Ruth Thompson v. Fulton State Hospital

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 13-087133

**Employee:** Ruth Thompson

**Employer:** Fulton State Hospital

**Insurer:** Self-insured

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

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated April 11, 2018. The award and decision of Administrative Law Judge Robert J. Dierkes, issued April 11, 2018, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

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

Given at Jefferson City, State of Missouri, this 30th day of October 2018.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

DISSENTING OPINION FILED

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Injury No.: 13-087133

Employee: Ruth Thompson

I have read the briefs of the parties and reviewed the whole record. I have considered all of the competent and substantial evidence based on the record as a whole. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I find the employee failed to prove that she is permanently and totally disabled (PTD) as a result of her November 7, 2013, work injury, either alone or in combination with prior disabilities.

In this case, numerous medical providers opined that the employee had significantly magnified her symptoms and was malingering. Psychiatrist Dr. Jennifer Brockman evaluated the employee for approximately three hours on February 9, 2015. Dr. Brockman diagnosed employee with "Major Depressive Disorder vs. Malingering" and recommended an aggressive medication regimen overseen by a psychiatrist. Her written report specifically noted previous providers' findings regarding "possible symptom over-reporting, exaggeration/magnification for secondary gain" and suggested that the psychiatrist developing employee's treatment plan consider these findings. She noted the employee's lack of enthusiasm about engaging in mental health treatment, stating, "Ms. Thompson appeared to view herself as permanently disabled." When Dr. Brockman reevaluated the employee on January 17, 2017, she opined that employee's self-reported symptoms indicated a diagnosis of major depressive disorder "by history" and specifically diagnosed malingering. In addition to Dr. Brockman, neurologist Dr. David Peeples, pain management specialist Dr. Edwin Dunteman, clinical neuropsychologist Dr. Michael Oliveri, and psychiatrist Dr. Suzanne King, all found that employee was exaggerating her symptoms and/or malingering.

The standard for determining whether an employee is PTD is whether the employee is able to compete in the open labor market. An employee is not PTD if a reasonable employer would hire her. *Schussler v. Treasurer of State-Custodian of Second Injury Fund*, 393 S.W.3d 90, 96 (Mo. App. 2012).

In determining that the employee is unable to compete in the open labor market, the majority relies on physical restrictions imposed by Dr. David Volarich. Dr. Volarich based his findings and restrictions on the employee's reported complaints. These included findings of residual headaches, dizziness, memory loss, residual myofascial pain, and ongoing discomfort. These are subjective findings unsupported by objective evidence. Dr. Volarich's findings and conclusions are suspect given the employee's documented pattern of symptom magnification. When viewed in the context of the reports of Dr. David Peeples, Dr. Michael Oliveri, Dr. Suzanne King and Dr. Jennifer Brockman, Dr. Volarich's assessment of the employee's ability to compete in the open labor market carries little weight. A review of the employee's work history, education, and her vocational test scores further support the conclusion that she is not PTD.

1 Transcript, 911

2 Id., 912.

3 Id., 907.

4 Id., 920.

Injury No.: 13-087133

Employee: Ruth Thompson

- 2 -

Employee's vocational expert Kristine Skahan based her conclusions on employee's subjective complaints. Ms. Skahan discounted the opinions of Dr. Brockman and other mental health professionals, noting her belief that these opinions referred only to the employee's psychological issues and not to her physical symptoms. Because Ms. Skahan failed to account for how the employee's subjective complaints could be affected by her known history of symptom exaggeration, her opinion that employee is not able to compete in the open labor market is not credible.

Based on the credible evidence in the record, this employee is intentionally malingering and trying to game the system for secondary gain. Her conduct should not be rewarded with an award of PTD, either attributable to the November 7, 2013, work injury alone or in combination with prior disabilities. All compensation should be denied in this case.

Because the majority finds otherwise, I respectfully dissent.

Reid K. Forrester, Member

Employee: Ruth Thompson

Injury No. 13-087133

Dependents:

Employer: Fulton State Hospital

Address: 1600 E. 1st Street, New York 11, N.Y. 10027

Address: 1600 E. 1st Street, New York 11, N.Y. 10027

Address: 1600 E. 1st Street, New York 10030

Address: 1600 E. 1st Street, New York 11, N.Y. 10032

Address: 1600 E. 1st Street, New York 11, N.Y. 10036

Address: 1600 E. 1st Street, New York 10034

Address: 1600 E. 1st Street, New York 11, N.Y. 10038

**Earl, W. J.**

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**Earl, W. J.**

**E

1. Value necessary medical aid not furnished by employer/insurer? None.
2. Employee's average weekly wages: 546.49
3. Weekly compensation rate: 364.32
4. Method wages computation: Stipulation

Employer is ordered to pay Claimant permanent total disability benefits of $\ 364.32 per week, beginning February 21, 2015, for Claimant's lifetime.

Employer is also ordered to provide Claimant with future medical care and treatment as is reasonable and necessary to cure and relieve Claimant from the effects of the work-related accident.

The claim against the Second Injury Fund is denied in full.

Claimant's attorney, Christine Kiefer, is allowed 25 % of all benefits awarded as and for necessary attorney's fees, including future weekly benefits, and the amount of such fees shall constitute a lien thereon.

