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)

Page 4

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 (4