Sabrina Williams v. City of Jennings

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Amended Award and Decision of Administrative Law Judge)

**Injury No.:** 10-070906

**Employee:** Sabrina Williams

**Employer:** City of Jennings

**Insurer:** Missouri Employers Mutual Insurance Company

**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, read the parties' briefs, heard their arguments, and considered the whole record, the Commission finds that the amended 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 amended award and decision of the administrative law judge dated December 27, 2018, with the following corrections:

**Amended Award, Page 7,** paragraph 3 contains a quote from Dr. Jennifer E. Brockman, which is incomplete. We correct that paragraph as follows:

> Dr. Brockman concluded, "It is my opinion that the work-related injury of September 7, 2010, represents the prevailing factor in Ms. Williams' development of Post Traumatic Stress Disorder and Panic Disorder with Agoraphobia. Furthermore, it represents the prevailing factor in the exacerbation of her pre-existing psychiatric conditions, including Major Depressive Disorder-Recurrent, Severe without Psychotic Features and Generalized Anxiety Disorder."

**Transcript, page 147.**

We further clarify any confusion that may have arisen regarding the administrative law judge's inclusion of citation to 2013 amendments to the statute (effective January 1, 2014), in analyzing this 2010 injury. **Amended Award, page 10.** Since all the injuries at issue here, both primary and preexisting, arose prior to January 1, 2014, § 287.220.2 RSMo applies.¹ **Cosby v. Treasurer, No. SC97317 (Mo. June 25, 2019).**

¹ The relevant text of former subsection 287.220.1 (pre-amendment) is identical in all respects to current subsection 287.220.2 RSMo.

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Injury No. 10-070906

The amended award and decision of Administrative Law Judge Joseph P. Keaveny, issued on December 27, 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 3rd day of October 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

SEPARATE OPINION FILED

Robert W. Cornelo, Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Injury No.: 10-070906

Employee: Sabrina Williams

I have reviewed and considered all of the competent and substantial evidence on the whole record, and after having read the parties' briefs and heard their arguments, I agree with the majority in all respects, except on the issue of Second Injury Fund liability. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be modified to apportion liability for permanent total disability against the Second Injury Fund, with an award of permanent partial disability attributed to employer.

It is clear that employee is permanently and totally disabled from psychiatric injuries, and that a substantial portion of that disability is attributed to the work-related injury on September 7, 2010, when she was attacked by an inmate in her workplace and beaten, resulting in permanent psychological injury. Dr. Jennifer E Brockman, the psychiatrist who performed an independent medical evaluation of employee, at her attorney's request, opined that employee was permanently and totally disabled from a psychiatric standpoint alone, which I interpret as, excluding disability from any physical injuries. Amended Award, page 7.

As noted by Dr. Brockman, employee has difficulty interacting with strangers which would affect a large portion of available jobs requiring dealing with the public. She has agoraphobic episodes. As of June 25, 2018, Dr. Brockman noted employee suffers from chronic anxiety and panic attacks, is subject to mood swings, irritability and thoughts of self-harm. Employee still has problems with getting adequate sleep due to her anxiety symptoms. She has additional symptoms of difficulty concentrating, periods of physical aggression, and frustration intolerance. For these reasons, Dr. Brockman opined that employee could not be expected to compete with others in the open market for jobs and even interviewing would be an obstacle, given her difficulty in trusting strangers and speaking with them. She could not perform the usual duties of employment as customarily expected by employers. I agree with the very knowledgeable administrative law judge and the majority, that employee is clearly permanently and totally disabled.

The administrative law judge concludes, (as does the majority) that employee's permanent and total disability is due to the work injury alone, and that pathology from the work injury "completely supplants" her condition prior to the attack, I respectfully disagree. I note that the administrative law judge relies on Dr. Brockman's statement at page 148 of the transcript, that "Ms. Williams is permanently and totally disabled from a psychiatric standpoint alone as a result of her symptoms," to find that the work injury alone caused her to be permanently and totally disabled. Amended Award, page 7. However, the doctor went on to enumerate the percentages of disability she attributed to preexisting psychiatric conditions and those resulting from the primary injury, including some exacerbations of prior conditions.

