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

- 2 -

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' Compensation Law codifies an exception to the hearsay rule by permitting admission of the complete report of a treating or examining physician without other foundational evidence, subject to a party's compliance with specified procedures. Among the procedures specified in the statute are the requirements that a party give notice to the other side within sixty days of the hearing that it intends to submit a report in lieu of testimony of its medical expert and also provide the other side a "reasonable opportunity" to obtain cross-examination testimony from the treating or examining physician.

In its answer to employee's application for review, and in oral argument before the Commission, employer alleges for the first time that admission of Dr. Stillings' report infringes its "fundamental right of cross-examination." Although not entirely clear, this argument appears to suggest that § 287.210.7 impairs employer's constitutional due process rights. ${ }^{6}$

The Commission's adjudicative power is confined to the ascertainment of facts and the application of existing law to issues within the Commission's area of expertise. As such, we do not believe our statutory authority includes jurisdiction to decide whether provisions of the workers' compensation law are constitutional. ${ }^{7}$ Therefore, even assuming employer has timely raised this issue, we decline to consider it. That said, we note that in the context of criminal law, courts have held that once an opportunity for cross-examination of a witness has been provided to a criminal defendant, "the actual use then made of the opportunity becomes a matter of defense strategy, and deliberate trial tactics do not ordinarily exact constitutional protection." 8

In its brief on appeal, employer argues that the provisions of $\S 491.070$ must be applied to § 287.210.7. Section 491.070 provides, in pertinent part, "A party to a case, civil or criminal, against whom a witness has been called and given some evidence, shall be entitled to cross-examine said witness...on the entire case."

As earlier noted, no rights to discovery exist in workers' compensation cases beyond those provided by statute. Further, consistent with § 287.800, we construe all provisions of the workers' compensation law strictly, presuming nothing that is not expressed. Both the limits of our statutory authority and legislature's "strict construction" mandate preclude us from injecting other statutory or regulatory standards, such as $\S 491.070$, into the workers' compensation law.

Employer's attorney does not dispute employer receipt of employee's notice of Dr. Stillings' report on August 18, 2014, within sixty days of hearing. There is no evidence that employee placed unreasonable restrictions on Dr. Stillings' availability. To the contrary, subsequent to his sixty-day notice, employee's attorney advised

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[^0]: ${ }^{6}$ Constitution of the United States, Amendment XIV, Section 1; Constitution of Missouri, Article 1, Section 10 .

${ }^{7}$ Thomas F. Hunt v. Laclede Gas Company 869 S.W.2d 770 (Mo. App. 1999): Henry Mikel v.Pott Industries/St. Louis Ship (Mo. 1995); LARSON'S WORKERS' COMPENSATION, 2016, 3-124, § 124.02.

${ }^{8}$ State of Missouri v. Terrese D. Aaron, 218 S.W.3 501, 508 (Mo. App. 2007).

Employer of available dates and furnished employer contact information for Dr. Stillings' office staff. Employee further notified employer that Dr. Stillings' was in poor health and that his office would be closing. Dr. Stillings' unavailability due his death on March 16, 2015, nearly seven months after employee's sixty-day notice, was not a circumstance employee caused or could have avoided. Employer's attorney acknowledged that he intentionally delayed deposing Dr. Stillings to secure another expert opinion.

Employer's actions, as a matter of trial strategy, were not unreasonable. However, employer's intentional delay of nearly seven months in deposing Dr. Stillings is not relevant to the issue of whether employee provided reasonable access and a "reasonable opportunity" for employer to depose employee's medical expert. We find, considering all the facts and circumstances in this case, that employee provided employer a "reasonable opportunity" to obtain the Dr. Stillings' cross-examination testimony as required by $\S 287.210 .7$.

As we have found, employee properly complied with all procedures set out in § 287.210 in his submission of Dr. Stillings' report into evidence. The ALJ properly overruled employer's objection to the introduction of Employee Exhibit 2/Report of Dr. Stillings.

We credit employee's own testimony as well as Dr. Smith's opinion, based on her independent medical evaluation of April 30, 2015, that employee developed a mood disorder and depressive symptoms as a result of his June 6, 2012, injury.

