and she drove herself home.

In explaining her inability to return to work, Ms. Conlan testified that she was emotionally unable to login and engage in conversation. Nor could she do any activities at home. Upon arriving home, she went to bed. The next day, Ms. Conlan began experiencing headaches, neck pain, and swelling in her left hand.

The following day, October 14, 2006, Ms. Conlan experienced neck pain, her head hurt, and her left wrist was swollen. With the assistance of her daughter, Ms. Conlan presented to the emergency room of Doctors Hospital of Springfield for examination and evaluation. The attending physician noted that Ms. Conlan presented with complaints of "severe anxiety", difficulty concentrating, and left arm pain, attributed to the earlier incident in the elevator. Diagnostic studies of the head / neck were performed, along with a physical examination of Ms. Conlan. Apparently, the diagnostic studies were interpreted as negative, and the psychological or psychiatric state of Ms. Conlan did not warrant immediate medical intervention or hospitalization.

The attending physician, having diagnosed Ms. Conlan with post-traumatic stress disorder, prescribed multiple medications and discharged her from his care. The discharge included direction for Ms. Conlan to follow-up with her primary care provider, "Dr. Taylor ASAP", and to return for any problems. Subsequently, on October 16, 2006, Ms. Conlan presented to her primary care provider, Marsha Taylor, M.D., with complaints of headaches and neck pain, attributable to head and neck trauma associated with the prior elevator incident. Notably, at this visit, Taylor recorded a history of Ms. Conlan suffering an incident in the

elevator on October 13, 2006. Based on this examination, Dr. Taylor prescribed diagnostic studies, including an x-ray of the cervical spine and a CT scan of the head. The radiologist, Nathan L. Kester, M.D., opined that the diagnostic study revealed degenerative disc disease of the cervical spine at the level of C4-C5 with ossicles dorsal to C6, but no acute injuries. The CT scan was read as "unremarkeable."

In October 2006 Ms. Conlan continued to treat with Dr. Taylor, and continued to present with complaints of neck pain and headaches, as well as pain between her shoulder blades into her neck and upper back. Additionally, Ms. Conlan continued to experience "crying spells, with anxiety." Dr. Taylor provided Ms. Conlan with continuing treatment, which included a working diagnosis of cervical strain with post-traumatic stress disorder (PTSD). The treatment provided by Ms. Conlan included prescription medication and a referral to a psychologist for treatment of the PTSD. Also, Dr. Taylor prescribed additional diagnostic studies in the nature of an MRI of the cervical spine.

Following the referral by Dr. Taylor, Ms. Conlan initiated treatment with Janet Duvall, M.S., a psychologist with Burrell Behavioral Health. This treatment included cognitivebehavioral therapy. Ms. Duvall concurred with the assessment that Ms. Conlan lacked the mental condition necessary to return to work. Ms. Duvall provided Ms. Conlan with individual cognitive-behavioral therapy through 2009.

Also, in November 2006 Ms. Conlan underwent the MRI of the cervical spine, which revealed a small to moderate central disc protrusion of the cervical spine at the level of C3-C4 without impingement. This MRI further showed greater stenosis in the right lateral recess and foramen at C4-C5, with a bulge at C5-C6. In light of continuing and unresolved pain and mental anxiety, a referral was made to a neurologist and/or psychiatrist.

On or about December 28, 2006, Ms. Conlan presented to Donald K. Hopewell, M.D., for examination and evaluation. At the time of this examination Dr. Hopewell took a history from Ms. Conlan, reviewed various medical records and performed a physical examination of Ms. Conlan. In light of this examination and evaluation of Ms. Conlan, Dr. Hopewell offered an assessment / plan, wherein he propounded the following comments:

This is a woman who fell and has sequelae from the fall that includes headaches which is fairly typical of patients who have had a mild closed head injury and neck pain. Her other symptoms of difficulty focusing, concentrating, recall, etc. all are consistent with a mild closed head injury as well. To this point, she has not used a TENS unit, she has not been to physical therapy, she has not been on any neuropathic pain blocking agents, so I suggested to her that we get her to physical therapy. We will also get her set up for a TENS unit.

In addition, Dr. Hopewell scheduled an electromyographic evaluation of Ms. Conlan's both upper extremities, and an MRI of the brain. Dr. Hopewell elected to not change the drug regimen, and scheduled a follow-up examination, to coincide with the EMG.

On or about January 4, 2007, the MRI of the brain was reported as normal. The nerve conduction studies suggested evidence of bilateral median nerve lesions at the wrist not associated with denervation of the median distribution of the right hand. An injection was offered, but Ms. Conlan refused to undergo the injection. Ms. Conlan was then started on a trial of Neurontin.

In February 2007 it was noted that Ms. Conlan's left hand was worsening, while the neck was improving with use of the TENS unit and the Neurontin. (Ms. Conlan had discontinued use of the Vicodin. In light of the worsening pain in the left hand, an x-ray of the left wrist was performed. This study showed no fractures, but some degenerative changes at the $1^{\text {st }}$ carpometacarpal joint. A bone scan was subsequently ordered, which showed some activity at the $1^{\text {st }}$ carpometacarpal joints bilaterally.

Ms. Conlan continued to treat with Dr. Hopewell into 2008, and she continued to present with complaints of headaches, upper thoracic and neck pain, numbness and cognitive difficulties. Also, while treating with Dr. Hopewell, Ms. Conlan continued to see Ms. Duvall, her psychologist, and receive psychological therapy and treatment. Apparently, this treatment continued for a period without Ms. Conlan receiving a release from treatment. Rather, she states, she stopped her treatment because of her inability to afford treatment.

David T. Volarich, M.D., a physician practicing in the specialties of occupational medicine, diagnostic imaging and nuclear medicine, testified by deposition on behalf of the employee. Dr. Volarich performed an independent medical examination of Ms. Conlan on August 1, 2007, relative to the injuries of March 6, 2006 and October 13, 2006. At the time of this examination, Dr. Volarich took a history from Ms. Conlan, reviewed various medical records, and performed a physical examination of her. Ms. Conlan presented to this examination with continuing complaints of ongoing difficulties.

In regard to her hands (bilateral carpal tunnel syndrome), Ms. Conlan noted that the numbness and tingling improved after the CTS releases, and her hands no longer awakened her from sleep, as had occurred in the past. However, she noted loss of strength in her hands, and having difficulty opening jars and bottles. In regard to her right hand, Ms. Conlan noted a knot at the base of her ring and middle fingers. In regard to her left hand, Ms. Conlan noted worsening of symptoms when her wrist is hyperextended, which has caused her continuing pain since suffering the injury in October 2006. She further noted difficulty holding her left arm straight down without flexing the wrist; leaning on her left elbow causes pain and numbness, and she has tingling in the ring finger of her left hand. Other difficulties expressed by Ms. Conlan to Dr. Volarich include neck pain, headaches, memory loss, phonophobic, sonophobia, and inability to focus or perform cognitive tasks such as spelling.

In light of his examination and evaluation of Ms. Conlan, Dr. Volarich opined that the occupational injury of March 6, 2006, caused Ms. Conlan to sustain an injury bilaterally to her upper extremities. The injury to the upper extremities was in the nature of overuse syndrome causing median nerve entrapment at the wrists (right and left) - bilateral carpal tunnel syndrome.

