Jevrosima Sokanovic v. Lodging Hospitality Management/Sheraton Westport

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)

**Injury No. 13-028714**

**Employee:** Jevrosima Sokanovic

**Employer:** Lodging Hospitality Management/Sheraton Westport

**Insurer:** First Liberty Insurance Corporation

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

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having read the briefs, reviewed the evidence, and considered the whole record, we find that the award of the administrative law judge awarding compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge with this supplemental opinion.

The administrative law judge's award initially lists the *Second Injury Fund's* liability for future medical treatment as a disputed issue. Award, p. 4. The administrative law judge corrects this misstatement in his rulings of law, which correctly describe this issue as "Whether Employer is responsible for future medical expenses" Award, p. 10 (emphasis added).

The administrative law judge's award states that psychiatrist Dr. Brockman opined that the employee had not reached maximum medical improvement (MMI) and assessed temporary partial disability ratings. Award, p. 7. Dr. Brockman revised her initial, March 5, 2015, findings in a later report dated July 27, 2016. In her later report, Dr. Brockman concluded that employee's condition had become stable and static in light of employee's failure to seek further evaluation or treatment for more than a year. Based on speculation that further intervention for employee's psychiatric symptoms would likely not occur in the foreseeable future, Dr. Brockman then concluded that the employee had reached MMI in regard to her mental health. Based on this reasoning, Dr. Brockman converted the percentages she previously assigned to the employee's disability to permanent partial disability findings. *Transcript 161-162*.

Dr. Brockman's July 27, 2016, report made no change to the percentages she earlier assigned to the employee's disabilities when she initially evaluated the employee on February 11, 2015.

The administrative law judge's findings of fact reference the employee's preexisting visual loss. The administrative law judge does not discuss ophthalmologist Dr. Pernoud's findings related to the employee's preexisting visual loss in his rulings of law. Dr. Pernoud made no findings regarding a synergistic effect between employee's preexisting vision loss and her primary injury. We find no evidence in the record to support an award against the second injury fund based on employee's preexisting visual disability.

Employee alleges the administrative law judge failed to award future medical based on Dr. Volarich's uncontested opinion that there is a need for future medical related to employee's left arm injury. We disagree with employee's claim that Dr. Volarich's opinion was uncontested. In a letter dated September 17, 2013, employee's treating physician Dr. Shawn Kutnik opined that employee's left arm impairment would "not require any further medical or surgical treatment and should simply continue to improve with time and use of the hand." *Transcript, 487*.

MNKOI 0000811627

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Injury No. 13-028714

We find treating physician Dr. Kutnik's opinion regarding employee's need for future medical care to treat her left arm injury more persuasive and credible than rating physician Dr. Volarich's opinion to the contrary.

The above clarifications of the administrative law judge's award do not detract from his legal reasoning or his correct analysis of the evidence in the record.

**Award**

We affirm and adopt the award of the administrative law judge as supplemented herein.

The award and decision of Administrative Law Judge Joseph P. Keaveny, issued July 9, 2018, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 14th day of February 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

DISSENTING OPINION FILED

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee Jevrosima Sokanovic, a Bosnian native, is sixty-five years old and has a second-grade education. She is illiterate in all languages and unable to speak English. She cannot drive and relies on public transportation and others to get where she needs to go. The employee has never functioned in other than the most rudimentary unskilled employments and at the time of her compensable injury was working as a housekeeper in employer's hotel.

On April 30, 2013, the employee was putting on a coverlet while cleaning a hotel room, tripped, and fell backward on her back. She suffered a comminuted fracture of the distal radius. On May 7, 2013, she had surgery and hardware was implanted. Since the injury, the employee continues to have pain and disability in her left arm and has trouble making a fist. Weather changes aggravate her condition. Since the accident, she is only able to work two days per week or sixteen hours. She tries to use her right arm, pushes her cart with her chest, and uses one hand to vacuum. The employee was able to return to work as a housekeeper two days a week, only as an accommodation by the employer.

The employee had significant psychiatric disorders, assessed by two board-certified psychiatrists, prior to her April 30, 2013, primary injury. The genesis of these disorders was employee's exposure to trauma during the Bosnian Civil War in the 1990's and her husband's unexpected death in 2010. The employee suffered from both major depressive disorder and generalized anxiety disorder prior to the work injury. The employee also suffered from preexisting visual disabilities, documented by ophthalmologist Dr. Flavious Pernoud, which impaired her ability to clean rooms.

