Mary Kay Hazeltine v. General Motors LLC

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 12-043608

**Employee:** Mary Kay Hazeltine

**Employer:** General Motors LLC (settled)

**Insurer:** Self-Insured (settled)

**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 May 23, 2018, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Lee B. Schaefer, issued May 23, 2018, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this **24th** day of January 2019.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**


Robert W. Cochejo, Chairman

Reid K. Forrester, Member

**DISSENTING OPINION FILED**

Curtis E. Chick, Jr., Member

Attest:

**Signature:**

Secretary

Injury No. 12-043608

Employee: Mary Kay Hazeltine

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 has proven that the combination of injuries sustained in her compensable work injury on June 15, 2012, and prior disabilities caused permanent total disability.

Employee, now age fifty-nine, worked for employer as an automobile assembly line worker. On June 15, 2012, the employee was having difficulty installing a screw and called her supervisor for help. As supervisor pulled down a screw gun attached to an overhead rack, the gun's coil pulled it off of the sliding rail. The gun slid into employee, striking her forehead and left shoulder. Employee sustained a head injury, neck pain and 3 cm forehead laceration, which was closed with derma bond. She also sustained a left shoulder contusion and rotator cuff strain.

Prior to the June 15, 2012, work injury the employee worked full time, an average of ten to twelve hours per day, five days a week; she was able to perform all of her job duties and work overtime.

The employee settled her case with employer/insurer for permanent partial disability of 4.5% of the body as a whole referable to the head, 10% of the body as a whole referable to psychiatric disability, and 5.5% of the left shoulder. The only issue to be resolved at hearing was the nature and extent of the Second Injury Fund's liability. The Second Injury Fund (SIF) presented no witnesses, expert evidence or medical records to rebut the evidence of disability from the employee's primary injury consisting of settlement of her claim against employer/insurer.

Section 287.220 RSMo creates the SIF and provides when and what compensation shall be paid in all cases of permanent disability where there has been previous disability.

For injuries occurring prior to January 2, 2014:

If the previous disability or disabilities, whether from compensable injury or otherwise, and the last injury together result in total and permanent disability... the employer at the time of the last injury shall be liable only for the disability resulting from the last injury considered alone and of itself; except that if the compensation for which the employer at the time of the last injury is liable is less than the compensation provided in this chapter for permanent total disability, then in addition to the compensation for which the employer is liable and after the completion of payment of the compensation by the employer, the employee shall be paid the remainder of the compensation that would be due to permanent total disability under section 287.200 out of the second injury fund.

The test for permanent total disability is whether the worker is able to compete in the open labor market. A worker is totally disabled if they are unable to return to any

Injury No. 12-043608

Employee: Mary Kay Hazeltine

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normal or reasonable employment; the worker is not required to be inert or completely inactive. The key question is whether any employer in the ordinary course of business would reasonably be expected to hire the worker in his or her current physical condition. *Carkeek v. Treasurer of State*, 352 S.W.3d 604 (Mo. App. 2011) at 608.

As a preliminary matter, the employee must show that he suffers from "a preexisting permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed." § 287.220.2.

Missouri courts have articulated the following test for determining whether a preexisting disability constitutes a "hindrance or obstacle to employment":

> [T]he proper focus of the inquiry is not on the extent to which the condition has caused difficulty in the past; it is on the potential that the condition may combine with a work-related injury in the future so as to cause a greater degree of disability than would have resulted in the absence of the condition [emphasis added].

*Knisley v. Charleswood Corp.*, 211 S.W.3d 629, 637 (Mo. App. 2007) (citation omitted).

Employee was a rape victim in high school. Her former husband physically and sexually abused her. In 1995, employee's daughter was raped and murdered in a high school restroom. After her daughter's death, the employee attended two counseling sessions. She stopped attending the sessions because seeing people "just brought everything back up each time" and did not help. *Transcript*, 23. In an effort to cope with her loss, employee moved away from the area where her daughter's school was located and dropped out of the workforce. She assisted in the criminal prosecution of her daughter's assailant. Employee remained out of the workforce for approximately seventeen years. She took Xanax and Ambien prescribed by her primary care doctor and self-treated with alcohol. During this period, the employee also spent time taking care of her grandchildren. The majority's award minimizes employee's preexisting psychological trauma by characterizing her rape, physical and sexual abuse, and her daughter's violent murder as "severe stressors." *Award*, p. 6.

Though acknowledging that employee presents as a "very sympathetic witness" the majority finds no preexisting disability for purposes of an award against the SIF because the employee "offered no specific testimony, either at hearing or in her deposition, regarding how, or even if, her prior alleged psychiatric conditions constituted a hindrance or obstacle to employment [emphasis added]." *Award*, p. 13.

This analysis is incorrect as a matter of law. Under *Knisley, supra*, the employee is not required to prove that a preexisting condition constituted a hindrance or obstacle to employment or reemployment. Rather, the employee is only required to prove a preexisting condition has the potential to combine with a work-related injury in the future so as to cause a greater degree of disability than would have resulted in the absence of the condition. *Knisley, supra*.

