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
Injury No. 10-070906
Employee: Sabrina Williams
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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
| Employee: | Sabrina Williams | Injury No.: 10-070906 |
| Dependents: | N/A | Before the |
| Employer: | City of Jennings | Division of Workers' Compensation |
| Department of Labor and |
| Industrial Relations |
| Additional Party | Treasurer as Custodian of the Second | Of Missouri |
| Injury Fund |
| Insurer: | Missouri Employers Mutual Insurance | Jefferson City, Missouri |
| Company |
| Hearing Date: | 9/25/2018 | Checked by: JPK |