Based on a comprehensive review of the evidence, including Claimant's testimony, the expert medical opinions and depositions, the vocational expert opinion and deposition, the medical records, the other business records, and the testimony of the other witness, as well as based on my personal observations of Claimant and the other witness at hearing, I find:
1) Claimant is a 57-year-old, currently unemployed individual, who worked for Greystone Partners, Inc. (Employer) as a property manager from August 1998 until February 28, 1999. His employment ended on that date because Employer was no longer managing the property to which he was assigned and the new property management firm did not retain him as the property manager.
2) Claimant is still married to his wife, Rosita, who now lives outside Palermo, Italy, since she was deported by the federal government in November 2005, after pleading guilty to drug charges (selling Xanax). He said that he originally met her when he went to Sicily at age 28 to find a wife, since he could not find what he was looking for
in American women. He has two children, Vincenzo, who is age 28, and Daniela, who is age 25 , and who herself has a 4 -year-old son.
3) Claimant currently lives on a mattress on his mother's living room floor because he has no income. He said that he originally received Social Security disability from 1992-1994, but went back to work in 1994 because he had to take care of his wife and children. He again received Social Security disability from February 28, 1999 until December 2004, when it was again stopped for reasons discussed in more detail below. He denied having any employment since 1999, except trying to play the trumpet to make money and illegally selling drugs, which the federal government deemed gainful employment, as described below. He denied having any income at the current time.
4) Claimant testified that his father was physically and emotionally abusive as he was growing up. He said that his father drank and beat him and his brother. Claimant testified that he got into a lot of fights while growing up. He justified it as him being a "blue collar kid growing up in a blue collar neighborhood." He said that it was easy for people to make him upset and angry. He noted that sometimes, he just had to get out of the environment to calm down.
5) Claimant testified that he graduated from Bishop Duborg High School in St. Louis and attended Southern Illinois University Edwardsville, where he graduated with a degree in Fine Arts \& Communications and a minor in Business Administration. He said that he was able to attend that college because he received a scholarship for playing the trumpet.
6) Claimant testified that from 1972 until 1992, he had an excellent band, in which he played the trumpet, but no one was hiring bands anymore, so it disbanded. He said that playing the trumpet was a hobby for him. He noted that he would get tips when he sits in with a band on Tuesday and Wednesday nights, but he said that he had no paying performances and he could not make money just playing the trumpet.
7) Claimant testified that he was a power lifter and bodybuilder during most of his life. He admitted to using steroids while participating in these activities. He said that it was common in the competition circuit and it was the normal custom and practice for anybody that wanted to win.
8) Claimant testified that he had a real estate brokers' license from 1985 until 2004 or 2005. However, he did not renew it at that time and so it is no longer valid. Despite having the license, he testified that he never really worked as a real estate agent and he only used the license for buying his own house and his brother's house. He said that he obtained the license so that he could go into property management, which is a more secure income because of essentially working for a corporation. Claimant testified that his career has been in property management and turning struggling properties around.
9) In terms of describing his skills, Claimant said that he "is not a people person." He noted a number of times during the trial that his specialty is "squeezing" people. He admitted that he is not a salesman. He said that others can make the sale, but if you need someone to "collect," then he is your guy. He knows how to "squeeze people." He said that he likes to be in control and keeps a tight rein on everything wherever he is at the time.
10) Claimant testified that his first job in property management was working for a property owner, Bob Piles, who owned numerous places in South St. Louis. He said that he managed the properties for Mr. Piles in the mid 1980s. Claimant said that he left that job because Mr. Piles was a rigid individual who did not understand what needed to be done to collect money from people. In that respect, Claimant told a story of how he held a .38 caliber gun behind the door one time when he was dealing with an irate resident with whom he had some problems. He explained, "This guy comes to my door and he wants to talk to me. Little does he know I'm behind the door with my gun like this. I got my .38 , and if you open that fucking door I'll kill you, it's that simple. I can't deal with anybody." Claimant got very agitated and demonstrative while telling this story, but there was almost a sense of pride and joy in his tone that he had a gun behind the door and would not be afraid to brandish it and/or use it, to put the resident in his place and keep control of the situation.
11) He also went into business with the owner of REK windows, doors and siding. He said they were partners. Based on his description, he managed the various properties that REK owned and sunk a lot of his personal money into properties that were part of the business as well. At some point, the owner of REK, who was also Claimant's business partner, committed suicide. Following the suicide, Claimant said that all of the businesses and all of the properties went downhill. Claimant testified that he lost all of his property and even lost his new house. Boatmen's Bank told him that he was responsible to them for a $\ 640,000.00 loan that had been taken out for the properties.
12) He next worked for Mills Properties in Kinloch from 1991-1992. He agreed with the description of this job as managing "problem properties." He said they were low income housing, with drugs and other criminal elements pervasive on the properties. Claimant noted that the Kinloch property was the worst property he had ever managed.
