Aaron Jones v. Special Security Patrol, Inc.

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

**Injury No. 03-015767**

**Employee:** Aaron Jones

**Employer:** Special Security Patrol, Inc. (settled)

**Insurer:** Travelers Company (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 read the briefs, reviewed the evidence, 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 with this supplemental opinion.

On May 31, 2019, an administrative law judge issued an award denying compensation to employee in this workers' compensation claim. On June 20, 2019, employee filed a timely application for review with the Labor and Industrial Relations Commission (Commission).

Employee attached the following motions to his application for review: 1) a Continuation of Application for Review with regard to Briefing and Additional Evidence¹ (first motion) and 2) Petitioner's Request for Specific Findings of Fact, Conclusions of Law and Clarification of Rulings by the Administrative Law Judge and Commission (second motion).

On July 10, 2019, the Second Injury Fund filed a response to employee's application for review, arguing, among other things, that it opposed employee's first motion because it does not meet the requirements of subsections 8 CSR 20-3.030(2)(A) and (4) for the submission of additional evidence, and that the additional evidence employee requests was produced at the hearing before the administrative law judge. The Second Injury Fund also opposed employee's second motion, and argued that the administrative law judge's decision should be affirmed.

Commission Rule 8 CSR 20-3.030(2) provides as follows:

(2) Additional Evidence.

¹ The Commission addressed the briefing portion of the motion by employee in its January 13, 2020 order.

Injury No. 03-015767

Employee: Aaron Jones

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(A) After an application for review has been filed with the commission, any interested party may file a motion to submit additional evidence to the commission. The hearing of additional evidence by the commission shall not be granted except upon the ground of newly discovered evidence which with reasonable diligence could not have been produced at the hearing before the administrative law judge. The motion to submit additional evidence shall set out specifically and in detail—

1. The nature and substance of the newly discovered evidence;
2. Names of witnesses to be produced;
3. Nature of the exhibits to be introduced;
4. Full and accurate statement of the reason the testimony or exhibits reasonably could not have been discovered or produced at the hearing before the administrative law judge;
5. Newly discovered medical evidence shall be supported by a medical report signed by the doctor and attached to the petition, shall contain a synopsis of the doctor's opinion, basis for the opinion and the reason for not submitting same at the hearing before the administrative law judge; and
6. Tender of merely cumulative evidence or additional medical examinations does not constitute a valid ground for the admission of additional evidence by the commission.

(B) The commission shall consider the motion to submit additional evidence and any answer of opposing parties without oral argument of the parties and enter an order either granting or denying the motion. If the motion is granted, the opposing party(ies) shall be permitted to present rebuttal evidence. As a matter of policy, the commission is opposed to the submission of additional evidence except where it furthers the interests of justice. Therefore, all available evidence shall be introduced at the hearing before the administrative law judge.

On July 25, 2019, this Commission sent a letter to employee, noting that this Commission does accept motions for additional evidence, but does not accept motions for leave, and motions such as employee's second motion. We also note that employee presented, or could have presented all of the evidence that he requests in the first motion at the hearing before the administrative law judge, and none of the evidence that he wishes to present before this Commission would be newly discovered. Therefore, we find that employee's first motion does not meet the requirements set out under 8 CSR 20-3.030(2) and it should be denied. In regards to employee's second motion, we find that it should be denied because we agree with the administrative law judge's findings of fact, in light of all of the evidence in the record, and affirm his decision.

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We affirm and adopt the award of the administrative law judge as supplemented herein. The award and decision of Administrative Law Judge Lee B. Schaefer is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

Given at Jefferson City, State of Missouri, this **6th** day of August 2020.


**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

*Robert W. Cornejo, Chairman*

*Reid K. Forrester, Member*

*Shalonn K. Curls, Member*

Attest:

*Secretary*

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number 03-015767

AWARD

Employee: Aaron Jones

Jury No.: 03-015767

Dependents: N/A

Employer: Special Security Patrol, Inc. (settled)

Address: 1000 W. 1st Street, Suite 1000, New York 10026

Address: 1000 W. 2nd Street, Suite 1000, New York 10026

Address: 1000 W. 3rd Street, Suite 1000, New York 10026

Address: 1000 W. 4th Street, Suite 1000, New York 10026

Address: 1000 W. 5th Street, Suite 1000, New York 10026

Invoice No.: 03-015767

Address: 1000 W. 5th Street, Suite 1000, New York 10026

Address: 1000 W. 6th Street, Suite 1000, New York 10026

Address: 1000 W. 7th Street, Suite 1000, New York 10026

Invoice No.: 03-015767

Address: 1000 W. 8th Street, Suite 1000, New York 10026

Address: 1000 W. 9th Street, Suite 1000, New York 10026

Invoice No.: 03-015767

FINDINGS OF FACT AND RULINGS OF LAW

1. Are any benefits awarded herein? No

1. Was the injury or occupational disease compensable under Chapter 287? Yes

1. Was there an accident or incident of occupational disease under the Law? Yes

1. Date of accident or onset of occupational disease: January 18, 2003

1. State location where accident occurred or occupational disease was contracted: St. Louis, Missouri

1. Was above employee in employment of above employer at the time of alleged accident or occupational disease? Yes

1. Did employer receive proper notice? Yes

1. Did accident or occupational disease arise out of and in the course of the employment? Yes

1. Was Claim for Compensation filed within time required by Law? Yes

1. Was employer insured by above insurer? Yes

1. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant was attacked by assailants attempting to steal money from a coin-operated machine in a laundry room.