The injury necessitated receipt of medical care, including surgery involving open carpal tunnel releases of the right and left wrist. Notably, Dr. Volarich described this occupational injury as repetitive trauma, involving data entry in the performance of her work duties. Additionally, Dr. Volarich opined that the medical expenses incurred relative to the treatment received for this work injury was fair, reasonable and customary for such treatment.

In considering the nature and extent of the permanent disability attributable to this work injury, Dr. Volarich opined that Ms. Conlan sustained a permanent partial disability of 35 percent of the left wrist; and she sustained a permanent partial disability of 35 percent of the right wrist. According to Dr. Volarich, these disabilities account for residual "pain, paresthesias and weakness" in both hands. Also, Dr. Volarich opined that Ms. Conlan sustained an additional permanent partial disability of 15 percent to her body as a whole, referable to "a multiplicity factor due to the combination of injuries to both upper extremities."

In describing the work incident of October 13, 2006, Dr. Volarich noted the malfunctioning elevator, which jerked up and down, caused Ms. Conlan to fall and strike her head and then fall onto an outstretched left hand. In light of this work incident, and based on his examination of Ms. Conlan, Dr. Volarich opined that the work incident of October 13, 2006, was the substantial contributing factor as well as the prevailing or primary factor to cause Ms. Conlan to sustain multiple injuries. These injuries are described by Dr. Volarich as follows:

1. Cervical syndrome secondary to disc bulging and protrusion at C3-4 and C5-6 with foraminal stenosis at C4-5 without radiculopathy.
2. Post-traumatic headaches.
3. Left hand internal derangement suggestive of at least a partial tear of the TFCC causing ulnar compartment pain.
4. Post-traumatic stress disorder.

Further, Dr. Volarich opined that the nature of these injuries necessitated receipt of medical care, including psychiatric care. Additionally, Dr. Volarich opined that the medical expenses incurred relative to the treatment received for these work injuries were fair, reasonable and customary for such treatment.

Notably, at the time of this examination Dr. Volarich opined that Ms. Conlan had reached maximum medical improvement relative to the work injuries, with the exception of the left wrist ligament injury resulting from the October 13, 2006 elevator incident. Yet, in assuming that Ms. Conlan did not receive any additional medical care relative to left wrist ligament injury, Dr. Volarich offered an opinion of permanent disability referable to these conditions, including the left wrist ligament injury. In this regard, Dr. Volarich opined that Ms. Conlan sustained a permanent partial disability of 20 percent to the body as a whole, referable to the cervical spine; and Ms. Conlan sustained a permanent partial disability of 25 percent of the left wrist. Additionally, Dr. Volarich opined that post-traumatic stress disorder, causally relate to the work injury of October 13, 2006, causes Ms. Conlan to present with additional permanent disability; but he would defer to a psychiatric evaluation for that assessment.

In considering the permanent disability attributable to the cervical spine, secondary to the October 13, 2006, incident, Dr. Volarich notes that Ms. Conlan now suffers from a protruding disc at C3-C4, a bulging disc at C5-C6, and foraminal stenosis at C4-C5. Additionally, according to Dr. Volarich, the rating takes into account Ms. Conlan's residual "neck pain syndrome and lost motion without upper extremity radicular symptoms." In considering the permanent disability attributable to the left wrist, secondary to the October 13, 2006, incident, Dr. Volarich notes that this disability is in addition to the carpal tunnel rating. Further, according to Dr. Volarich, the rating takes into account Ms. Conlan's residual "pain, swelling, additional lost motion, and additional weakness in the non-dominant hand."

Also, in considering Ms. Conlan's preexisting medical condition, Dr. Volarich opined that prior to March 2006, Ms. Conlan suffered from claustrophobia. (Dr. Halfaker testified this medical condition is an "anxiety disorder" that involves a fear, "probably an unusual or exaggerated fear that would be what would be beyond what would be considered normal... about being in a tight space or enclosed or stuck or not able to escape from a situation, especially a physical situation." As with the post-traumatic stress disorder, Dr. Volarich did not offer a specific percentage of permanent disability, electing to defer to a psychiatric evaluation for such assessment.

Finally, Dr. Volarich prescribed permanent restrictions referable to the work injuries, and opined that such disabilities constitute a hindrance or obstacle to employment or re-employment. Additionally, Dr. Volarich opined that the "combination of disabilities create a substantially greater disability than the simple sum or total of each separate injury/illness, and a loading factor should be added."

Dale A. Halfaker, Ph.D., a psychologist practicing in the specialty of neuropsychology, testified by deposition on behalf of the employee. Dr. Halfaker performed a comprehensive neuropsychological assessment of Ms. Conlan in September and October 2008. At the time of this evaluation, Dr. Halfaker took a history from Ms. Conlan, reviewed various medical and psychological records, and performed an assessment that included behavioral observations and multiple neuropsychological tests. In light of his evaluation of Ms. Conlan, Dr. Halfaker opined that prior to the work injury of October 13, 2006, Ms. Conlan presented with two recognized psychological conditions - anxiety and claustrophobia. Also, based on his assessments and evaluation of Ms. Conlan, Dr. Halfaker opined that Ms. Conlan presented with a cognitive impairment, which he described as moderate. In describing the nature of this impairment, Dr. Halfaker propounded the following opinions:

- The greatest area of impairment related to her motor functions, and then her cognitive processing speed and mental flexibility. In this context, the bilateral carpal tunnel syndrome likely impacted the scoring in the assessment of her motor functions impairment; while her "attention and concentration problems" are the likely source of her cognitive processing speed and mental flexibility impairment.

- The other area of significant impairment was in the area of memory. The testing performed on Ms. Conlan indicates difficulties in the areas of functioning relating to attention, concentration and memory. Specifically, in regard to memory, Ms. Conlan was

found to have mild to moderate memory problems, with the scale leaning more toward the moderate side. (Notably, Dr. Halfaker did not see any signs of "asphasia" - "brain based organically mediated problems with language. The ability to express, the ability to receive information by speech, the ability to read and write..."

In assessing Ms. Conlan's psychosocial and emotional functioning, Dr. Halfaker administered the MMPI-II test, which is designed to assess a broad range of psychological problems. Through this analysis, Dr. Halfaker propounded the following opinions:

- Ms. Conlan is a woman who is less psychologically sophisticated ... "she tends to think in more concrete manners. She tends to focus on concrete physical problems and may have a harder time accepting, looking at, and dealing with the psychological aspects of her case or that there may be some of her physical symptoms that are influenced by psychological factors."

- She is an individual who is having trouble with anxiety and depression, ... lacking in energy, multiple somatic complaints or bodily-oriented complaints, aches, pains, headaches, numbness, tingling, weakness, fatigue, not feeling well, malaise, those kind of general diffuse kinds of complaints."

- She is an individual who is very sensitive to criticism from others. She is probably very critical of herself. In not wanting to admit fault and weaknesses, she gets very down on herself when she is not able to do something that she thinks she should be able to do. This is ultimately part and parcel of the significant depression exhibited by Ms. Conlan - "she feels a significant loss of efficiency in her ability to kind of take care of her daily life, and that only then kind of compounds the depression."

