Deborah Tedder v. State of Missouri, Department of Corrections

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 11-056595

**Employee:** Deborah Tedder

**Employer:** State of Missouri, Department of Corrections

**Insurer:** Missouri Office of Administration, Central Accident Reporting Office

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

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated April 26, 2018. The award and decision of Administrative Law Judge, Suzette Carlisle, issued April 26, 2018, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this 11th day of April 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

DISSENTING OPINION FILED

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Pamela M. Hofmann/JAK

Secretary

Injury No.: 11-056595

Employee: Deborah Tedder

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 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 failed to prove any psychiatric disability medically causally related to her July 26, 2011, slip and fall at work. Employee has further failed to establish that she is permanently and totally disabled (PTD) either due to the primary injury alone or in combination with prior disabilities.

The majority relies on the testimony of employee and employee's witness Dr. Jay L. Liss to find employee's July 26, 2011, slip and fall to be the prevailing factor in her diagnoses of post-traumatic stress disorder (PTSD), traumatic brain injury, and post-concussion syndrome. In so finding, the majority discounts the testimony of employer's expert, psychiatrist Dr. Jennifer Brockman. This analysis is incorrect in that the weight of the evidence supports the opinion of Dr. Brockman and shows inconsistencies in employee's testimony.

Employee testified that in September of 2011, two months after her work injury, she began having crying spells, headaches, mood swings, anxiety and nightmares about being trapped. Employee met with counselor Nancy Daugherty four times through employer's Employee Assistance Program. Ms. Daugherty did not encourage employee to seek other professional help. In late 2011, psychiatrist Dr. Michael Oliveri performed a neuropsychological evaluation and opined that employee had no indications of changes in her higher cognitive functions. Dr. Oliveri found no permanent partial disability related to employee's July 26, 2011, work injury and found employee's "level of subjective somatic and cognitive complaint is not consistent with the nature of the injury, or the natural history of the condition."

Employee sought no further psychiatric treatment until 2015, even though she testified she was still having crying spells, depression, and anxiety attacks. Her primary care doctor did not refer her for further treatment, though employee testified she told him about these ongoing symptoms. Employee's primary care records note insomnia, memory issues, and anxiety but reference other triggers, such as "family health, children" in addition to the "legal battle" over employee's compensation claim. Employee continued to take Zoloft, as she had prior to the July 26, 2011, work injury.

In early 2015, employee saw counselor Sandra McIntosh on February 12, 2015. Ms. McIntosh's record of that visit diagnosed major depression and anxiety and noted that employee had taken Zoloft for a long time. In March 2015, employee saw nurse practitioner Nancy McNail who noted employee began taking Zoloft in 2002 "due to

1. Transcript, 484-485.
2. Id. 881.

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being pre-menopausal and having some depression."3 Employee began treating with psychologist Melinda Fox in January of 2016. That same year, she sought treatment from Dr. Bello Adejoh who noted employee "self-reports a diagnosis of ptsd [sic] and TBI [traumatic brain injury]."4

Dr. Liss evaluated employee in April 2015 and diagnosed a traumatic brain injury with cognitive dysfunction and post-concussion syndrome. He discounted Dr. Oliveri's assessment, instead opining that PTSD was a disease that worsened over time and that employee's July 26, 2011, fall caused neurological disruption because the brain reconfigures with a trauma type occurrence.

Dr. Jennifer Brockman evaluated employee in November 2015. Dr. Brockman diagnosed moderate depression, major depressive disorder, and panic disorder, but did not believe employee had PTSD or a traumatic brain injury. Dr. Brockman opined that in order for there to be PTSD "There has to be an actual life-threatening event" and did not find that in this case.5 She explained, "[W]hile recognizing [employee's] history of psychiatric symptoms, the timeline of symptom development and her reported work performance while on light duty suggests that matters beyond her injury of July 26, 2011 are the prevailing factors in her current presentation and need for treatment."6

Noting the gap in treatment, Dr. Brockman also stated, "It would be puzzling why somebody wouldn't seek psychotropic medication or further treatment beyond what she did if she had continued to have severe symptoms."7 Dr. Brockman also noted that employee told her "something bad could have happened / realized it when / watched the video [emphasis added]."8 Employee testified that she did not view the video until approximately one year after the injury. Regarding her employment, Dr. Brockman noted that employee said, "I still would have went back if they let me."9

The evidence in this case, when looked at collectively, supports the opinion of Dr. Brockman and not Dr. Liss. Employee testified that she began having symptoms after the work injury, and sought counseling. However, after a few months of counseling, she sought no further psychiatric treatment for three years, despite testifying that her symptoms continued and no primary care referral was forthcoming. The records of employee's doctor and the counselors she later saw are inconsistent as to her reports of ongoing symptoms. She reported some psychiatric symptoms, but was consistent in her account of the type, duration, and frequency of her symptoms. Finally, employee asserted she would have gone back to work if they would have let her, to working in the same environment employee claims caused her PTSD.