1. Did accident or occupational disease cause death? No

1. Part(s) of body injured by accident or occupational disease: Body as a Whole

1. Nature and extent of any permanent disability: Claimant settled with Employer/Insurer for $100,000 for "alleged permanent and/or total disability."

1. Compensation paid to-date for temporary disability: $2,914.23 (21 6/7 weeks)

1. Value necessary medical aid paid to date by Employer/Insurer? $18,586.70

Revised Form 21 (3/97)

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1. Value necessary medical aid not furnished by Employer/Insurer? None
2. Employee's average weekly wages: 330.00
3. Weekly compensation rate: 220.00/$220.00
4. Method wages computation: By agreement and using the table

COMPENSATION PAYABLE

1. Second Injury Fund Liability:

None

Injury No.: 03-015767

Before the Division of Workers' Compensation Department of Labor and Industrial Relations of Missouri Jefferson City, Missouri

Checked by: LBS

An evidentiary Hearing was held in the above-referenced matter on February 19, 2019, and February 28, 2019. The record was not closed until February 28, 2019. Mr. Steven Brown appeared and represented Aaron Jones ("Claimant"). Assistant Attorney General Madalyn Campbell appeared and represented the Second Injury Fund ("Fund"). Claimant previously settled his Claim against Special Security Patrols, Inc. ("Employer") and its insurer, Travelers Company ("Insurer").

The parties stipulated to the following facts:

1. Claimant and Employer were operating under and subject to the provisions of the Missouri Workers' Compensation Law;
2. On January 18, 2003, Claimant was attacked by assailants attempting to steal money from a coin-operated machine in a laundry room;
3. Employer was provided proper notice of Claimant's injury;
4. Claimant's Claim for Compensation was filed in a timely manner;
5. At the relevant time, Claimant earned an average weekly wage of 330.00, which qualified for applicable rates of compensation of 220.00 for total disability benefits, and $220.00 for Permanent Partial Disability ("PPD") benefits;
6. Employer/Insurer paid Temporary Total Disability ("TTD") benefits in the amount of $2,914.23, or 21 6/7 weeks;
7. Employer/Insurer paid medical benefits in the amount of $18,586.70;
8. This matter was continued from the February 19, 2019 Hearing, and the record was left open until the Hearing was completed; the record was closed on February 28, 2019;
9. Venue for the Hearing in this matter is proper at the St. Louis Office of the Missouri Division of Workers' Compensation.

The issues to be resolved at this Hearing are:

1. What date did Claimant reach Maximum Medical Improvement ("MMI") from the primary injury?
2. What is the nature and extent, if any, of the liability of the Second Injury Fund?

Claimant offered and admitted into evidence, the following Exhibits ${ }^{1}$ :

Exhibit 1-1: "Miscellaneous documents" regarding Claimant's childhood

Exhibit 1-2: Summary of Lalk Exhibit 1

Exhibit 1-3: Excerpt from Elementary School Records - Butternut Elementary

Exhibit 1-4: School records - Ely Elementary and Edison Day Program

Exhibit 1-5: Excerpt from records from Berea School District

Exhibit 1-6: Records from Cleveland Metropolitan School District

Exhibit 1-7: "Complete Educational Records" from Cleveland Metropolitan School

Exhibit 1-8: Medical records of Cleveland MetroHealth Medical Center

Exhibit 1-9: Records from Director of Pupils - Berea School District

Exhibit 1-10: Excerpt from Social Security file of Berea Public Schools records

Exhibit 1-11: Medical records of Cleveland MetroHealth Medical Center

Exhibit 1-12: Social Security Records of Earnings

Exhibit 1-13: Excerpts from Claimant's Social Security file

Exhibit 1-14: Objection sustained - not admitted

Exhibit 2-15: St. Louis County Police Report

Exhibit 2-16: Photographs of head injury

Exhibit 2-17: Medical records of Christian Hospital

Exhibit 2-18: Medical records of Family Practice of South County

[^0]

[^0]: ${ }^{1}$ Claimant's attorney assured the Court that the records and documents contained in Claimant's Exhibits were not duplicative. However, throughout Claimant's evidence, there are multiple copies of the same document. Some documents are in as many as three separate Exhibits; others appear three times in the same Exhibit. The result is evidence that is confusing and unnecessarily cumbersome.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number 03-015767

Exhibit 2-19: Medical records of St. Anthony's Medical Center

Exhibit 2-20: Excerpt from Lalk deposition

Exhibit 2-21: Medical records of World Wide Neurology

Exhibit 2-22: Medical records of Dr. Robert Lewis

Exhibit 2-23: Claim for Compensation

Exhibit 2-24: Payroll records of Special Security patrol, Inc.