Dr. Smith's revised opinion as of January 30, 2016, declaring that employee sustained no permanent partial disability referable to his psychiatric condition is inconsistent with her June 29, 2015, offer of medical treatment. This opinion was issued nine months after Dr. Smith's April 30, 2015, independent medical evaluation and in the absence of any further evaluation of employee. For these reasons, although we credit Dr. Smith's opinion that claimant developed a mood disorder and depressive symptoms as a result of his June 6, 2012, injury, we give no weight to her January 30, 2016, opinion as to the extent of claimant's permanent partial disability. The Commission, as the finder of fact, "may reject all or part of an expert's testimony." 9

On the issue of the nature and extent of claimant's psychiatric disability as a result of his work injury, we are more persuaded by the opinion of Dr. Stillings. Even so, we believe Dr. Stillings overstated the extent of employee's psychiatric disability. We find employee sustained a 10 % permanent partial disability of the body as a whole referable to a psychiatric disorder logically attributable to coping with chronic pain as a result of his compensable accident on June 6, 2012. ${ }^{10}$ The parties stipulate employee's compensation rate for permanent partial disability benefits is $\ 425.19. As a result of employee's workrelated psychiatric disability, employer is liable to employee for permanent partial disability benefits in the amount of $\ 17,007.60.

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[^0]: ${ }^{9} See supra, note 4.

{ }^{10} Pursuant to \S 287.190 .3$ RSMo, a 10\% disability of the body as a whole is equivalent to 40 weeks of permanent partial disability benefits.

We modify the award of the administrative law judge as regards employer's liability for permanent partial disability benefits. Employer owes employee permanent partial disability benefits referable to his right ankle injury in the amount of $\ 23,066.56. Employer owes employee permanent partial disability benefits referable to his psychiatric disability in the amount of $\$ 17,007.60 .{ }^{11}$ Employer owes employee total permanent partial disability benefits in the amount of $\ 40,074.16.

The award and decision of Administrative Law Judge Gary L. Robbins, issued June 21, 2016, is attached hereto and incorporated by this reference to the extent not inconsistent with our findings, conclusions, decision, and modifications herein.

This award is subject to a lien in favor of James J. Sievers, Attorney at Law, in the amount of 25 % for necessary legal services rendered.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $\qquad 3^{\text {rd }} \qquad$ day of March 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

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[^0]: ${ }^{11} 40 weeks X \$ 429.15=\ 17,007.60.

Employee: John O. McDowell

Injury No. 12-042672

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

Employer: Missouri Department of Transportation

Insurer: Missouri Highway and Transportation Commission

Appearances: James J. Sievers, attorney for the employee.

Matthew W. Murphy, attorney for the employer-insurer.

Hearing Date: April 6, 2016

Checked by: GLR/kg

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? June 6, 2012.
5. State location where accident occurred or occupational disease contracted: Madison 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 the employer insured by above insurer? Yes.

On April 6, 2016, the employee, John O. McDowell, appeared in person and with his attorney, James J. Sievers, for a hearing for a final award. The employer-insurer was represented at the hearing by their attorney, Matthew W. Murphy. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with a statement of the findings of fact and rulings of law, are set forth below as follows:

1. The Missouri Department of Transportation was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by Missouri Highway and Transportation Commission.
2. On June 6, 2012, John O. McDowell was an employee of Missouri Department of Transportation and was working under the Workers' Compensation Act.
3. On June 6, 2012, the employee sustained an accident or occupational disease arising out of and in the course of his employment.
4. The employer had notice of the employee's accident.
5. The employee's claim was filed within the time allowed by law.
6. The employee's average weekly wage is $\ 761.77 per week, resulting in a compensation rate of $\ 507.85 per week for temporary total and permanent total disability benefits and $\ 425.19 per week for permanent partial disability benefits.
7. The employee's injury to his ankle was medically causally related to the accident or to the occupational disease however, the employer-insurer did not stipulate to medical causation pertaining to any psychiatric care.
8. The employer-insurer paid $\ 81,524.57 in medical aid.
9. The employer-insurer paid $\ 6,620.32 in temporary disability benefits.
10. The employee had no claim for previously incurred medical bills.
11. The employee had no claim for mileage.
12. The employee had no claim for future medical care.
13. The employee had no claim for any temporary disability benefits.
14. The employee had no claim for permanent total disability.