13) He said that it was important to him to be able to provide for his wife and children and he realized at that point that he could not do it, so he got a gun. Claimant testified that subsequently he received outpatient treatment for three weeks at St. Anthony's Hyland Center and he was hospitalized for ten days at Christian Hospital NortheastNorthwest in the psychiatric intensive care unit, where they kept him really medicated. Claimant denied having any psychiatric diagnoses prior to 1991.
14) The records of the Missouri Division of Workers' Compensation (Exhibit D) confirm that Claimant filed a Claim for Compensation (Injury Number 91-187447) with a date of injury of March 11, 1991 against Mills Properties for psychological disability. Claimant alleged that following the suicide of his former employer, he lost
his job and assets and became despondent, and although Mills knew those facts, they hired Claimant and put him in a stressful environment, resulting in his emotional collapse in March 1991. Claimant alleged in the claim that the on-the-job stressors included repeated insults from tenants, long hours, interruption of his personal life at all hours, harassment, heavy workload assignments, threatening and carrying out evictions and his eventual discharge by Mills.
15) Claimant testified that in connection with the 1991 episode, he felt like killing someone or killing himself. In fact, he admitted at trial that he gets the urge to kill people, but he has never done it.
16) Medical treatment records from Christian Hospital Northeast-Northwest (Exhibit G) document Claimant's admission to that facility from June 17, 1991 through June 21, 1991 for diagnoses of major depression and an underlying personality disorder. The notes from Dr. Safwat Wahba contain a history of Claimant sustaining severe financial losses over the prior several months, having family issues with his father and wife and being fired from his job because they did not like his attitude. During his admission, he expressed resentment toward everyone who destroyed him financially, thoughts of hurting others, lots of anger and feeling overwhelmed and stressed out. He was noted to have been arrested for third-degree assault after he had a fight with the loan broker at Boatmen's Bank. He was treated with antidepressant medications and therapy through a PACE program, that he was supposed to continue to attend on an outpatient basis, after he was discharged from the hospital. The notes indicate his last visit, even for the outpatient program was on July 5, 1991.
17) A medical report from Dr. Safwat Wahba at Psychiatric Coverage, Ltd. (Exhibit D) to the Social Security Office dated July 31, 1991 details the psychiatric issues and treatment Claimant had up to that point. The report documents Claimant's severe business losses following his boss's suicide in 1990, his subsequent hiring by Mills Properties on January 2, 1991 and his termination from that job on March 11, 1991. It was noted that, "He was unable to handle the combination of the previous stresses and job related pressures." Dr. Wahba notes that Claimant had his life set up (including his family life) to be in total control and have total responsibility, but finds himself totally out of control, unable to meet responsibilities and without an acceptable avenue to express his depression and aggression. Dr. Wahba opined that Claimant was emotionally disabled at that time and in need of treatment. It was his hope that with some relief of his stress of providing food and shelter for himself and his family, that he could get treatment and once again become a productive member of society. Claimant continued to see Dr. Wahba periodically through February 9, 1998. Notes from 1993 reference jail time in relation to abusing his wife and that his condition decompensates when he is under stress. In February 1994, Claimant reported that he had a job managing 325 apartment units and he "is doing well." According to the notes, throughout the few years that followed, he was characterized as "doing well" and "stable" with regard to his treatment for his psychiatric issues. As of January 16, 1996, Claimant's treatment was transferred to Dr. Poyanil Mathew, who saw Claimant four times as of March 30, 1998. He opined that Claimant "suffered a
depressive episode in 1991 that rendered him incapacitated to carry out his duties as resident manager."
18) Regarding the references to his abusing his wife in the 1991 psychiatric records, Claimant testified that he never struck his wife. However, he admitted that he did throw his wife over the hood of her car because it broke down and he had to go get her when he told her not to drive the car in the first place. In that respect, it was almost as if he was suggesting that she had it coming, since she did not listen to him and took the car against his advice to the contrary. He denied having any anger issues with his wife before 1991 and said he was just dealing with "typical woman crap, you know how they are."
19) Claimant also described that during this time he attacked and beat a loan officer who refused to give him a loan. He said that he entered the loan officer's office, locked the door, and told him to loan him the money or he would break his face. Claimant said that he "beat his brains" and almost bit off the loan officer's nose. Then, he trashed the office before he left. He said that he could have killed the loan officer that day and that he made the loan officer "look like a woman." Claimant acknowledged that the steroids he took exacerbated his anger issues.
20) Claimant also acknowledged that he beat up his father at some point, but he said that they had mended fences before his father died.
21) Claimant and employer resolved their portion of this March 11, 1991 case (Injury Number 91-187447) by Stipulation for Compromise Settlement (Exhibits D and SIF V) for the payment of $\ 15,000.00, as a compromise of all disputes in the case. This Stipulation for Compromise Settlement was approved by Administrative Law Judge Edwin J. Kohner on July 16, 1998.