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

An evidentiary hearing was held in this case on February 16, 2018, in Jefferson City. Ruth Thompson ("Claimant") appeared personally and by counsel, Christine Kiefer. Fulton State Hospital ("Employer") appeared by counsel, Trisha Green, Assistant Attorney General. The Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, appeared by counsel, Kristen Frazier, Assistant Attorney General. The parties requested leave to file post-hearing briefs, which leave was granted, and the case was submitted on March 9, 2018. The hearing was held to determine the following issues:

1. Employer's liability, if any, for permanent partial disability benefits or permanent total disability benefits;
2. The liability of the Second Injury Fund, if any, for permanent partial disability benefits or permanent total disability benefits; and
3. Employer's liability, if any, to provide Claimant with future medical benefits pursuant to Section 287.140, RSMo.

The parties stipulated as follows:

1. That the Missouri Division of Workers' Compensation has jurisdiction over this case;
2. That venue for the evidentiary hearing is proper in Callaway County and adjoining counties, including Cole County;
3. That the claim for compensation was filed within the time allowed by the statute of limitations, Section 287.430 ;

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Ruth Thompson

Injury No. 13-087133

1. That both Employer and Employee were covered under the Missouri Workers' Compensation Law at all relevant times;

1. That Claimant sustained an accident arising out of and in the course of her employment with Fulton State Hospital on November 7, 2013;

1. That the average weekly wage is 546.48, with compensation rates of 364.32 for temporary total disability and permanent total disability and $364.32 for permanent partial disability;

1. That Employer has paid medical benefits of 53,217.86;

1. That Employer has paid temporary total disability benefits of 22,587.93, and that such benefits were paid through February 20, 2015;

1. That the notice requirement of Section 287.420 is not a bar to Claimant's Claim for Compensation herein;

1. That Fulton State Hospital was an authorized self-insurer for Missouri Workers' Compensation purposes at all relevant times; and

1. That Claimant's condition reached maximum medical improvement on February 20, 2015.

EVIDENCE

The evidence consisted of the testimony of Claimant, Ruth Thompson, as well as the following exhibits, all of which were received into evidence without objection:

Exhibit 1: Record of Callaway Community Hospital from date of injury (1 page)

Exhibit 2: Records of Fulton Medical Clinic from date of injury (4 pages)

Exhibit 3: Physical therapy records of The Work Center, Inc. (73 pages)

Exhibit 4: Records of Runde Occupational & Environmental Physicians (11 pages)

Exhibit 5: Records/reports of Dr. David Peeples (9 pages)

Exhibit 6: Records of Capital Region Medical Center (44 pages)

Exhibit 7: Records of Runde Occupational & Environmental Physicians (4 pages)

Exhibit 8: Records/reports of Dr. David Peeples (13 pages)

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Ruth Thompson

Injury No. 13-087133

Exhibit 9: Neuropsychological Evaluation of Michael Oliveri, Ph.D. (4 pages)

Exhibit 10: Physical therapy records of West County Sports Fitness & Rehabilitation Center (26 pages)

Exhibit 11: Physical therapy records of The Work Center, Inc. (48 pages)

Exhibit 12: Records/reports of Dr. Edwin Dunteman/A and A Pain Institute (36 pages)

Exhibit 13: Records of University of Missouri Health Systems (orthopedics) (94 pages)

Exhibit 14: Records of University of Missouri Health Systems (physical medicine and rehabilitation) (31 pages)

Exhibit 15: Records of University of Missouri Health Systems (orthopedics) (35 pages)

Exhibit 16: Records of CentrePointe Hospital/Dr. Suzanne King (30 pages)

Exhibit 17: Counseling records of Nancy Ellis-Ordway (44 pages)

Exhibit 18: Report of Dr. David Volarich dated July 30, 2015

Exhibit 19: Report of Dr. David Volarich dated August 22, 2017

Exhibit 20: Reports of Dr. A. E. Daniel dated August 10, 2015 and September 12, 2017

Exhibit 21: Report of vocational consultant Kristine Skahan dated October 23, 2015, and Deposition of Kristine Skahan taken November 17, 2017

Exhibit A: Reports of Dr. Jennifer Brockman dated February 15, 2015, and February 6, 2017, and Deposition of Dr. Jennifer Brockman taken August 8, 2017

DISCUSSION

Claimant, Ruth Ann Thompson, was born on August 6, 1955, and was 62 years of age at the time of the evidentiary hearing in this case. This case involves an admitted work accident of November 7, 2013. Prior to November 7, 2013, Claimant had a very interesting history. Claimant's mother and father divorced when Claimant was six years of age. Claimant had no contact with her mother after the divorce. Claimant lived with her father and stepmother. Claimant's father was generally home only on weekends, and her stepmother was physically and verbally abusive. Claimant enjoyed school and reported obtaining good grades. Claimant left high school at age seventeen, after completing the eleventh grade, as she was pregnant and got married.

WC-32-R1 (6-81)

Page 5

**Employee:** Ruth Thompson

**Injury No.:** 13-087133

Claimant's first marriage produced three children. Claimant's first husband drank a lot and was abusive. Claimant left her first husband in 1982 while pregnant with their third child. Claimant reported to Dr. Brockman that her children were four and nine at this time and that her husband would "wake up the kids to watch him beat on me. I left. I got divorced and got my GED."

