John McDowell v. Missouri Department of Transportation

(Modifying Award and Decision of Administrative Law Judge)

Injury No.: 12-042672

Employee: John O. McDowell

Employer: Missouri Department of Transportation

Insurer: Missouri Highway and Transportation Commission

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480 RSMo. { }^{1}$ We have reviewed the evidence, read the parties' briefs, and considered the whole record. Pursuant to $\S 286.090$ RSMo, we modify the award and decision of the administrative law judge (ALJ).

The parties asked the ALJ to resolve the following issues: (1) medical causation as to any psychiatric care; (2) nature and extent of permanent partial disability.

The ALJ rendered the following findings and conclusions: (1) the psychiatric/psychological care employee received was medically causally related to his June 6, 2012, accident; (2) employee sustained 35 % permanent partial disability to his right ankle as a result of his June 6, 2012, accident; (3) employee sustained 2\% permanent partial disability of the body as a whole as a result of psychiatric care related to and caused by his work injury.

Employee filed a timely application for review with the Commission alleging the ALJ erred in not awarding sufficient permanent partial disability. Employer did not appeal the award. However, in its answer to employee's application for review, employer cites a "continuing objection" to the ALJ's admission of Employer's Exhibit 2, Dr. Stillings' medical report.

We adopt the findings, conclusions, decision, and award of the ALJ except as set forth herein.

Employee Exhibit 2/Report of Dr. Wayne Stillings

On August 18, 2014, employee's attorney provided notice to employer sixty days in advance of the hearing of employee's intent to submit psychiatrist and neurologist Dr. Wayne Stillings' report in evidence. In response to questioning by the ALJ, employee's attorney testified that together with his sixty-day notice, he sent a letter to opposing counsel advising that due to Dr. Stillings' poor health he would be closing his office soon. Employee's attorney offered employer possible dates for scheduling Dr. Stillings' deposition and also provided contact information for Dr. Stillings' office manager. Dr. Stillings passed away on March 16, 2015. Employer did not depose Dr. Stillings prior to his death.

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[^0]: ${ }^{1}$ Statutory references are to Revised Statutes of Missouri 2011 (as amended 8/28/11), unless otherwise indicated.

Employee: John O. McDowell

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Employer's attorney objected to the introduction into evidence of Employee Exhibit 2/Report of Dr. Stillings on the basis that Dr. Stillings' March 16, 2015, death denied employer a "reasonable opportunity" to obtain the doctor's cross-examination testimony. In response to questioning by the ALJ, employer's attorney explained that he delayed scheduling Dr. Stillings' deposition for nearly seven months after employee's August 18, 2014, notice because of employer's interest in first securing its own expert opinion.

The ALJ advised the parties he would make his ruling on employer's objection along with the case. In his award, the ALJ overruled and denied employer's objection to Dr. Stillings' report, on the basis that employee's August 18, 2014, notice afforded employer a reasonable opportunity to depose Dr. Stillings prior to his death on March 16, 2015.

Employee testified that he has constant pain in his leg since his work injury and "I just can't work as hard or as long as I used to. I am slower in everything I do." He takes Tramadol for pain every morning, every evening and sometimes during the day, in addition to ibuprofen or Aleve. Employee has curtailed recreational activities he used to enjoy, such as riding a WaveRunner or going to hockey games, because of pain due to his injury.

Employee sought psychiatric treatment from his primary care physician's office, because "It had been pointed out to me that I had changed and was very irritable." There, employee was evaluated by a nurse practitioner and prescribed Celexa, an antidepressant. At hearing employee testified he felt he was "holding his own" but acknowledged that he still suffers from depression once or twice a week. Employee testified that, at those times, "I just lost interest in, in life...just kind of like don't really pay attention or care what's going on around you." Employee was up for a promotion prior to his injury, but passed over for promotion in January 2015, after missing considerable time from work due to his injury.

Dr. Stillings' March 31, 2014, report notes that prior to the June 6, 2012, work injury, employee had no history of psychiatric treatment and had never taken psychotropic medications. Dr. Stillings found that, after the accident:

Due to chronic pain and associated physical debility, [employee] has been experiencing chronic depression characterized by low moods, irritability, loss of interest and energy in life, decreased concentration, feelings of uselessness, but no suicidal ideation.

Dr. Stillings further found that "physical activity, whether work or not, aggravates [employee's] chronic pain disorder and, thus, his depression."

In Dr. Stillings' opinion, the employee sustained 15\% psychiatric permanent partial disability of the body as a whole due to chronic pain disorder with an associated 10\% psychiatric permanent partial disability of the body due to his mood disorder as a whole attributable to his June 6, 2012, work injury. Dr. Stillings concluded that employee "will need open-ended treatment with psychotropic medicines for the remainder of his life due to chronicity of pain and mood disorders."