22) Despite receiving Social Security disability, Claimant testified that in January 1994 he went back to work because he had to take care of his wife and kids. He said that he was not going to flip hamburgers and admitted that it paid well for him to work as an apartment manager in bad neighborhoods, so he went back to working the same kind of job that he had prior to his depressive episode.
23) He worked for approximately four years at Parque Carondelet Apartments, but quit when he said they went back on a deal to increase his income and because he had no benefits there. He worked for approximately six months at Murphy Blair, but was fired because of "squeezing people." Finally, he went to work managing the Boaz Apartments in Kinloch in December 1997, which was eventually taken over by Employer in August 1998, making him an employee of Employer.
24) Claimant testified that when he managed the Boaz Apartments, he had to deal with drug dealers, turf shootings and prostitution. He said that he erected a wrought-iron fence around the property, but they would pry the bars apart and still get in the property. He noted that he would have to threaten the parents to get their children under control or he would have them evicted.
25) Claimant testified that in December 1998, he was sitting back in his office (situated behind the outer office and outer door), when maintenance workers started running through the outer office door saying that they needed to come in and then lock the door. They reported that the security guard was getting beaten up by some intruders.
26) Claimant said that he kept his gun in his top drawer in the office. He noted that he usually carried it in his briefcase, but when he was in the office, he placed it in the top drawer. With the security guard getting beaten up outside, he took the gun out of the drawer, opened the door and pointed the gun at the group that was attacking the guard. At that point, the group backed up, ran to their car, got in and drove away. He admitted that he never saw a gun and no shots were fired. The apartment complex workers dragged the guard into the office and called the police and ambulance. Claimant said that he came back into the office, sat down and realized, "These people have no respect for their own people." He said that he thought he was going to be next and he was going to die. He explained that he never felt like he was going to die except at Boaz, because he was always confident and hard to intimidate. He said that in the past he felt like others could try to get him but they would lose. In this encounter, he said that he realized they might have had the security guard's gun and they could have shot him. He said that he was so scared that he shook and realized it was not worth it anymore. He determined that he was not going to do this job anymore and that the money was not worth it.
27) Claimant testified that following this incident he did not feel comfortable or safe to stay there. He said that he did not feel like he could work anymore in the ghetto, even though he had worked in ghettos before.
28) On December 21, 1998, Claimant submitted a handwritten note (Exhibit Q) to his supervisor asking them to look for another manager for the property. He referenced the beating of the security guard, that the place was not safe and that he did not feel comfortable there. He said that he spoke extensively with his family and they collectively decided that it was in his best physical and mental interests to find "a less stressful position somewhere other than the ghetto." However, he did agree to stay in the position so as not to disrupt business with upcoming court proceedings (evictions) with tenants at the property and to break in the new person.
29) Despite the letter, Claimant stayed in the position at the same property until February 28, 1999, when a new management company took over the property and decided not to extend the manager position to Claimant. Claimant testified that he never went back to work after February 28, 1999. He said that he interviewed for a year to a year and a half, but he just couldn't do it.
30) After Claimant was let go by the new management company as they were taking over the Boaz Apartments, he filed a claim for unemployment compensation (Exhibit Q). He indicated that he believed he was entitled to unemployment compensation because he was laid off by Employer. In his application, Claimant wrote that he asked the new company for the manager's job at Boaz, "but they said they had a manager."
In the very next sentence, however, he indicates the place was dangerous and he was looking for a new job anyway. Claimant apparently received unemployment compensation benefits from March 1999 until mid August 1999, when he started indicating "no" to the questions about being able to work and being available for work. His benefits terminated at that point.
31) Medical treatment records from Psych Care Consultants (Exhibit F) document treatment Claimant received at that office for his psychiatric issues from November 30, 1999 until April 18, 2000. Although the handwritten notes are very difficult to decipher, there are a number of references to Claimant's inability to hold a job and to him being irritable and angry. He was diagnosed with major depressive disorder, anxiety and possibly bipolar affective disorder, for which he was treated with medications. I found no reference in these treatment records to Claimant's experiences while working for Employer, nor the specific event that occurred on December 18, 1998.
32) Medical treatment records from South Pointe Hospital (Exhibit H) document a visit to that facility on April 24/25, 2000 for depression. He complained of issues related to his father dying in July 1999 and having to take care of his mother, losing his job, financial problems and physical problems. He was seeking an admission to receive some psychiatric treatment. He was, then, admitted to that facility from May 1, 2000 through May 11, 2000 for further psychiatric treatment. The admission notes indicate that he was being admitted for multiple concerns: The death of his father last year; helping his mother; being unemployed for 14 months; sciatic pain; and feelings of helplessness and hopelessness. Claimant was diagnosed with major depression and treated with medications and group therapy. Following his discharge, he was instructed to continue to see Dr. Chaganti for further treatment for his psychiatric issues. I found absolutely no reference in these treatment records to Claimant's experiences while working for Employer, nor the specific event that occurred on December 18, 1998, having any impact on his current psychological issues.