Claimant married a second time in 1985; that marriage lasted five years. Claimant left her second husband in 1990 because he sexually abused Claimant's children. Claimant reported to Dr. Daniel that her husband was criminally charged for these actions and served two to three years in prison. Claimant reported to Dr. Daniel that she had a bout of depression at that time but did not seek medical help or take medication; Claimant talked to her pastor.

Claimant's third and current marriage to John Thompson began in 1993. Claimant reported to mental health professionals that Mr. Thompson is very supportive of her.

Claimant was diagnosed with breast cancer in 2002 and underwent a mastectomy. She also was treated for cervical cancer (date unknown). She underwent surgery on her left knee in 1988 and had a left total knee replacement surgery in 2012. Claimant denied missing work due to left knee problems prior to November 7, 2013.

In 2007, Claimant underwent her first treatment for depression. Claimant reported seeking treatment from her primary care physician for "family stress". Claimant had been taking care of her three-year-old grandson four days a week, and, not surprisingly, became very attached to him. The mother moved out of state with the child and denied Claimant any further contact with her grandchild. This caused Claimant to become depressed. She took Zoloft from 2007 to 2012. Claimant denied missing any work due to depression at any time prior to November 7, 2013.

Beginning at age nineteen, Claimant worked in a factory for five or six years. She later worked in a restaurant for about a year. From 1990 to 1998, Claimant worked at Wal-Mart. While working at Wal-Mart, Claimant obtained a B.S. in psychology in 1996, and a Master's degree in psychology in 1998. After obtaining her Master's degree, Claimant began working in 1998 for Pathways as a Community Support Worker; this position required Claimant to make home visits to persons dealing with mental health issues and to prepare daily progress notes and quarterly reports. This required a lot of driving, carrying a ten-pound briefcase, and using a computer to write the progress notes and reports. Claimant had no problems performing the physical requirements of this job.

In 2006, Claimant went to work for the National Alliance for Mental Illness ("NAMI"). This position required Claimant to teach classes, set up and man booths at conferences. This portion of her job was quite physical, as she would carry crates of informational materials and set up and take down the informational booths. This job also required Claimant to work on the "warm line", where Claimant would speak to people with mental health questions or problems. This job

1 In light of Claimant's prior abuse at the hands of her stepmother and her first husband, the sexual abuse of her children by her second husband, two bouts of cancer, and a mastectomy, it is interesting to note that 2007 was the first time Claimant sought treatment for depression.

WC-32-R1 (6-01)

Page 6

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Ruth Thompson

Injury No. 13-087133

ended in 2011 when grant money dried up. Claimant testified that she had no problems performing the physical requirements of this job.

Claimant testified that she was unemployed for approximately eighteen months after losing her position at NAMI. She testified that she had at least twenty job interviews before landing a position with Compass Prevention. This position required Claimant to drive to locations in ten or eleven counties to provide education in tobacco use prevention and suicide prevention. This job also required Claimant to transport a laptop computer and a projector. Unfortunately, the grant money for this position also ran out and Claimant was again unemployed after seven months. Claimant then began looking for jobs again in Missouri and also in Ohio. Claimant testified that during this time she was contacted by Fulton State Hospital ("Employer") about a job, which she eventually accepted, and began working for Employer in October 2013. Claimant knew that her position at Fulton State Hospital would be a physically-demanding job, but she believed that she was physically capable to perform the job duties.

Claimant never had the opportunity to perform the job for which Employer hired her. On November 7, 2013, during her second week of training for the position, Claimant was participating in self-defense training, when she sustained the accident which is the subject of this case. Claimant was holding a large "defensive pad" with her left arm and was supposed to fend off an "attack" by her trainer, whom Claimant described as a "big guy". When the trainer hit Claimant, she fell backwards, hitting her head on a concrete wall, and complaining of immediate left wrist pain, as well as pain in her head and neck. Claimant has not worked since November 7, 2013.

Claimant was immediately taken to the Fulton Medical Clinic where x-rays were taken and a distracted distal radial fracture was diagnosed. On November 13, 2013, Dr. Gregory Della Roca performed open reduction and internal fixation of the left wrist fracture. On November 22, 2013, Dr. Eddie Runde diagnosed a concussion and recommended medication and light duty in response to Claimant's complaints of pain in her head and neck and dizziness and nausea. On January 3, 2014, Dr. Della Roca obtained x-rays of the left wrist which showed a persistent fracture line. Dr. Della Roca prescribed Neurontin and Vitamin C and diagnosed possible chronic regional pain syndrome. Dr. Della Roca ordered more x-rays on February 7, 2014, which showed a healed fracture, but he noted that there was ongoing left hand swelling and hypersensitivity. On March 6, 2014, Dr. Christopher Wolf diagnosed chronic regional pain syndrome and left ulnar neuropathy. On March 7, 2014, an EMG was obtained which appeared normal with no signs of neuropathy or plexopathy.

On March 12, 2014, neurologist Dr. David Peeples diagnosed a concussion without loss of consciousness and improving post-concussive symptoms. He prescribed Amitriptyline and placed Claimant on light duty. On April 8, 2014, Dr. Peeples noted improvement with the headaches, discontinued Amitriptyline and released Claimant with no restrictions related to the concussion. On May 6, 2014, Dr. Peeples noted that there were still headaches, but released Claimant with no restrictions and placed her at MMI.