TI3681-1995

Injury No. 12-043608

Employee: Mary Kay Hazeltine

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The employee's uncontroverted testimony was that psychological trauma that preceded her 2012 work injury, in particular her daughter's murder, caused her to withdraw from the workforce and to remain at home for approximately seventeen years. The record further includes uncontradicted testimony from two board-certified psychiatrists, who agreed that the employee's prior psychiatric condition was serious enough to qualify as a potential obstacle or hindrance to employment or reemployment.

The employee credibly testified that since the June 15, 2012, work injury her head always hurts and she is unable to move her shoulder in certain positions. When her headaches worsen and threaten to become severe, she copes by going somewhere quiet and lying down. She is sensitive to loud noises and bright lights. The employee no longer vacuums due to the noise and does not work in her garden due to the sun. Since the 2012 injury employee experiences buzzing in her ears, dizziness, vertigo, mood swings and panic attacks. She mostly remains in her home and now sleeps more than twelve hours per day. The employee considers herself unable to work.

Dr. Adam Sky, a board-certified psychiatrist and neurologist, evaluated the employee on April 1, 2014, and testified by deposition on November 21, 2017. Dr. Sky diagnosed major depression, anxiety disorder, and alcohol abuse preexisting the employee's 2012 work injury. He noted that the employee had been drinking heavily until about a year before he evaluated her, in order to help cope with her daughter's murder. Dr. Sky diagnosed post concussive disorder, chronic headaches, oto-sensitivity by history, and hyperlipidemia related to employee's June 15, 2012, work injury. He assessed 25% permanent partial psychiatric disability to the body as a whole prior to the June 15, 2012, work accident, exacerbated to 75% permanent partial psychiatric disability due to the June 15, 2012 injury. He concluded that the employee's current psychiatric symptoms, including poor focus, concentration, anxiety and anhedonia make her unable to compete for work from a psychiatric standpoint in the open labor market, due to preexisting disability exacerbated by the June 15, 2012, work injury.

Dr. Jay L. Liss, also board-certified in psychiatry and neurology, examined employee on June 26, 2015, and testified by deposition on November 6, 2017. Dr. Liss diagnosed post-traumatic stress disorder (PTSD) with associated anxiety and depression preexisting the employee's work injury, caused by the 1995 rape and murder of her daughter. He assessed 50% of the body as a whole for PTSD prior to the work injury. Dr. Liss considered employee's preexisting PTSD serious enough to constitute an obstacle or hindrance to employment or reemployment. He further assessed 50% of the body as a whole due to aggravated PTSD, anxiety, depression and cognitive dysfunction after the June 15, 2012, work accident. Dr. Liss concluded that employee is permanently and totally disabled as a result of her work injury in combination with her preexisting conditions.

James England, a vocational expert, evaluated the employee on April 16, 2015 and testified by deposition on November 14, 2017. Mr. England also concluded that employee was permanently and totally disabled and unable to compete in the open labor market.

Injury No. 12-043608

Employee: Mary Kay Hazeltine

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The majority concludes that the employee's claim against the SIF must fail because "there is no substantial and competent evidence in this case to support a finding that Claimant is unemployable in the open labor market due to the combination of her primary and pre-existing injuries ... [or] any evidence of how her alleged pre-existing disability was a hindrance or obstacle to employment, and combined with her primary disability in a synergistic manner." Award, p. 15.

This is not a case where the Commission is making a credibility determination as to competing medical experts. Here, all of the experts produced at hearing, including two board-certified psychiatrists and a well-known vocational expert, agree that the employee is unable to compete in the open labor market and is permanently and totally disabled as a result of disability from her work injury in combination with preexisting psychiatric disability. The majority in this case determines that the employee failed to sustain her burden of proof because the testimony of her medical experts was in some respects equivocal. It denies compensation based on an overly technical and parsed analysis of Dr. Sky and Dr. Liss's expert testimony that overlooks the plain meaning of their evaluation of the employee's preexisting psychiatric condition and the effect of this condition in combination with undisputed disability attributable to the employee's June 15, 2012, work injury.

In my opinion, claimant's credible, uncontradicted testimony regarding the traumatic events of her past and current complaints, in conjunction with the unanimous opinions of all expert testimony in the record renders the Commission's denial of compensation contrary to the overwhelming weight of the evidence. See *Malam v. Dep't of Corr.*, 492 S.W.3d 926 (Mo. 2016), and *Gibson-Knox v. Classic Print*, 184 S.W. 201 (Mo. App. 2006).

Because the majority finds otherwise, I respectfully dissent.