33) Additional medical treatment records from South Pointe Hospital (Exhibit I) document Claimant's continued outpatient psychiatric treatment he received from May 17, 2000 through December 6, 2000. Claimant was diagnosed with agitated major depression, recurrent, and generalized anxiety, for which he received periodic office visits and medications. He seemed to be doing better at certain points with reports that his anger had subsided and he was much calmer, but, then, there were other references to continued stress and depression, his inability to hold a job and the negative effect the medications have had on his sex drive. Again, I found no reference in these treatment records to Claimant's experiences while working for Employer, nor the specific event that occurred on December 18, 1998.
34) Claimant filed a Claim for Compensation (Exhibit D) on August 7, 2001, alleging injury to his brain and whole body with a date of injury of February 28, 1999, which was assigned Injury Number 99-182337 by the Missouri Division of Workers' Compensation. Claimant alleged that "at the request of the Insurer/Employer [he] was subjected to mental stresses and became permanently totally disabled." Claimant filed
an amended Claim on March 11, 2005, which kept the same date of injury (February 28, 1999), alleged psychological/psychiatric injury and "stress related physical injury to whole body" from an injury in the course and scope of employment, and added a Claim against the Second Injury Fund.
35) Dr. Suren Chaganti (Exhibit N) authored a report dated April 27, 2003 in which he indicated that Claimant had been under his care for many years, suffering from major depression, recurrent, with panic episodes and avoidant personality disorder. He noted that Claimant also has problems with anxiety and memory impairment.
36) Claimant admitted that he and his wife were caught in a federal sting operation in 2004 illegally selling drugs. She pled guilty to selling Xanax and he pled guilty to one count of distribution of Anadrol. He said that he served 30 days in the federal penitentiary in Springfield and was also given two years probation. However, after six months, Judge Webber cut his probation so that he could be with his wife, who had to leave the country as a result of her conviction.
37) Claimant was sent by his defense attorney in his criminal case for a mental health evaluation to be used during his sentencing with Dr. Stephen Peterson (Exhibit SIF III) on April 5 and 13, 2005. Dr. Peterson examined Claimant, administered various tests and reviewed extensive treatment records. A central theme of his report was Claimant's assertion that he has been going through "andropause" (the male version of menopause) since he was 35 years old, and, thus, has been on an almost constant regimen of testosterone, human growth hormone, thyroid supplementation and I-LGF (Insulin-like Growth Factor). The report also documented his extensive use of steroids in the past and the various psychiatric medications that had been prescribed over the years for his various diagnoses. Consistent with his presentation at his hearing in this matter before me, Dr. Peterson documented that during his evaluation, Claimant vociferously swore with many derogatory references toward family, minorities and government personnel.
38) In the report, Claimant noted that he was pursuing a case for mental stress that he experienced as a property manager from 1981 forward at Kinloch Manor. Dr. Peterson noted that while Claimant reported the job duties (collecting money and evicting renters) as stressful, he did it in a "somewhat gleeful and proud manner." He reported carrying a gun in a hip, ankle or shoulder holster as the season dictated and said that he was fired because "they didn't like my methods." Claimant described himself in the report "as very hard to intimidate," yet, he said the Kinloch Manor residents were driving him crazy and he even explained the legal standard he had to prove to make his Workers' Compensation case compensable. Despite his assertions in this respect, he went on to explain, "I love it; I could make those people shit or get off the pot." With regard to the incident involving the security guard at Kinloch Manor being assaulted, Claimant described how he drew his own gun and faced down the five gangbangers to defend the security guard. Dr. Peterson noted that Claimant's tone of voice suggested pride rather than fear regarding this situation. Claimant reported that he wrote a resignation letter following this incident because they would not let him carry a gun. Despite his descriptions of the crime and violence he
encountered at this complex, he noted, "Nicer neighborhoods didn't need a guy like me." He reported that he was unable to "stoop low" to work for anyone, but he could "run staff" if he didn't have supervisors above him and had "full control." Claimant admitted that he had a rather volatile temper and proudly stated that he had not lost a fight since 1979, including recently knocking out four drunks who were trying to intimidate him. He described prior altercations where he "threw his old lady over their car" and physically beat a loan broker by punching him, body slamming him, biting his nose and trashing his office, because the loan broker would not lend him money. Claimant reported that he learned from these incidents that he "can't handle stupid people" and "The best way to get along with people is to avoid them." Claimant was concerned that psychiatrists were just trying to ruin his sex life with medications. Claimant acknowledged that it is difficult for him to find work because he swears excessively and "can't control my...mouth." He described severe mood swings and anger issues that began in grade school.