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3 Transcript, 1148

4 Id. 1280.

5 Id. 1507.

6 Id. 1563.

7 Id. 1503.

8 Id. 1559.

9 Id.

Injury No.: 11-056595

Employee: Deborah Tedder

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Based on all of the evidence presented, Dr. Brockman's opinion is more complete and persuasive than Dr. Liss, and employee has not met her burden of proof that the injury of July 26, 2011 resulted in psychiatric injury. Consistent with this finding, employee is not entitled to past or future medical and pharmaceutical expenses related to her alleged psychiatric conditions.

**Nature and Extent of Employee's Permanent Disability Related to the July 26, 2011, Work Injury**

In any case involving the Second Injury Fund, the first question to be determined is the nature and extent of disability from the last injury alone. *Roller v. Treasurer of the State of Missouri*, 935 S.W.2d 739, 741 (Mo. App. 1996). Employer admits liability for permanent partial disability relating to employee's left knee, left elbow, and head relating to her slip and fall at work on July 26, 2011.

The employee bears the burden of proving the nature and extent of any disability by a reasonable degree of certainty. *Elrod v. Treasurer of Missouri as Custodian of the Second Injury Fund*, 138 S.W.3d 714, 717 (Mo. banc 2004). Proof is made only by competent and substantial evidence and may not rest on surmise or speculation. *Griggs v. A. B. Chance Oc.*, 503 S.W.2d 697, 703 (Mo. App. 1973). Expert testimony may be required when there are complicated medical issues. *Id.* at 704. Extent and percentage of disability is a finding of fact within the special province of the fact-finding body. The Commission is not bound by the medical testimony and may consider all the evidence, including the testimony of the employee, and draw all reasonable inferences from other testimony in arriving at the percentage of disability. *Fogelsong v. Banquet Foods Corp*, 526 S.W.2d 886, 892 (Mo. App. 1975).

Under § 287.020.6, "total disability" is defined as "inability to return to any employment and does not merely mean inability to return to the employment in which the employee was engaged at the time of the accident." The test for permanent total disability benefits is whether the worker is able to compete in the open labor market. *Carkeek v. Treasurer*, 352 S.W.3d 604, 608 (Mo. App. 2011) (internal citations omitted). Total disability does not require that an employee be completely inactive or inert. *Id.* But a claimant has the burden of proving that an employer would not be expected to hire him or her in the ordinary course of business, given his or her present physical condition. *Id.* Employment in the open labor market includes part-time work. See *Brashers v. Treasurer*, 442 S.W.3d 152 (Mo. App. 2014); see also *Stewart v. Zwiefel*, 419 S.W.3d 915 (Mo. App. 2014).

The record includes varied restrictions for employee's physical injuries. Dr. David Brown provided no restrictions for employee's left elbow. However, Dr. Raymond Cohen stated that employee should do no work involving repetitive work with the left elbow, no reaching or lifting greater than 7.5 pounds, and no work in which the left elbow would be bumped against a hard object. Regarding employee's left knee, Dr. Lyndon Gross gave permanent restrictions in the medium work level, kneeling and crawling occasionally, and no restraint of prisoners. Dr. Cohen stated that employee should avoid work involving kneeling, squatting, climbing, ladder work, crawling, or

Injury No.: 11-056595

Employee: Deborah Tedder

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walking on uneven surfaces. Dr. Robert Hagan provided no work restrictions for employee's headaches. Dr. Cohen recommended an employer allow employee to lie down or go home if she has a bad headache.

Dr. Cohen initially opined that employee's prior left finger injury and the injuries sustained on July 26, 2011, combined to be greater than the simple sum and that the employee was permanently and totally disabled. In three supplemental reports, Dr. Cohen reaffirmed this opinion, even after reviewing Ms. Delores Gonzalez's opinion and Dr. Liss' opinion. Like Dr. Cohen, Ms. Gonzalez opined that employee was not employable due to the combination of her July 26, 2011, injury in combination with her preexisting injuries. Ms. Gonzalez noted that her opinion was unchanged after reviewing Dr. Liss' psychiatric report. However, in her deposition she inconsistently opined that the last injury alone was enough to render employee permanently and totally disabled. 10 Dr. Brockman found that employee had no psychiatric work restrictions, but Dr. Liss found employee to be permanently and totally disabled. The opinions of