- The big piece of importance relating to the MMPI-II test is the tendency for Ms. Conlan to develop somatic complaints in response to stress or distress. Because of this tendency, Ms. Conlan is less likely to complain of being anxious or nervous. Instead, she is more likely to complain of a headache or neck pain or an upset stomach or some physical manifestation of stress and distress.

Thusly, Dr. Halfaker notes, "The psychological overlay in this case has significant bearing, as Ms. Conlan appears to have a strong propensity to experience physically related symptoms in response to stress." Further, having considered all the information obtained in his assessment and evaluation of Ms. Conlan, Dr. Halfaker opined that Ms. Conlan is not consciously magnifying her symptoms or malingering. Rather, "she is producing symptoms in response to stress and likely some suggestion that she should be having problems on the basis of having experienced a mild uncomplicated concussion." As such, Dr. Halfaker opines, Ms. Conlan "is confusing the symptoms associated with PTSD with symptoms of a resolved concussion."

Also, while Dr. Halfaker acknowledges that prior to the elevator incident on October 13, 2006, Ms. Conlan suffered issues with anxiety, panic attacks, and claustrophobia; he concludes that the elevator incident significantly exacerbated any preexisting problems with anxiety, panic attacks, and claustrophobia. In effect, Dr. Halfaker opines that the preexisting claustrophobia and the prior incident with the Jeep rendered her fragile and susceptible to injury; and as a

consequence, the elevator incident had a greater impact on her than might have otherwise been expected from such an event. Dr. Halfaker thus opines that the elevator incident caused Ms. Conlan to sustain an injury in the nature of Post-traumatic Stress Disorder, as the term is defined in DSM-IV-TR. Notably, in expounding on this opinion Dr. Halfaker states:

At the time of her being trapped in the elevator, it was thought that it was such an extremely significantly stressor for her that she clearly described feelings of intense fear, helplessness, and horror. She has had reexperiencing symptoms, avoids trauma reminiscent situations, reacts negatively to trauma reminiscent situations, and demonstrates persistent symptoms of arousal. It is thought that the presence of PTSD significantly impacts her attention, concentration, and ability to focus thereby impairing her memory. She has interpreted this impairment as being due to brain injury when it is thought that it actually constitutes cognitive impairment associated with PTSD. There is also thought to be a significant component of depression present in response to the many losses that she has sustained in response to her PTSD.

Finally, in considering the permanency of Ms. Conlan's condition, Dr. Halfaker opined that the prognosis for further improvement is limited and guarded. Yet, Dr. Halfker noted that Ms. Conlan had not been taking any antidepressant medication, and in consultation with her physician she should be considered as a possible candidate for treatment of this nature. Additionally, Dr. Halfaker recommended that she continue to receive treatment in the nature of psychotherapy, with the focus being on reassurance that any concussive related features have resolved. Similarly, Dr. Halfaker recommends that she continue with the process of structured cognitive behavioral intervention; and recommended additional modalities, such as formal relaxation training and biofeedback. Additionally, because the prognosis is limited and guarded, Dr. Halfaker recommended that Ms. Conlan be examined by a vocational evaluator to assist her in understanding her vocational potential, as well as providing assistance in future planning.

Ted Lennard, M.D.

Ted Lennard, M.D., a physician practicing in the specialty of physical medicine, testified by deposition on behalf of the employer / insurer. Dr. Lennard performed an independent medical examination of Ms. Conlan on January 2, 2013. At the time of this examination, Dr. Lennard took a history from Ms. Conlan, reviewed various medical records, and performed a physical examination of her. In light of his examination and evaluation of Ms. Conlan, Dr. Lennard opined that the keyboard work at AT\&T was not the cause of the development of Ms. Conlan's bilateral carpal tunnel syndrome. In regard to the bilateral carpal tunnel syndrome, post-operatively, Dr. Lennard opined that this medical condition does not cause Ms. Conlan to be governed by any work restrictions, and Ms. Conlan is not in need of any additional medical care.

In regard to the work accident of October 13, 2006, Dr. Lennard opined that this incident was the prevailing factor in causing Ms. Conlan to sustain an injury to her neck and head, and this incident is the cause of the onset of Ms. Conlan's neck pain and headaches. As to this work injury, Dr. Lennard noted the following:

Fortunately imaging studies of her cervical spine and head have been unremarkable for acute changes. She has no signs or symptoms of a cervical

radiculopathy and has reached MMI. There is no evidence of a traumatic brain injury or residual cognitive deficits (See Dr. Halfaker's neuropsychological testing dated 10/3/2008). She does have residual left wrist pain as a result of her fall on 10/13/2006.

Also, Dr. Lennard noted that prior to October 13, 2006, Ms. Conlan suffered from anxiety and agoraphobia. (Dr. Lennard acknowledged that Ms. Conlan denied to him that she suffered from these preexisting medical conditions, although such conditions are found in the report of Dr. Jarvis.) In light of this mental condition, Dr. Lennard opined that Ms. Conlan is in need of ongoing psychiatric care, as recommended by Dr. Jarvis; but he considered such care to be "non work related psychiatric findings."

In addition, based on his examination of Ms. Conlan, Dr. Lennard opined that relative to the October 13, 2006, work injury, Ms. Conlan had reached maximum medical improvement. Dr. Lennard does not believe the October 13, 2006, injury to Ms. Conlan's neck, head and left wrist, will require any surgical treatment, injections, pain management, and therapy. However, he acknowledges that as a consequence of this injury, Ms. Conlan will require Tylenol or Advil as needed for treatment related to her residual neck pain.

In assessing a percentage of permanent disability referable to the October 13, 2006, work injury, Dr. Lennard opined that Ms. Conlan presents with a permanent partial disability of 12 percent to the body as a whole, referable to the neck and headaches. In apportioning this disability, Dr. Lennard opined that 7 percent relates to the work injury of October 13, 2006, and the remaining 5 percent relates to Ms. Conlan's non-work-related co-existing degenerative changes. Additionally, Dr. Lennard opined that the work injury of October 13, 2006, caused Ms. Conlan to sustain an additional permanent partial disability of 5 percent to her left wrist, referable to the left wrist strain. Notably, Dr. Lennard opined that Ms. Conlan had not sustained any additional disability for any traumatic brain injury.

Further, Dr. Lennard opined that prior to March 31, 2006 Ms. Conlan did not suffer from any preexisting conditions, which would be sufficient to constitute a hindrance or obstacle to employment. Nor did Dr. Lennard believe that Ms. Conlan had suffered any additional conditions or injuries subsequent to the work injury of October 13, 2006, that contributes to her condition.

Chris D. Fevurly, M.D., CIME, a physician practicing in the specialty of occupational medicine, testified on behalf of the employer and insurer by submission of a complete medical report. Dr. Fevurly performed an independent medical examination of the claimant on November 28, 2007. At the time of this examination, Dr. Fevurly took a history from Ms. Conlan, reviewed various medical records, and performed a physical examination of her. In light of his examination and evaluation of the claimant, Dr. Fevurly opined that the major risk factor for development of the CTS was the inadequate replacement dose of synthroid for her hypothyroidism. In rendering this opinion, Dr. Fevurly did not relate the CTS condition to Ms. Conlan's employment activity.