Curtis E. Chick, Jr., Member

Employee: Mary Kay Hazeltine

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

Employer: General Motors LLC (settled)

Additional Party: Second Injury Fund

Insurer: General Motors LLC c/o Sedgwick Claims Management Services (settled)

Hearing Date: March 6, 2018

Injury No.: 12-043608

Before the

Division of Workers ${ }^{7}$

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: LBS

1. Are any benefits awarded herein? No
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 15, 2012
5. State location where accident occurred or occupational disease contracted: St. Charles County
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 employer insured by above insurer? Yes
11. Describe work employee was doing and how accident happened or occupational disease contracted: A hanging toolbox struck Claimant on the head and left houlder.
12. Did accident or occupational disease cause death? No
13. Parts of body injured by accident or occupational disease: Body as whole referable to the head, BAW referable to psychiatric, and left shoulder
14. Compensation paid to-date for temporary disability: None
15. Value necessary medical aid paid to date by employer/insurer? $\ 15,743.27
16. Value necessary medical aid not furnished by employer/insurer? None

1. Employee's average weekly wages: Sufficient for maximum rates for PTD and PPD
2. Weekly compensation rate: $\$ 811.73 / \ 425.19
3. Method wages computation: By agreement

COMPENSATION PAYABLE

1. Second Injury Fund liability:

None

1. Future requirements awarded:

None

An evidentiary hearing was held before Administrative Law Judge Lee Schaefer in the above-referenced matter on March 6, 2018. Mary Kay Hazeltine ("Claimant") was present and represented by her counsel, Daniel Keefe. The Second Injury Fund ("Fund") was represented by its counsel, Assistant Attorney General, Jennifer Sommers. Claimant previously settled with General Motors LLC ("Employer") and its insurer, General Motors LLC c/o Sedgwick Claims Management Services ("Insurer").

The parties stipulated to the following facts:

1. On or about June 15, 2012, Claimant sustained an accidental injury arising out of and in the course and scope of her employment;
2. Claimant and Employer were operating under and subject to the provisions of the Missouri Workers' Compensation Law;
3. Claimant was an employee of Employer;
4. Employer received proper notice of Claimant's injury;
5. Claimant filed her Claim for Compensation within the time prescribed by law;
6. On June 15, 2012, Claimant was making an average weekly wage of sufficient for the maximum rates for both total disability and a permanent partial disability rate which are $\$ 811.73 / 425.19$;
7. Employer did not pay any temporary total disability (TTD);
8. Employer paid $\ 15,743.27 for medical treatment related to Claimant's injury;
9. Venue for the hearing in this matter is proper at the St. Louis Office of the Missouri Division of Workers' Compensation;
10. Claimant reached maximum medical improvement on May 3, 2013.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 12-043608

ISSUE

The only issue to be resolved at this hearing is:

1. What is the nature and extent of the Second Injury Fund's liability?

EXHIBITS

Claimant offered and had accepted into evidence, the following Exhibits:

Exhibit 1: Deposition of Dr. David Volarich dated November 16, 2017

Exhibit 2: Deposition of Dr. Jay Liss dated November 6, 2017

Exhibit 3: Deposition of Dr. Adam Sky dated November 21, 2017

Exhibit 4: Deposition of James England dated November 14, 2017

Exhibit 5: Depositions of Claimant dated October 29, 2012 and October 6, 2014

Exhibit 6: Medical records from Dr. Steven Livingstone

Exhibit 7: Medical records from Metro Imaging

Exhibit 8: Medical records from St. Joseph's Hospital West

Exhibit 9: Medical records from St. Peters Bone & Joint Surgery

Exhibit 10: Medical records from Excel Sports and Physical Therapy

Exhibit 11: Medical records from cENTre (Dr. Michael Conoyer)

Exhibit 12: First Report of Injury

Exhibit 13: Medical records from SSM Health Care

Exhibit 14: Stipulation for Compromise Settlement dated February 8, 2016

Exhibit 15: Division of Workers' Compensation Records - Rehabilitation Benefits

The Second Injury Fund did not offer any Exhibits into evidence.

Note: Some of the records submitted at the hearing contain handwritten remarks or other marks on the exhibits. All of these marks were on these records at the time they were admitted into evidence and no other marks have been added since their admission on March 6, 2018.

FINDINGS OF FACT

Testimony at Hearing

Claimant is a 59 year-old woman who worked for Employer for eleven days before she was injured. Employer hired Claimant on June 4, 2012. Claimant filled in wherever she was needed in the plant. Her shifts were 12 hours long, but if she completed her work early, she could leave. An average day was 10 to 12 hours. Claimant had no trouble completing her job duties and working overtime prior to her accident.

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 12-043608

On June 15, 2012, Claimant was working on the line when a tool rack that was suspended from the ceiling hit her on the head and left shoulder. Claimant did not recall being struck, but recalled being told by a co-worker that she had been struck in the head.

Following the accident, Claimant went to the Emergency Room. She could not recall the diagnoses of the Emergency Room doctor, but when prompted by her attorney stated she was diagnosed with a head injury, neck pain, laceration on her head, and a left shoulder strain.

Claimant treated with Drs. Frisella, Larkin and Conoyer following her injury. While Drs. Frisella and Larkin's names were familiar to her, Claimant could not recall what treatment she received from them. Claimant did not recall Dr. Conoyer at all. Claimant could also not recall meeting with her rating doctors: Drs. Sky, Liss, or Volarich.

Claimant attempted to return to work after the accident, but she could not keep up with the job demands. The plant was very noisy, which made Claimant's head hurt and made it hard for her to concentrate.