2 Claimant underwent her left total knee replacement surgery on July 10, 2012, during this period of unemployment. Claimant testified that she was able to drive by August 2012, and that she was back to full activities with her knee shortly thereafter.

WC-32-R1 (6-01)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Ruth Thompson

Injury No. 13-087133

On June 18, 2014, Dr. E. George Varghese diagnosed chronic regional pain syndrome and chronic neuropathic pain and prescribed Gabapentin, Topamax, Vitamin C and occupational therapy. On July 2, 2014, Dr. Wolf provided an injection, but noted that it provided no relief.

On August 21, 2014, Dr. Dunteman ordered an MRI of the left wrist which revealed no fracture.

On October 8, 2014, Claimant was again seen by Dr. Peeples; on this visit Dr. Peeples stated that Claimant's continued symptoms "make no sense on an organic basis", and recommended a neuropsychological/neurocognitive evaluation.

On November 19, 2014, Michael Oliveri, Ph.D. conducted a neuropsychological evaluation of Claimant and wrote a report thereof dated November 26, 2014. Dr. Oliveri found that Claimant's neuropsychological assessment results included multiple invalidity indicators. Basically, Dr. Oliveri felt that Claimant was trying to game the system for secondary gain.

On December 13, 2014, Dr. Della Rocca performed surgery to remove the hardware from the left wrist. Improvements were noted and Dr. Della Rocca found Claimant to be at maximum medical improvement on January 23, 2015. Dr. Dunteman found Claimant to be at maximum medical improvement on February 20, 2015.

On February 9, 2015, at Employer's request, Claimant was evaluated by psychiatrist Dr. Jennifer Brockman, and Dr. Brockman prepared a report dated February 15, 2015. Dr. Brockman diagnosed "Major Depressive Disorder vs. Malingering". Dr. Brockman noted Claimant's limited psychiatric treatment, and recommended medication treatment services rendered by a psychiatrist; Dr. Brockman also indicated: "multiple psychotherapy sessions and medication trials will likely be necessary."

On April 10, 2015, Dr. David Peeples wrote the following:

I have reviewed the neuropsychological evaluation by Dr. Michael Oliveri. Basically, the evaluation did not support, and in fact was felt incompatible, with residual acquired brain-behavior dysfunction referable to 11/7/13 injury. No additional neuropsychological evaluation, treatment, or work restrictions were felt indicated based on the 11/7/13 work incident.

This agrees with my clinical impression from a neurologic standpoint. She is at maximum medical improvement referable to 11/7/13 work injury, needs no additional diagnostic testing or treatment on a neurologic basis as a result of that incident as prevailing factor, and has no need for any work restrictions. She has a 0% rating of permanent partial disability referable to the 11/7/13 injury.

In early June 2015, at the request of Claimant's attorney, Claimant was evaluated by psychiatrist Dr. A. E. Daniel. Dr. Daniel authored a report dated August 10, 2015. Dr. Daniel administered the MMPI-2 and concluded that Claimant produced a valid MMPI-2 profile. "This means that her pattern of responding to test items was similar to that of individuals who cooperate

WC-32-R1 (6-81)

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**Employee:** Ruth Thompson

**Injury No.:** 13-087133

With the evaluation enough to provide useful interpretive information about current functioning," Dr. Daniel diagnosed "major depressive disorder, recurrent, chronic." Dr. Daniel found that Claimant's first major depressive episode was in 2010³, and that Claimant's second major depressive episode "is attributable to the work-related injury on November 7, 2013." Dr. Daniel assessed a 10% permanent partial disability of the body as a whole to the (preexisting) first major depressive episode, and assessed a 30% permanent partial disability of the body as a whole to the (work-related) second major depressive episode. Dr. Daniel's 8-10-2015 report further states:

Ms. Thompson is totally disabled due to the combined psychiatric disabilities attributable to her psychiatric disorder and physical limitations. Due to significant limitations caused by her psychiatric disorder and physical condition of persistent pain which aggravates her depression and vice versa, she cannot compete in the open labor market or sustain work capacity in a consistent manner. Such total and permanent disability is the result of the last injury alone.

Dr. Daniel also recommended that Claimant receive psychiatric treatment from a psychiatrist and psychotherapy.

At her attorney's request, Claimant was evaluated by Dr. David Volarich on July 30, 2015; Dr. Volarich's report of the same date is in evidence. Dr. Volarich noted that Claimant had a left total knee replacement in July 2012 (prior to the work-related accident), and rated Claimant with a preexisting permanent partial disability of 50% of the left knee. Regarding the work-related accident of November 7, 2013, Dr. Volarich diagnosed:

- Closed head trauma causing concussion and post-concussion syndrome including headaches, dizziness and memory loss

- Cervical left shoulder girdle strain with residual myofascial pain

- Comminuted intraarticular angulated left distal radius fracture with ulnar styloid fracture, S/P open reduction and internal fixation of the distal radius fracture with subsequent hardware removal

- Neuropathic pain left upper extremity.