39) Based on his examination of Claimant, the test results and his review of the records, Dr. Stephen Peterson diagnosed Claimant as follows:
Axis I: Anabolic-androgenic Substance-induced Mood Disorder (testosterone, Anadrol, I-LGF, Levoxyl); Anabolic and androgenic Steroid Dependence with Physiological Dependence, moderately severe; Polysubstance Dependence (ethanol, marijuana, benzodiazepines) reportedly in sustained full remission since April 2001; and Intermittent Explosive Disorder (likely related to the side effects of the anabolic-androgenic-thyroid stimulating hormone treatment program).
Axis II: Narcissistic Personality Disorder
Axis III: Hypertension, possibly steroid induced; reported hypogonadism, reported "andropause," and reported Hashimoto's Thyroiditis, all of unclear etiology; genital herpes, on suppressive treatment; and vasectomy in the distant past.
Dr. Peterson explained that Claimant's overall psychiatric condition and problems essentially trace back to his excessive and extensive use of steroids and other hormones, the negative effects of which he would try to reduce with the use of other substances such as alcohol and marijuana. He opined that, "The side effects of the anabolic steroids are so much a part of his psychological makeup that his judgment is impaired." He noted that Claimant also demonstrated a physiological dependence on steroids because every time he cycles off of them to normalize his endocrine functioning, he feels low or blue and depressed. He, further, noted that the intermittent explosive disorder may arise as a constant side effect of the steroids as well. Finally, Dr. Peterson observed that even his expressed narcissism could largely be due to the side effects of the hormone treatment program. He opined that it is unclear whether Claimant separately suffered a consistent major depressive disorder that would have been present without the effects of the steroid cycling. He found no clear pattern of bipolar disorder, as his moods appear to be tied to his steroid cycling. He opined that, "the chronic effects of his hormone treatment program have caused a diminished capacity, meaning a significantly altered state of mind so extreme it deprives him of normal adult judgment." He further found that, "The altered state of
mind preceded, coincided with, and persisted beyond the period of the charged offense." He acknowledged that Claimant has had situational stressors, but "the overriding impact on his psyche has been the waxing and waning of his mood problems due to steroid use and other hormone use." In short, Dr. Peterson did not relate any of Claimant's psychiatric issues, difficulties or diagnoses to any workrelated event or condition.
40) Continued medical treatment records from Allied Behavioral Consultants, Inc. (Dr. George Dowell) (Exhibit E) document the psychiatric treatment Claimant received at that office from April 21, 2005 through August 2, 2005. The doctor opined that diagnostically, Claimant has a mix of bipolar disorder and intermittent explosive disorder, from which he struggles with his anger. The notes contain references to difficulties in his marriage and blowing up at his wife, as well as issues with the law involving him being caught selling drugs and exploding with a reporter while in federal court. On June 28, 2005, the doctor wrote, "It is inconceivable that he can work. He is barely out of an institution." In addition to bipolar mood and intermittent explosive disorder, the doctor wanted to rule out whether Claimant had an antisocial personality disorder. Once again, I found no reference in these treatment records to Claimant's experiences while working for Employer, nor the specific event that occurred on December 18, 1998 as having any impact on his current psychological issues.
41) Claimant and Employer resolved their portion of this February 28, 1999 case (Injury Number 99-182337) by Stipulation for Compromise Settlement (Exhibit P) for the payment of $\ 11,789.20, or 10 % permanent partial disability of the body as a whole. The Second Injury Fund Claim was left open on the Stipulation. This Stipulation for Compromise Settlement was approved by Administrative Law Judge Cornelius Lane on November 22, 2005.
42) According to the records of the U.S. Department of Justice, Federal Bureau of Prisons (Exhibits K and O), Claimant was incarcerated at the U.S. Medical Center for Federal Prisoners in Springfield, MO from November 18, 2005 until December 16, 2005 for the charge of distribution of Anadrol. While in prison, Claimant continued to receive various medications for his mood swings, bipolar depression and anxiety, dating back to 1991 .
43) As noted above, Claimant was receiving Social Security disability benefits at the time of his federal conviction on drug charges. In a letter to Claimant dated December 16, 2005 from the Social Security Office of the Inspector General (Exhibit R), Claimant was advised that he was found to "have made, or caused to be made, false statements, representations, and/or omissions to SSA which you know or should have known were false and misleading." Social Security found that although he indicated in his application that he was unable to work because of a disabling condition on February 28, 1999, Claimant, in fact, had work activity after February 1999. They found that he reported work activity as a driver/transporter from October 2004 to the time of the letter and he omitted reporting his work activity "in the sale of illegal
drugs." The purpose of the letter was to give Claimant the opportunity to respond to the allegations before a civil monetary penalty would be assessed.
44) Claimant testified that as a result of the letter and the findings contained therein, his Social Security benefits were terminated. He said that he appealed the ruling into the federal courts resulting in findings that he also owed a substantial amount of his previously paid benefits back to the government, since they should not have been paid, but for his false statements to obtain the benefits in the first place.