Following her accident, Claimant had had a "constant headache." She knows she is getting a headache because it is "like a shade coming down over my eyes." When Claimant gets a headache, she has to go to a quiet place and lie down. Bright lights, loud noise, and crowds trigger Claimant's headaches. Claimant also reported that she cannot move her shoulder into certain positions; as a result, she puts her clothes on differently than before the accident. After her attorney specifically asked her about dizziness and a change in her sleep habits, Claimant also reported that after her accident, she developed dizziness and her sleep habits have changed. Claimant now sleeps 12 or more hours a day; she previously slept 5 to 7 hours a day.

Claimant developed memory problems following her accident. Claimant never had memory problems before the work accident, but they have continued to worsen since the accident. Claimant developed bilateral tinnitus following her accident. She also has buzzing in her ears; it sounds like there are bees in her head. The buzzing usually proceeds one of her more severe headaches. Claimant could not recall if she was diagnosed with PTSD. Upon prompting, Claimant also reported mood swings and panic attacks.

Claimant currently takes generic Xanax, Ambien and Flexeril. She has taken generic Xanax for 20 years; it is prescribed by her primary care physician. Her primary care physician also prescribes the Ambien for Claimant. Claimant takes the Flexeril when her low back becomes painful. When her headache becomes severe, she lies down in a quiet, dark place until it lessens.

Claimant graduated from high school in 1977. Claimant then served two years in the Navy; her discharge was honorable. Claimant attended Florissant Valley Community College for two years. She studied black and white photography. Claimant did not get a degree because she could not afford the class on color photography. Claimant worked at both Hussmann and Lear Chrysler in the 1990s. She worked at Hussmann for 4 years and Lear Chrysler for 1 year. She

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did not work from 1995 until Employer hired her in 2012.

Claimant testified that from 1995 through 2012, she stayed home to help raise her grandchildren. Claimant's second daughter Sandra, who was born in 1984, has four children. On one occasion, the state removed the children from Sandra's custody for a year and placed them with Claimant and her husband. On other occasions, Sandra would leave her children with Claimant for a long periods of time and not return. Claimant's grandchildren are currently 13, 11, 10 and 9 years old. Claimant testified that she returned to work in 2012 because she needed money to help raise her grandchildren.

Claimant experienced several, severe stressors in her life. In 1995, another student murdered Claimant's daughter in the restroom of her high school. Understandably, this event traumatized Claimant. Claimant testified that her daughter's murder was one of the reasons she stayed out of the work force from 1995 through 2012. Claimant went to two counselling sessions after her daughter was murdered, but they did not help so she did not return. Claimant also moved out of the area so that she would not be near the school where her daughter was murdered.

Her younger daughter's father physically abused Claimant several years before her daughter's birth. Claimant first denied that she had ever been sexually abused, but then testified that when she was in high school she was walking down the street and a man pulled her into his basement and raped her.

Claimant does not leave her house very often. She has difficulty driving because the sun causes her headache to worsen. When she drives, Claimant has difficulty concentrating and gets very nervous. She is also concerned that she will be out of house and become stuck somewhere with a bad headache. Claimant encounters more triggers for her headaches when she is out rather than at home. Claimant could not estimate how long she remains in bed with a really bad headache, but she does not stay in bed more than a day at a time.

On cross-examination, Claimant did not recall testifying in her deposition that Employer hired her as a "summer" or "temporary" worker. Claimant testified that she went back to work following her accident and worked up to the 89th day of her employment, which was the last day she could be fired without cause. Claimant had no recollection of her deposition testimony that, following her accident, she worked light duty for a week, worked one day of full duty, and then was fired.

Claimant is not on Social Security Disability. She began the application, but did not complete it. Claimant needed to go the Social Security Office, but she did not want to ask her husband to take her because he works nights and sleeps during the day. Claimant did not consult with an attorney about applying for Social Security Disability.

Claimant settled her case with Employer/Insurer for permanent partial disability of 4.5% of the BAW referable to the head, 10% BAW referable to psychiatric disability, and 5.5% of the left shoulder: for a total settlement of $30,000. (Exhibit 14)

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In his first report dated November 4, 2013, Dr. Volarich rated Claimant as having 10 % disability of the body as a whole due to her closed head trauma causing concussion with post-concussive headaches, tinnitus, and vestibular dysfunction. He also found that Claimant had 15 % disability of the left shoulder due to rotator cuff tendinitis.

On July 15, 2015, Dr. Volarich issued an Addendum in which he indicated that he had read the reports of Drs. Sky and Liss. Dr. Volarich found that the psychiatric disabilities identified by those doctors combined with the physical disabilities he previously rated to create a substantially greater disability than the simple sum of the disabilities.

On August 8, 2017, Dr. Volarich issued another Addendum in which he indicated that based upon Mr. England's vocational report; he now found that Claimant was permanently and totally disabled. Dr. Volarich also indicated that Claimant's permanent total disability was primarily attributable to her psychiatric conditions.