Dr. Volarich also noted that Claimant has "psychiatric disorders" without further discussion thereof. Dr. Volarich gave these disability ratings attributable to the work-related injuries of November 7, 2013: 10% permanent partial disability of the body as a whole rated at the head, 15% permanent partial disability of the cervical spine and left shoulder girdle, and 50% permanent partial disability of the left upper extremity rated at the forearm. Additionally, Dr. Volarich stated as follows:

It is my opinion that Ms. Thompson is unable to engage in any substantial gainful employment nor can she be expected to perform in an ongoing working capacity in the future. It is my opinion that she cannot be reasonably expected to perform in an ongoing

---

Dr. Daniel clearly was referring to the episode that began in 2007 with the removal of Claimant's grandson. Dr. Daniel did not have concurrent medical records to review; Claimant apparently told Dr. Daniel that such incident happened "about five years ago". It has been noted by several health care providers and by vocational counselor Skahan that Claimant is an inconsistent historian.

WC-32-R1 (6-81)

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**Employee:** Ruth Thompson

**Injury No.:** 13-087133

basis 8 hours per day, 5 days per week throughout the work year. It is also my opinion that she is unable to continue her line of employment that she last held as a forensic rehabilitation technician for Fulton State Hospital, nor can she be expected to work on a full time basis in a similar job.

I recommend that Ms. Thompson undergo vocational evaluation and assessment to determine how she might best return to the open labor market in any capacity in the South Central, Southwestern Missouri region in the future. I note that she is 59 years old (advanced age), has advanced education including bachelor's degree and master's degree. I note that she has not been able to get back to work since her injury of 11/7/13 and that she has received social security disability.

If vocational assessment can identify a job for which she is suited, or find that she can be retrained, I have no objection with her attempting to return to work based on the limitations listed at the end of this report. Whether she can work full time all year remains to be seen. She might be able to work part time if accommodated by an employer.

If vocational assessment is unable to identify a job for which she is suited, then it is my opinion that she is permanently and totally disabled as a result of the work related injury of 11/7/13 in combination with her pre-existing left total knee joint replacement and psychiatric disorders.

Dr. Volarich also included certain recommendations regarding additional or future medical treatment considerations, which are discussed below.

At the request of her attorney, Claimant was evaluated by a vocational expert, Kristine Skahan, on October 13, 2015. Ms. Skahan authored a report dated October 23, 2015, and gave deposition testimony on November 17, 2017. Ms. Skahan noted that Claimant has an advanced degree, and a steady employment history that consisted of work less physically strenuous than that which she was to perform at Fulton State Hospital.

Ms. Skahan noted the restrictions that Dr. Volarich gave regarding Claimant's dominant (left) arm and hand. Ms. Skahan noted that a typical desk-type job requires lifting up to 10 pounds. In considering the restriction of no lifting 1-2 pounds with the left upper extremity alone, and this being Claimant's dominant arm, Ms. Skahan concludes that this puts Claimant at "less than sedentary work". She stated that there are only jobs in very heavy, heavy, medium, light, and sedentary. "When you can't do a full range of, you know, filing, assembling, you know, all of those duties across the board, like I said, whether they are in an office, factory production setting. ...so if you can't do those type of activities with your dominant arm, then that's taken (sic) you less than sedentary, meaning you can't do the full functions of a sedentary level job regardless, regardless across the board of what type of job or industry or job setting you're working in." Ms. Skahan stated that these restrictions alone knock Claimant out of the competitive open labor market.

WC-35-R1 (6-01)

Page 10

**Employee:** Ruth Thompson

**Injury No. 13-087133**

When looking at the restrictions assigned to the shoulder and spine, and the need to avoid remaining in a fixed position, Ms. Skahan explained that constantly changing positions would impede Claimant's ability to perform sedentary work.

Ms. Skahan explained how she asked Claimant about her ability to work. She noted that Claimant felt she could not do sedentary work because of her inability to reach, handle, keyboard, or hold the phone with her dominant (left) hand. She outlined Claimant's inability to stay in a fixed position for extended periods, her fatigue due to poor sleep, and her depression. Ms. Skahan outlined Claimant's problems with focus and concentration due to depression, and that she would struggle with tearfulness at work if there was any conflict with coworkers or supervisors. Ms. Skahan believed that Claimant would not be able to be retrained in on-line classes because of the need to sit and type for long periods of time. Ms. Skahan pointed out that when asked about what conditions were preventing her from working, Claimant did not mention her lower extremities.

Ms. Skahan opined that Claimant was permanently and totally disabled as a result of the last injury alone.

As this opinion conflicts with that of Dr. Volarich, Ms. Skahan was asked about this difference in opinion. Ms. Skahan noted that Claimant may have worked with some pain or discomfort related to the knee. However, she testified:

> what I look for to be able to apply vocationally is it's not just "I was working with discomfort", it's did you change the way you did your job, did you request accommodations from your employer, did you ask your coworkers or other people to do physical labor for you, did you go -- was your job history one of a progression to easier positions. You know, did you go from working in a heavy job down to something sedentary because you couldn't. In her case it was the exact opposite. She's goes from light, light, light to a very heavy physical job at the end of her work career, you know, after this last injury. So I think he's acknowledging yes, she was working in pain and discomfort, but I would not piece out with my interview with her or even in the records other than a few comments of that, how the previous knee injuries significantly changed the way she worked or that she avoided doing heavy level positions.

When asked about the psychiatric aspect of this claim, Ms. Skahan stated, "I don't think her psychiatric disabilities were limiting her prior to this last injury." She did not believe there were any psychiatric issues that caused a hindrance or obstacle to employment before the last injury. Also, when Ms. Skahan reviewed the possibility of other jobs available for Claimant, she left out any restrictions related to the lower extremities and found no jobs based on the restrictions to the upper extremity alone.

