Mark Howard v. GSF Mortgage

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

**Injury No.:** 15-049121

**Employee:** Mark Howard

**Employer:** GSF Mortgage (Settled)

**Insurer:** Chubb Indemnity Insurance (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 parties' briefs, and considered the whole record, we find that the award of the administrative law judge denying compensation for employee's Second Injury Fund claim 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 administrative law judge's award and decision with this supplemental opinion.

Employee's claim against the Second Injury Fund herein involves a primary injury that occurred on June 28, 2015. Pursuant to the June 25, 2019, decision by the Supreme Court of Missouri in the case of *Cosby v. Treasurer*, 579 S.W.3d 202 (Mo. banc 2019), the provisions under § 287.220.3 RSMo apply to employee's claim against the Second Injury Fund.

The administrative law judge's July 25, 2019, award appears to incorrectly rely on § 287.220.1 (2014) as the law applicable to employee's claim against the Second Injury Fund for permanent total disability. The award references the requirement included in that statute that the employee show that he suffers from "a preexisting permanent partial disability, whether from 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." As noted in the Second Injury Fund's appellant brief, this finding is not required by § 287.220.3 RSMo.

The award further states, "For Claimant to demonstrate Fund liability for PTD, he 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 [emphasis added]." *Lewis v. Treasurer of Mo., 435 S.W.3d 144, 157* (Mo. App. 2014). To the contrary, § 287.220.3 RSMo expressly excludes certain preexisting disabilities from being considered in post-2014 permanent total disability claims against the Second Injury Fund.

1 Award, p. 9.

2 Award, p. 10.

Injury No.: 15-049121

Employee: Mark Howard

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Ultimately, in light of our deference to the administrative law judge's weighing of the pivotal issue of medical causation of employee's permanent total disability, and his finding that employee's permanent total disability results solely from his June 28, 2015, primary injury, we need not undertake an analysis whether employee's evidence in this case is sufficient to meet the criteria for permanent total disability claims against the Second Injury Fund under § 287.220.3. Rather, we simply wish to make clear our understanding that the *Cosby* ruling works the effect that § 287.220.3 applies to employee's claim against the Second Injury Fund herein.

**Liability of the Second Injury Fund**

An administrative law judge approved a Stipulation for Compromise Settlement of employee's claim against the employer/insurer in this case on March 21, 2019. Employee's remaining claim for permanent total disability involves only the Second Injury Fund.

Administrative Law Judge Joseph P. Keaveny ruled that employee was unable to work as a direct result of his June 28, 2015, work injury. He noted that employee's compromise settlement with employer/insurer was "remarkable for its significant permanent partial disability rating of 69 percent of the body as a whole attributable to the head, neck, back, brain, nerves, and psychiatric condition." The administrative law judge noted that prior to the 2015 injury employee worked sixty to seventy hours per week, six days per week, looking at paperwork and his computer screen. He found that employee failed to demonstrate the effect that his preexisting psychiatric issues had on the primary injury. He found "[i]t was only after the June 28, 2015 injury that employee developed blurred vision, headaches, disequilibrium, and neck pain rendering him unable to return to any employment." The administrative law judge noted, "The Second Injury Fund is not liable for any post-accident worsening of an employee's preexisting disabilities, which are not caused or aggravated by the last work-related injury, or for any conditions which arise after the last work-related injury."

We note that Dr. David T. Volarich's physical restrictions were attributable solely to employee's 2015 work injury, and that Dr. Volarich did not offer an opinion regarding employee's employability. We further note that vocational expert Mr. Timothy G. Lalk opined that Dr. Volarich's specific restriction involving employee's need for constant supervision in any attempt to perform any kind of work activities would, by itself, render employee unemployable on the open job market. Based on this evidence, we find as a factual matter that employee's current condition is solely attributable to his June 28, 2015, work injury and that the Second Injury Fund is not liable for employee's alleged permanent and total disability.

The administrative law judge provided detailed factual findings and explained his view of the opinion evidence. Other than our observation that the award incorrectly cites statutory provisions applicable to employee's permanent total disability claim against the Second Injury Fund, based on his June 28, 2015, injury, and our affirmative findings.

*Id.*

*Id.*

*Id., p. 11.*

Injury No.: 15-049121

Employee: Mark Howard

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regarding the issue of medical causation, supra, we otherwise agree with the administrative law judge's findings and conclusions with regard to the issues involved in this appeal.

