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

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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.

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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