Injury No. 10-070906

Employee: Sabrina Williams

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In regard to the primary injury, Dr. Brockman attributed 30% permanent partial disability to the body as a whole, referable to Post Traumatic Stress Disorder and 10% permanent partial disability to the body as a whole, referable to Panic Disorder with Agoraphobia. She found the work injury to be the prevailing factor in the development of these conditions. She attributed an exacerbation of employee's preexisting Major Depressive Disorder, Recurrent, Severe without Psychotic Features, at 20% permanent partial disability; and exacerbation of Generalized Anxiety Disorder at 10% permanent partial disability, as a result of the primary injury. Transcript, pages 147-148.

In regard to preexisting conditions, Dr. Brockman opined 10% permanent partial disability attributed to Major Depressive Disorder, Recurrent, Severe without Psychotic Features; and 5% permanent partial disability attributed to preexisting Generalized Anxiety Disorder. Id.

Employer/insurer's independent medical evaluator, Dr. Gregg Bassett, also a psychiatrist, opined that employee had a permanent partial disability due to psychiatric injuries, and that the resulting disability was due to a combination of the primary and preexisting injuries. He opined that the employee only sustained an overall 40% permanent partial disability, with 10% of that disability referable to the preexisting psychopathology. Dr. Bassett, also noted what he referred to as conversion disorder symptoms as affecting employee's functioning. In contrast, Dr. Brockman noted that she had not observed any such symptoms and that such a condition is generally chronic. Nevertheless, she acknowledged that it was possible that, as Dr. Bassett suggested, emotional disruption could have a relationship to such a disorder, and it is possible that a recurrence of such symptoms could occur in the future. But at the time of her evaluation in April 2013, Dr. Brockman would not attribute any of employee's symptoms or any disability referable to a conversion disorder. I find Dr. Brockman's medical opinions and observations to be credible and persuasive.

Given that both medical experts opined that employee had preexisting disabilities and her overall disability resulted from a combination of those conditions with the primary injury, in my opinion it follows that some portion of employee's disability is from her preexisting conditions. I find the opinion of Dr. Brockman to be more persuasive that employee's preexisting injuries were of such seriousness to constitute a hindrance or obstacle to her employment. This is evidenced by employee's prior significant mental health episodes, including at least one suicide attempt in younger years; a lengthy period of time as an adult when she was unable to work as ordered by psychiatric physicians between September 2007 to September 2008; and a brief hospitalization in 2007, which by some reports, was related to mental health issues.

Since all the injuries at issue here, both primary and preexisting, arose prior to the amendments to § 287.220 RSMo, effective in 2014, we look to what is now numbered as §287.220.2 of the statute. I would find employee is permanently and totally disabled as a result of the combination of the primary injury and preexisting conditions. I would find the employer/insurer's liability at 70% permanent partial disability to the body as a whole referable to Post Traumatic Stress Disorder and Panic Disorder with Agoraphobia, in addition to exacerbation of Major Depressive Disorder and General

TI3681-0961

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Anxiety Disorder. Therefore, the Second Injury Fund is liable for permanent total disability after 280 weeks of permanent partial disability paid by the employer/insurer.

Since the majority has voted to affirm the administrative law judge's amended award, dated December 27, 2018, without Second Injury Fund liability, I respectfully dissent.

Robert W. Cornejo, Chairman

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: 9/7/2010
5. State location where accident occurred or occupational disease was contracted: Jennings, Missouri
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: Claimant is a corrections officer who was assaulted about the head and face by an inmate.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Psychiatric
14. Nature and extent of any permanent disability: Total Permanent Disability
15. Compensation paid to-date for temporary disability: $\ 39,569.11
16. Value necessary medical aid paid to date by employer/insurer? $\ 63,405.18

1. Value necessary medical aid not furnished by employer/insurer? Indeterminate
2. Employee's average weekly wages: $\ 586.82
3. Weekly compensation rate: $\ 391.22 TTD / $\ 391.22 PPD
4. Method wages computation: Stipulated

1. Amount of compensation payable:

Permanent total disability benefits from Employer/Insurer:

Indeterminate

\$391.22 weekly payable by Employer/Insurer for weeks beginning

$8 / 16 / 2012$ and, thereafter, for Claimant's lifetime

1. Second Injury Fund liability: No

TOTAL:

Indeterminate

1. Future requirements awarded:

See Award

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: Mark Moreland

On 9/25/2018, the parties appeared for a hearing at the Missouri Division of Workers' Compensation, St. Louis Office ("Division"). Sabrina Williams ("Claimant") appeared in person and with counsel, Mark Moreland. The City of Jennings, (employer) and Missouri Employers Mutual Insurance Company ("insurer") were represented by Patrick N. McHugh. The Second Injury Fund was represented by Assistant Attorney General, E. Joye Hudson.