45) In a report dated February 6, 2006, Dr. George Dowell (Exhibit J) notes that he has treated Claimant since January 2005 and that Claimant has struggled with depression, anger, insomnia and impulsive behavior. He noted that going back to records he reviewed from 1991, Claimant had trouble with his anger and lost his job because of his attitude and problems with taking direction from others. Dr. Dowell noted that this has continued to be a problem for him because Claimant has a very abrasive manner, is easily angered and uses a vocabulary interspersed with four-letter profanities. He also noted that Claimant had significant affective symptoms in terms of poor sleep and poor focus. He noted Claimant's ongoing significant symptoms, diagnoses and treatment over the years culminating in his diagnosis of mixed bipolar disorder and intermittent explosive disorder. Claimant apparently provided a history of never holding a job for more than a year and a half, as well as his general dislike of people and his legal issues related to the sale of drugs. There was no mention of any specific stress connected to his job duties for Employer, nor any mention of the altercation that he witnessed in December 1998. Dr. Dowell opined that Claimant had a Global Assessment of Functioning (GAF) of a chronic 50 and that he had "not worked for years because of his constant irritability, insomnia and explosive temper." He noted that Claimant is also very tired and preoccupied with his anger issues. He found him disabled.
46) The deposition of Dr. Adam Sky (Exhibit A) was taken by Claimant on May 13, 2011 to make his opinions in this case admissible at trial. Dr. Sky is board certified in psychiatry with an added qualification in geriatric psychiatry, and as a medical examiner. He examined Claimant at the request of Claimant's attorney on November 13, 2010, but never provided medical treatment to Claimant. In addition to his evaluation of Claimant, he reviewed extensive records, but administered no psychiatric testing. His report contained the history of the violent altercation at Claimant's work, when he brandished a gun in defense of the security guard, which reportedly altered his usual state of health. Dr. Sky reported that this altercation occurred on February 28, 1999. Surprisingly, Dr. Sky barely mentions Claimant's extensive prior use of steroids and only comments in his report that there is "some question as to steroid abuse in the past," although he admits in the deposition that Claimant took a lot of anabolic steroids. Dr. Sky noted that Claimant never worked at any job for more than a year and a half, because he did not like having a boss and could not take orders. According to his deposition testimony, Dr. Sky was also mistakenly under the impression that Claimant lost his disability because of selling drugs prior to the 1999 accident, which necessitated his going back to work. Additionally, he noted a number of times during his testimony that Claimant was fired
for carrying a gun, which he viewed as part of the whole traumatic event involving the security guard.
47) Dr. Sky diagnosed Claimant with intermittent explosive disorder, but noted that the possibility of a mixed type bipolar disorder or anabolic-androgenic substance induced mood disorder cannot be ruled out. He opined that Claimant's alcohol, cannabis and steroid abuse by history are all in remission. He also found Claimant to have a mixed personality disorder with antisocial and narcissistic traits. He opined that Claimant had pre-existing psychiatric permanent partial disability of 50 % of the body as a whole. He further opined that the "work related accident of February 1999 exacerbated his preexisting disability to the point where he now has one hundred percent permanent psychiatric disability as a result of the combination of the preexisting factors and the April 1999 accident at work." Dr. Sky believed that the February 1999 injury was the prevailing cause of his current psychiatric disability, that Claimant had not yet reached maximum medical improvement and that he needed ongoing psychiatric and psychological treatment. In the cover letter attached to his report, Dr. Sky writes that Claimant's one hundred percent psychiatric disability is probably a combination of a bipolar affective disorder and his intermittent explosive disorder. Interestingly, in his deposition testimony, Dr. Sky opines that the intermittent explosive disorder and possibly the bipolar disorder, as well as the personality disorder, all pre-existed the 1999 accident, but he fails to even mention the steroid abuse. He believes that the 1999 work injury exacerbated these conditions to the point where Claimant is unable to function. Based on his psychiatric disabilities, he did not believe Claimant was employable in the open labor market. He believed the pre-existing psychiatric conditions were a hindrance or obstacle to employment.
48) On cross-examination, Dr. Sky admitted that he relied in significant part on the history given by Claimant and if that was inaccurate, the validity of his opinions and conclusions could be affected. He acknowledged that someone with narcissistic traits, such as Claimant, might be less likely to give an objective account of the events in their history. Dr. Sky admitted that the initial treatment records, many months following the 1999 incident, did not mention anything about the traumatic event on February 28, 1999. He also acknowledged that one of Claimant's treating psychiatrists, Dr. Dowell, issued a letter to Claimant's attorney dated June 7, 2007, wherein he agreed that Claimant could not work, but did not feel it was the fault of the employer. Dr. Sky also admitted that the deportation of Claimant's wife was a very stressful situation that occurred subsequent to the 1999 event but prior to his evaluation, such that it was factored into his assessment of Claimant's condition.