Psychiatrist Jennifer Brockman ultimately evaluated the employee's preexisting psychiatric disability as 25% permanent partial disability of the body as a whole for major depressive disorder and 25% permanent partial disability to the body as a whole as a result of aggravation of her preexisting psychiatric disorders due to the April 30, 2013, primary injury. Even employer's witness Dr. Stephen Peterson, acknowledged that employee's physical injury may have aggravated her psychiatric diagnosis and that her psychiatric problems are worse since her April 30, 2013, work injury.

The fact that employee, as of the date of hearing, continued to work two days a week, due to employer's special accommodation, does not preclude her from being considered permanently and totally disabled. See *Cooper v. Med. Ctr of Indep.*, 955 S.W.2d 570, 575 (Mo. App. 1997); *Molder v. Mo. State Treasurer*, 342 S.W.3d 406, 409 (Mo. App. 2011).

The administrative law judge's award fails to discuss employee's ability to compete in the open labor market. Given employee's age, educational level, and inability to write or speak English, vocational expert James England found she has no reasonable expectation of regular employment. Employee is clearly permanently and totally disabled due to the combination of her primary injury with documented preexisting disabilities and the Second Injury Fund should therefore be liable for permanent total disability benefits.

Orthopedist Dr. David Volarich recommended future medical care consisting of over the counter and prescription pain medicine. He further opined that the employee may need additional medical treatment relating to hardware complication or removal. Both Drs. Brockman and Peterson acknowledged employee's need for additional psychiatric medical care due to aggravation of preexisting psychiatric issues. Employer's witness, treating physician Dr. Kutnik neither endorsed nor directly denied the employee's need for future medical care.

Injury No. 13-028714

Employee: Jevrosima Sokanovic

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Future medical care in this case meets the standard set out in *Tillotson v. St. Joseph Medical Center*, 347 S.W.3d 511 (Mo. App. 2011) which states:

> [I]n determining whether medical treatment is 'reasonably required' to cure or relieve a compensable injury, it is immaterial that the treatment may have been required because of the complication of pre-existing conditions, or that the treatment will benefit both the compensable injury and a pre-existing condition. Rather, once it is determined that there has been a compensable accident, a claimant need only prove that the need for treatment and medication flow from the work injury. The fact that the medication or treatment may also benefit a non-compensable or earlier injury or condition is irrelevant. *Id.* 519 (citations omitted).

The record supports an award of permanent total disability against the Second Injury Fund, as well as future medical care both for the employee's left arm and for psychiatric issues aggravated by the primary injury. Because the Commission majority finds otherwise, I respectfully dissent.

Curtis E. Chick, Jr. Member

Employee: Jevrosima Sokanovic

Injury No.: 13-028714

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

Before the

Before the

Injury

Employer: Lodging Hospitality Management / Shertion Westport

Division of Workers' Compensation

Department of Labor and

Industrial Relations

Of Missouri

Additional Party Treasurer as Custodian of the Second Injury Fund

Insurer: First Liberty Insurance Corporation

Jefferson City, Missouri

Hearing Date: $\quad 4 / 4 / 18$

Checked by: JPK

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: $4 / 30 / 13$
5. State location where accident occurred or occupational disease was contracted: St. Louis 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 occurred or occupational disease contracted: While changing bed linens, employee tripped over a pillow and suffered a comminuted fracture of the distal radius.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Left wrist
14. Nature and extent of any permanent disability: 35 % left wrist
15. Compensation paid to-date for temporary disability: $\ 1,509.73
16. Value necessary medical aid paid to date by employer/insurer? $\ 14,908.68

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: 412.92
3. Weekly compensation rate: 275.28 / $275.28
4. Method wages computation: Stipulation

TOTAL: $21,983.07

1. Future requirements awarded: None

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Frank L. Niesen, Jr.

Revised Form 31 (3/97) Page 2

On 4/4/18, the parties appeared for a hearing. Jevrosima Sokanovic ("Claimant") appeared in person and with counsel, Frank J. Niesen, Jr. The Employer, Lodging Hospitality Management/Sheraton Westport, and the Insurer, First Liberty Insurance Corporation, were represented by Bradley L. McChesney. The Second Injury Fund was represented by Assistant Attorney General, E. Joye Hudson.