1) The employer, City of Jennings, was operating subject to Missouri's Workers' Compensation Law on or about 9/7/2010. 2) Sabrina Williams 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 $\ 586.82. 6) Applicable rates of compensation are $\ 391.22 for TTD and $\ 391.22 for PPD. 7) Employer paid $\ 63,405.18 in medical expenses and $\ 39,569.11 in TTD benefits, representing $1011 / 7 weeks, during the period 9 / 8 / 2010 through 8 / 15 / 2012. 8) MMI date is 8 / 15 / 2012$. 9) Future medical for psychiatric treatment is to remain open.

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

1) Deposition transcript of Dr. Jennifer E. Brockman taken on 9/26/2017. 2) Dr. Jennifer E. Brockman's records dated 5/16/2018 and 6/20/2018. 3) DePaul Hospital Emergency Room records. 4) Medical records of Dr. Bernhard C. Randolph, Jr., M.D.

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5) Dental evaluation forms from Express Dental Care.

6) Visual records from Washington University Physicians.

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

A) The records and reports from Dr. Gregg Bassett, M.D.

B) The records from Anderson Hospital.

C) The records from City of Jennings.

The Second Injury Fund offered no Exhibits.

ISSUES

1) What is the liability of the employer for permanent partial disability, if any?

2) What is the liability of the employer for permanent total disability, if any?

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

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

FINDINGS OF FACT

At the time of the hearing, Claimant was 41 years old. She is a single mother with three children, ages 21, 18 and 14. She has never married. She has a high school education and attended some college at DeVry University. She also attended South Western Illinois College, taking anatomy in order to obtain her Certified Nursing Assistant (CNA) license. Prior to working for the City of Jennings, as a corrections officer, she worked at Maryville Manor and Maxim Healthcare, as a CNA.

Claimant started working as a corrections officer for the City of Jennings on 3/4/2005. On 4/6/2006, Claimant was warned of possible disciplinary action for missing work due to illness. She had seven incidents of missed work due to illness, totaling ten days. She also had two unexcused absences totaling three days. On 12/20/2006, she was notified that an absence on 12/15/2006 was her fifth sick incident and she would be docked one day's pay from her 12/28/2006 paycheck. In mid-September 2007, she came under the care of Dr. Napier and Dr. Freeman. They are physicians with Illinois Associates in Psychiatry, P.C. They excused her from work from Mid-September 2007 through September 4, 2008. Claimant returned to work September 4, 2008.

Her duties as a correction officer include: booking, releasing prisoners, searching prisoners, checking on inmates, serving meals, linen exchange, schedule shifts and transporting inmates.

On 9/7/2010, she was alone, in a room with a locked door, with two inmates, preparing to serve a meal to the jail population. One of the inmates attacked her about the face and jaw. She realized that he was trying to escape and as she tried to wrestle with him, she fell to the ground. She looked to the other inmate for help, but received none. As she lay on the ground, the assailant continued to hit her and kick her. She thought that he was trying to kill her. A fellow corrections officer tried to get her out but he did not have the right key. Finally, the maintenance

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man came with the right key and they were able to get her out. Claimant was unsure how long the attack lasted but said that it "seemed like 10 years." However, Administrative Officer Stegall who accompanied Claimant to the examination by Dr. Bassett, informed him that the attack lasted 5 minutes or more. The surveillance video shows Claimant attempting to fight back.

Dr. Bassett was not able to ascertain from Claimant, the circumstances under which the maintenance man was able to extract her from the situation. He somehow got Claimant out of the situation. The assailant reportedly had "too much blood on him", from the Claimant's wounds, to be able to manipulate controls or hold a door open in order to escape. Officer Stegall informed Dr. Bassett that the assailant is now at the Federal Supermax facility located in Florence, Colorado.