49) The deposition of Dr. Reuben Schnayer, Ph.D. (Exhibit B) was taken by Claimant on June 1, 2011 to make his opinions in this case admissible at trial. Dr. Schnayer is a registered psychologist from Ontario, Canada with a specialty in child-clinical psychology, who was educated and has practiced exclusively in Canada. He examined Claimant at the request of Claimant's attorney on February 11, 2008, but never provided medical treatment to Claimant. This examination occurred in Canada, when Claimant was living there following his wife's deportation. In addition to his evaluation of Claimant, he reviewed treatment records and administered psychological
testing. Based on the history and presentation from Claimant, Dr. Schnayer noted that Claimant had "a very strong and positive relationship with his father." Additionally, contrary to Claimant's presentation at hearing, as well as contrary to his presentation to just about every other medical expert in the record of evidence, Dr. Schnayer found Claimant to be "a friendly, cooperative, and talkative adult who could be described as somewhat 'rough around the edges'." Regarding the incident with the security guard being attacked by the gang members, contrary to some of his other descriptions of this event wherein he was afraid he could have been killed, Claimant reported to Dr. Schnayer that he was shaking and upset in his office after he pulled the gun on the aggressors, because "he felt that he could have killed those men." He reported that he scared himself and was afraid that he could have killed someone. There was absolutely no mention in the report of Claimant's prior steroid use and the effect that could have on his psychiatric issues/problems. I also found no specific references in the report to Claimant's prior legal issues, nor his prior interactions with individuals that similarly involved him pulling a gun on someone. Dr. Schnayer diagnosed Claimant on Axis I with Intermittent Explosive Disorder and Major Depression, recurrent with panic episodes, as well as on Axis II with Mixed Bipolar Disorder. He opined that Claimant was permanently disabled from all employment in the open labor market by virtue of the combination of the incident while working for Employer and his pre-existing psychological factors. He said that it was because Claimant was not good dealing with authority and would do poorly answering to a supervisor. Dr. Schnayer testified that what was different for Claimant after the 1999 incident was that, "He clearly scared himself." Dr. Schnayer also suggested that after the 1999 incident, Claimant began to experience some typical PTSD symptoms, including sleeping difficulties, nervousness and anxiety.
50) On cross-examination, Dr. Schnayer agreed that Claimant's difficulties with a volatile temper, insomnia, impulsive behavior, depression and anger management all were well-developed traits prior to 1998. Dr. Schnayer did not know if Claimant was taking any medications for his problems at the time of his evaluation. He could not find his file containing any of the documents he reviewed prior to writing his report, so he was unable to answer questions about those documents during his deposition. He admitted that he was aware of the steroid use, but was really unable to answer how that might affect Claimant's employability, noting that he is not "an expert on the effects of steroids."
51) The deposition of Dr. Jennifer Brockman (Exhibit SIF I) was taken by the Second Injury Fund on August 1, 2011 to make her opinions in this case admissible at trial. Dr. Brockman is board certified in psychiatry with a subspecialty certification in forensic psychiatry. She never personally examined Claimant, but performed a records review at the request of the Second Injury Fund and issued her report dated June 7, 2011. She diagnosed a Mood Disorder Not Otherwise Specified, Polysubstance Dependence in Partial Remission and a Personality Disorder Not Otherwise Specified. She explained that she diagnosed the unspecified mood disorder because without some further information, it is impossible for her to make a more specific diagnosis of bipolar disorder or substance-induced mood disorder. She acknowledged that Claimant's character structure is pathological, exhibiting
narcissistic and antisocial traits. She opined that his psychiatric symptoms are mostly the result of his longstanding personality disorder, substance use and situational stressors, such as finances, legal issues and marital issues. She agreed that Claimant exhibited the presence of a chronic psychiatric illness which was not caused or exacerbated by his employment and the events leading up to February 28, 1999. She concluded that "the alleged work related stress leading up to February 28, 1999, is not responsible for Mr. Marino's psychiatric symptoms or disability." She further opined that his psychiatric symptoms were not a hindrance or obstacle to his employment prior to February 28, 1999. She did not believe he was permanently and totally disabled, but that his use of alcohol and other drugs, and failure to follow a psychiatric treatment regimen, influenced his psychiatric clinical presentation.
52) On cross-examination, when Dr. Brockman was challenged regarding her opinion that Claimant's pre-existing psychiatric issues were not a hindrance or obstacle to employment, she admitted that she did not know how his various jobs had ended in the past, nor how many jobs he had had except to say "numerous," nor exactly what different types of jobs he had performed. She also admitted that she had not apparently seen all of Claimant's pre-existing psychiatric records before rendering her opinion. Dr. Brockman believed that because he eventually returned back to work, despite the prior issues, then those issues were not a hindrance or obstacle to employment.