Beginning April 12, 2016, Employer provided Claimant with treatment from psychiatrist Dr. Suzanne King. Dr. King met with Claimant on ten separate occasions between April 12, 2016, and May 14, 2017. Also, beginning April 14, 2016, Claimant began counseling with Nancy Ellis-Ordway. Claimant met with Ms. Ordway twenty times between April 14, 2016, and May 17, 2017. Dr. King initially diagnosed "major depressive disorder, r/o factitious disorder, r/o malingering disorder" and prescribed Cymbalta and Latuda. In May 2016, Dr. King's diagnosis changed to

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Ruth Thompson

Injury No. 13-087133

"bipolar disorder, r/o factitious disorder, r/o malingering disorder" (the diagnosis of major depressive disorder apparently discontinued) and Quetiapine was added.4 In September 2016 Risperidone was added and Quetiapine was discontinued.5 In March 2017, Dr. King's diagnosis changed again to "major depressive disorder, malingering, r/o cyclothymic disorder, r/o factitious disorder" and Latuda was discontinued.

In early 2017, Dr. Jennifer Brockman was asked to re-evaluate Claimant from a psychiatric standpoint. Dr. Brockman met with Claimant on January 17, 2017, reviewed records from Dr. King and Ms. Ellis-Ordway, and authored a report dated February 6, 2017. Dr. Brockman characterized Claimant as an unreliable historian and stated that "numerous past evaluators" noted Claimant's clinical presentation to be atypical, inconsistent, and suggestive for the presence of non-organic factors. Dr. Brockman noted that her impression of Claimant was similar. Dr. Brockman's conclusions were as follows:

While it is possible that Ms. Thompson is experiencing some symptoms of depression based on her self-report of symptoms, her failure to function as a reliable historian and the inconsistencies and atypical nature of her presentation strongly suggest the presence of symptom magnification or exaggeration. She has therefore been provided a diagnosis of Major Depressive Disorder (based upon her self-report of symptoms), with the notation of Malingering. This is consistent with the pattern of findings described by numerous other evaluators in different settings (please see page 8 and 9 of my initial report for a brief review).

While noting Dr. King has diagnosed Ms. Thompson with PTSD and Bipolar Disorder, my professional opinion remains unchanged.

Ms. Thompson reported a past history of depression and trauma (childhood and marital). Nevertheless, she reported numerous academic achievements and a positive work history. As outlined on page 4 of my initial report, she denied ever missing work, seeking FMLA leave, suffering work limitations/difficulties, or requiring accommodations for mental health symptoms prior to her injury of November 7, 2013. It is therefore my opinion that she suffered from no pre-existing psychiatric disability.

It is my opinion that Ms. Thompson has reached a state of Maximum Medical Improvement (MMI) in regard to her psychiatric health. It is my opinion that no further treatment is necessary in reference to the injury of November 7, 2013. From a psychiatric perspective, her desire to return to employment or engagement in positive activity will be highly dependent on her desire to do so. While it is possible that Ms. Thompson is experiencing some degree of psychiatric symptomatology, her presentation makes it challenging to differentiate between that which may be reality and that which is exaggerated. Based upon her presentation in both sessions and the material contained in the collateral records, it is my opinion that her presentation is greatly attributable to her baseline personality/coping style coupled with her current medical legal situation. It is my opinion that in relation to the injury of November 7, 2013, Ms. Thompson is not suffering from functionally limiting

4 Quetiapine is used to treat bipolar disorder. There was no explanation given for the change in diagnosis.

5 Risperidone is used to treat schizophrenia and bipolar disorder.

WC-32-R1 (6-81)

Page 12

**Employee:** Ruth Thompson

**Injury No.:** 13-087133

Psychiatric symptomatology and no work restrictions are necessary from a psychiatric standpoint.

A number of questions, as outlined below, were provided in the retention letter. I have provided my responses in italics.

1. **What is Ms. Thompson's current diagnosis?**

**Major Depressive Disorder** - By History and Malingering.

1. **Is the alleged injury of 11/7/13 the prevailing factor causing the current diagnosis?**

**No.**

1. **Is Ms. Thompson in need of continued or additional treatment related to the injury to cure or relieve her of the current diagnosis? If so, what are your recommendations?**

**No.** Ms. Thompson may wish to continue her participation in psychotropic medication management services and therapy, however, such treatment should be considered unrelated to the injury of November 7, 2013. Discussion with her psychiatrist and primary care physician is advised should she decide to discontinue her use of psychotropic medications in the future, as abrupt withdrawal from psychotropic medication is not recommended.

1. **If no additional treatment is warranted, has Ms. Thompson reached Maximum Psychiatric Improvement? If so, please provide a rating of disability, if any, as a result of the work injury.**

**It is my opinion that Ms. Thompson has reached Maximum Psychiatric Improvement. She has a 0% disability related to the injury of November 7, 2013.**

At the request of Claimant's attorney, Dr. David Volarich reviewed records from Kristine Skahan, Dr. A. E. Daniel, Ms. Ellis-Ordway, and Dr. Jennifer Brockman. Dr. Volarich was asked to advise if this new information changed any of Dr. Volarich's opinions. By letter of August 22, 2017, Dr. Volarich advised that his opinions had not changed, and concluded thus:

> After review of these additional records and noting that the vocational rehabilitation evaluation found that Ms. Thompson has a total loss of access to the open competitive labor market, I offer no changes in my opinions outlined in my report of 7/30/15. It continues to be my opinion she is permanently and totally disabled as a result of the work-related injury of 11/7/13 in combination with her preexisting medical conditions.

