Richard Johnston v. City of Kansas City

(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 foregoing makes clear that an employee cannot be said to have sustained an "injury by accident arising out of and in the course of the employment" without satisfying the requirement that the accident be shown to be the prevailing factor in causing both the resulting medical condition and disability. In other words, a finding for the employee with respect to the issue of medical causation is a necessary (albeit not always a sufficient) element of a conclusion that the employee's injury arose out of and in the course of the employment. It follows that the issue of medical causation is not properly in dispute in this case.

However, we note that the administrative law judge also identified an alternative reason for denying this claim. Specifically, the administrative law judge determined that employee was permanently and totally disabled as a result of his severe preexisting post-traumatic stress disorder (PTSD) before he suffered the work injury of December 18, 2007. The plain language of $\S 287.220$ RSMo makes clear that compensation from the Second Injury Fund is only available where an employee's preexisting disability is partial:

If any employee who has 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, and the preexisting permanent partial disability, if a body as a whole injury, equals a minimum of fifty weeks of compensation or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, according to the medical standards that are used in determining such compensation, receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree or percentage of disability, in an amount equal to a minimum of fifty weeks compensation, if a body as a whole injury or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, caused by the combined disabilities is substantially greater than that which would have resulted from the last injury, considered alone and of itself, and if the employee is entitled to receive compensation on the basis of the combined disabilities, the employer at the time of the last injury shall be liable only for the degree or percentage of disability which would have resulted from the last injury had there been no preexisting disability. After the compensation liability of the employer for the last injury, considered alone, has been determined by an administrative law judge or the commission, the degree or percentage of employee's disability that is attributable to all injuries or conditions existing at the time the last injury was sustained shall then be determined

by that administrative law judge or by the commission and the degree or percentage of disability which existed prior to the last injury plus the disability resulting from the last injury, if any, considered alone, shall be deducted from the combined disability, and compensation for the balance, if any, shall be paid out of a special fund known as the second injury fund, hereinafter provided for. If the previous disability or disabilities, whether from compensable injury or otherwise, and the last injury together result in total and permanent disability, the minimum standards under this subsection for a body as a whole injury or a major extremity injury shall not apply and the employer at the time of the last injury shall be liable only for the disability resulting from the last injury considered alone and of itself; except that if the compensation for which the employer at the time of the last injury is liable is less than the compensation provided in this chapter for permanent total disability, then in addition to the compensation for which the employer is liable and after the completion of payment of the compensation by the employer, the employee shall be paid the remainder of the compensation that would be due for permanent total disability under section 287.200 out of the second injury fund.

(emphasis added).

As seen above, with respect to a claim for enhanced permanent partial disability benefits from the Second Injury Fund, the preexisting disability must be a "preexisting permanent partial disability." This obviously precludes claims where the employee's preexisting disability is shown to be total. While $\S 287.220$ is somewhat less clear with respect to a claim for permanent total disability benefits, the statute requires that the preexisting disability and the primary injury must be shown to "together result" in total and permanent disability. It follows that the preexisting disability must be partial in this context as well: if the preexisting disability were total, there would be no need to combine the primary injury for a "result" of permanent total disability.

The administrative law judge thoroughly summarized the evidence, weighed the conflicting lay and expert testimony advanced by the parties, and provided several explicit reasons for discounting employee's evidence and finding that, if indeed employee is incapable of work, it is a product of employee's psychiatric condition as it existed prior to December 18, 2007. "Ability to compete in the labor market is a test for permanent total disability in that it measures the worker's prospects for returning to employment." Laturno v. Carnahan, 640 S.W.2d 470 (Mo. App. 1982). Ordinarily, we are of the opinion that this "test for probable future employment cannot change the fact of past employment." Id. But here, the record reveals that employee's preexisting PTSD was both chronic and exceedingly severe, to the extent that employee's treating psychiatrist with the Veteran's Administration, Dr. Glydene Park, assigned a global assessment of function (GAF) score of 45 as of November 15, 2007, based on employee's psychiatric condition. Employee's vocational expert, Mary Titterington, persuasively opined that a GAF score of 45 would be "too low to support work." Transcript, page 914.

Allo, as noted by the administrative law judge, employee's own evaluating psychiatrist, Dr. Todd Hill, originally opined that employee is permanently and totally disabled by reason of his preexisting PTSD considered alone. Employee argued on appeal that this opinion from Dr. Hill was in the nature of a purely clerical mistake or a poor choice of words. We are not persuaded. In his report of January 23, 2009, Dr. Hill provided the following comments with respect to employee's PTSD:

It is my professional opinion, having dealt with many patients with this disorder and having worked at the Kansas City VA Medical Center while a resident at the University of Kansas, that [employee] is permanently and totally disabled secondary to this psychiatric condition. My opinion is also in agreement with [employee's] current treating psychiatrist, Dr. Demark, who, in a note dated August 12, 2008, stated that "based on the patient's PTSD symptoms of depression, sleep disturbance, irritability, anger, rage and history of violence, I feel that the patient is unemployable." ... Any place of employment that requires regular attendance, supervised or unsupervised routines, and completion of a workday and workweek, would set [employee] up for failure and further psychological distress. ... In summary, it is my opinion that [employee] is permanently and totally disabled secondary to his severe post traumatic stress disorder. This level of disability is separate from his physical impairments, as outlined by Dr. Koprivica.

Transcript, pages 886-87.

Ultimately, after our own thorough review of the record in light of the arguments advanced by the parties, we discern no compelling reason to disturb the administrative law judge's findings and analysis with regard to the nature and extent of employee's permanent disability referable to his preexisting PTSD condition. Because we agree that employee cannot logically demonstrate that his preexisting PTSD and the primary injury "together result" in permanent and totally disability where it is obvious that the PTSD condition alone renders employee unable to compete for employment, we conclude employee has failed to satisfy the requirements of $\S 287.220$ for demonstrating Second Injury Fund liability. For this reason, we affirm and adopt as our own the administrative law judge's award denying compensation.

We note that recent appellate decisions have rendered inaccurate certain of the administrative law judge's statements of Missouri law. Although these decisions do not affect the ultimate result in this case, we discern a need to supplement the administrative law judge's award to acknowledge this more recent case law.

Specifically, we note that in the case of Treasurer