Exhibit 2-25: MRI report from St. Alexius Hospital

Exhibit 2-26: Medical records of St. Anthony's Medical Center

Exhibit 2-27: Excerpt from St. John Mercy Medical Center records

Exhibit 2-28: Excerpt from medical records of Hyland Behavioral Health Center

Exhibit 2-29: Medical records and bills of Dr. Shazia Malik

Exhibit 2-30: Medical records of St. John Mercy Medical Center

Exhibit 2-31: Medical records of St. John Mercy Medical Center

Exhibit 2-32: Excerpt from medical records of St. John Mercy Medical Center

Exhibit 2-33: Certified PCC records

Exhibit 2-34: Medical records of St. John Mercy Medical Center

Exhibit 2-35: Medical records of Dr. Zevallos

Exhibit 2-36: Social Security Notice of Decision

Exhibit 2-37: Social Security Decision approving benefits

Exhibit 2-38: Medical records of CenterPointe Hospital

Exhibit 2-39: Amended Claim for Compensation

Exhibit 2-40: Medical records of BJH

Exhibit 2-41: Entire Social Security file

Exhibit 2-42: Curriculum Vitae of Dr. Shazia Malik

Exhibit 2-43: Medical records of PCC

Exhibit 2-44: Medical records of PCC

Exhibit 2-45: Stipulation for Compromise Settlement

Exhibit 2-46: Updated medical records of Dr. Shazia Malik

Exhibit 3: Dr. Jay Liss

Exhibit 3-47: Independent Medical Exam Report of Dr. Jay Liss

Exhibit 3-48: Post Traumatic Disorder ("PTSD") Checklist from Dr. Liss' file

Exhibit 3-49: Letters from and to Claimant's counsel to and from Dr. Liss

Exhibit 3-50: Notice of Deposition of Dr. Liss

Exhibit 3-51: Curriculum Vitae of Dr. Liss

Exhibit 3-52: Deposition of Dr. Jay Liss

Exhibit 4: Timothy Lalk

Exhibit 4-53: Curriculum Vitae of Timothy Lalk

Exhibit 4-54: Vocational Rehabilitation Report prepared by Timothy Lalk

Exhibit 4-55: Letters from and to Claimant's counsel to and from Timothy Lalk

Exhibit 4-56: Letters from Claimant's counsel forwarding additional

Revised Form 31 (3/97)

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Injury Number 03-015767

records to Timothy Lalk

Exhibit 4-57: Supplemental Lalk report

Exhibit 4-58: Notice of Deposition of Timothy Lalk with letter forwarding additional records

Exhibit 4-59: Deposition of Timothy Lalk

Exhibit 4-60: Supplemental Lalk Vocational Report

Exhibit 4-61: Demonstrative, not admitted

Exhibit 4-62: Withdrawn by Claimant

The Second Injury Fund offered and admitted into evidence, the following Exhibit;

Exhibit I: Report of Dr. Stacey Smith

Note: Some of the records submitted at the hearing contain handwritten remarks or other marks on the exhibits. All of these marks were on these records at the time they were admitted into evidence and no other marks have been added since their admission on February 19, 2019 and February 28, 2019.

FINDINGS OF FACT

Based upon the relevant testimony of Claimant and Claimant's mother at Hearing, and the Exhibits introduced into evidence, I make the following Findings of Fact:

Live Testimony

Aaron Jones ("Claimant") is currently 39 years old. He has never been married and has no children. He lives with his mother and their roommate. Other than a few months when he was 19, he has lived with his mother since he was 11 years old. Claimant helps with household expenses by contributing his Social Security Disability. He has received that disability since 2005.

When Claimant was a child, he remembers his parents arguing. However, he does not remember seeing his father hit his mother. When his parents got divorced, Claimant moved in with his father, father's parents, his aunt, and his siblings. Approximately two years later, his father married his stepmother and she and her daughter moved in with Claimant's family.

Claimant got along well with his grandfather, however, his grandmother was abusive and spiteful. She would often spank Claimant with her hand. When he was eight years old, Claimant's stepmother threw a shoe at him. The children in the home were not treated the same. His stepsister was treated much better than the other children. Claimant's brother was treated better because he liked sports. His sister was treated better than Claimant, however, she was a belligerent, normal teenager. Aaron does not know why he was treated worse than his siblings.

Claimant testified that he was sexually abused by his father. He would fondle his genitalia at night and after Claimant took a shower. The abuse occurred more often when

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Claimant was young, and tapered off as he became older. The abuse would occur several times a week when he was younger.

As a result of his father's sexual abuse, Claimant began with wetting the bed. Claimant's stepmother would beat him for wetting the bed and call him "disgusting." Claimant did not try to resist his father's sexual contact because his father would become violent. Claimant did not report his father's sexual abuse because he was ashamed and he was afraid of his father. The first time Claimant told anyone about the sexual abuse was a few years ago. According to Claimant, he was around children whose "demeanor changed" and he recalled the abuse.

Claimant's father would also physically abuse him by hitting him or beating him with a belt across his back, buttocks, and legs; this occurred multiple times.

When he lived with his father, most of Claimant's clothes were from Kmart. Claimant did not get to dress like the rest of his classmates and he did not have any good clothes; as a result, Claimant was teased by his classmates. Claimant was teased because of his clothes and the appearance of his eyes and ears.

Claimant's father told the school personnel that he did not know why Claimant stopped doing his schoolwork in the first grade. However, Claimant testified that is when the sexual abuse started.

When Claimant was five years old, he was told that his mother died. However, according to Claimant, that "didn't impact us too much". When he was nine years old, Claimant drew a picture showing his mother, and his stepmother, again, told him that his mother was dead.

When Claimant was ten years old, he planned to commit suicide by jumping off a bridge. He was going to jump from a cliff by the bridge, but did not because he was afraid. He wanted to commit suicide because of his life in general, including the abuse at home and trouble he had at school.

From the time Claimant graduated from high school, until 2003, Claimant was fired from a couple jobs and quit some jobs. Claimant attended Pennsylvania Culinary School when he was 19 years old, but did not complete the 16-month program because he had asthma attacks while living in the dorm. Claimant attempted to enter the military in 2002, but was medically ineligible due to his childhood asthma and his bad teeth. Claimant also attempted to work at McDonald's, but the fryer grease coated his lungs and made his asthma worse.