> Also, at the request of Claimant's attorney, Claimant was re-evaluated by Dr. A. E. Daniel on August 23, 2017. Dr. Daniel also reviewed Kristine Skahan's vocational report, Dr. Volarich's initial report, Dr. Brockman's second report, notes of Nancy Ellis-Ordway and records of Dr. Suzanne King. Dr. Daniel then authored a second report dated September 12, 2017. Dr. Daniel concluded that Claimant's Major Depressive Disorder was in partial remission, and therefore lowered the amount of psychiatric permanent partial disability attributable to the November 7, 2013 work accident from 30% of the body as a whole to 20% of the body as a whole. Nevertheless, Dr. Daniel concluded:

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Page 13

**Employee:** Ruth Thompson

**Injury No.:** 13-087133

Although her Major Depressive Disorder is in partial remission, in my opinion, due to significant limitations caused by her psychiatric disorder and physical condition of persistent pain which aggravates her depression and vice-versa, she cannot compete in the open labor market or sustain work capacity in a consistent manner. Her total disability is due to her current psychiatric disability in combination with her pre-existing disability.

Claimant testified that she still has pain in her left wrist and it often feels like "pins and needles". She testified that her headaches have improved, but she still experiences them. Employee also said that she experiences a dull ache in her neck and shoulder. She also testified that she suffers from depression which prevents her from socializing. She testified that she also has a hard time focusing and concentrating.

**Employer's liability, if any, for permanent partial disability benefits or permanent total disability benefits; liability of the Second Injury Fund, if any, for permanent partial disability benefits or permanent total disability benefits.** Claimant alleges that she is permanently and totally disabled and is seeking permanent total disability benefits from Employer or from the Second Injury Fund.

Under section 287.020.7, "total disability" is defined as the inability to return to any employment and not merely the inability to return to the employment in which the employee was engaged at the time of the accident. *Fletcher v. Second Injury Fund*, 922 S.W.2d 402, 404 (Mo.App. W.D.1996). The test for permanent and total disability is the worker's ability to compete in the open labor market in that it measures the worker's potential for returning to employment. *Knisley v. Charleswood Corp.*, 211 S.W.3d 629, 635 (Mo.App. E.D. 2007). The primary inquiry is whether an employer can reasonably be expected to hire the claimant, given his present physical condition, and reasonably expect the claimant to successfully perform the work. *Id.*

Second Injury Fund liability exists only if Employee suffers from a pre-existing permanent partial disability that constitutes a hindrance or obstacle to employment or re-employment that combines with a compensable injury to create a disability greater than the simple sums of disabilities. § 287.220.1 RSMo 2000; *Anderson v. Emerson Elec. Co.*, 698 S.W.2d 574, 576, (Mo.App. E.D. 1985). When such proof is made, the Second Injury Fund is liable only for the difference between the combined disability and the simple sum of the disabilities. *Brown v. Treasurer of Missouri*, 795 S.W.2d 479, 482 (Mo. App. 1990). In order to find permanent total disability against the Second Injury Fund, it is necessary that Employee suffer from a permanent partial disability as a result of the last compensable injury, and that disability has combined with prior permanent partial disability(ies) to result in total disability. 287.220.1 RSMo 1994, *Brown v. Treasurer of Missouri*, 795 S.W.2d 479, 482 (Mo. App. 1990), *Anderson v. Emerson Elec. Co.*, 698 S.W.2d 574, 576 (Mo. App. 1985). Where preexisting permanent partial disability combines with a work-related permanent partial disability to cause permanent total disability, the Second Injury Fund is liable for compensation due the employee for the permanent total disability after the employer has paid the compensation due the employee for the disability resulting from the work-related injury. *Reiner v. Treasurer of State of Mo.*, 837 S.W.2d 363, 366 (Mo. App. 1992) (emphasis added). In determining the extent of disability attributable to the employer and the Second Injury Fund, an Administrative Law Judge must determine the extent of the compensable

WC-32-R1 (6-B1)

Page 14

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Ruth Thompson

Injury No. 13-087133

injury first. *Roller v. Treasurer of the State of Mo.,* 935 S.W.2d 739, 742-43 (Mo. App. 1996). If the compensable injury results in permanent total disability, no further inquiry into Second Injury Fund liability is made. *Id.* It is, therefore, necessary that the Employee's last injury be closely evaluated and scrutinized to determine if it alone results in permanent total disability and not permanent partial disability, thereby alleviating any Second Injury Fund liability.

As noted above, Dr. Volarich, Dr. Daniel and vocational evaluator Christine Skahan all believe that Claimant is permanently and totally disabled. My impression of Claimant at the hearing was that it would be highly unlikely that she could make a positive enough impression at an interview to be considered for hiring. I note, however, that several health care providers have opined that Claimant is either malingering or has significantly magnified her symptoms, most likely for secondary gain. 6 Also, some health care providers have questioned the diagnosis of chronic regional pain syndrome regarding Claimant's left upper extremity. 7 Additionally, while there is no question that the November 7, 2013 work injury caused an exacerbation of Claimant's preexisting Major Depressive Disorder, 8 the medical evidence shows that Claimant's Major Depressive Disorder is currently in partial remission.