Dr. Volarich's deposition was taken on November 16, 2017. Dr. Volarich testified that Claimant sustained closed head trauma causing a concussion with postconcussion headaches, vestibular dysfunction, and tinnitus as well as a left shoulder contusion with residual rotator cuff tenderness. Dr. Volarich found that Claimant's June 15,2012 , accident was the prevailing factor causing her symptoms, need for treatment, and resulting disability. He also found that Claimant suffered from anxiety and depression based on the medication she was taking, but deferred to a psychiatrist for any psychiatric evaluation and diagnosis.

On cross-examination, Dr. Volarich indicated that Claimant related her symptoms of headaches, pressure in her head, a buzzing sensation in her head, and sensitivity to light to her June 15, 2012, injury. Further, Claimant told Dr. Volarich that since her work accident, she avoids driving and sleeps for 12 hours a day. Claimant also reported to Dr. Volarich that Employer terminated her employment because she could not maintain her focus or concentration while working due to her headaches.

Dr. Liss examined Claimant on June 29, 2015. Claimant reported that, since her work accident, she had persistent headaches, dizziness, difficulty sleeping, trouble with concentration, memory problems, distractibility, mood swings, disorganization, and panic attacks. Dr. Liss notes that Claimant received psychiatric care after the death of her daughter and had been taking Xanax since then.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 12-043608

Based on the responses Claimant provided on written questionnaires, as well as s his interview of Claimant, Dr. Liss diagnosed Claimant with Post Traumatic Stress Disorder ("PTSD") with associated Anxiety and Depression. Dr. Liss found that all of those diagnoses were as a result of her June 15, 2012 work accident. While Dr. Liss found that Claimant's PTSD's "core" began with her daughter's death, he opined that her work accident had magnified all of her symptoms. Further, he found that Claimant's Post-Concussive symptoms complicated her psychological symptoms. Dr. Liss rated Claimant as having 50% pre-existing psychological disability related to her PTSD. He further found that Claimant had an additional 50% disability post-accident due to the "aggravation" of her PTSD, Depression, and Anxiety.

Dr. Liss' deposition was taken on November 6, 2017. In his deposition, Dr. Liss again opined that Claimant had pre-existing PTSD due to the death of her daughter and the resulting aftermath. Further, he found that Claimant's pre-existing PTSD constituted an obstacle to employment or re-employment. Dr. Liss opined that Claimant was permanently and totally disabled ("PTD") as a result her pre-existing PTSD in combination with the PTSD she developed after her work accident.

On cross-examination, Dr. Liss indicated that he did not conduct any testing to reach his diagnoses of Claimant. Rather, he reached his diagnosis by relying on the questionnaires completed by Claimant and his interview of Claimant. Dr. Liss conceded that he did not separate Claimant's symptoms before and after her accident. While the doctor re-iterated that her symptoms all related back to the "core" stressor, he did not specifically list the symptoms that Claimant experienced before and after her work accident; instead, he listed all of her symptoms related to PTSD, Depression, and Anxiety.

Dr. Liss did not question Claimant regarding any difficulties caring for her grandchildren. He noted Claimant received no true psychiatric care after her daughter's death, and had not sought psychiatric treatment after her work injury. Dr. Liss indicated that had he seen Claimant prior (emphasis added) to her work accident, he would have thought she was totally disabled at that time. (Exhibit 2, page 29) Dr. Liss did not review Claimant's work records or work history between her daughter's death and her work accident.

Deposition and Report of Dr. Adam Sky

(Exhibit 3)

Dr. Sky evaluated Claimant on April 1, 2014. Dr. Sky diagnosed Claimant with: Major depression single episode, Anxiety disorder, Post concussive disorder, and alcohol abuse that was in remission. The doctor found that Claimant had 25% psychiatric disability that pre-existed her work accident; which was then exacerbated by an additional 75% by her work accident. Dr. Sky further found that Claimant could not function in the open labor market due to her current symptoms of poor focus, lack of concentration, anxiety, and anhedonia. Dr. Sky found that these symptoms were due to

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a combination of Claimant's pre-existing psychiatric disability and the psychiatric disability from Claimant's primary injury.

When Dr. Skye was deposed on November 21, 2017, he testified that Claimant was 100% permanently and totally disabled from a psychiatric standpoint; 25% which was pre-existing and 75% which was due to her work accident. On cross-examination, Dr. Sky indicated that Claimant did not specify her psychiatric symptoms prior to her work accident, but he believed she experienced a generalized feeling of sadness or anhedonia. Further, Dr. Sky did not review any psychiatric treatment records that predated Claimant's work accident.

Report and Deposition of James England

(Exhibit 4)

On March 16, 2015, Mr. James England, a vocational expert, conducted an evaluation of Claimant. Mr. England issued a report containing his conclusions regarding Claimant's employability on April 6, 2015. At the time she saw Mr. England, Claimant's main complaints were headaches and poor concentration and focus. Mr. England found that there was no physical reason that Claimant could not work, however, based on Dr. Sky's findings he thought she could not compete for employment from a psychiatric standpoint. Mr. England also noted that Claimant's presentation, along with her headaches, would prevent her from being employable.