On the date of Claimant's work injury, his was employed as a security guard. Claimant was inspecting buildings at an apartment complex because the vandals had been breaking into the coin-operated washing machines and stealing money. Claimant walked into a building, turned a corner, and saw two people in the laundry room with crowbar stealing money. Claimant attempted to call the police, but his radio was not working. Claimant re-entered the room, and the two assailants rushed him. One assailant ran, and the other punched Claimant twice on the side of his head. The assailant then picked up the Maglite Claimant was carrying and hit him on the top of the head. According to Claimant, the assailant called him a "stupid little faggot".

Revised Form 31 (3/97)

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Injury Number 03-015767

When the attack ended, Claimant went in search of help. Claimant, eventually, went upstairs to an apartment where a woman called 911 for him. When the police and ambulance arrived, Claimant was taken to Christian Hospital Northeast where he was treated and released. Claimant also treated at St. Anthony's Hospital, with Dr. Weiss, and at Barnes Jewish Hospital.

Claimant was off work for approximately three weeks when he returned to work at the same assignment. Claimant worked at that location for short time when he asked to be transferred because he no longer felt safe working in that location if he could not be armed. Claimant then worked for Employer at a location in Hillsboro where he worked in a guard booth recording names and license plate numbers and giving passes to people entering the property. Claimant performed this job for five months until he was fired "for no reason".

One month after he was fired by Employer, Claimant began to work at Roberto's Restaurant. While Claimant was working there, he was depressed and had bad headaches. However, his boss worked with him and allowed him to leave or be late if needed. Claimant's boss then began to drink and become abusive, so Claimant left that job.

Claimant testified that he has been diagnosed with PTSD, as a result of his childhood abuse and the attack in 2003. Claimant testified that the attack aggravated and worsened his PTSD. Claimant testified that some of the things he was called during the attack were the same things that he was called at school and by his stepmother; in particular, a "faggot".

Following his attack at work, Claimant began to experience flashbacks, during which he would replay the events of the attack. The flashbacks seem like they are real. Claimant has had many flashbacks since 2003, sometimes 10 to 20 week. Certain smells can trigger flashbacks. Certain actions from other people can trigger fear and flashbacks.

Claimant also began to experience headaches after his attack. Triggers for his headaches include bright lights, new medications, and smells.

Claimant also has difficulty sleeping. Sometimes he does not sleep for 40 to 72 hours, then will sleep for a day. Claimant issues with sleep fluctuate based on what is occurring in his life.

In August 2004, Claimant had his first psychiatric commitment. Claimant went to a casino and then stopped his car on train tracks waiting for the train to come and hit his car. Claimant was in Hyland Center for three and began treating with a psychiatrist, Dr. Malik.

Claimant currently takes 11 medications. Those medications include: Tramadol Ventolin, alprazolam, Equetro, Advair, Latuda, Vyvanse, Rizatriptan, Metropolol, Verapanil, and Corisprodol. The medications treat Claimant's asthma, headaches, anxiety, depression, ADHD, and pain.

Claimant testified that he would like to work, but he does not believe there is a job with so little stress that he could perform it on a regular basis. However, he then said that there was not a job that he could perform that "would actually pay something". Claimant has difficulty with time constraints; he will start a project, but not finish it. Claimant has difficulty following instructions and cannot remember all of the instructions he is given; this issue pre-existed the

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2003 attack. In addition, if a supervisor expresses disapproval, it can be disturbing to Claimant, depending on how it is handled.

Claimant testified that some of the information contained in Stacey Smith's IME Report (Exhibit I) is not accurate. Claimant testified that he did not tell her that his father was an "okay guy". Claimant also testified he did not tell Stacey Smith that "nothing in particular" led up to the events that resulted in his admission to Hyland. Claimant testified he did not tell her that his father was not abusive. Claimant also denied having said that he was never physically, mentally, or sexually abused, and had no prior traumatic events before the 2003 attack.

On Cross-Examination, Claimant discussed his work history in more detail. Claimant first worked at McDonald's when he was 17 years old; however, he did not work there for very long because the grease from the fryer aggravated his asthma. He then attempted to complete culinary school, but was not able to do so. When Claimant returned from culinary school, he worked at the Galleria as a security guard for less than a year. Claimant then worked at Houlihan's at the Galleria for three weeks, but he was fired because he could not follow instructions and keep up with the pace of the work. After staying home for almost a year, Claimant worked at Ace Hardware for approximately two months. Claimant then worked for Employer for six months and at Roberto's for a little more than a year.

Claimant developed issues with his teeth in 2002. Claimant does not know what caused those problems; however, his grandmother and aunt have "soft teeth". Claimant lost his last tooth in 2004.

Claimant testified that he "watches some kids" every day, they are children of family friends. Claimant is not paid for watching the children. Both Claimant, and his mother, are on Social Security Disability.

Susan Jones ("Susan") is Claimant's mother. Claimant has lived with his mother since he was 11 years old. Susan divorced Claimant's father, David Jones ("David"), in 1984. They had three children, Stephanie, Claimant, and Daniel.

Before their divorce, Susan testified David was violent and abusive. He was physically abusive to Susan; including breaking her bones and causing bruising. David was also mentally and sexually abusive. He would withhold household funds and food from his wife and family.

When Susan and David got divorced, Susan did not have any money, therefore, she did not get an attorney. Susan and David shared an attorney. Susan testified she never saw the final divorce decree. Susan did not receive notice of the final hearing; as a result, she did not attend that hearing. The custody plan outlined in the decree was never explained to Susan. Susan's signature reportedly appeared on the paperwork for the divorce, but she testified she did not see or sign the paperwork prior to the hearing. In the end, the court awarded full physical custody of the children to David, and granted Susan visitation.