Also, in rendering a causation opinion relative to the elevator incident, Dr. Fevurly propounded the following comments:

There was mild blunt head trauma on 10/16/06 without loss of consciousness and CT scan and MRI of the brain have been unremarkable. There have been chronic complaints of memory, behavioral and cognitive problems since 10/16/06; however, these complaints may be the result of the preexisting mental conditions as opposed to minimal traumatic brain injury or PTSD. She does not appear to meet the criteria for PTSD and it would be inappropriate to propose this diagnosis within three days of the 10/13/06 event.

In light of the foregoing, Dr. Fevurly opined that Ms. Conlan had not sustained any permanent disability referable to the event involving the elevator in October 2006. Further, in regard to the right wrist and hand complaints and according to the $5^{\text {th }}$ edition of the AMA guides, Dr. Fevurly opines that Ms. Conlan presents with a zero percent rating. Also, while Dr. Fevurly does not prescribe any permanent restrictions upon Ms. Conlan, he acknowledges that she presents with mental health issues, which would need to be addressed in order to ensure a successful return to work. In this context, Dr. Fevurly defers to the psychiatric professionals relative to treatment plans, diagnoses and prognosis for the mental health issues.

Michael Jarvis, M.D., a physician practicing in the specialty of psychiatric medicine, testified by deposition on behalf of the employer and insurer. Dr. Jarvis performed an independent psychiatric evaluation of Ms. Conlan on May 21, 2010. At the time of this evaluation, Dr. Jarvis took a history from Ms. Conlan, reviewed various medical and psychological records, as well as depositions, and performed a mental status examination of her. In light of his examination and evaluation of Ms. Conlan, Dr. Jarvis expressed doubt that Ms. Conlan presented with any mild traumatic brain injury. Rather, he believes Ms. Conlan suffers from a preexisting psychiatric illness in the nature of panic disorder with agoraphobia. Further, in noting that Ms. Conlan had preexisting diagnosis of claustrophobia, Dr. Jarvis opines that this condition was "more likely agoraphobia." In issuing his diagnosis, Dr. Jarvis propounded the following assessment:

In diagnosing Ms. Conlan with Panic Disorder with agoraphobia, as opposed to PostTraumatic Stress Disorder, Dr. Jarvis stated that Ms. Conlan "unequivocally meets the criteria for Panic Disorder with agoraphobia - "she is globally anxious, isolative and fearful." In further explaining the nature of this diagnosis, Dr. Jarvis propounded the following comments:

The medical record documents her anxiety about driving, chickens, cows, being left alone, crowds, stores, restaurants, closed spaces, darkness and leaving her home. The provocations are unrelated to her experience in the elevator. Classically, she has retreated into the safe haven of her home. These fears are characteristic of Agoraphobia. Agoraphobia is as a potential consequence of untreated panic attacks.

In contrast to the diagnosis of Panic Disorder with agoraphobia, Dr. Jarvis listed a different set of criteria applicable to PTSD. In this regard, Dr. Jarvis propounded the following comments:

Post-Traumatic Stress Disorder is the sequela of a traumatic event which arises from a specific trigger. The associated anxiety is cued by stimuli that recall the stressor. This is not the case with Ms. Conlan's presentation.

Also, in responding to Ms. Conlan's claim that her preexisting claustrophobia condition was not significant, Dr. Jarvis states that such claim is not credible. According to Dr. Jarvis, " $[t]$ he explanation of being trapped in a car for a couple of minutes caused extreme panic implies a far more pervasive fear." Dr. Jarvis thus suggests that Ms. Conlan calls her fears claustrophobia. Insofar as an essential characteristic of claustrophobia "is a fear of restriction," such a fear "is not dissimilar to some of Ms. Conlan's current fears." Dr. Jarvis further opines:

A person with claustrophobia feels suffocation when unable to escape and may panic or endure severe anxiety. Ms. Conlan has anxiety whenever she feels restricted but also when she is driving or in public or just leaving her home.

In examining his diagnosis of Ms. Conlan in context of the elevator incident of October 13, 2006, Dr. Jarvis opined that this event was not the prevailing or primary factor in the development of the panic disorder with agoraphobia. He further notes that in context of Ms. Conlan suffering from this disease, the elevator incident "was one factor in many that lead Ms. Conlan to become increasingly isolative and fearful."

In considering the nature and extent of Ms. Conlan's presenting medical condition and need for treatment, Dr. Jarvis readily acknowledges and opines that Ms. Conlan suffers from psychiatric illness, and is in need of psychiatric treatment. Further, Dr. Jarvis opines that this medical condition is significantly disabling and renders Ms. Conlan "psychologically impaired," which affects her "concentration and memory."Yet, Dr. Jarvis does not attribute the limitations and restrictions applicable to this condition, as well as Ms. Conlan's need for treatment, to be causally related to the elevator incident. Dr. Jarvis thus concludes:

The elevator incident had very little to do with Ms. Conlan's illness. A broad approach to her anxiety would be better treatment. Ms. Conlan's (sic) needs to

stop focusing on the elevator incident as a cause of her problem. There needs to be a stop to the discussion of her having a mild traumatic brain injury. Her cognitive complaints are derivative of her treatable anxiety.

Ms. Conlan is totally disabled from psychiatric condition. In part this is selfinflicted since she refuses to take appropriate medications and has not been provided the appropriate psychotherapeutic intervention. None of this rating is to be proportioned to the 10-13-06 elevator accident since it was an incidental factor in the progression of her illness.

On cross-examination, Dr. Jarvis acknowledged that it is Ms. Conlan's agoraphobia, which renders her totally disabled. Further, on cross-examination Dr. Jarvis modified or restated his opinion, testifying that prior to October 2006 Ms. Conlan did not suffer from agoraphobia. In addressing this point on cross-examination Dr. Jarvis testifies that while Ms. Conlan suffered from preexisting anxiety disorder in the nature of panic attacks, this condition did not develop into agoraphobia until after she suffered the October 13, 2006 elevator incident. Additionally, in rendering this opinion Dr. Jarvis states that the diagnosis of panic attacks with agoraphobia is a single diagnosis - not two separate diagnoses.

William T. Swearingin, CRC, a rehabilitation counselor, testified at the evidentiary hearing on behalf of the employee. Mr. Swearingin performed a vocational evaluation of the employee on May 9, 2013. At the time of this vocational evaluation, Mr. Swearingin took a history from Ms. Conlan, reviewed various medical and psychological records, performed a vocational interview and administered several vocational assessments and tests, including the following: Career Occupational Preference System (COPS), Career Orientation Placement and Evaluation Survey (COPES), Back Function Questionnaire, and Functional Capacity Checklist. In light of this vocational examination and evaluation, Mr. Swearingin opined that the employee is presently governed by permanent restrictions and limitations that render her unemployable in the open and competitive labor market.