On November 1, 2017, the parties took the deposition of Mr. England. Again, Mr. England reiterated that Claimant was permanently and totally disabled from a psychiatric rather than a physical standpoint. Mr. England also testified that Claimant's presentation would present problems to her being hired; she had a flat affect and requested that the lights in his office be turned off due to her photo-sensitivity. Claimant also reported to Mr. England that she had debilitating headaches at least once a week.

On cross-examination, Mr. England admitted that he did not review any medical records that pre-dated claimant's work injury. Mr. England indicated that Claimant did not report any specific problems after she recovered emotionally from her daughter's death until her work accident. Claimant reported to Mr. England that she developed the debilitating headaches following her work injury. Claimant also did not report any problems with focus or concentration prior to her work injury.

Deposition of Claimant, Mary Kay Hazeltine

(Exhibit 5)

On October 29, 2012, the attorney for Employer/Insurer took Claimant's deposition. In her deposition, Claimant testified that she was terminated by General Motors on July 3, 2012; approximately 18 days after her work accident. Claimant

returned to General Motors after her accident on light duty, however, when she was taken off of light duty she could not perform the work. Claimant testified that she was never treated for headaches prior to her work injury. Claimant testified that between 1999 and 2012, she did not work outside of the home because she was raising her grandchildren. However, in 2012 they were starting school so she decided to go back to work.

On October 6, 2014, attorneys for Employer/Insurer and the Fund took Claimant's deposition. Claimant testified that she left her employment at Hussmann following her daughter's murder. Claimant reported that her current symptoms included a "headache all the time", sensitivity to loud noises and bright lights, difficulty focusing, and buzzing in her head; all of which began after her 2012 work accident. After the 2012 work accident, Claimant testified that her Xanax was increased from 2 pills a day to 3 pills a day.

Claimant reported that her daughter's father physically abused her and that she was raped when she was in high school. Claimant testified that prior to her 2012 accident, she gardened, cross-stitched, crocheted, and watched her grandchildren. She would often watch her grandchildren on a daily basis, and had custody of one of her granddaughters for the first 18 months of her life.

Records of Dr. Steven Livingstone

(Exhibit 6)

Dr. Livingstone is Claimant's primary care physician; his records covered treatment from 1999 through 2013. In 1999, Dr. Livingstone noted that Claimant was taking Xanax due to stress associated with the loss of her daughter. By 2003, the doctor's notes indicate that Claimant had mild anxiety/depression with insomnia. The first mention of a headache in an Office Note dated July 28, 2012. In that note Claimant's headache is related to her work injury. Claimant continued to treat with Dr. Livingstone for various issues and, while headaches, depression/anxiety and insomnia continue to be mentioned as problems or diagnoses, there were no office visits specifically for those issues.

Medical Records from St. Joseph's West Hospital

(Exhibit 8)

Claimant was treated at St. Joseph's West on the day of her work accident. When she arrived, Claimant reported a laceration on her forehead. She denied any loss of consciousness and had localized tenderness; but no headache. Steri strips were applied to the wound after it was sealed with Dermabond.

Claimant returned to the hospital the next day with complaints of left shoulder and left arm numbness. She also noted that she had a bruise on her left shoulder. Claimant was diagnosed with a contusion of the shoulder.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 12-043608

*(Exhibit 9)*

Claimant treated with Drs. Frisella and Larkin at St. Peters Bone & Joint Surgery. Dr. Frisella treated Claimant's left shoulder; Dr. Larkin treated her post-concussive syndrome.

Dr. Frisella examined Claimant on August 1, 2012. Claimant's complaints were a left shoulder strain and post-concussive syndrome. Dr. Frisella only examined and treated Claimant's shoulder. Upon exam, Claimant was found to have full range of motion in her shoulder. Dr. Frisella noted that he would expect a shoulder strain to resolve in 4 to 6 weeks and it appeared that it had done so because Claimant had no symptoms and a normal exam. He found that her shoulder was at MMI. However, Dr. Frisella noted that Claimant required further treatment for her post-concussive syndrome as she still was experiencing persistent significant complaints.

Dr. Larkin first examined Claimant on August 10, 2012, for post-concussive syndrome with prolonged post-concussive symptoms. When Claimant was seen on October 24, 2012, she reported that she was doing better. At her January 16, 2013, visit Claimant reported that she was "not too bad." When Claimant was seen by Dr. Larkin on March 14, 2013, he added the diagnosis of vestibular dysfunction.

*(Exhibit 10)*

Claimant received Physical Therapy for her left shoulder from July 9, 2012, through September 9, 2011.

Claimant began receiving Physical Therapy for her concussion and vertigo on September 6, 2012. At the time, Claimant complained of ongoing headaches, sensitivity to light and loud noises, fogginess, and increased sleeping. Claimant reported that her headache was constant. On September 20, 2012, Claimant reported that her headaches had lessened, but she continued to have sensitivity to light. Claimant also reported that she had "less fogginess." The records mention that Claimant often arrived for Physical Therapy with a headache that she attributed to driving to Physical Therapy in the bright sunshine. On October 11, 2012, Claimant reported that her headache had lessened and her head was clearer. On October 16, 2012, the Physical Therapist recommended that Claimant be discharged from treatment. She noted that Claimant had not had a headache in over a week and a half and was becoming more active. Claimant was still sensitive to light, but it was not extreme. However, Claimant did report that she had begun to experience buzzing in her ears.