2 As this witness and Claimant's father have the same last name as Claimant, for clarity's sake, I will refer to them by their first names. No disrespect is intended.

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The children lived with David, his parents, and eventually David's new wife. When Susan attempted to talk to the children on the phone, David's mother would tell her they were not home and hang up. David moved approximately three to four times when he had custody of the children. He never informed Susan when they were moving or of their new location. Susan was not able to contact or locate her children for approximately five years.

During those five years, Susan followed leads to attempt to find her children. She contacted the court, but was told they could not help her. Susan contacted David's relatives for help, but they would not provide the children's whereabouts. Susan could not afford an attorney to help with the search. When Susan appeared on the Phil Donahue Show, her ex-brother-in-law saw her on the show and contacted Susan's family to tell them where David and the children were living.

When Susan saw her children again, they said David, his wife, and his parents told them Susan had died in an automobile accident. Susan went to court to regain custody of Claimant. The other two children remained with David.

Claimant began living with Susan when he was 11 years old. When Claimant returned to Susan, she testified he was wearing clothes that were two sizes too small. The clothes were dirty, and fell apart in the washer, leaving the water black. Claimant appeared to have not bathed in some time.

Before Claimant went to live with his father, Susan testified he smiled at everyone and was often outside playing with neighbors and his siblings. According to Susan, Claimant was very happy-go-lucky. When Claimant returned from living with his father, he was a bed wetter, cried more often, and was depressed. Claimant continually asked Susan why she did not visit him. Even though she told Claimant his father had hid him and lied to him about her death, Claimant felt that if she loved him she would have found him.

Susan testified she gathered the information contained in Exhibit 1 to inform herself about what had occurred while Claimant was not in her custody. She did not know why the school conducted a psychological evaluation of Claimant. She found the observations and history in the IQ testing "very alarming." The observations found in the Severe Behavior Referral were not consistent with her memory of Claimant's behavior.

Claimant graduated high school when he was 20 years old after repeating ninth grade two times. Before his 2003 work accident, Claimant received counseling for depression and treatment and hospitalizations for asthma.

Since his work accident in 2003, Susan testified Claimant has suffered from flashbacks. When Claimant experiences a flashback, his symptoms include: wringing his hands, rocking back and forth, bouncing his leg, breaking out in a sweat, stammering, becoming dazed, punching the air, experiencing night terrors, and talking in his sleep. Claimant last had a flashback approximately seven to eight months prior to the Hearing. At that time, he screamed out in his sleep.

After the 2003 incident, Claimant became more withdrawn, cranky, did not want to be around people, and was not as outgoing. Claimant also complained of problems with light

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sensitivity. Claimant manifested anger, as he had not before. Susan would ask him something simple, and he would lash out. Claimant also slurred his speech for approximately a year.

Susan testified Claimant developed headaches following the attack. Claimant complains about headaches approximately 10 to 12 times a month. When he has a headache, Claimant needs to be in a dark place, close his eyes, take medication, and sleep.

Dr. Malik has been Claimant's treating psychiatrist since 2004. Dr. Malik discussed Claimant seeking work when both, Claimant and Susan, were present. However, Claimant has not sought work since those conversations occurred.

Susan does not believe Dr. Smith's report is accurate. Susan only has the Power of Attorney over Claimant's financial matters and not his medical matters.

On Cross-Examination, Susan admitted that she applied for, and received, Social Security Disability ("SSD") for Claimant in either 1991 or 1993. Susan applied for SSD on the advice of the Bureau of Children of Indiana. The SSD application was based on Claimant's asthma, depression, and behavioral issues. Claimant received SSD until he was 18 years old.

Susan testified Claimant's bedwetting lessened after he moved home with her; it reduced to once a month after six months, and then eventually stopped. According to Susan, Claimant was a very different child when living with her. When he lived with his father, he had no social interactions and was a loner. When he lived with her, he had friends and was outgoing.

Claimant's diagnoses as a child were depression, anxiety, and ADHD. According to his grandmother, Claimant attempted suicide three times when he was a child. Susan continued to involve him in therapy from the time he returned to her until he was an adult.

Claimant's Exhibits

Claimant was evaluated for difficulty with his hearing in 1985. (Exhibit 1-1) The doctor determined Claimant had difficulty separating and comprehending speech in the presence of meaningful competing messages. The doctor indicated that Claimant's hearing pattern was often associated with language disorders or delays. Therefore, he recommended that Claimant undergo speech/language pathology testing and therapy.

Also in 1985, Claimant's pediatrician referred him for a consultation with an educational psychologist. (Exhibit 1-1, 1-9) The doctor wanted an estimate of Claimant's emotional functioning. The doctor requested the examination because of a change in Claimant's school behavior and academic functioning. Claimant was reportedly completing no work at school and was acting out and disruptive. The doctor noted in his referral "Erin's (sic) mother used harsh punishment on all 3 children". The doctor found that Claimant fell in a spectrum of "childhood adjustment disorder with academic inhibition". Claimant also showed immaturity in his psychological development.

Based on the doctor's request, an educational psychologist evaluated Claimant in November and December of 1985. (Exhibit 1-1, 1-3, 1-4, 1-5, 1-9) The psychologist noted

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Claimant had shown difficulty with auditory processing and had seen the school speech and language therapist. Claimant often had to have instructions repeated several times before he could perform the requested task. Claimant's IQ was in the superior range and he did not have any type of learning disability. However, the psychologist noted that Claimant's behavior profile showed he had difficulty comprehending what was occurring in the classroom; probably because of his auditory perception problem. As a result, Claimant did not process directions and did not complete tasks; he was also very distractible. Rather than having emotional problems, the psychologist opined that Claimant had a lack of discipline that led to problems in the classroom.