In discussing Ms. Conlan's psychological / psychiatric records, Mr. Swearingin noted that Ms. Conlan underwent multiple assessments, and obtained multiple Axis V: GAF scores. In this regard, as assessed by Janet Duvall, M.S., on November 7, 2006, the Axis V: GAF score was 47; as assessed by Janet Duvall, M.S., on December 27, 2007, the Axis V: GAF score was 43; as assessed by Dale Halfaker, Ph. D., on February 4, 2009, the Axis V: GAF score was 50; and as assessed by Michael R. Jarvis, Ph.D., on June 11, 2010, the Axis V: GAF score was 40. Notably, according to Mr. Swearingin, a GAF score below 50 is indicative of a person not being employable. Further, Mr. Swearingin noted that the Wechsler Memory Scale - III test identified memory problems, sufficient to be a hindrance or obstacle to employment. Mr. Swearingin likened the results of this test to reflect or suggest that Ms. Conlan "would work in slow motion" - "A condition that does not make her desirable for employment."

In rendering his opinion, Mr. Swearingin notes that Ms. Conlan suffers from PTSD and/or panic disorder, which significantly impacts her ability to attend, concentrate, focus and otherwise function cognitively and emotionally. According to Mr. Swearingin, Ms. Conlan's physical, cognitive and emotional impairments and disabilities render her "neither placeable nor employable in the competitive labor market" and is thus permanently and totally disabled. In this regard, Mr. Swearingin acknowledges that Ms. Conlan's "disability is overwhelmingly psychiatric and not physical." Mr. Swearingin thus opines that this permanent total disability is causally related to the occupational injury of October 13, 2006, in isolation, without consideration of her previous carpal tunnel symptoms.

James M. England, Jr., a licensed rehabilitation counselor, testified by deposition on behalf of the employer and insurer. Mr. England performed a vocational evaluation of Ms. Conlan on April 5, 2013. At the time of this vocational evaluation, Mr. England took a history from Ms. Conlan, reviewed various medical and psychological records, and administered a vocational assessment in the nature of the Wide-Range Achievement Test, Revision 3. In light of this vocational examination and evaluation, Mr. England opined that physically Ms. Conlan is not governed by any restrictions that would render her unemployable in the open and competitive labor market, although the restrictions attributable to her hand problems would prevent her from returning to past work as a customer service representative. Yet, considering the limitations and restrictions attributable to her psychological disability, Mr. England opines that Ms. Conlan is unemployable in the open and competitive labor market.

In rendering his vocation opinion and finding Ms. Conlan to be unemployable, Mr. England does not attribute this total disability to the October 13, 2006 accident, considered alone and in isolation. In this context, Mr. England propounds the following conclusions:

Based on the opinions of both the psychological experts ${ }^{2}$, she would not appear to be employable. Her lack of employability, however, would seem to clearly be due to a combination of the effects of her preexisting mental problems combined with the effects of the primary injury under the opinion of Dr. Halfaker and under the opinion of Dr. Jarvis they would be due totally to pre-existing problems without the effects of the primary injury.

The workers' compensation law for the State of Missouri underwent substantial change on or about August 28, 2005. The burden of establishing any affirmative defense is on the employer. The burden of proving an entitlement to compensation is on the employee, Section 287.808 RSMo. Administrative Law Judges and the Labor and Industrial Relations Commission shall weigh the evidence impartially without giving the benefit of the doubt to any party when weighing evidence and resolving factual conflicts, and are to construe strictly the provisions, Section 287.800 RSMo.

[^0]

[^0]: ${ }^{2}$ Subsequent to rendering this opinion in his first vocational report, Mr. England reviewed additional records and reports, including the medical report of Dr. Jarvis. This subsequent review did not cause him to alter his opinion, but rather served to reinforce his opinions.

I.

The parties readily acknowledge that on October 13, 2006, and while on the premises of the employer, the employee experienced an incident in the company elevator. The facts pertaining to this incident are described below.

On October 13, 2006, the employee, Charlene Conlan, arrived at work at approximately 6:15 a.m. She arrived early in order to familiarize herself with specific codes used by the employer, Southwestern Bell, in answering or addressing customer phone calls. Notably, these codes change quite often, and due to the pace of taking incoming calls, the customer service representatives need to be familiar with the codes to be able to complete promptly their job.

Upon arriving at the office, which is situated in a high rise office building owned by the employer, Ms. Conlan got into an elevator and pushed button " 5 " to go to her floor. At the time, she noted that all buttons lit up, the door shut, and the elevator went up to a floor that showed " 6 ." The elevator doors opened briefly, but then slammed shut, the whole elevator jerked, and she fell to the floor; the elevator dropped to the fifth floor. In falling to the floor Ms. Conlan fell sideways to her left and tried to catch herself with her left hand. On the way down, she hit her head, probably on the steel rail situated on the wall. When she stood up, she was situated on the $5^{\text {th }}$ floor and the doors were not opening.

Immediately thereafter, and alert to her circumstance of being unable to exit the elevator, Ms. Conlan began to experience a feeling described by her as "claustrophobia and panic anxiety." She got on the emergency phone but no one answered the phone. She then got her cell phone, and called her husband and informed him of being trapped in the elevator. As Ms. Conlan was on the phone with her husband, she began to cry and scream into the phone. Ms. Conlan's husband provided Ms. Conlan with the emergency telephone number of her supervisor, but in calling this number she did not get a response.

Ms. Conlan was trapped in the elevator for approximately one hour. During this time, she became a wreck emotionally, as she began to cry and scream for help, and was unable to communicate with anyone. Eventually, a fellow employee situated in the building became aware of Ms. Conlan's circumstance and obtained assistance. After being alone in the elevator for approximately one hour, individuals were able to open partially the elevator doors, which allowed Ms. Conlan to squeeze through the doors and exit the elevator.

Ms. Conlan attempted to return to work, but unable to stop crying, she could do nothing more than sit at her desk. Seeing Ms. Conlan unable to work, Ms. Conlan's supervisor told her to pull herself together and login. Ms. Conlan, however, was unable to login and begin work. Instead, with permission from her supervisor, Ms. Conlan telephoned her daughter and got a ride to her daughter's apartment, where she rested on the sofa for a period of time. At the agreed upon time, Ms. Conlan returned to the employer's office building and attempted to return to work. However, as before, Ms. Conlan was unable to login and engage in her assigned work duties. After being at the office for approximately 15 minutes, but unable to work, she departed the workplace and she drove herself home.

Upon arriving home, she could not do any activities and went to bed. The next day, Ms. Conlan began experiencing headaches, neck pain, and swelling in her left hand.

The employee asserts that this elevator incident caused her to sustain permanent physical injuries to her head, neck, left upper extremity, and a permanent mental injury in the nature of Post-Traumatic Stress Disorder. In contrast, the employer and insurer contend that this elevator incident did not cause Ms. Conlan to sustain any permanent physical injuries; and, while Ms. Conlan suffers from a mental illness, the illness is not PTSD, but a non-work related preexisting psychiatric illness in the nature of panic disorder with agoraphobia. Additionally, the employer and insurer argue that even if Ms. Conlan sustained an injury or injuries, such injuries did not arise out of and in the course of her employment with the employer (Southwestern Bell Telephone, LP) - the employee "failed to demonstrate her injuries were a rational consequence of a hazard connected with her employment." The parties offer competing and differing expert opinions in support of their respective positions.