1. Medical causation as to any psychiatric care.
2. Permanent partial disability.

The following exhibits were offered and admitted into evidence:

Employee Exhibits:

1. Report of David T. Volarich, D.O.
2. Report of Wayne A. Stillings, M.D.
3. Medical records of Julie Koppeis, NP.

Employer-Insurer Exhibits:

A. Deposition of Stacey L. Smith, M.D.

B. Addendum of Stacey L. Smith, M.D.

C. Deposition of Craig E. Aubuchon, M.D.

D. Deposition of John O. McDowell.

1. Employer-Insurer's objection to the introduction into evidence of Employee Exhibit 2/Report of Dr. Stillings.

The employer-insurer's objection is overruled and denied. Employee Exhibit 2 is received into evidence. The Court finds the employer-insurer's arguments were not persuasive. The employee did nothing to deny their right to cross-examination. The employer-insurer waited to take the deposition of Dr. Stillings after the employee provided appropriate notice that they were going to use the report at trial. The employer-insurer had over six months to take Dr. Stillings' deposition after notice from the employee. They chose to delay taking Dr. Stillings' deposition and unfortunately he died. They had a reasonable opportunity to take Dr. Stillings' deposition.

1. Employer-Insurer objection to the introduction into evidence of Employee Exhibit 3/Records of Julie Koppeis, NP.

The employer-insurer's objection is overruled and denied. Employee Exhibit 3 is received into evidence. Employee Exhibit 3 is certified treatment records of Nurse Koppeis. Under Section 287.140.7 RSMo. the records are admissible.

1. Employee objection to Employer-Insurer B/Report of Dr. Smith.

The employee's objection is overruled and denied. Employer-Insurer Exhibit B is admitted into evidence.

1. Employee objection to Employer-Insurer Exhibit D/Deposition of Mr. McDowell.

The employee's objection is overruled and denied. Employer-Insurer Exhibit D is admitted into evidence.

The employee, John O. McDowell, was the only person who personally testified at trial. Mr. McDowell is presently 45 years old and was 42 years old on the date of the accident, June 6, 2012. He is married and has no dependent children. He currently takes medication for depression. The employee is getting this medication from his primary care physician and nurse practitioner.

Mr. McDowell worked for the Missouri Department of Transportation for 24 years and is still employed by them. He has worked as a member of the road crew during the entire time of his employment. He works 8-10 hours per day, 5 days per week. His job duties include operating chain saws, jack hammers, using the snow plow, as well as using lawnmowers and trimmers. He is required to carry weights ranging from 50-120 pounds.

On June 6, 2012, Mr. McDowell testified he was assisting in the placement of a culvert across a road in a ditch that was approximately four feet deep. He stated that a large piece of asphalt fell from the road above that weighed about 1000 pounds and pinned his right leg underneath it. He reported that his coworkers attempted to move the piece of asphalt but were unable to, so it had to be jack hammered off his leg. He was taken via ambulance to the emergency room.

The emergency room physician noted pain and swelling as well as a deformity of the right lower extremity. X-rays of his right tibia and fibula showed two fractures of the distal fourth of his fibula and a comminuted oblique fracture of his distal tibia. The fracture was reduced in the emergency room and follow-up X-rays were taken which showed improvement in the alignment of the tibia fracture. He was placed in a split, given crutches, prescribed Percocet and referred to Dr. Aubuchon.

Dr. Aubuchon evaluated Mr. McDowell on June 11, 2012, diagnosed a right tibia fracture, recommended continual non-weight bearing, and recommended surgery. Dr. Aubuchon performed surgery on June 18, 2012. He performed an open reduction and internal fixation of the right tibia. After surgery Dr. Aubuchon recommended physical therapy and continued nonweight bearing as well as a CAM walker boot. He also prescribed antibiotics due to redness around the ankle. Additional X-rays were provided showing the fibula was healing faster than the tibia and a bone stimulator was provided. Dr. Aubuchon recommended continued nonweight bearing as well as physical therapy. This occurred during his visit of September 24, 2012. Dr. Aubuchon saw Mr. McDowell on November 5, 2012. X-rays showed a healing tibia fracture. He was allowed to work light duty and progressed to work hardening. During work hardening his pain increased. Additional X-rays were ordered on January 3, 2013, which showed a possible non-union. A CT scan was ordered which revealed only minimal callus at the tibia and a healed fibular fracture. Dr. Aubuchon reviewed the study and recommended a bone graft.