In 1989, when Claimant was in the fourth grade, he underwent another psychological and educational consultation. (Exhibit 1-4) Claimant was an unmotivated student; the teacher was considering retaining him. Claimant's teacher noted numerous concerns regarding Claimant's personal and social adjustment. She noted that Claimant showed excessive anxiety. The school psychologist noted Claimant's poor physical strength and coordination, poor contact with reality, excessive suffering, and excessive sense of persecution. Claimant had very significant issues with poor academics, poor attention, poor sense of identity, and poor anger control. Again, Claimant's academic testing showed that Claimant was in the superior range of intelligence.

The psychologist noted that it was difficult to determine why Claimant's academic performance was so unsatisfactory; however, she attributed it to high levels of inattentiveness, erratic and scattered behavior, excessive daydreaming, and Claimant's tendency to get easily frustrated and lose control. Claimant's preoccupation with peer relations also affected his performance because he was often ridiculed or ostracized.

When Claimant was in fifth grade, his teacher and principal requested that he be considered for the Edison Day Treatment Program for severely behavioral handicapped students. (Exhibit 1-4, 1-9) They noted Claimant was unable to build and maintain peer relationships and had poor academic performance. Claimant had unethical behaviors, tended to overreact to frustrations, and experienced depression. In the "Background Information", it was noted that Aaron's custody was transferred to his father from his mother because of "abusive behavior"; however, contact with his mother had been recently reestablished. The teacher was concerned with Claimant's poor school achievement, high levels of impulsivity and distractibility, poor peer acceptance, and apparent unhappiness.

Claimant's teacher noted that any form of discipline used on Claimant did not have any lasting effect. She further indicated that Claimant had been removed from his mother's custody because of abusive behavior, but was having difficulty adjusting to the merged family. In the medical history, it was noted that Claimant had a displaced chromosome causing misshapen eyes. Claimant exhibited panic attacks and "wheezing" when he was upset. Apparently, at some point, Claimant reported his stepmother as being abusive; after an investigation, the claim was found to be unsupported. The school was in constant contact with Claimant's parents, and they were trying to help Claimant's situation at school.

In 1990, the Elyria City Schools issued a Multifactored Evaluation Report on Claimant. (Exhibit 1-4) In the report, it was noted that Claimant's teachers had continuously raised concerns about his unhappiness and poor school performance. At times, Claimant exhibited "bizarre behavior", and tended to be isolated from his peers. He was disorganized and haphazard. During school, he would wander around the school and when he was confronted, he

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would cry hysterically. Claimant rarely finished his schoolwork. The school psychologist found Claimant was unable to make or maintain friendships and was considered strange by his classmates. Claimant was considered strange because of his tendency to wander about and to overreact to seemingly minor mishaps. Claimant also exhibited overwhelming depression.

In 1993, after Claimant's mother obtained custody of him, she applied for SSD for Claimant. (Exhibit 1-6)

Claimant was admitted to the MetroHealth Medical Center in 1993, with complaints of increased difficulty breathing. (Exhibit 1-11) Claimant reported that he smoked half a pack of cigarettes per day and also had three cats and a bird at home.

Claimant was again seen at MetroHealth Medical Center in 1994, with complaints of difficulty breathing and wheezing. (Exhibit 1-11) It was noted that Claimant had started smoking two years previously (when he was 12), and smoked seven to eight cigarettes per day. Claimant's asthma had exacerbated due to an upper respiratory infection. The hospital social worker evaluated Claimant because of his poor compliance with his asthma medication and problems related to his mother's continued smoking at home and fostering an environment not conducive to Claimant's stopping smoking. Claimant was also seen by child psychiatry for ongoing social psychosocial issues and adjustment issues.

Claimant again presented at MetroHealth Medical Center in 1997 for treatment of asthma and depressive disorder. (Exhibit 1-8) The doctor noted Claimant had asthma since he was six months old. Claimant had averaged two admissions per year to treat his asthma; with an average stay of two to four days. The pertinent principal discharge diagnosis was acute asthma exacerbation, the secondary diagnoses were depression and tobacco abuse.

On January 18, 2003, officers from the St. Louis County Police Department arrived on the scene of Claimant's attack. (Exhibit 2-15) Claimant reported that he was checking a laundry room because there had been recent thefts of coins from the coin-operated machines. When Claimant entered the room, he saw two black males attempting to break into the laundry machines. Claimant immediately closed the door, and attempted to hold it closed, but the assailants forced it open. One of the assailants grabbed Claimant's flashlight and struck him several times on the back of the head. The other assailant kicked and punched Claimant. Claimant reported he might have also been struck by a crowbar. When the assault ended, Claimant crawled to an apartment of a resident who contacted 911. An ambulance then took Claimant from the scene to Christian Hospital Northeast.

When Claimant arrived to Christian Hospital Northeast, he reported that he had been struck in the back of the head by a flashlight during an assault. (Exhibit 2-17) The doctor read X-rays of his neck and a CT of his head as normal. Claimant was given pain medication, information on head injuries, and discharged.

Claimant saw Dr. Aisenstat on February 22, 2003, to get his sutures removed. (Exhibit 2-18) When Claimant returned to the doctor on February 3, 2003, he reported that he was suffering from severe headaches, blurred vision, and "questionable" slurred speech. The doctor noted that Claimant underwent a CT scan of his brain the previous day that was read as normal.