Claimant returned to Physical Therapy on November 29, 2012, reporting that her symptoms had steadily worsened following her discharge from therapy. She reported constant headaches. During her second round of Physical Therapy for her concussion, it

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was noted that Claimant was very emotional about her relapse. Claimant was ill with the flu during most of the treatment, which lessened her ability to participate in therapy. According to a letter to Dr. Larkin dated January 17, 2013, Claimant reported that her headaches were much better and her balance was returning.

**Medical Records from Dr. Conoyer**

*(Exhibit 11)*

Claimant treated with Dr. Conoyer for complaints of tinnitus. She reported to the doctor that the buzzing was in the "middle of her head" and not her ears. She also reported that it began a day or two after her work injury. Claimant reported that Neurontin reduced the buzzing and her headaches were under better control. The doctor did not find that Claimant's buzzing was otogenic. MRIs of Claimant's brain and Internal Auditory Canals were normal.

**RULINGS OF LAW**

The evidence at hearing does not support the proposition that Claimant is permanently and totally disabled as a result of her pre-existing disabilities and disabilities from her primary accident.

In a workers' compensation preceding it is the Claimant who bears the burden to prove by a preponderance of credible evidence all material elements of her claim, including Second Injury Fund liability. *Meilves v. Morris*, 422 S.W.2d 335, 339 (Mo. 1968); *Fischer v. Archdiocese of St. Louis*, 793 S.W.2d 195 (Mo.App. 1990). The employee must prove the nature and extent of any disability by a reasonable degree of certainty. *Downing v. Willamette Industries, Inc.*, 895 S.W.2d 650, 655 (Mo. App. 1995). Such proof must be established by competent and substantial evidence; it may not rest on speculation. *Id.* at 655. In this case, Claimant has not met her burden of proving that she is PTD due to a combination of her primary 2012 injury and her pre-existing disabilities as most, if not all of her evidence, relies heavily on speculation and contradicting facts.

Claimant is alleging that she is permanently totally disabled. The term "total disability" is defined under Section 287.020.7 as follows:

The term "total disability" as used in this chapter shall mean inability to return to any employment and not merely inability to return to the employment in which the employee was engaged at the time of the accident.

The phrase "inability to return to any employment" has been interpreted as the inability of the employee to perform the usual duties of the employment under consideration in the manner that such duties are customarily performed by the average person engaged in such employment. *Kowalski v. M-G Metals and Sales, Inc.*, 631 S.W.2d 919, 922 (Mo. App. 1992). The test for permanent total disability is whether, given the employee's situation and condition, he or she is competent to compete in the open labor market. *Reiner v. Treasurer of the State of Missouri*, 837

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S.W.2d 363, 367 (Mo. App. 1992). Total disability means the "inability to return to any reasonable or normal employment." An injured employee is not required, however, to be completely inactive or inert in order to be totally disabled. *Brown v. Treasurer of State of Missouri*, 795 S.W.2d 479, 483 (Mo. App. 1990). The key question is whether any employer in the usual course of business would reasonably be expected to employ the employee in that person's present physical condition and would reasonably expect the employee to perform the work for which he or she was hired. *Reiner* at 367, *Thornton v. Haas Bakery*, 858 S.W.2d 831, 834 (Mo. App. 1993), and *Garcia v. St. Louis County*, 916 S.W.2d 263 (Mo. App. 1995).

Claimant's own testimony does not support a finding of PTD due to the combination of her injuries. Claimant was a very sympathetic witness at hearing. She wore sunglasses throughout her testimony as she was bothered by the bright lights in the courtroom. However, as compelling as the tragedies in Claimant's life are, this court must rule on the evidence before it.

Claimant's evidence had a dearth of any testimony regarding how, or whether, Claimant's pre-existing condition constituted a hindrance or obstacle to employment. Claimant certainly has faced tragedy in her life. Her daughter's murder in 1995 was a horrific event. However, Claimant offered no specific testimony, either at hearing or in her deposition, regarding how, or even if, her prior alleged psychiatric conditions constituted a hindrance or obstacle to employment.

Claimant did start taking Xanax and Ambien following her daughter's death. She also abused alcohol and had two or three DWIs. However, despite her testimony that her prescription of Xanax was increased following her work accident, the medical records show the same dosage both before and after her accident. Further, in her deposition, Claimant testified that she went to SATOP and AA and no longer drank alcohol excessively.