The underlying issue in this case is whether the employee sustained a compensable injury when the elevator malfunctioned and jerked, causing the employee to fall and hit her head and left hand while inside the elevator, while the elevator dropped one floor, and then causing the employee to be stuck inside the elevator for approximately one hour. This inquiry requires consideration of the "Prevailing Factor" test, as set forth in Section 287.020.3, RSMo, which states the following:

(1) In this chapter the term "injury" is hereby defined to be an injury which has arisen out of and in the course of employment. An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. "The prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability.

(2) An injury shall be deemed to arise out of and in the course of the employment only if:

(a) It is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; and

(b) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life.

The adjudication of this issue involves a three-step process, and requires consideration of the following questions:

1. What is the injury (medical condition and disability)?
2. Which factor among the factors is the prevailing factor in causing the injury?

1. Whether the injury comes from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life?

See, Tillotson v. St. Joseph Medical Center, 347 S.W.3d 511 (Mo. App. W.D. 2011)

The evidence is supportive of a finding, and I find and conclude that the injuries in question involve both physical and mental injuries. The physical injury relates to an injury to the employee's head, neck and left upper extremity. The injury to the head and neck is in the nature of a mild concussion and neck strain, causing Ms. Conlan to experience residual neck pain and headaches. The injury to the left wrist is in the nature of a left wrist sprain, which causes Ms. Conlan to experience residual tenderness and pain in her left wrist. In rendering this determination, as it relates specifically to the physical injuries sustained by the employee, I resolve the differences in medical opinions in favor of Dr. Lennard, who I find credible, reliable and worthy of belief.

Further, after consideration and review of the evidence, I find and conclude that the employee presents with a mental injury in the nature of Post-Traumatic Stress Disorder. In rendering this decision, I note that multiple physicians and psychologists opine that Ms. Conlan suffers from a mental injury in the nature of post-traumatic disorder. These opinions stand in contrast to the differing opinion offered by Dr. Jarvis, who opines that Ms. Conlan suffers from Panic Disorder with agoraphobia, as opposed to Post-Traumatic Stress Disorder. I resolve these differences in favor of the physicians and/or psychologists diagnosing and/or treating Ms. Conlan for PTSD, who I find credible, reliable and worthy of belief. Moreover, after reviewing the expert opinions in context of the evidence presented by the parties, I find the testimony and opinions provided by Dr. Halfaker to be more compelling and persuasive than the testimony and opinions offered by Dr. Jarvis.

Which factor among the factors is the prevailing factor in causing the employee's injuries (mild concussion, neck strain, left wrist strain and post-traumatic stress disorder)?

The evidence presented at the hearing indicates that when the employee got into the elevator and pushed button " 5 " to go to her floor, all buttons lit up, the door shut, and the elevator went up to a floor that showed " 6 ." The elevator doors opened briefly, but then slammed shut, the whole elevator jerked, causing the employee to fall to the floor; the elevator dropped to the fifth floor. In falling to the floor the employee fell sideways to her left and tried to catch herself with her left hand. On the way down, she hit her head, probably on the steel rail situated on the wall. Further, the medical records, as noted by Dr. Volarich, suggest that Ms. Conlan momentarily lost consciousness when she hit her head.

The following day, October 14, 2006, Ms. Conlan experienced neck pain, her head hurt, and her left wrist was swollen. Yet, diagnostic studies were rather unremarkable. The MRI of the cervical spine revealed a small to moderate central disc protrusion of the cervical spine at the level of C3-C4 without impingement. This MRI further showed greater stenosis in the right lateral recess and foramen at C4-C5, with a bulge at C5-C6. Additionally, while Ms. Conlan presented with a prior injury to her left wrist, which involved a carpal tunnel syndrome with

surgical release, the left wrist strain represents a new and distinct injury causing additional residual pain.

Accordingly, after consideration and review of the evidence, and relying principally upon the medical opinions of Dr. Lennard, whose testimony I find compelling and persuasive, I find and conclude that the accident of October 13, 2006, is the prevailing factor in causing the employee to sustain a physical injury in the nature of a mild concussion, neck strain and a left wrist strain. These injuries cause Ms. Conlan to suffer residual neck pain, headaches and left wrist pain.

In regard to the post-traumatic stress disorder, the elevator incident is not limited to the elevator door slamming shut and the whole elevator jerking, causing the employee to fall to the floor and hit her head and left wrist; while the elevator dropped to the fifth floor. Additional evidence includes a malfunctioning elevator that did not immediately open, causing the employee to be stuck alone and inside the elevator for approximately one hour. Further, while Ms. Conlan suffered from preexisting panic attacks and anxiety, as well claustrophobia, these conditions are separate and distinct from Post-traumatic Stress Disorder, and made Ms. Conlan fragile and susceptible to suffering a separate and distinct injury in the nature of PTSD.

Also, in rejecting the opinions of Dr. Jarvis, I note that in part he premises his opinion on his belief that the elevator incident did not provide the requisite traumatic event. In this context, Dr. Jarvis states that Post-Traumatic Stress Disorder is the sequela of a traumatic event, involving, among other things, "actual or threatened death or serious injury, or other threat to one's physical integrity..." In examining the elevator incident, Dr. Jarvis focuses entirely on the failure of the elevator to open and Ms. Conlan's hysterical response, while seemingly omitting reference to Ms. Conlan witnessing the earlier elevator malfunction, causing multiple floors to light and the elevator to drop a floor suddenly, after going up an additional floor beyond her intended designation. Certainly, an elevator dropping a floor creates a traumatic event, sufficient to provide a "threat of serious injury to her person." The failure of the elevator to open intensified the trauma, particularly as the trauma relates to Ms. Conlan, a fragile person highly susceptible to suffering mental injury.

As noted by Dr. Halfaker, at the time of the elevator incident Ms. Conlan presented as a fragile individual; she suffered issues with anxiety, panic attacks, and claustrophobia. As such, she was highly susceptible to suffering a mental injury in the nature of PTSD, and the elevator incident significantly exacerbated any preexisting problems with anxiety, panic attacks, and claustrophobia. In explaining the nature of this injury, Dr. Halfaker opines that the preexisting claustrophobia and the prior incident with the Jeep rendered Ms. Conlan fragile and susceptible to injury; and as a consequence, the elevator incident had a greater impact on her than might have otherwise been expected from such an event. Dr. Halfaker thus opines that the elevator incident caused Ms. Conlan to sustain an injury in the nature of Post-traumatic Stress Disorder, as the term is defined in DSM-IV-TR.

In addition, while much has been reported and testified to regarding "the Jeep incident," there is no evidence either in any medical records or via testimony of anyone with knowledge that following "the Jeep incident" Ms. Conlan had continued and ongoing problems that resulted in any hindrance to her ability to be employed. At the time of "the Jeep incident" Ms. Conlan was co-owner of a bakery that was a very stressful and demanding job. There is no evidence that

"the Jeep incident" caused Ms. Conlan to miss any time from work at the bakery. Likewise, there is no indication that "the Jeep incident" caused Ms. Conlan to have any difficulty being able to get in a car and drive across country or wherever else she needed. She drove herself and her daughters from Georgia to Missouri following "the Jeep incident" without problem.