After she was rescued, she was taken to the DePaul Hospital Emergency Room. Her examination there included: x-rays, blood work, a physical exam and additional tests. Although released to go home that same day, her eye was swollen shut and she had back pain. Dr. Randall examined her back and prescribed physical therapy. She had slurred speech but that resolved on its own. She had dental work to remove a broken tooth. She went to an eye doctor at Washington University. She saw psychiatrist, Dr. Gregg Bassett and Mr. Mark Tobin, a licensed professional counselor.

Claimant's psychiatric issues include; not sleeping, anxiety, depression, anger issues, always watching the windows and checking the doors, and is constantly in a general state of fear, mistrusting almost everybody. She had suffered anxiety and depression prior to this incident and received treatment. This incident made her symptoms worse. Sometimes she can sleep, sometimes she's up for days. She prefers being by herself. She sometimes stays in her room for days at a time, despite parental responsibilities. She rarely goes to the grocery store by herself. She starts to cook, but either her daughter or her son finishes it for her. When leaving her house, she gets nervous and panics.

Claimant's first attempt at suicide occurred when she was sixteen or seventeen. She tried to take some pills but "it didn't work." Her condition resolved and she led a productive life. However, Dr. Brockman's report, dated May 29, 2013, states Claimant has attempted suicide three more times, all occurring within the past year. She tried to jump out of the car on the expressway. She tried to jump off the Alton bridge. She tried to overdose with some pills.

Claimant has not returned to work since the assault.

Opinion Evidence

Jennifer E. Brockman, M.D.

Claimant offered the deposition and Independent Medical Evaluation (IME) of Dr. Jennifer E. Brockman (Exhibit 1). She interviewed Ms. Williams on 4/23/2013. She issued her report on 5/29/2013. Dr. Brockman noted that Claimant suffered serious injuries as a result of the extended assault, while working for Employer on 9/7/2010. She has continued to experience disabling symptoms despite receiving evaluation and treatment. Dr. Brockman opined as a psychiatrist on Claimant's psychiatric diagnosis, condition and prognosis.

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Claimant was cooperative throughout the assessment, which consisted of a clinical interview lasting approximately 1 1/2 - 2 hours. Initially, Claimant was unwilling to participate in the evaluation unless her friend, who drove her to the appointment, was allowed to accompany her. Dr. Brockman thought that, despite this not being her typical arrangement, failure for her to accommodate Claimant would have resulted in her inability to establish rapport with Claimant. Dr. Brockman initially asked non-sensitive information in order to establish rapport with Claimant and allow her to become comfortable with the process. However, approximately 30 minutes into the interview she voiced a willingness to conduct the interview alone. After her friend left the room, Claimant consented to the door being closed.

When Claimant was describing the events of 9/7/2010, she became very upset and tearful. She subjectively displayed symptoms of increased anxiety, pausing before further detailing her story.

> "Before I could turn back around, he hit me. I felt shock. He just kept hitting me over, and over and over again. I was confused. I was wrestling. I got hit on the head, the neck. He kept hitting me on my back. The radios wouldn't work. The guy [a fellow employee] saw something on the camera, but he couldn't get out. At one point I flipped him. I reached for the radio and I was trying to call, but he unplugged my mike. It was soaking in blood. He told me 'Bitch, stay down.' I kept asking, 'what do you want?' I thought of my kids.'"

Claimant reported that she thought she was going to die. She went on to further describe the skirmish that ensued between her and the inmate. It became apparent to her that he was attempting to escape. There was another inmate, an ex-police officer, in the locked room with them. She looked to him, expecting him to intervene. She stated, "I asked him if he was going to help me, and he said 'That's between you all.' (According to Dr. Bassett's report, the other inmate "never said stop, quit, or don't! This other inmate then went over to a metal rail on the wall near Post 2 and handcuffed himself to the rail." There is no mention of how the inmate came in possession of a set of handcuffs. It can be presumed that he took them off the Claimant as the assailant continued to beat her. Dr. Bassett's notes reflect that this particular inmate received an additional seven years of sentence for "attempted escape.") Claimant went on to describe how she, inadvertently, kicked the door closed. She broke down crying numerous times when recounting the events surrounding the attack. She finally stated, "The maintenance man. He was my angel. He came."