At hearing, Claimant testified that she only had two visits with a psychiatrist or counselor following her daughter's death. Her only sustained treatment were the prescriptions from her primary care doctor that began soon after her daughter's death. Claimant's primary care doctor's records reveal diagnoses of "mild generalized anxiety" and "generalized insomnia". His records do not reveal an increase, or change in those conditions, following her 2012 work accident. (Exhibit 6)

Claimant testified in her deposition and at hearing that, although she initially stopped working due to her daughter's death, she then remained home to babysit her grandchildren. (Exhibit 5, 2012 Deposition, pages 39-41) She testified that she watched up to four grandchildren at a time, on a full time basis, while her daughter was working. (Exhibit 5, 2014 Deposition, pages 32-33) Although her testimony at hearing was slightly confusing, it appears that at some point Claimant was even given custody of her grandchildren.

Following her work accident, Claimant continued to babysit her grandchildren. In the medical records following her work accident, it is noted that Claimant brought her grandchildren with her to doctor's appointment. (Exhibit 9, 8/1/12) She also cancelled a Physical Therapy appointment because she was watching four of her grandchildren. (Exhibit 10 - 7/13/12)

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At hearing and in her second deposition, Claimant testified about other events in her life that could lead to psychiatric disability. She was raped when she was teenager and was physically abused by her former husband. However, Claimant did not report any treatment following these occurrences. Further, she provided no testimony about how these incidents affected her psychiatrically. I would note that neither of these incidents were mentioned to either of the examining psychiatrists, Dr. Volarich, or Mr. England.

Conversely, Claimant testified extensively how the primary work injury has impacted her ability to work. Her symptoms include: sensitivity to bright light and loud noises, a buzzing/ringing noise, a nearly constant headache, dizziness and vertigo, needing naps, and problems with focus, concentration, and memory. Claimant also testified that since the work injury she suffers from mood swings and panic attacks. Since the work injury, Claimant often will not leave the house for months at a time. Claimant is afraid to drive because she becomes nervous that she will lose focus. When Claimant gets a particularly bad headache, she must go somewhere quiet and dark.

Claimant offered expert testimony to support her contention that she is permanently and totally disabled as a result of the combination of her pre-existing and primary disabilities, however, those opinions are not persuasive for many reasons. Most significantly, Claimant's experts had little or no specific history of any prior psychiatric symptoms or problems, nor did they have any pre-existing psychological treatment records, other than notes from Claimant's primary care doctor.

The testimony of the psychiatric experts is neither specific nor illuminating. Dr. Liss' report does not mention any specific pre-existing psychological symptoms or limitations. He did not review any prior psychological treatment records. (Exhibit 2, page 17) Dr. Liss also did not perform any psychological testing. (Exhibit 2, page 18) Although the attorney for the Fund repeatedly questioned Dr. Liss about what specific symptoms or limitations Claimant had prior to her work injury, Dr. Liss never answered those questions clearly. (Exhibit 2, pages 20-26)

Further, some of Dr. Liss' answers clearly contradicted each other; specifically when discussing his diagnosis of Claimant with PTSD. First, he testified that he did not specifically separate the prior and primary PTSD symptoms. (Exhibit 2, Page 23) Then he testified that Claimant had panic attacks with flashbacks about her daughter's murder. However, no where in his report does Dr. Liss indicate that Claimant had panic attacks before her work injury. (Exhibit 2, page 24-25) His final answer regarding what psychiatric symptoms Claimant told him she was experiencing before her work injury was simply that she had PTSD and all of the symptoms were noted; yet none of them were denoted as pre-existing in his report. (Exhibit 2, page 26)

Dr. Sky testified that other than the history of Claimant excessively drinking alcohol after her daughter's death, he did not recall Claimant reporting any other specific pre-existing symptoms. (Exhibit 3, pages 10-12) Although he initially thought Claimant had prior problems with loss of focus, concentration, and headaches, he could not locate any of that information either in his report or his notes. (Exhibit 3, pages 12-13) Finally, Dr. Sky agreed that he did not review any prior treatment records, nor did he document what her alleged pre-existing symptoms were. (Exhibit 3, page 14)

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Dr. Volarich made note of a history of psychiatric diagnosis but deferred to psychiatry for that assessment; he did not take a history of prior psychiatric symptoms. Mr. England testified that Claimant did not provide a history of any specific mental or physical problems between her daughter's death and her employment by Employer. (Exhibit 5, page 17)

Claimant has not met her burden of proving the nature and extent of any alleged pre-existing psychological disability by a reasonable degree of certainty. Proof of a pre-existing disability must be established by competent and substantial evidence; it may not rest on speculation. Other than testifying very briefly about leaving her job after her daughter's death, going to a therapist twice, and receiving Ambien and Xanax from her primary care doctor, Claimant did not testify about any actual symptoms prior to her work accident. More significantly, Claimant gave no testimony about how her pre-existing symptom affected her ability to work or return to work.

Therefore, as there is no substantial and competent evidence in this case to support a finding that Claimant is unemployable in the open labor market due to the combination of her primary and pre-existing injuries, her claim against the Fund must fail. Further, without any evidence of how her alleged pre-existing disability was a hindrance or obstacle to employment, and combined with her primary disability in a synergistic manner, Claimant also cannot be awarded permanent partial disability from the Fund.

I certify that on May 23, 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.

By: __________________________

Made by: Lee B. Schaefer

Administrative Law Judge

Division of Workers' Compensation

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