1) The Employer, Lodging Hospitality Management / Sheraton Westport was operating subject to Missouri's Workers' Compensation Law on or about 4/30/13. 2) Jevrosima Sokanovic was its employee at all times herein. 3) The Employer was provided notice of the employee's alleged injury and the Report of Injury was timely filed. 4) St. Louis, Missouri is the proper venue. 5) Employee's average weekly wage is $\ 412.92. 6) Applicable rates of compensation are $\ 275.28 for TTD and $\ 275.28 for PPD. 7) Employer paid $\ 14,908.60 in medical expenses and $\ 1,509.73 in TTD benefits, representing 6 weeks, during the period $5 / 1 / 13 through 6 / 11 / 13$.

Claimant introduced, and had admitted into evidence, the following Exhibits:

1) Deposition of David T. Volarich, D.O. dated 5/12/2017 2) Deposition of Jennifer Brockman, M.D. dated 4/25/2017 3) Deposition of James M. England, Jr. dated 3/14/2017 4) Flavious G. Pernoud, M.D. IME dated 1/28/2015 and 60 Day Letter to Counsel dated $9 / 22 / 2017$ 5) Mercy Hospital Records dated 4/30/2013

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 13-028714

6) St. Clare Surgical Center Record

7) Des Peres Hospital Record 5/8/2013

8) ProRehab Records

9) Ashwin Joshi, M.D. Medical Records

Employer/Insurer introduced, and had admitted into evidence, the following Exhibits:

A) Deposition of Dr. Stephen E. Peterson dated 1/16/2018.

B) Reports and CV of Dr. Shawn Kutnik.

The Second Injury Fund offered no Exhibits.

ISSUES

1) Medical causation: Prevailing Factor/Attribution.

2) Nature and extent of TTD.

3) What is the liability of the Employer for permanent partial disability, if any?

4) What is the liability of the Employer for permanent total disability, if any?

5) What is the liability of the Second Injury Fund for permanent total disability, if any?

6) What is the MMI date?

7) What is the liability of the Second Injury Fund for future medical treatment, if any?

FINDINGS OF FACT

At the time of the hearing, Claimant was 65 years old. She was born in Bosnia Herzegovina. After spending two years in the first grade, her father took her out of school. She stayed at home and worked on the farm, never to return to school. She is ethnic Serbian and only speaks Serbian. She cannot read or write in either Serbian or English, or speak any English.

Claimant left Bosnia in 1992, because of the civil war. She stayed in Serbia until immigrating to the United States in 2002. She and her husband stayed in Las Vegas for 8 months before they came to St. Louis. They left Las Vegas because they had trouble finding employment. After coming to St. Louis, she found employment at the Chase as a housekeeper. She was there for 2 years until the hotel terminated her, for her inability to speak English.

After working as a housekeeper for a Church for 5 or 6 months, Claimant started working as a housekeeper at the Sheraton Westport in 2003. She would clean 32 rooms a day. This would involve emptying the trash, making the bed, cleaning the bathroom and vacuuming the floors. Her supervisor filled out her employment form because she understood Bosnian. Her husband worked close by. Neither her husband nor she would drive. She would get to work by bus using three transfers.

Her husband died in 2010 from lung cancer. He helped her with everything. She stated, "It was the end of my life when he died." She cried frequently. She was stressed and suffers from depression. Claimant sees Dr. Ashwin Joshi as her primary care physician. He prescribes medication for her depression.

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During the Bosnian civil war, she watched as her house was burned down. She ran away with her children. They hid in the woods. Claimant states that she saw her neighbor blown up in a minefield. She still suffers from nightmares.

Claimant is blind in her left eye because of a degenerative nerve. She was criticized at work for not seeing debris on the floor.

On 4/30/13, she was hurrying at work. She tripped on a coverlet and fell on her outstretched left arm. She suffered a comminuted fracture of the distal radius. Surgery was performed on 5/7/13, and hardware was implanted. On 7/2/13, Dr. Kutnik released Claimant to work full duty without restrictions and to wear her splint as needed. Dr. Kutnik placed her at MMI on 7/30/13, with a 4% impairment of the left wrist. There is 3 inches of scarring on her left wrist. When she works, her whole left arm hurts. She takes two ibuprofen, three times a day, for the pain. Before the injury Claimant was working full time. Since Dr. Kutnik released her, she can only work two days per week.

Claimant currently suffers from bad dreams, is very fearful and stays awake worrying. She thinks about her husband constantly. Claimant frequently thinks about harming herself (ie. hanging, jumping in a lake.)

Opinion Evidence

David T. Volarich D.O.