**Injury No.: 12-042672**

**Improved Health**

Psychiatrist Stacey Smith examined and evaluated employee at employer's request on April 30, 2015. Dr. Smith found that employee developed a mood disorder and depressive symptoms resulting from his June 6, 2012, injury that were "largely resolved" at the time of her exam. Dr. Smith did not believe claimant's leg pain had a "pathologic psychological driver" and characterized his complaints as "minimal." Dr. Smith testified she thought some adjustments to claimant's antidepressant medications would be helpful. In her report of April 30, 2015, she expressed concern about under-treatment of "any residual depressive component." On June 29, 2015, Dr. Smith instructed her staff to offer employee treatment consisting of the opportunity to have four to six sessions of psychotherapy and adjustments of his medications. Employee refused Dr. Smith's offer due to concerns about patient confidentiality.

On January 30, 2016, Dr. Smith wrote an addendum to her April 30, 2015, report, noting she had been asked to provide a rating. Dr. Smith's addendum stated that, based on a review of her records and independent medical exam and "with the additional passage of time," she did not believe employee had any permanent partial psychiatric disability based on his work injury. There is no evidence that Dr. Smith evaluated claimant any time subsequent to her initial examination on April 30, 2015.

The ALJ's award included a finding that employee sustained 2% permanent partial disability to the body as a whole referable to his psychiatric condition as a result of his June 6, 2012, work accident. We find that employee suffers from a psychiatric disorder attributable to coping with chronic pain as a result of his injury that has not resolved and is in need of treatment.

**Section 287.550 provides:**

All proceedings before the commission or any commissioner shall be simple, informal, and summary, and without regard to the technical rules of evidence, and in accordance with section 287.800. All such proceedings shall be according to such rules and regulations as may be adopted by the commission.

**Section 287.210.7 provides, in pertinent part:**

"The testimony of a treating or examining physician may be submitted in evidence on the issues in controversy by a complete medical report and shall be admissible without other foundational evidence subject to compliance with the following procedures. The party intending to submit a complete medical report in evidence shall give notice at least sixty days prior to the hearing to all parties and shall provide reasonable opportunity to all parties to obtain cross-examination testimony of the physician by deposition (emphasis added)..."

Section 287.800 provides:

1. Administrative law judges, associate administrative law judges, legal advisors, the labor and industrial relations commission, the division of workers' compensation, and any reviewing courts shall construe the provisions of this chapter strictly (emphasis added).
2. Administrative law judges, associate administrative law judges, legal advisors, the labor and industrial relations commission, and the division of workers' compensation shall weigh the evidence impartially without giving the benefit of the doubt to any party when weighing evidence and resolving factual conflicts.

Missouri case law informs:

"A strict construction of a statute presumes nothing that is not expressed." The rule of strict construction does not mean that the statute shall be construed in a narrow or stingy manner, but it means that everything shall be excluded from its operation which does not clearly come within the scope of the language used. Moreover, a strict construction confines the operation of the statute to matters affirmatively pointed out by its terms, and to cases which fall fairly within its letter. The clear, plain, obvious, or natural import of the language should be used, and the statutes should not be applied to situations or parties not fairly or clearly within its provisions. ${ }^{2}$

Missouri courts have further held that the question of the nature and extent of permanent disability resulting from a work injury is a factual one within the "unique province" of the Labor and Industrial Relations Commission to decide and that the testimony of the employee "as to facts within the realm of lay understanding can constitute substantial evidence of the nature, cause, and extent of the disability, especially when taken in connection with, or where supported by, some medical evidence." ${ }^{3}$ Further, the Commission, as the finder of fact, "may reject all or part of an expert's testimony." ${ }^{4}$

"Being creatures of statute, ALJ's and the Division of Workers' Compensation only have the authority granted by statute...most pertinently, common law rights to discovery in workers' compensation cases have been, in some instances, abridged or expanded, but nevertheless, prescribed by statute, including an ALJ's scope of authority to permit or prohibit certain forms of discovery...[N]o additional common law rights to discovery exist in workers' compensation cases beyond those provided by statute (emphasis added)." ${ }^{5}$ This legal proposition applies to the Commission.

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[^0]: ${ }^{2}$ Allcorn v. TAP Enterprises, Inc. 277 S.W.3d 823, 828 (Mo. App. 2009) (internal citations omitted).

${ }^{3}$ ABB Power T \& D Co. v. Kempker, 236 S.W.3d 43, 51-52 (Mo. App. 2007) (internal quotation marks and citation omitted.); See also Treasurer of the State of Missouri v. Daryl Majors, No. WD79465, 2016 Mo. App. LEXIS 885, at 4 (W.D. Mo. September 6, 2016), citing ABB Power T \& D Co. v. Kempker, Id. (Mo. App. 2007).

${ }^{4}$ David Pursley v. Christian Hospital Northeast/Northwest and Treasurer of Missouri as Custodian of Second Injury Fund, 355 S.W.3d 508 (Mo. App. 2011).

${ }^{5}$ Lutes v. Honorable Lee B. Schaefer, 431 S.W.3d 550,553 (Mo. App. 2014).

Enployee: John O. McDowell

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Consistent with the requirement that all workers' compensation proceedings be "simple, informal and summary, and without regard to the technical rules of evidence," § 287.210.7 of the Workers' Compensa