53) The deposition of Dr. Jeffrey Magrowski, Ph.D. (Exhibit C) was taken by Claimant on June 28, 2011 to make his opinions in this case admissible at trial. Dr. Magrowski is a certified vocational rehabilitation counselor. He met with Claimant at the request of Claimant's attorney on December 15, 2010 and authored his report dated December 20, 2010. In addition to his meeting with Claimant, he also reviewed extensive records, but administered no vocational testing. Dr. Magrowski found that Claimant had some transferable skills from his past employment, including the management and supervision of employees, hiring and firing, property management, and as a musician and financial manager. Despite these skills, Dr. Magrowski opined that Claimant is unemployable in the open labor market as of 1999. He noted Claimant's previously obtaining Social Security, the various doctors' opinions and Federal District Judge Webber indicating Claimant was unemployable due to his serious health conditions, as evidence that supported his opinion in this matter. Dr. Magrowski finally opined that his inability to be employed in the open labor market was the result of the combination of his pre-existing psychiatric issues and the effects of the 1999 work incident. It was clear on cross-examination, that either because he received a faulty history from Claimant or had not fully reviewed the medical records, that Dr. Magrowski did not have a good understanding of exactly what happened to Claimant in 1991 that precipitated his first claim and first round of Social Security disability. He agreed that the description in Dr. Peterson's report of Claimant being proud of his actions is different from Claimant's portrayal to him of being scared by this event.
54) Claimant testified that in terms of current treatment, he takes lorazepam in the evening to help him sleep. He said that from 1991 up to the present, he has seen
many doctors and taken many medications, but none of it has helped. He said the medications dull him, make him slow and lethargic and ruin his sex life, so he does not want to take them because of these side effects.
55) In terms of his ability to work, Claimant testified that he never went back to work because he "just couldn't deal with those people anymore." He believed the combination of all the years of everything just built up in him to the point of taking him out of work. He said that he was certain he would get fired if he tried to work again, so he has just not tried to work. He admitted that the primary reason he cannot hold a job is his inability to get along with people.
56) Ms. Virginia Wandrick testified live at hearing. She worked for Claimant as the Assistant Manager at the Boaz complex in Kinloch. She noted that she had 25 years of experience in doing property management at a couple different "problem properties." Throughout that period of time she noted that she worked in low income housing (Section 8 Housing), where the properties were infested with illegal drugs and "not good people." She admitted that there was a high level of stress at each of the properties she had worked at because of the nature of the tenants. She described working at Boaz as a "prison term" because of all the prostitution, fights and police calls. She said that it was frightening at times with outsiders coming onto the property and shootings there, but she did not fear for her life, because the police were there every day. She noted that they tried to keep out the bad elements by erecting a fence and hiring guards, but the bad elements would try to get over or through the fence. Ms. Wandrick confirmed that Claimant was proud of the work he did there and he "did not take crap from anybody." She said that he was not intimidated by anybody and confronted intruders daily and sent them on their way. She observed that Claimant did not seem overly stressed out on the job as she worked with him on a daily basis.
57) Ms. Wandrick basically confirmed the events of December 18, 1998, with the armed security guard they had hired being jumped and beaten by a group of individuals outside the office door. She witnessed Claimant take his gun and go to the door to try to help, and remembered him just leaving after the incident was over. She said that she feared for her life at that moment and she called her husband to come and pick her up. She agreed that this was the only time in her career that she felt like she might die. Despite that, she acknowledged that she did not seek any counseling or treatment as a result of the December 18, 1998 incident. She said that she just let it go and it does not haunt her. She could not remember if Claimant worked anymore after that date and she said that she never talked to Claimant about the incident after it had occurred.
58) Claimant admitted that he liked Ms. Wandrick, "even though she was black," because she took direction and did what she was told. He said that she was a little slow, but no one rattled her.
59) On cross-examination, Claimant admitted that he had considerable experience working at problem housing projects over the course of his career. He said that he
carried a gun to work since the late 1980s or early 1990s. He stated that if his life was threatened then he would use it. He acknowledged that he had pulled the gun on others in the past and 1998 was not the first time he had brandished the weapon. He said that he would not let people at the problem properties intimidate him. Claimant noted that the 1998 incident was not the first time he felt homicidal, but it was the first time he felt like he might be killed. He acknowledged that Employer did not approve of him having a gun and he told them that he would get rid of it if they provided security.
60) Based on my observations of Claimant at hearing in this matter, I found him to consistently use offensive, derogatory, racist and sexist language, often laced with profane expletives. He would get agitated at times when talking about topics or situations that did not go his way. I also found a certain sense of pride in his tone when he testified about beating someone up, pulling a gun on them to get them in line, or just generally asserting his perceived superiority over someone else, particularly the tenants who lived in the properties that he managed. In that respect, I was very much left with the impression that he went through life as a bully, basically saying or doing whatever he wanted, attempting to control everyone and anyone around him, and verbally or physically punishing anyone who did not bend to his will or give him what he wanted.