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On February 2, 2003, Claimant was seen at St. Anthony's Medical Center where he complained of increasing headaches, nausea, and photophobia since the assault. (Exhibit 2-19) A CT scan of Claimant's head revealed no abnormalities.

Dr. Howard Weiss first evaluated Claimant on February 5, 2003. (Exhibit 2-21) Dr. Weiss noted that Claimant continued to have severe headaches; he reported blurred vision when the pain was severe. Claimant also reported that he was not thinking as quickly and clearly as he did before the accident. In addition, Claimant reported that his speech was slurred. Upon exam, Claimant was alert and oriented with fluent and articulate speech. The examination of Claimant's cranial nerves, motor strength, and sensory were all normal. Dr. Weiss diagnosed Claimant as having sustained a closed head injury and having post-concussive syndrome. He prescribed Amitriptyline to treat Claimant's headaches and blurred vision.

When Claimant returned to see Dr. Weiss on February 26, 2003, he noted marked improvement in his symptoms. Claimant's headaches were gone and Claimant was thinking more clearly. Claimant had returned to work. On April 6, 2004, Dr. Weiss noted Claimant continued to have headaches, but had no nausea or visual symptoms. (Exhibit 2-41) Claimant's examination was normal. Dr. Weiss found Claimant had no permanent restrictions related to the attack at work.

Dr. Robert Lewis, an ophthalmologist, examined Claimant on February 10, 2003, because of his complaints of photophobia and blurred vision. (Exhibit 2-22) Dr. Lewis found that there was no significant change in Claimant's glasses prescription; his examination was normal. Dr. Lewis diagnosed Claimant as having post-concussion syndrome. Dr. Lewis found no ocular cause for Claimant's headaches.

Claimant was admitted to St. Anthony's Medical Center on August 12, 2004, reporting that he had swerved to avoid a raccoon, lost control of his car, and ended up with four flat tires after hitting some railroad tracks. (Exhibit 2-26) Claimant did not lose consciousness; however, he reported continuing headaches and depression. Upon admission, Claimant's blood alcohol level was .123. Later notations in his records indicate Claimant was found by the police sitting in his car on the railroad tracks with four flat tires. Claimant reported to the police that he had lost his way and ended up in East St. Louis; he again repeated the story that he had swerved to avoid a raccoon. However, he later revealed that he had taken his mother's friend's car without permission, gone to the casino and lost $40, and become despondent.

Claimant reported that he had an alcohol abuse problem since he was 21 and drank six to seven beers a day with a history of blackouts. In January of 2004, Claimant had been involved in another accident where he totaled his car and was charged with leaving the scene of the accident.

Claimant reported that he was diagnosed with depression since he was 11 years old and had been on Prozac from ages 11 to 15, which seemed to help. Claimant reported that he had not ever attempted suicide; however, he did report that he thought about hurting himself by jumping off a bridge. Claimant was admitted to the adult psychiatric service for suicide precautions. Claimant was discharged on August 26, 2004, with a diagnosis of alcohol dependence and depression.

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On August 30, 2004, Claimant had an MRI of his brain that did not reveal any abnormalities related to his assault.

Claimant was seen again at St. Anthony's Medical Center on October 14, 2004. (Exhibit 2-26) At that time, Claimant reported increased depression and anxiety. Claimant had experienced a flashback of the assault and become shaky and tearful. Claimant also had a "splitting headache." According to Claimant's mother, when these symptoms occurred, Claimant would develop suicidal thoughts. Upon examination, Claimant had severe tremors and anxiety.

Claimant was transferred from St. Anthony's Medical Center to St. John's Medical Center for further treatment. (Exhibit 2-27, 2-30, 2-34) Claimant's past medical history included bipolar disorder, asthma, and posttraumatic stress disorder. Dr. Yasin, Claimant's treating psychiatrist, noted Claimant had experienced flashbacks and severe headaches since the assault. Claimant's symptoms had increased the day before admission because his mother had lost her way and traveled into an "African American area" of the city.

Claimant's history included reports of sexual and physical abuse by his father. Dr. Yasin noted Claimant's father "abducted" him when he was five years old, and sexually and physically abused Claimant from ages five to ten. When questioned, Claimant indicated that he "did not feel anything" about the sexual abuse. However, Claimant reported that he was very scared when his father beat him, and that is why he did not tell anyone about the sexual abuse. Claimant's discharge diagnoses were bipolar disorder, PTSD secondary to assault, and PTSD due to sexual abuse by father. Claimant reported he was concerned about not working and was hoping he would get disability money.

Dr. Julia Zevallos, a neurologist, evaluated Claimant on February 22, 2005. (Exhibit 2-35) Dr. Aisenstat referred Claimant to Dr. Zevallos. Dr. Zevallos examined Claimant and diagnosed him with posttraumatic headaches. She noted that Claimant had other risk factors for headaches, including use of caffeine and cigarettes, and recommended he discontinue use of those possible triggers.

Claimant was granted Social Security Disability benefits March 16, 2005. (Exhibit 2-37) The benefits were retroactive to the date of the attack on Claimant at work. Claimant was found to be disabled based on post-concussion syndrome, headaches, posttraumatic stress disorder, bipolar affective disorder, and a history of alcohol dependence. The judge noted Claimant had not consumed alcohol since 2004. Neither Claimant's asthma, nor his headaches, were considered severe physical impairments. (Exhibit 2-41)

On March 9, 2006, Claimant treated at the emergency room of Barnes Jewish Hospital with complaints of a severe headache. (Exhibit 2-39, 2-40) Claimant complained of photophobia, blurred vision, and slurred speech. All testing was normal, and Claimant was discharged to home. Claimant then began treating at the Barnes Jewish Hospital Clinic for asthma and smoking cessation, pineal cyst, concerns regarding his thyroid, concerns regarding diabetes, and migraines.