Nevertheless, I believe that Claimant's left upper extremity injury alone, with or without a diagnosis of chronic regional pain syndrome, renders her permanently and totally disabled. As Ms. Skahan stated: "When you can't do a full range of, you know, filing, assembling, you know, all of those duties across the board, like I said, whether they are in an office, factory production setting. ...so if you can't do those type of activities with your dominant arm, then that's taken (sic) you less than sedentary, meaning you can't do the full functions of a sedentary level job regardless, regardless across the board of what type of job or industry or job setting you're working in." Ms. Skahan also noted that Claimant did not mention her lower extremities at all when discussing her disabilities. I agree with Ms. Skahan's analysis that Claimant is permanently and totally disabled, and that Claimant was rendered permanently and totally disabled by the November 7, 2013 injury alone.

Therefore, I find that Employer is liable for the payment of the weekly permanent total disability benefits, and that the Second Injury Fund has no liability. As the parties have stipulated to a maximum medical improvement date of February 20, 2015, Employer's liability for payment of permanent total disability benefits began on February 21, 2015.

Future medical benefits. In *Null v. New Haven Care Center, Inc.,* 424 S.W.3d 172 (Mo. App. E.D. 2014), the Court stated (at page 180):

> In order to receive future medical benefits, an employee need not present "conclusive evidence" that future medical treatment is needed. (Citation omitted.) Instead, the

6 I do not believe that Claimant is malingering, nor do I believe that she is intentionally magnifying her symptoms. Claimant's history prior to the November 7, 2013 accident is that of a woman who persevered despite multiple significant setbacks. I don't believe Claimant's character radically changed after the November 7, 2013 accident.

7 I also note that Dr. Volarich did not include chronic regional pain syndrome as a diagnosis, but did include "neuropathic pain" which is a component of chronic regional pain syndrome.

8 While I find Dr. Brockman's conclusions to be confusing, inconsistent and self-contradictory, Dr. Brockman does appear to acknowledge Claimant's Major Depressive Disorder, and its connection to the November 7, 2013 work injury.

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Page 15

**Employee:** Ruth Thompson

**Injury No. 13-087133**

employee needs only to show a reasonable probability that the future treatment is necessary because of his work-related injury. (Citation omitted.) The employee is not required to present evidence of the specific medical care that will be needed, but must establish through competent medical evidence that the care requested flows from the accident. (Citation omitted.)

In his December 12, 2017 report, psychiatrist Dr. A.E. Daniel stated: "I recommend that Ms. Thompson continue medication management with Dr. Griswold. Her current medication regimen is adequate and appropriate for her clinical condition. I further recommend that she continue in therapy with Nancy Ordway for the foreseeable period." In his July 30, 2015 report, Dr. David Volarich stated: "Ms. Thompson will require ongoing care for her pain using current medications that include gabapentin and meloxicam." Claimant has met her burden of proof on the issue of future medical benefits.

In addition to those facts and legal conclusions to which the parties stipulated, I find the following:

1. The work accident of November 7, 2013, was the prevailing factor in the cause of concussion and post-concussion syndrome.

1. The work accident of November 7, 2013, was the prevailing factor in the cause of a comminuted intraarticular angulated left distal radius fracture with ulnar styloid fracture.

1. The work accident of November 7, 2013, was the prevailing factor in the cause of left upper extremity neuropathic pain.

1. The work accident of November 7, 2013, was the prevailing factor in the cause of acute exacerbation of preexisting Major Depressive Disorder.

1. Prior to November 7, 2013, Claimant was working with a significant preexisting left knee injury which required a total knee replacement surgery in 2012.

1. Prior to November 7, 2013, Claimant had breast cancer, cervical cancer, and Major Depressive Disorder.

1. Claimant is unable to compete in the open market for employment.

1. Claimant is permanently and totally disabled.

1. The injuries and conditions Claimant sustained as a result of the November 7, 2013 accident were sufficient to render Claimant permanently and totally disabled.

1. Employer is responsible for payment of permanent total disability benefits beginning February 21, 2015.

1. The Second Injury Fund has no responsibility for payment of permanent total disability benefits or permanent partial disability benefits.

1. Claimant is in need of continuing and future medical treatment to cure and relieve Claimant from the effects of her work accident of November 7, 2013.

1. Claimant's attorney, Christine Kiefer, is entitled to attorney's fees for necessary legal services rendered to Claimant in this matter.

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Page 16

Employer is ordered to pay Claimant permanent total disability benefits of $\ 364.32 per week, beginning February 21, 2015, for Claimant's lifetime.

Employer is also ordered to provide Claimant with future medical care and treatment as is reasonable and necessary to cure and relieve Claimant from the effects of the work-related accident.

The claim against the Second Injury Fund is denied in full.

Claimant's attorney, Christine Kiefer, is allowed 25 % of all benefits awarded as and for necessary attorney's fees, including future weekly benefits, and the amount of such fees shall constitute a lien thereon.

Any past due compensation shall bear interest as provided by law

I certify that an April 11,2018 I delivered a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file.