**Conclusion**

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 25, 2019, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this 13th day of July 2020.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

SEPARATE OPINION FILED

Shalonn K. Curls, Member

Attest:

Secretary

Injury No.: 15-049121

Employee: Mark Howard

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. I concur with the majority's finding that § 287.220.3 RSMo applies to employee's claim, based on his June 28, 2015, injury. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I disagree with the majority's denial of compensation because I believe employee has proven he is entitled to permanent total disability benefits from the Second Injury Fund.

Reviewing the administrative law judge's decision shows that he committed error in finding that the Second Injury Fund is not liable for permanent total disability benefits because he failed to recognize that employee's current condition is caused largely by the manner in which his preexisting psychiatric condition interacted with and exacerbated the work related injury, not due to the work injury alone.

Employee had numerous preexisting disabling medical conditions, one of them being his psychiatric condition, a condition that troubled him for years. In 2009, employee was diagnosed with depression and fatigue, which were treated with medication. In 2010 medical records noted employee had been under psychiatric care for years, complained of fatigue, and feeling as if his brain was in a haze. Employee was diagnosed with "refractory depression" which exhibited itself in symptoms of anhedonia, hopelessness, anxiety attacks, and lack of motivation. Despite treatment with a dozen different psychiatric medications, in 2011 employee had still not obtained relief from fatigue, depression and anhedonia. In 2013, employee was advised to consider TMS (transcranial magnetic stimulation) to treat his depression. In 2014, despite twenty-three TMS treatments, employee's symptoms worsened and he suffered from chronic headaches. Employee was distraught, had excessive sweating, and his whole body hurt. A number of different psychiatric medications were prescribed throughout 2014. Just eleven months before the work accident occurred, employee told his doctor that he was fighting to get through each day of work and it was "killing my paycheck" as a commission-only mortgage banker. Just two months before the work accident, employee was still taking four different psychiatric medications. The conclusion to be drawn from these records is that employee had significant preexisting psychiatric problems that affected his ability to work.

The Second Injury Fund's expert, Mr. Timothy Lalk, testified that employee's preexisting psychiatric condition is largely driving employee's current physical complaints, because of the interaction of the two. Mr. Lalk stated that when individuals with longstanding psychological conditions—like depression and anxiety—develop physical complaints, the physical complaints then become an overwhelming problem to them, because of the interaction of the physical with the psychological. He cited to psychological and counseling literature, which indicates that a person with depression and anxiety will

6 Transcript, 899.

Injury No.: 15-049121

Employee: Mark Howard

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often report their stressors as symptoms of physical complaints. The administrative law judge overlooked this. Mr. Lalk essentially testified that if the employee did not have preexisting psychiatric illness, his injury at work would not have disabled him to the extent that it has. Employee's preexisting psychiatric illness gave him a propensity to have a worsening of the effect of his physical symptoms. The Second Injury Fund's own witness, Mr. Lalk, confirmed that employee's current condition is due to a combination of his pre-injury psychiatric illness with the work injury's physical injury.

Mr. Lalk opined that because of the way employee's pre-injury psychiatric illness combined to aggravate his work-related physical injury, it is doubtful that employee will ever be able to return to any type of employment. This opinion is clearly contrary to the administrative law judge's conclusion that no such testimony was offered and that the employee's preexisting condition did not affect the work accident.

Dr. Greg Bassett, the only psychiatrist to testify, supported Mr. Lalk's testimony relating to a combination of conditions. Dr. Bassett diagnosed employee with five preexisting psychiatric conditions: history of concussions; history of hyperhidrosis; history of fatigue; anxiety and depression; and possible childhood attention deficit hyperactivity disorder. This is in addition to the one psychiatric condition attributable to the work injury, a mild neurocognitive disorder due to a traumatic brain injury. Dr. Bassett established that employee's psychiatric condition is medically partly due to the work accident and partly preexisting. This evidence directly contradicts the administrative law judge's finding that there was a failure to provide evidence which established that employee's current condition was caused by the manner in which the preexisting conditions caused a worsening of employee's work accident.

The effect of other preexisting conditions

The Second Injury Fund argues that Dr. Volarich's restrictions on employee's activities—sole