Also, while Ms. Conaln received a prescription for and took Klonopin prior to the "elevator incident." she was having difficulty sleeping because of pain and numbness in her upper extremities, which is established by the medical records. According to Ms. Conlan, the lack of sleep was interfering with her ability to do her job effectively, and her job was more stressful because of the lack of sleep and pain and problems she was having in her upper extremity. However, following the left carpal tunnel release her stress and anxiety lessened somewhat and she was able to return back to her job and to do it without difficulty.

In addition, Ms. Conlan has not worked a single day since the "elevator incident". The "elevator incident", was very stressful and anxiety producing. She was trapped in the elevator for an hour, which had fallen, or jerked, several feet down prior to coming to a stop. During that time she began to panic. Since the "elevator incident," she has been unable to concentrate, work, drive, take care of her own house and do most everything she was completely able to do before the "elevator incident."

Although a stronger individual might not have sustained such a mental injury, Ms. Conlan did not possess such strength; she was fragile and susceptible to suffering injury of this kind. This principle is recognized as a long-standing principle of law, which avers that the court must take each employee as the court finds him or her. In law school this idea is referred to as the "eggshell" plaintiff (or claimant). The elevator incident of October 13, 2006, is the prevailing factor in causing the employee to sustain the mental injury in the nature of post-traumatic stress disorder.

The adjudication of this issue involves determination of whether the injury sustained by Ms. Conlan, caused by the elevator incident of October 13, 2006, arose out of and in the course of her employment with the employer, Southwestern Bell Telephone, LP. The employer suggests that the employee's injury comes from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to her employment in normal nonemployment life. In this regard, the employer contends that the employee failed to demonstrate that her injuries were a rational consequence of a hazard connected with her employment. More specifically, the employer and insurer state that the injury occurred before Ms. Conlan clocked into work and began her work shift, which was scheduled to begin at 7:00 a.m. Additionally, the employer and insurer state that riding an elevator is not integral to the performance of her work for Southwestern Bell Telephone, LP

The arguments of the employer are not persuasive. The building in question is a high-rise building, and is identified by the employer as the AT\&T building and is recognized by the parties as the property of the employer. The use of the elevator is an integral part of the employer's business, insofar as it is a tool or equipment used by employer to move its employees

from the parking lot to their individual offices. At the time of the incident, the employee had arrived for work and was on the premises to do her work. Although she arrived early, she did so in order to further the employer's business, as she prepared to ready herself in learning and applying the necessary codes applicable to her job. She was in the elevator in order to transport herself from the first floor to the fifth floor. At a minimum, the activity of the employee at the time of the accident falls within the extended premises doctrine.

Also, while the facts of this case are different from the facts presented in Duever v. All Outdoors, Inc., 371 S.W.3d 863, 865 (Mo. App. E.D. 2012), wherein the employee slipped and fell on black ice while walking from a parking lot to a warehouse, having just held a safety meeting, the court's reasoning applies to this case. In affirming an award of benefits, the court in Duever determined that the employee was in an unsafe location, the parking lot, because of his employment, and sustained an injury due to an unsafe condition, the black ice, over which the employee had no control. Duever at 867-868. Much like the employee in Duever, the employee in this case was placed in an unsafe condition, the malfunctioning elevator - an elevator situated on property of the employer, because of her employment with the employer. The elevator malfunctioned and the employee fell inside the elevator while the elevator dropped a floor; and the elevator further malfunctioned in not allowing the employee to exit for approximately one hour, causing the employee to sustain physical injuries to her head, neck, left wrist and a mental injury in the nature of PTSD. These injuries were sustained due to the unsafe condition, the malfunctioning elevator, a situation over which she had no control.

Accordingly, after consideration and review of the evidence, and in light of Duever and Section 287.020.5, RSMo, I find and conclude that the employee sustained an injury by accident on October 13, 2006, which arose out of and in the course of her employment with the employer.

The employee incurred medical care and expenses related to treatment of the physical and mental injuries (mild concussion, neck sprain, left knee sprain and post-traumatic stress disorder) she sustained as a consequence of suffering the October 13, 2006, accident. The medical expenses incurred relative to this treatment, for which the employee seeks reimbursement, are identified in Exhibit D. Additionally, Dr. Volarich identified this treatment as being reasonable, necessary and causally related to the October 13, 2006, accident. Similarly, Dr. Volarich opined that the medical expenses are fair and reasonable.

In denying liability for this treatment, the employer and insurer declined to provide the employee with the requisite medical care. The employer's denial of medical care was based on their defense of Ms. Conlan not sustaining a compensable injury, and not because she did not need additional medical care. Consequently, having found the employee to have sustained a compensable injury on October 13, 2006, involving mild concussion, neck sprain, left knee sprain and post-traumatic stress disorder, the employer and insurer were wrong to deny receipt of medical care for treatment of these concerns.

Hence, the employer in this case does not enjoy the defense of asserting that the medical care was provided by health care providers selected by the employee, and not authorized by the employer. Although the employer enjoys generally the right to select the health care provider, the

employer improperly denied the compensability of the work injury, and waived its right to select the health care provider. The employer may be held liable for payment of medical expenses incurred by the employee; provided, however, the medical care flows from the work injury of October 13, 2006.

Accordingly, finding that the medical care and expenses incurred by the employee flow from the work injury of October 13, 2006, and the expenses are as noted in Exhibit D, the employer is ordered to pay to the employee $\ 11,742.14 in medical expenses. (The case file does not identify a Medicaid or Medicare lien. However, if there is such a lien the payment of these medical expenses shall be subject to payment and satisfaction of any Medicare lien.)

In light of my prior findings and conclusions, I find and conclude that the evidence is insufficient to support a claim for future medical care relative to treatment of the neck strain and left wrist strain. Accordingly, the employee's request for additional or future medical care relative to treatment of the neck strain or left wrist strain is denied.

However, the evidence is supportive of a finding that the employee is in need of additional or future medical care in order to cure and relieve the employee from the effects of the October 13, 2006, accident and injury relating to the mild concussion and post-traumatic stress disorder. (The continuing treatment for the mild concussion relates primarily to treatment of the psychological overlay in this case, as noted by Dr. Halfaker.) Therefore, the employer is ordered to provide the employee with such medical care as may be deemed reasonable, necessary and causally related to the October 13, 2006, accident and treatment of her mild concussion and posttraumatic stress disorder.

The employee did not return to employment with the employer following the accident of October 13, 2006. Nor has she returned to any employment since suffering the accident of October 13, 2006. The evidence is supportive of a finding that the development of post-traumatic stress disorder caused by the October 13, 2006, accident, and the residual effects from this mental disability renders Ms. Conlan unemployable in the open and competitive labor market. She has been totally disabled since suffering this injury.

Accordingly, insofar as the payment of temporary disability compensation by the employer and insurer is limited to $\ 410.78, the employee is entitled to additional temporary disability compensation. The amount of temporary disability compensation owed to the employee, however, is dependent on whether the employee has reached maximum medical improvement (ceased being temporarily disabled); and if so, when did she reach maximum medical improvement. As to this issue, I find and conclude that the employee has reached maximum medical improvement relative to treatment of all injuries, and she did so on February 4, 2009. (This date is based on review of all the evidence, medical records and expert opinions, including the psychological report of Dr. Halfaker.)