**Injury No. 12-042672**

On January 18, 2013, Dr. Aubuchon performed an iliac crest aspiret with bone graft and fixation of the right tibia. Mr. McDowell was kept non-weight bearing. Upon a return visit on February 28, 2013, he was able to bear weight as tolerated in a CAM walker boot, and was returned to physical therapy.

On April 15, 2013, a repeat CT scan revealed healing of the fibula with only a small area of non-union in the tibia. Physical therapy was continued and work restrictions provided. Dr. Aubuchon noted pain over the hardware in his examination in June, 2013, but Mr. McDowell was released to full duty. At the next office on August 8, 2013, some pain and swelling were noted. However, Mr. McDowell was working full duty and Dr. Aubuchon placed him at maximum medical improvement.

Mr. McDowell testified that while he was unable to work and bear weight on his right ankle, he began suffering some depressive issues. These were pointed out to him by his daughter who told him he was difficult to be around. Mr. McDowell contacted his primary care physician, was evaluated by the nurse practitioner and was prescribed 20 mg of Celexa per day. He testified that he continues to take Celexa for his depression and his dosage has been increased to 40 mg. In his most recent visit, his medication was again modified.

Mr. McDowell reported that he continues to experience ongoing difficulties as a result of his right leg and ankle. His right ankle causes constant pain, mostly dull but sometimes sharp. He reported that it was most painful with movement. He wears lace-up high top boots that he never wore prior to this injury. He has difficulty with uneven surfaces and his ankle still cracks and pops. Swelling occurs if he is on his feet for several hours, and kneeling and squatting cause a great deal of pain in the ankle. He takes steps one at a time and uses the railing. He has difficulty with inclines or declines as that causes pain. Climbing a ladder is extremely difficult and he tries not to do so.

During his time off, his best friend was promoted to supervisor, a job that the employee also wanted but he testified that he was very happy for him. He testified that he was always a very good worker, but feels he cannot pull his weight on the crew like he used to. His childhood friend is his supervisor and he is careful not to give him any jobs that he cannot do. Since his injury, he has sold his motorcycle and cannot ride his wave runner at the lake. He also has a great deal of difficulty in performing yard work since the injury. It takes him a long time to perform his tasks. He still takes pain medication in the form of prescription Tramadol on a daily basis from his primary care physician for his ankle.

Dr. Volarich provided an independent medical examination on February 20, 2014. Dr. Volarich obtained a brief summary of events as well as a history of the injury of June 6, 2012. Dr. Volarich also obtained employee's job activities and present complaints regarding his injury. A past medical background was also obtained.

Dr. Volarich's physical examination noted that Mr. McDowell was able to walk bare foot and flat foot across the examination room floor but noted that he walks with a slight broad-based gait. Mr. McDowell was able to toe walk but that caused an increase in right ankle pain. He also had

**Injury No. 12-042672**

Difficulty in balance when tandem walking. He was able to squat about two-thirds normal, but stopped due to stiffness in the right ankle and leg. The calf circumference on the right was a full 2 cm smaller than that of the left, as well as limitations of range of motion on the right compared to the left. There was a 50% loss of both dorsiflexion and eversion. A 19 cm scar over the tibia was also noted with hyperpigmentation over both.

Dr. Volarich personally reviewed the plain film X-rays of the right ankle that were taken on June 6, 2012, as well as personally reviewed the CT scan of the right tibia and fibula of April 15, 2013. He also personally reviewed the CT scan of December 18, 2013, and the X-rays of December 18, 2013.

Dr. Volarich made the following diagnoses as a result of the injury of June 6, 2012:

1. Right distal tibia comminuted displaced fracture with two discrete fractures of the distal fibula – S/P open reduction and internal fixation of the distal fibula fracture and non-surgical treatment of the fibula fracture.
2. Non-union distal tibia fracture – S/P iliac crest bone graft harvest and implantation to the distal tibia non-union fracture site.
3. Left ankle strain, resolved.

Dr. Volarich also opined that Mr. McDowell sustained industrial disabilities that are a hindrance to his employment or re-employment. He opined that:

1. There is a 45% permanent partial disability of the right lower extremity rated at the tibia (155 week level) due to the displacement comminuted tibia fracture that required open reduction and internal fixation and subsequent bone grafting because of the non-union. The rating also accounts for the distal fibula fractures that required non-operative treatment. The rating accounts for the ongoing pain, lost motion in the ankle, weakness and atrophy in the right calf.
2. Disability from his left ankle strain is not found since symptoms resolved.
3. Additional disability from his December 10, 2013, slip on ice is not found since symptoms from the right ankle strain resolved and returned to their baseline status.