Claimant received extensive treatment from a variety of providers. Dr. Brockman reviewed documents from her evaluation at DePaul ER immediately following the incident as well as treatment follow up records by treating physicians and physical therapy. Mental health records were also provided from Mr. Tobin and Dr. Bassett. Unfortunately, Ms. Williams' medical and psychiatric symptoms have required treatment with a number of different psychotropic medications, some of which continue to date.

Claimant indicated that she first saw a psychiatrist in 2007. She stated, "I thought I had had a mild stroke. I couldn't walk. My speech was off. I was off work. I couldn't understand why I was the way I was and they thought I was stressing really bad. Eventually, he released me.

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I never saw anybody long term." She reported suspending ongoing treatment, as her symptoms appeared to remit.

Ms. Williams denied prior psychiatric hospitalizations, but admitted to engaging in several attempts on her life. The first time was when she was 16 or 17. She reported overdosing on a variety of pills but she survived. She didn't tell anyone. She had three other attempts on her life, all occurring since the assault.

Claimant, while having a history of prior trauma and psychiatric symptoms, was previously successfully able to attend school, work full time, raise her children, and engage in a positive relationship leading to her engagement. Subsequently, post-accident psychiatric symptoms have impacted her occupational, familial, and recreational activities. Despite treatment, she continues to suffer from disabling symptoms and has been unable to work. As the period of incapacitation has become prolonged, her mental status has further deteriorated over time. Current treatment records parallel her history.

Dr. Brockman concluded, "It is my opinion that the work-related injury of September 7, 2010, represents the prevailing factor in Ms. Williams' development of Post Traumatic Stress Disorder and Panic Disorder with Agoraphobia. Furthermore, it represents the prevailing factor in the exacerbation of her pre-existing psychiatric conditions, including Major Depressive Disorder-Recurrent, Severe without Psychotic Features and Generalized Anxiety Disorder.

Dr. Brockman provided the following ratings, all within a reasonable degree of medical certainty:

**Pre-existing permanent partial disability:**

- Major Depressive Disorder, recurrent, Severe without Psychotic Features: 10% Permanent Partial Disability of the Body as a Whole

- Generalized Anxiety Disorder: 5% Permanent Partial Disability of the Body as a Whole

**Disorders prevailingly caused by the assault/injury of 9/7/2010:**

- Post Traumatic Stress Disorder: 30% Permanent Partial Disability of the Body as a Whole

- Panic Disorder with Agoraphobia: 10% Permanent Partial Disability of the Body as a Whole

**Disorders prevailingly exacerbated by the assault/injury of 9/7/2010:**

- Major Depressive Disorder, Recurrent, Severe without Psychotic Features: 20% Permanent Partial Disability of the Body as a Whole

- Generalized Anxiety Disorder: 10% Permanent Partial Disability of the Body as a Whole

Dr. Brockman further concluded; all of the conditions represent hindrances or obstacles to employment or reemployment and that Claimant is permanently and totally disabled from a psychiatric standpoint alone as a result of her symptoms. She is unable to compete in the open labor market due to her psychiatric symptoms, including excessive anxiety, impaired

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concentration, poor stress and frustration tolerance, irritability, periods of physical aggression, profound apathy/lack of motivation, intrusive negative thoughts, and chronic passive thoughts of death/suicidal behavior.

It was her opinion, provided with a reasonable degree of medical certainty, that at this time vocational rehabilitation efforts would likely be unsuccessful.

Gregg Bassett, M.D.

Employer/Insurer offered the deposition, Independent Medical Evaluation (IME) and a supplement to the IME of Gregg Bassett, M.D. (Exhibit A). Dr. Bassett is a psychiatrist. Dr. Bassett's IME is dated 12/5/2010 and his supplement to the IME is dated 8/19/2012.

In the supplement to the IME, Dr. Bassett makes the following statements/opinions/recommendations all to within a reasonable degree of medical certainty:

1) Claimant has reached Maximum Medical Improvement (MMI) with regard to the psychiatric sequelae of the 9/7/2010 work injury.

2) Injury related Post Traumatic Stress Disorder (PTSD) is improved (reduction of symptoms) with aggressive pharmacologic treatment.

3) Preinjury history of Depressive Disorder, Anxiety Disorder and Conversion Syndrome were reportedly resolved prior to the injury of 9/7/2010.

4) Injury aggravated Conversion Disorder is resolved or currently in remission.