Claimant offered the deposition and Independent Medical Evaluation of Dr. David T. Volarich (Exhibit 1). He examined Ms. Sokanovic on 9/22/14. He issued his report on 9/22/14. When drafting his report he took into consideration medical records from:

- Hospitals & Clinics: Mercy Hospital, Des Peres Hospital, Premier Care Orthopedics

- Physician Records: Shawn M. Kutnik, MD.

- Physical Therapy: ProRehab

- Diagnostic Studies: Mercy Hospital 4/30/13 - x-rays left wrist. Premier Care Orthopedics 5/2/13, 5/21/13, and 7/21/13 - serial x-rays left wrist.

- Operative Reports: SSM St. Clare Surgical Center 5/7/13 - left wrist ORIF

- Miscellaneous Records: Claim for Compensation (injury date 4/30/13).

Dr. Volarich stated in his report that Claimant had a diagnoses pre-existing 4/30/13:

1) Left eye visual loss.

2) Psychiatric disorders.

The diagnoses regarding the injury of 4/30/13:

1) Left distal radius intra-articular displacement fracture - S/P open reduction internal fixation.

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Dr. Volarich assigned the following restrictions to Claimant:

1) She is advised on proper ergonomic use of the left upper extremity, and to avoid using the left elbow/forearm/wrist/hand in an awkward or blind fashion.

2) She should minimize repetitive gripping, pinching, squeezing, pushing, pulling, twisting, rotatory motions, and similar tasks and limited use to as needed.

3) She should avoid impact and vibratory trauma to the left hand, and should use appropriate braces, anti-vibration gloves, support straps and other protective devices.

4) She should not handle any weights greater than 1-2 pounds with the left upper extremity alone, particularly with the left arm extended away from the body.

5) She can handle weights to tolerance with the left arm dependent, close to the body, but in general, I would recommend no more than 5-10 pounds.

6) She is advised to continue a strengthening, stretching, and range of motion exercise program for the left hand daily, as tolerable.

He rated the 4/30/13, injury as a "40% permanent partial disability of the left upper extremity rated at the radius (200 week level) due to the distal radius intra-articular fracture that required open reduction internal fixation. The rating accounts for ongoing pain, loss of motion, and weakness in the non-dominant arm."

In an August 26, 2016, Addendum to IME of September 22, 2014, Dr. Volarich stated that after reviewing the psychiatric report of Dr. Brockman and the vocational assessment performed by James M. England, he concurred with the assessment that Claimant was unable to compete in the open labor market. Claimant's overall disability was due to a combination of psychiatric issues as well as her physical injury to the upper left extremity of 4/30/13. However, he does not explain how the left wrist injury combines with Claimant's psychiatric disability to create an increased disability.

Jennifer Elaine Brockman, M.D.

Claimant offered the deposition and Independent Medical Examination of Dr. Jennifer Elaine Brockman, M.D. (Exhibit 2). Dr. Brockman conducted an Independent Medical Examination (IME) of February 11, 2015. When drafting her report, she took into consideration the following medical records:

1) Medical Records, Ashwin J. Joshi, M.D., 12/21/2010 - 6/18/2013

2) Medical Records, St. Louis Eye Clinic, 6/20/2011 - 7/23/2012

3) Medical Records, Mercy Hospital, 4/30/2013

4) Workers Compensation - First Report of Injury, 4/30/2013

5) Medical Records, Premier Care, 5/2/2013 - 9/17/2013

6) Medical Records, St. Clare Surgical Center, 5/7/2013

7) Medical Records, Des Peres Hospital, 5/8/2013

8) Therapy Records, ProRehab, 6/3/2013 - 7/1/2013

9) Claim for Compensation for Injury Number 13-028714

10) IME Report, David T. Volarich, D.O., 9/22/2014

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11) Appointment Letter, Frank J. Niesen, Jr. to Jennifer Brockman, M.D., 12/29/2014

12) Position Description, Room Attendant for Sheration Westport, Undated

When Dr. Brockman asked the Claimant to discuss possible Post-traumatic Stress Disorder (PTSD) symptoms, she failed to spontaneous provide any related symptoms. Dr. Brockman further stated, "Claimant presented with symptoms of moderate to severe depression including a chronically low mood, difficulty motivating herself to become more active, changes in sleep, apathy, anhedonia, excessive feelings of guilt, decreased energy, changes in appetite/weight, occasional difficulties with her concentration, and passive thoughts of death/nonexisting. She diagnosed Claimant with 'Major Depressive Disorder (MDD) - Recurrent, Moderate to Severe, Chronic, With Moderate Anxious Distress'."

