Jeannie Heberlie-Whistler v. Riverview at the Park, Inc.

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

**Injury No.:** 13-084576

**Employee:** Jeannie Heberlie-Whistler

**Employer:** Riverview at the Park, Inc. (settled)

**Insurer:** Healthcare Facilities of Missouri (settled)

**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 reviewed the evidence, read the briefs, and considered the whole record, we find that the award of the administrative law judge denying 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 to the extent it is not inconsistent with this supplemental opinion, including our revised facts and rulings of law on the issue of nature and extent of disability.

Employee was injured in the workplace on November 9, 2013, when she was employed by Riverview at the Park, Inc. as a nurse. She slipped and fell in the course of her duties, injuring her left upper extremity. Surgery on the left upper extremity resulted in November 2013. She was returned to work on December 4, 2013, with limitations, once she was off narcotic medication. This did not occur until the week of January 20, 2014. Her last day of work was January 27, 2014. At the time of the injury, employee was about 61 years of age. Employee settled her injury claim with the employer/insurer (employer) on or about May 4, 2017, for alleged permanent total disability, in the amount of $150,000.00 referable to the left shoulder and left wrist, and to the body as a whole, referable to psychiatric injury, with six weeks of disfigurement. The settlement included future medical to be funded by a Medicare Set Aside annuity. Transcript, page 537.

Section 287.460.1 RSMo tasks the administrative law judge in a workers' compensation case to issue an award "together with a statement of the findings of fact." Here, the administrative law judge did provide a thorough review of the evidence. However, the factual findings are interspersed throughout a 35 page decision that includes lengthy summaries of the evidence and notations within medical records. These passages were provided without the benefit of accompanying analysis or commentary from the administrative law judge as to how he viewed such evidence.

The courts have strongly cautioned us against issuing or approving these kinds of decisions:

Here, there are literally pages of testimony summarization. There are also pages of substantial discussion of abstract legal theory. The ALJ certainly diligently summarized all of the evidence as an impartial and uncritical scrivener. No doubt it was a useful reference tool for the ALJ's own use in understanding the facts. But because of the absence of findings (that is, the lack of critical evaluation and the failure to draw pertinent inferences from the evidence), the summaries, with

1 Employee's date of birth is October 19, 1952.

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all due respect, are of little value to this court. ... We need to know what the Commission actually found to be operative and significant as it reviewed the testimony.

Stegman v. Grand River Reg'l Ambulance Dist., 274 S.W.3d 529, 532 (Mo. App. 2008) (emphasis added).

In *Stegman*, the court concluded the award, as written, failed to comply with the requirements under § 287.460.1, and that the court was therefore constrained to vacate it and remand the case to the Commission to provide an appropriate statement of the facts. *Id.* at 537. Here, we believe the award ultimately contains findings of fact and conclusions of law sufficient to permit judicial review, should this matter be subject to further appeal. We specifically adopt the Summary of Findings, Undisputed Facts, Issues, Exhibits, and Rulings on Objections on pages 1-4 of the award. We specifically adopt the Findings of Fact on pages 4-8 of the award, describing employee's early personal history. We specifically adopt the Findings of Fact describing the history of medical treatment described in those pages, through April 2014. However, because the findings regarding the medical issues after April 2014, are interspersed throughout lengthy summaries in pages 8-31, and include recitations of the type the courts have specifically cautioned us against, we discern a need to briefly summarize below the operative findings of fact and conclusions of law with respect to the issues identified at the hearing.

We agree with the administrative law judge's recitation of the employee's testimony and that she was truthful to the best of her recollection and perception of circumstances. However, taking into consideration her admitted difficulty in recalling the sequence or occurrence of certain events, we put greater weight on 2015 deposition testimony than later statements, which are somewhat inconsistent or conflicting.

We summarize, supplement, and revise the administrative law judge's findings and conclusions below, which we are hereby affirming and adopting as our own:

**Nature and Extent of Disability**

Employee fractured her left humerus and elbow and injured her wrist in the November 9, 2013, slip and fall work injury. Surgery was performed on November 21, 2013, on the humerus by Dr. Joseph B. Byrne. She had ongoing issues with pain into 2014, despite being released to return to work by Dr. Byrne, as of January 2014, and by Dr. Robert R. Hagen in September 2014, after further treatment. Both doctors indicated light duty with restrictions. Employee attempted to return to work as a nurse for seven days in January 2014, but found she was not able to tolerate the workplace, noting difficulty completing tasks and frustration with the noise and chaos of the environment, and interacting with others. Employee last worked January 27, 2014.