Dr. Bassett states that Claimant, "has, with treatment, experienced a significant reduction in her work-injury-related PTSD symptoms and her work-injury-triggered or aggravated Conversion Disorder. She no longer has dysarthic speech. The rate/tone/latency/prosody of her speech has, in the last few months, improved markedly. She is much more conversant during treatment sessions. Her effect is brighter and less consistently sad. Her eye contact is significantly better. She appears to be more relaxed." She reports that she is isolating herself less and her motivation is better. Recent refinements of her treatment regimen have minimized or eliminated her work-injury-related nightmares of the assault/work-injury. She reports her sleep is better. She is less irritable.

Dr. Bassett states further, "Although still limited as a consequence of her work-injury, Ms. Williams has been able to leave the house with or without an escort. She has recently expressed an interest in returning to some type of work. She continues to report anxiety in stores and around males who are strangers to her."

It has taken an aggressive psychopharmacologic regimen plus treatment with Mark Tobin, LPC, in order for Claimant to make this progress. Claimant has ongoing maintenance treatment needs in order to maintain her current MMI status. These maintenance needs include continued, uninterrupted access to her medications. These medications include:

- Sertraline/Zoloft 200

- Prazosin 1mg.

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- Lorazepam

- Abilify 15 mg

She requires follow-up treatment with a psychiatrist every two to three months. She requires annual laboratory monitoring of her fasting blood sugar and fasting lipid profile. Dr. Bassett estimated that Claimant's ongoing treatment needs to be life-long.

Claimant is, as a consequence of the 9/7/2010 work-injury, permanently restricted from/unable to work as a corrections officer or in any type of uniformed security/safety/police occupation. She is, as a consequence of the 9/7/2010 work-injury, permanently unable to work in a setting in which she is tasked with/required to regularly interact with strangers/members of the public.

Dr. Bassett noted that Claimant recently expressed an interest in returning to work. She would, in his opinion, benefit from a Vocational Rehabilitation Assessment.

Dr. Bassett opined, "Ms. Williams has, as a consequence of the combination of pre-injury psychopathology and injury-related psychopathology, an overall 40% psychiatric permanent partial disability. He attributes 3/4ths of this 40% value (i.e., a 30% psychiatric permanent partial disability) to the lingering PTSD symptoms flowing from the 9/7/2010 injury. The remaining 1/4th of the 40% value (i.e., a 10% psychiatric permanent partial disability) is due to pre-injury psychopathology.

RULINGS OF LAW

Claimant credibly testified and presented substantial probative evidence about the history of her injuries and her current physical and mental state.

Section 287.220 states, in pertinent part:

1. If any employee who has a preexisting permanent partial disability whether from a 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, and the preexisting permanent partial disability, if a body as a whole injury, equals a minimum of fifty weeks of compensation or, if a major extremity only, equals a minimum of fifteen percent permanent partial disability, according to the medical standards that are used in determining such compensation, receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree or percentage of disability, in an amount equal to a minimum of fifteen percent permanent partial disability, caused by the combined disabilities is substantially greater than that which would have resulted from the last injury, considered alone and of itself, and if the employee is entitled to receive compensation on the basis of the combined disabilities, the employer for the last injury shall be liable only for the degree or percentage of disability which would have resulted from the last injury had there been no preexisting disability. After the compensation liability of the employer for the last injury, considered alone, has been determined by an

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administrative law judge or by the commission, the degree or percentage of disability which existed prior to the last injury plus the disability resulting from the last injury, if any, considered alone, shall be deducted from the combined disability, and compensation for the balance, if any, shall be paid out of a special fund known as the second injury fund, hereinafter provided for. If the previous disability or disabilities, whether from compensable injury or otherwise, and the last injury together result in total and permanent disability, the minimum standards under this subsection for a body as a whole injury or a major extremity injury shall not apply and 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 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 for permanent total disability under section 287.200 out of the second injury fund.

3(2). .... Claims for permanent total disability under section 287.200 against the second injury fund shall be compensable only when the following conditions are met:

(iii) Not a compensable injury, but such preexisting disability directly and significantly aggravates or accelerates the subsequent work-related injury and shall not include unrelated preexisting injuries or conditions that do not aggravate or accelerate the subsequent work-related injury;....