Dr. Brockman found the first medical records documenting anxiety and depression symptoms are dated 6 months following the death of her husband. Following his death, Claimant continued to experience anxiety and depressive symptoms on an ongoing basis. Following the injury of 4/30/13, her symptoms became even more intensive and pervasive. Dr. Brockman found Claimant had a pre-existing Major Depressive Disorder of 35% temporary partial disability of the body as a whole. As a consequence of the 4/30/13, workplace accident, she experienced a 25% temporary partial disability of the body as a whole for Major Depressive Disorder.

It is Dr. Brockman's opinion that Claimant has not yet reached maximum medical improvement (MMI) and is in need of mental health treatment. Dr. Brockman noted that because of Claimant's financial situation and historical lack of access to healthcare, Claimant has been unable to receive treatment for medical and psychiatric symptoms. While Dr. Brockman does not find Claimant's need for psychiatric treatment at this time to be entirely related to her work-related accident, the increased severity of her symptoms demonstrated post-accident have made such treatment absolutely necessary.

Stephen E. Peterson M.D.

Employer offered the deposition and Diagnostic Interview Report of Stephen E. Peterson M.D. (Exhibit A). Dr. Peterson is a medical doctor specializing in psychiatry and forensic psychiatry. He interviewed Ms. Sokanovic on 4/28/17. He issued his report on 9/5/17.

Dr. Peterson indicates that Claimant experiences Post-traumatic Stress Disorder and Persistent Complex Bereavement disorder. Both pre-existed the workplace injury and persist. It is his opinion that Claimant's psychiatric condition is not currently aggravated by the injury sustained on 4/30/18. Before 4/30/13, she was already grieving the loss of her husband in 2010. "He was her helpmeet, her interpreter, her buffer at work, her assistant at work, and the one she primarily identified with during their 37-year marriage. He read bus signs to her and kept her from being lonely."

Dr. Peterson opines "Claimant is not unemployable as a result of the workplace injury. However, she presents a unique problem. First, she is at least capable of working part time regardless of her complaints of limiting pain in her left hand. Many of the activities of a housekeeper require both hands so she is likely under-reporting her capability, because she feels impoverished. Second, that sense of impoverishment arises at the Sheraton in large part because

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she misses her husband who was very much at her side, especially helping her to be functional after the Bosnian War experience. He was so helpful that she did not need to assimilate as much, which now works against her. In her world, his loss was irreplaceable at multiple levels. Third, the cultural and language limitations she is operating under make it quite difficult for her to receive trauma-focused treatment for her wartime experience and for grieving the loss of her husband. Fourth, she might be able to benefit from more consistent anti-depressant, anti-anxiety, and anti-nightmare treatment if able to get to care on a more regular basis. Then, with greater relief of her depression and anxiety she might feel much more functional at work."

James M. England, Jr.

Claimant offered the deposition and Vocational Rehabilitation Evaluation of James M. England Jr. (Exhibit 3). He interviewed Ms. Sokanovic on 7/28/15. He issued his report on 8/17/16.

Mr. England summarized and concluded that Claimant is a woman in her sixties, rapidly approaching normal retirement age. She has a very limited education, no GED, and cannot effectively read or write in English. Her test score was extremely low as well and she struggled to get through even the first grade.

Assuming Dr. Volarich's restrictions, Claimant would not be able to sustain the type of work activity she has done in the past. Adding in her age, limited education, inability to read and write in English, and her psychiatric problems as noted by Dr. Brockman, Mr. English believes she is more likely to remain unable to successfully sustain employment in the open labor market.

Mr. England concluded that it appears that her overall disability is due to a combination of some pre-existing issues as well as those associated with the primary injury in combination with her physical problems.

RULINGS OF LAW

Claimant credibly testified and presented substantial probative evidence of a comminuted fracture of the distal radius of the left extremity. Claimant credibly testified about the history of her injuries.

Medical Causation

Section 287.020 provides

1. The word "accident" as used in this chapter shall, mean an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift. An injury is not compensable because work was a triggering or precipitating factor.

1. (1) In this chapter the term "injury" is hereby defined to be an injury which has arisen out of and in the course of employment. An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. "The prevailing factor" is defined to be the primary

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factor, in relation to any other factor, causing both the resulting medical condition and disability.