Dr. Aubuchon testified via deposition that he was Mr. McDowell’s treating physician. His medical records document that he first saw Mr. McDowell on June 11, 2012, and performed surgeries on June 18, 2012, and January 18, 2013. Dr. Aubuchon testified that Mr. McDowell was released to full duty despite pain and swelling over the area where the hardware was implanted. Dr. Aubuchon’s last note was for an office visit on December 16, 2013, where he testified that the hardware had not failed. He reported that Mr. McDowell had increased clicking and pain along the ankle area. Dr. Aubuchon noted that any decision to remove hardware in the future would be based upon a severe increase of pain. He also testified that he had not spoken to, nor was he aware of the ongoing pain medication use by the employee.

Dr. Stillings, a Board Certified Psychiatrist and Neurologist, performed an independent medical evaluation on March 31, 2013. Dr. Stillings had in his possession all of Mr. McDowell’s medical records. Dr. Stillings obtained current complaints regarding the work-related injury of

June 6, 2012, as well as a history. A family history was also obtained. Dr. Stillings performed a mental status evaluation which noted a cooperative, casually attired, white male, who walked with a limp on the right side. Dr. Stillings noted some psychological distress regarding the sequelae of the work injury. He found Mr. McDowell to be a very pleasant individual who views himself as a very hard and dedicated worker. Dr. Stillings reported that Mr. McDowell was clinically depressed as a result of the work injury. He also found that Mr. McDowell was nonpsychotic or suicidal and that his recent and remote memory functions were intact.

Dr. Stillings also administered three psychiatric tests: The MMPI-II, MCMI-III and the SIMS:

1. The MMPI-II tests showed: This is a valid profile but this individual presented himself in an overly favorable light. He presents an image of strong moral character, denying psychological problems. His primary ego defense is denial. His overall profile shows that he has some depression and physical problems. He reported that he is uncomfortable and in poor health. He is rather passive-dependent and somewhat demanding interpersonally.
2. MCMI-III tests showed: This person's approach to the test is to avoid self-disclosure. No diagnosis is suggested on Axis I. On Axis II, an obsessive-compulsive personality disorder and avoidant personality traits are suggested.
3. SIMS tests shows: This individual is not over reporting his subjective complaints.

Dr. Stillings made a psychiatric diagnosis on all five axes:

1. Axis I: Pain Disorder Associated with both Psychological factors and a Physical Condition (work injury of 6/6/12). Mood Disorder with a Major Depressive-Like Episode due to a General Medical Condition (work injury of 6/6/12).
2. Axis II: Obsessive-Compulsive and Avoidant Personality Traits, pre-existing.
3. Axis III: Nothing offered.
4. Axis IV: Physical debility and chronic pain from the work injury, and interaction with the legal system.
5. Axis V: GAS $=60$ (moderate symptoms due to work injury).

Dr. Stillings provided the following opinions:

1. The employee's psychiatric diagnoses are listed above on Axes I and II.
2. The June 6, 2012 work injury is the prevailing factor in causing the employee to experience a chronic pain disorder with an associated 15 % psychiatric permanent partial disability of the body as a whole and a mood disorder with an associated 10 % psychiatric permanent partial disability of the body as a whole.
3. The employee has a significant pre-existing obsessive compulsive personality trait with an associated 5 % psychiatric permanent partial disability of the body as a whole.
4. The employee will need open-ended treatment with psychotropic medication for the remainder of his life due to the chronicity of his pain and mood disorders.
5. He had concerns that the employee will be unable to sustain employment until retirement age, given the combination of his pre-existing obsessive personality and his work-related chronic pain and chronic depressive disorders.

Dr. Smith evaluated Mr. McDowell on April 30, 2015, and provided a report dated July 4, 2015. Dr. Smith noted that Mr. McDowell's chief complaint was that he was severely depressed due to

chronic pain. She also noted that he was polite, calm, and gentlemanly throughout and that he walked with a limp. Dr. Smith noted that the primary medical doctor prescribed Celexa and further noted that it was increased to 40 mg six months ago. Mr. McDowell's complaints to Dr. Smith were that he fears he is/was letting his crew down and that he has feelings of uselessness and worthlessness.

