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