Employee continued treatment for pain symptoms, receiving medications and injections throughout 2014. An additional manipulation and arthroscopic lysis procedure was performed on her left shoulder in April 2014. Employee complained of additional physical symptoms in the spring and summer of 2014; numbness in her left arm, and pain in her neck and left shoulder. She was then diagnosed with mild carpal tunnel syndrome of the left wrist, and neurogenic thoracic outlet syndrome (TOS), which were treated with a wrist brace and injections.

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She was found to be at maximum medical improvement for her fractures and shoulder injury as of June 16, 2014, by Dr. Byrne. Dr. Hagen, who treated her for TOS declared employee to be 70% better in terms of her neck, shoulder and chest wall complaints by October 2014.

An independent medical examination was conducted by Dr. Shawn Berkin, D.O., on January 14, 2015, at the request of employee's attorney. While he deferred any opinion on disability due to depression and anxiety to the expertise of a psychiatrist, he rated her physical disability at 45% permanent partial disability referable to the fracture of the left shoulder resulting from the work injury; in addition to 25% permanent partial disability referable to the left wrist.² At the time of rating, he imposed restrictions of only 15-20 pounds lifting with the left arm on an occasional basis, and 10 pounds on a frequent basis, as well as avoiding lifting above the shoulder level.

Several providers noted psychological issues may be affecting employee's recovery and functioning, with varying diagnoses. As of January 30, 2014, employee was treated for depression and anxiety stemming from job issues, her recent medical issues and financial strain from being unable to work. Dr. Byrne noted in February 2014, that employee's depression may be affecting her overall outcome of successful recovery from physical symptoms. Dr. Jay Liss, M.D., (Perry County Memorial Counseling Center), diagnosed attention deficit disorder in April 2014. In May 2014, employee's therapist, Nicola Wissler, identified employee's concerns as financial stressors, employment, and physical health as contributing factors, to depression and anxiety.

In March 2015, Dr. Stephen Jordan, Ph.D., a neuropsychologist, performed a psychological evaluation prior to contemplation of surgery for TOS. He would not clear her for surgery due to her uncontrolled depression and anxiety. The doctor diagnosed pain disorder, with medical and psychological factors, severe anxiety and depression, and panic disorder. The doctor's opinion from review of post injury records, examination and interview of employee, was that she had controlled emotional functioning at the time of the work injury; that she was a reliable historian; and that if the prior reports were true, the work injury was the prevailing factor in her current episode of anxiety and depression. There were no records indicating she had experienced panic attacks, agoraphobia, generalized anxiety, post-traumatic stress disorder, obsessive compulsive disorder, attention deficit disorder, or social phobia, prior to the work injury.

Medical records show physicians noted some concern for depressive episodes prior to her November 9, 2013 injury at work. In large part, according to employee's report, those episodes were related to the death of her father and her ex-husband, and later a difficult divorce in 2009. Employee was treated with medications by her primary care physicians on occasion for depressive symptoms between 2010-2012.³ Employee was never treated by a psychologist or psychiatrist prior to the work injury. There is no indication that employee was

² Dr. Berkin also opined there was evidence of preexisting disabilities at the time of the work injury, referable to the left wrist (15% permanent partial disability) from a non-work related fall in 1964 and due to hypertension (10% permanent partial disability), which he found to be hindrances or obstacles to employment/reemployment at the time of primary injury. Employee does not rely on these alleged preexisting disabilities in its argument before the Commission.

³ A treatment note in May 2013, by primary care physician, Dr. Laurie Womack, regarding a visit for low back pain, mentions depression, with infrequent symptoms and identifies job stress.

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unable to work at any time due to psychological conditions prior to the work injury.

Dr. Stacey Smith, M.D., performed an independent psychiatric evaluation on behalf of employer on October 31, 2016, in which she opined that the medical records strongly suggest preexisting somatization⁴ and that the work injury is the prevailing cause of exacerbation of employee's depressive symptoms. At the time of evaluation, employee reported fear of crowds and of falling, loud noises, concern over finances, and poor vision and concentration. She expressed anger over the events since the work injury. Dr. Smith noted that she believed employee had minimized the extent of her pre-injury psychological vulnerabilities and complaints, based on the doctor's review of records. The doctor opined that employee is not capable of working at the present time, but could improve if she made therapeutic progress toward her psychological disability. She found employee was not at maximum medical improvement as of the date of examination.

Dr. Stuart Ozar, board certified in psychiatry evaluated employee at the request of the employer on May 17, 2016, and gave a deposition in January 2017. He diagnosed major depression disorder and panic disorder with agoraphobia as caused by the work injury. He opined