Thus, for the foregoing reasons, after consideration and review of the evidence, I find and conclude that the employee was temporarily and totally disabled for the period of October 14, 2006, to February 4, 2009 (120 4/7 weeks). Therefore, the employer is ordered to pay to the employee the sum of $\ 81,194.38. This sum represents $1204 / 7$ weeks of temporary total disability compensation, payable for the period of October 14, 2006, to February 4, 2009 $(\ 81,605.16), less credit for the prior payment of $\ 410.78.

Permanent Disability Compensation

The parties' dispute whether the employee is permanently and totally disabled; and, if so, whether she is permanently and totally disabled as a consequence of the work injury, considered alone. The adjudication of this issue requires consideration of Section 287.020.6, RSMo, and applicable case law. Section 287.020.6, RSMo 1994 states:

The term 'total disability' as used in this chapter [Chapter 287] shall mean inability to return to any employment and not merely mean inability to return to the employment in which the employee was engaged at the time of the accident.

In giving meaning to this provision the courts have provided instruction and guidance. "The test for permanent total disability is whether, given the claimant's situation and condition, he or she is competent to compete in the open labor market. [citation omitted] The question is whether an employer in the usual course of business would reasonably be expected to hire the claimant in the claimant's present physical condition, reasonably expecting the claimant to perform the work for which he or she is hire." Reiner v. Treasurer of State of Mo., 837 S.W.2d 363, 367 (Mo. App. 1992).

Also, where permanent total disability is alleged, the Administrative Law Judge must first consider the liability of the employer in isolation by determining the degree of disability due to the last injury. APAC Kansas, Inc. v. Smith, 227 S.W.3d 1,4 (Mo. App.W.D. 2007). If the claimant (employee) is not permanently and totally disabled from the last accident, then the degree of disability attributable to all injures is determined. 227 S.W.3d at 4. Further, in considering employer liability several additional principles bear reprise.

The inability to return to any employment means the inability to perform the usual duties of the employment in a manner that such duties are customarily performed by the average person engaged in such employment. Gordon v. Tri-State Motor Transit Co., 908 S.W.2d 849 (Mo. App. S.D. 1995). In determining whether the claimant can return to employment, Missouri law allows the consideration of the claimant's age and education, along with physical abilities. BAXI v. United Technologies Automotive, 956 S.W.2d 340 (Mo. App. E.D. 1997). While "total disability" does not require that the claimant be completely inactive or inert, Sifferman v. Sears Roebuck and Co., 906 S.W.2d 823, 826 (Mo. App. S.D. 1996), overruled on other grounds, Hampton v. Big Boy Steel Erection, 121 S.W.2d 220 (Mo. Banc 2003), it does require a finding that the employee is unable to work in any employment in the open labor market, and not merely the inability to return to the employment in which the employee was engaged at the time of the accident. Sullivan v. Masters Jackson Paving Co., 35 S.W.3d 879, 884 (Mo. App. S.D. 2001), overruled on other grounds, Hampton v. Big Boy Steel Erection, 121 S.W.2d 220 (Mo. banc 2003). The central question is: In the ordinary course of business, would any employer

reasonably be expected to hire Claimant in his [or her] physical condition? Ransburg v. Great Plains Drilling, 22 S.W.3d 726, 732 (Mo. App. W.D.2000) overruled on other grounds, Hampton v. Big Boy Steel Erection, 121 S.W.2d 220 (Mo. banc 2003).

In asserting her claim, Ms. Conlan asserts that the work injury of October 13, 2006, causes her to be governed by limitations and/or work restrictions that render her unemployable and totally disabled. Notably, the medical and psychological experts, as well as the vocational experts, appear to be in agreement that Ms. Conlan suffers from a mental injury that renders her totally disabled. In this context, both mental health experts (Dr. Halfaker and Dr. Jarvis) acknowledge that Ms. Conlan suffers from a mental condition, and this condition is significantly disabling, sufficient to render her totally disabled. As to the effects of the mental injury, Dr. Jarvis states that Ms. Conlan suffers from a psychiatric illness, which renders her "psychologically impaired," and affects her "concentration and memory." Similarly, Dr. Halfaker recognizes the limited capacity for Ms. Conlan to engage in employment and recommends that she be examined by a vocational evaluator to assist her in understanding her vocational potential, as well as providing assistance in future planning.

The primary difference in opinions between Dr. Jarvis and Dr. Halfaker is the nature of the psychiatric illness - Dr. Halfaker relates the mental injury to the PTSD, causally related to the work incident involving the elevator on October 13, 2006; while Dr. Jarvis relates the mental injury to a preexisting psychiatric illness in the nature of panic disorder with agoraphobia. For reasons previously stated, this difference is resolved in favor of the opinions provided by Dr. Halfaker. I find and conclude that the mental injury in question, which renders Ms. Conlan permanently and totally disabled is the PTSD, a condition causally related to the work incident involving the elevator on October 13, 2006.

In addition, both vocational experts opine that Ms. Conlan is permanently and totally disabled. In recognizing that Ms. Conlan suffers from PTSD and/or panic disorder, which significantly impacts her ability to attend, concentrate, focus and otherwise function cognitively and emotionally, Mr. Swearingin opines that Ms. Conlan's physical, cognitive and emotional impairments and disabilities render her "neither placeable nor employable in the competitive labor market" and is thus permanently and totally disabled. In this regard, Mr. Swearingin acknowledges that Ms. Conlan's "disability is overwhelmingly psychiatric and not physical." Mr. Swearingin thus opines that this permanent total disability is causally related to the occupational injury of October 13, 2006, in isolation, without consideration of her previous carpal tunnel symptoms. In contrast, while Mr. England agrees that Ms. Conlan is governed by significant limitations and restrictions attributable to her psychological disability, and these limitations and restrictions render her unemployable in the open and competitive labor market. Mr. England differs from Mr. Swearingin in that he attributes the lack of employability to be due to a combination of the effects of her preexisting mental problems combined with the effects of the primary injury - if he assumed the opinion of Dr. Halfaker; and the lack of employability to be due totally to pre-existing problems without the effects of the primary injury - if he assumed the opinion of Dr. Jarvis.

After consideration and review of the evidence, I find and conclude that the limitations and restrictions attributable to the PTSD, a mental condition caused by the accident of October 13, 2006, render the employee unemployable in the open and competitive labor market. Accordingly, I find and conclude that as a consequence of the accident of October 13, 2006,

considered alone, the employee is permanently and totally disabled. The employer is thus ordered to pay to the employee, Charlene K. Conlan, the sum of $\ 676.82 per week for the employee's lifetime. The payment of permanent total disability compensation by the employer is effective as of February 4, 2009, when she reached maximum medical improvement.

In light of this award finding the employer liable for payment of permanent total disability compensation, the issue of Second Injury Fund liability is rendered moot. Accordingly, there can be no Second Injury Fund liability. The Claim for Compensation filed against the Second Injury Fund is denied.

An attorney's fee of 25 percent of the benefits ordered to be paid is hereby approved, and shall be a lien against the proceeds until paid. Interest as provided by law is applicable. The Award is subject to modifications as provided by law.

Made by: /s/ L. Timothy Wilson

L. Timothy Wilson

Administrative Law Judge

Division of Workers' Compensation