Nature and Extent of Claimant's Permanent Partial Disability or Permanent Total Disability

In every case where the employee is permanently and totally disabled after suffering a compensable work injury, the employee will be capable of working prior to the injury, but incapable of working thereafter. However, we must exclude the effects of Claimant's preexisting disabling conditions to properly assess the nature and extent of disability referable to the work injury alone:

In deciding whether the Second Injury Fund has any liability, the first determination is the degree of disability from the last injury. Until the disability is determined, it is not known whether the second injury fund has any liability. Accordingly, a claimant's preexisting disabilities are irrelevant until employer's liability for the last injury is determined.

Hughey v. Chrysler Corp., 34 S.W.3d 845, 847 (Mo. App. 2000)(citations omitted).

In determining the extent of disability, the Commission may reject the uncontradicted opinion of a vocational expert. Additionally, while it is true that the Commission may not reject uncontradicted medical testimony in favor of the ALJ's opinion on the issue of medical causation, the extent of an employee's

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disability, and thus employability, is not an issue of medical causation, nor does it exclusively require medical testimony. The extent and percentage of disability is a finding of fact within the special province of the Industrial Commission. As a result, in determining the degree of a claimant's disability, the Commission may consider all the evidence and the reasonable inferences drawn from that evidence.

*Palmentere Bros. Cartage Serv. v. Wright*, 410 S.W.3d 685, 692 (Mo. App. 2013).

Section 287.020(6)(RSMO) defines total disability as: The term "total disability" as used in this chapter shall mean inability to return to any employment and not merely mean inability to return to the employment in which the employee was engaged at the time of the accident.

Fund liability for PTD under § 287.220.1 occurs when claimant establishes that she is permanently and totally disabled due to the combination of his present compensable injury and his preexisting partial disability. For Claimant to demonstrate Fund liability for PTD, she must establish: (1) The extent or percentage of the PPD resulting from the last injury only, and (2) prove that the combination of the last injury and the preexisting disabilities resulted in PTD. *Lewis v. Treasurer of Mo.*, 435 S.W.3d 144, 157 (Mo. App. 2014).

I find the testimony of Dr. Jennifer Brockman more persuasive than the findings of Dr. Gregg Bassett. Dr. Brockman's report was consistent and thorough. She reviewed all of the records, conducted a thorough interview, in which she accommodated the Claimant, in an effort to create an informed opinion of the current psychological condition of the Claimant. Although Dr. Bassett interviewed the Claimant, his report does not reflect the same effort exhibited by Dr. Brockman.

Claimant's last injury is comprised of the following pathology: Post Traumatic Stress Disorder and Panic Disorder with Agoraphobia. These conditions would result in acute psychiatric disability. This pathology, taken in isolation, is persuasive in finding Claimant is suffering a total inability to compete for work in the open labor market. Claimant's psychiatric condition following the attack of 9/7/2010 completely supplants her condition prior to the attack. Thus, I find that Claimant is permanently and totally disabled.

It is uncontested that Claimant was able to maintain work and conduct normal life activities for many years, prior to the reported assault. Although Claimant had been off work and treated before the accident, it is the psychiatric disorder caused by the assault on 9/7/2010 that was so traumatic that the prior psychiatric disability need not be considered. Claimant endured a bloody beating that was reported to last 5 minutes or more. As a reference, a round in a professional boxing match only lasts three minutes. The assault far-exceeded the amount of psychiatric and physical trauma that would accompany such a beating and would require the need for future psychiatric care.

The parties stipulated that on 9/7/2010, Claimant sustained a compensable work injury in the course and scope of her employment with the City of Jennings. The parties also stipulated that future medical expenses for treatment of Claimant's psychiatric condition will be provided

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**Injury No.:** 10-070906

by the Employer and Insurer. It is reasonable, and so I find, that Claimant suffered permanent total disability due to the 9/7/2010 work injury alone and that the Employer and Insurer is liable.

Employer and Insurer are liable for weekly permanent total disability benefits beginning 8/16/2012, stipulated at the rate of $391.22, and any future medical requirements to address the ongoing psychiatric treatment that Claimant experiences. The weekly payments shall continue for employee's lifetime, or until modified by law. The claim against the Second Injury Fund is denied.

I certify that on **12/27/18**, 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:**

**Joseph P. Keaveny**

Administrative Law Judge

Division of Workers' Compensation

WC-32-R1 (6-B1)

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