(2) An injury shall be deemed to arise out of and in the course of the employment only if:

(a) It is reasonably apparent, upon consideration of all the circumstances that the accident is the prevailing factor in causing the injury; and

It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal non-employment life;

Nature and extent of permanent partial disability benefits / permanent total disability

Section 287.190.6(2) provides "Permanent partial disability or permanent total disability shall be demonstrated and certified by a physician. Medical opinions addressing compensability and disability shall be stated within a reasonable degree of medical certainty. In determining compensability and disability, where inconsistent or conflicting medical opinions exist, objective medical findings shall prevail over subjective medical findings. Objective medical findings are those demonstrable on physical examination or by appropriate tests or diagnostic procedures."

Claimant has filed a Claim for permanent partial disability for the left upper extremity at the wrist (200 week level). She offers the findings of Dr. Volarich to support a rating of 40% permanent partial disability. Employer/Insurer offers the findings of Dr. Kutnik to support a rating of 4% permanent partial disability. It is undisputed that the Claimant fractured her left distal radius in a fall at work. This injury required an open reduction and internal fixation. Prior to the injury Claimant was able to perform her duty as a housekeeper as she had done for 10 years. The record supports an award of 35% permanent partial disability of the left upper extremity at the wrist from the Employer. In addition, Claimant is entitled to 3 weeks of disfigurement from the Employer for the 3 inch scar from the open reduction procedure.

Dr. Brockman diagnosed Claimant with "Major Depressive Disorder (MDD) - Recurrent, Moderate to Severe, Chronic, With Moderate Anxious Distress". She found Claimant had a pre-existing temporary partial disability of 35% of the body as a whole and a 25% temporary partial disability of the body as a whole for the 4/30/13, workplace accident. Dr. Brockman's analysis does not address the increased depression from the husband's death in 2010, until the accident date in 2013. However, Dr. Peterson diagnosed Post-traumatic Stress Disorder and Persistent Complex Bereavement disorder. Both pre-existed the workplace injury and the workplace injury is not aggravating Claimant's psychiatric condition.

The substantial weight of the evidence demonstrates that Claimant's psychiatric condition pre-existed the workplace injury. It does not support a combination of the wrist injury with the psychiatric disability. Claimant's total dependence on her husband, then his abrupt death, aggravate her psychiatric condition. Claimant's expert, Dr. Brockman, acknowledged that Claimant's need for psychiatric treatment was not entirely related to the work-related accident. Dr. Peterson's acknowledgement of the total dependence by Claimant on her husband make Dr. Peterson's opinion more compelling. The record does not support an award of permanent total disability.

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In determining whether medical treatment is "reasonably required" to cure or relieve a compensable injury, it is immaterial that the treatment may have been required because of the complication of pre-existing conditions, or that the treatment will benefit both the compensable injury and the pre-existing condition Tillotson v. St. Joseph Med Ctr., 347 S. W. 3d 511, 519 (Mo.App.W.D. 2011) Rather, once it is determined that there has been a compensable accident, a claimant need only prove that the need for treatment and medication flow from the work injury.

If a work injury requires a Claimant to live with pain and discomfort, it follows that additional and future medical treatment may be required to relieve those symptoms. Williams v. City of Ava, 982 S.W.2d 307,312 (Mo.App.S.D. 1998)

Dr. Brockman and Dr. Peterson each opined that Claimant needs future medical care to address her psychiatric condition. As stated above, Claimant's psychiatric condition pre-existed her work-related accident. As the record does not support an award of permanent total disability, it similarly does not support an award of future medical expenses.

Employer introduced evidence that Claimant was placed at MMI on 7/30/13. It was stipulated by the parties that TTD benefits were paid from $5 / 1 / 13 through 6 / 11 / 13. Therefore, I find claimant is due unpaid TTD benefits from 6 / 12 / 13 through 7 / 30 / 13$.

On the basis of sustained and competent evidence contained in the whole record, Claimant is found to have sustained permanent partial disability of 35 % of the left upper extremity at the wrist ( 200 week level) plus 3 weeks for disfigurement from the Employer. Claimant is found to have failed to carry her burden of proof that she is permanently and totally disabled or entitled to any future medical expenses. Claimant is entitled to $66 / 7 weeks unpaid TTD benefits from the Employer.

I certify that on \frac{\text { July } 4,2018}{1}$ 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.


Made by:

Joseph P. Keaveny

Administrative Law Judge

Division of Workers' Compensation