Prior to the injury, Mr. McDowell stated he would come home and proceed to mow the yards of multiple friends and relatives, while post injury he just sat in a chair and felt worthless for months. Dr. Smith noted that all of Mr. McDowell's work evaluations have been great and that he was recently up for a promotion that he did not get. Mr. McDowell stated he is still very happy for his friend but wonders if it weren't for his injury if he would have gotten the promotion.

Mr. McDowell told Dr. Smith that he never requested psychiatric treatment and did not think he needed it, but that he was very concerned that he takes six pills per day including prescription Tramadol and over-the-counter Aleve, which tears up his stomach.

Dr. Smith gave her diagnostic impression on all five axes as well:

1. Axis I: Mood Disorder NOS resulting from 6/6/12 work injury, largely resolved.
2. Axis II: None.
3. Axis III: Tibia and fibula fractures; required surgical repair. Second surgery for non-union. Some chronic pain.
4. Axis IV: Newly married; very happy to be so. Working full-duty. Wife non-employed: Fibromyalgia. New step-daughters, father uninvolved.
5. Axis V: 72 .

Dr. Smith testified that Mr. McDowell struck her as credible and had a significant orthopedic injury with a difficult recovery. She further testified that he had difficulty adjusting to not being 100 % physically able. She felt he is an excellent and skilled supervisor.

Dr. Smith stated with a reasonable degree of medical certainty that Mr. McDowell did develop some depressive symptoms as a result of his injury, and fortunately they have responded well to his medication. Dr. Smith further testified that she would be willing to monitor Mr. McDowell's medications if asked, including adding Amitriptyline for additional pain control, and further testified that he was offered 4-6 psychotherapy sessions. She also testified that meeting with his pastor would also be helpful.

Dr. Smith also reviewed Dr. Wetzel's report which did not change her opinions. She stated that her office called Mr. McDowell regarding additional psychotherapy sessions which he declined.

Dr. Smith provided a supplemental opinion on January 30, 2016. She indicated that she did not believe that the employee has any permanent psychiatric disability as a result of his accident. She indicated that as of October 2013, the records were that the employee has returned to his normal self.

The employer-insurer has stipulated to medical causation for all medical care that was provided for the care of the employee's injured ankle. They have challenged medical causation for any benefits that were provided for any psychological care that was provided to the employee as a result of his June 6, 2012 accident. The employee has not asked that any medical expenses be paid for any psychological care that he received.

Medical opinions were provided by Dr. Volarich, Dr. Smith and Dr. Stillings. Dr. Volarich did not provide any opinions concerning the employee's psychiatric disorders. Dr. Stillings was retained by the employee. His opinion was that the employee did sustain a psychiatric disability as a result of his June 6, 2012 accident. Dr. Smith was retained by the employer-insurer. Her initial opinion was that the employee did develop some depressive symptoms as a result of his injury. However, in her Addendum report dated January 30, 2016, she opined that she did not believe that the employee has any permanent partial psychiatric disability.

The Court finds that the physicians' opinions indicating that the employee did experience psychological problems due to the effects of his June 6, 2012 accident were supported by the underlying medical records and were persuasive. Based on a consideration of all of the evidence in the case, the Court finds that the care that the employee received for psychiatric/psychological care was medically causally related to his June 6, 2012 accident.

Based on a consideration of all the evidence in the case, the Court finds that the employee sustained a 35 % permanent partial disability to his right ankle as a result of his June 6, 2012 accident. The employer-insurer is ordered to pay the employee $\ 23,066.56 as payment for permanent partial disability due to the employee's disability to his right ankle resulting from the June 6, 2012 accident.

The Court further finds that the employee did receive psychiatric care after his June 6, 2012 accident that was related to and caused by his June 6, 2012 accident. The Court finds that the employee has a 2 % permanent partial disability to his body as a whole as a result of his accident. The Court orders that the employer-insurer pay the employee an additional $\ 3,401.52 as a result of this disability.

The Court orders that the employer-insurer pay a total of $\ 26,468.08 to the employee for permanent partial disability.

James J. Sievers, attorney at law, is allowed a fee of 25 % of all sums awarded under the provisions of this award for necessary legal services rendered to the employee. The amount of this attorney's fee shall constitute a lien on the compensation awarded herein.

Interest on all sums awarded hereunder shall be paid as provided by law.

Made by:

Gary L. Robbins

Administrative Law Judge

Division of Workers' Compensation