Dr. Shazia Malik, Claimant's treating psychiatrist, admitted Claimant to St. John's Medical Center on November 28, 2005. (Exhibit 2-31) Claimant complained of feelings of

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helplessness and hopelessness, flashbacks, nightmares, anhedonia, poor sleep, poor appetite, and poor concentration. Claimant was considering drinking alcohol and laying down on the railroad tracks. Claimant was diagnosed with bipolar disorder and PTSD related to his childhood and his work attack. He was urged to remain compliant with his medication.

Claimant received treatment at CenterPointe Hospital from December 9, 2005, through July 27, 2006. (Exhibit 2-38) First, Claimant was admitted to the Progressive Partial Hospitalization Program (PPHP) and then moved to the Intensive Outpatient Program (IOP). Claimant's admitting diagnoses were bipolar affective disorder, borderline intellectual functioning, asthma, migraine headaches, dissatisfaction with unemployed status, and dissatisfaction with degree of education. While treating in the program, Claimant reported feelings of panic, restlessness, and decreased concentration. When he was in public places, Claimant had flashbacks due to his PTSD.

Claimant's doctor referred him to CenterPointe because he was having a difficult time handling the stressors in his life. The intake assessment indicates Claimant had difficulty dealing with an incident that occurred when he was attacked by an unknown perpetrator while at work. Since that incident, Claimant had symptoms of: hopelessness, anxiety, flashbacks, panic attacks, poor sleep and appetite, and psychosis.

One of the clear concerns of the CenterPointe staff was Claimant's "enmeshed" relationship with his mother. In April 2006, Claimant was planning a trip with a friend. However, his mother did not want him to go on the trip because his friend was a former coworker and she believed he might be on the side of Claimant's Employer. (Claimant claimed his boss at Employer made death threats to his mother.) Claimant's mother was concerned that Employer had hired the friend to kill Claimant and make it look like he had a mental breakdown. When Claimant was discharged, he indicated the threat by his boss was "very minuscule."

Claimant also developed stress when his mother was concerned about the family finances and indicated she "could not carry on." Claimant thought his mother might commit suicide. Further, when Claimant wanted to return to Meramec Community College, his mother was delaying his registration. He thought she was trying to keep him at home.

Upon discharge, Claimant had no depression. He had developed coping mechanisms and no longer panicked when he thought about the assault. Claimant reported that even when he went into areas similar to where the assault occurred, he could control his anxiety and flashbacks.

Claimant was readmitted to St. John's Medical Center on March 13, 2007. Upon admission, Claimant reported suicidal thoughts. Claimant told the doctor he is one-fourth "Indian or Cherokee", and had tried to join one of the "Indian parties"; but he did not feel welcome. As a result, he had been feeling suicidal. During his hospitalization, Claimant voiced anger against the people who attacked him at work. Claimant also reported a difficult childhood, during which other children made fun of him and he had no friends.

Dr. Malik had regular appointments with Claimant beginning in 2004. (Exhibits 2-31, 2-43, 2-44, 2-46) Claimant's mother usually accompanied him to these appointments. In May of 2012, Dr. Malik diagnosed Claimant with bipolar I disorder and ADHD. On June 22, 2012, Dr.

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Malik added the diagnosis of PTSD. In November of 2012, Dr. Malik notes Claimant has had four hospitalizations for his mood disorder.

Dr. Malik's notes in January of 2012 indicate Claimant was attending school online. (Exhibits 2-31, 2-43, 2-44, 2-46) At his visit on April 1, 2013, Claimant's diagnoses remained Bipolar I Disorder, PTSD (chronic), and ADHD. On November 22, 2013, Claimant's mother reported that he was more anxious and irritable after a drunk driver broadsided their car. After the accident, Claimant appeared to be more anxious, especially in crowded spaces. Claimant's visits with Dr. Malik, from December 2013 through January 2015, reveal complaints of occasional nightmares and flashbacks, but overall improvement.

On February 19, 2016, Claimant reported to Dr. Malik that he was doing well. He visited his aunt in Texas and planned to move there. His sleep was generally good and he did not have as many anxiety attacks. Claimant reported flashbacks only when he was close to North County. On November 14, 2016, Claimant's mother reported Claimant was "very grouchy" because he wanted to live in his own place.

On March 7, 2018, Claimant reported he began to have panic attacks and went to the emergency room. Claimant blamed the panic attacks on two children (two and eight years old) who were friends of the family and were "sexually acting out." Claimant suspected the children were being sexually abused. Claimant's suspicion provoked memories of his past abuse.

While Claimant was treating with Dr. Malik, he also consulted with therapists at her office (Psych Care Consultants). (Exhibits 2-33, 2-43, 2-44) The therapist noted Claimant was admitted to the hospital in 2004, after he was sitting in his car, despondent, on railroad tracks. Claimant had been in a motor vehicle accident and was intoxicated. Claimant reported that his first psychiatric commitment was when he was 10 years old for depression. During the time Claimant was seeing the therapist, he was attending Meramec Community College. In April 2007, Claimant reported that he had been attending Native American "powwows". In 2009, Claimant was upset because he attended an American Indian event in Chicago and had not felt accepted by some of the "full-blooded Indians."

Claimant settled his case with Employer/Insurer for $100,000. (Exhibit 2-45) The Stipulation for Compromise Settlement indicates it settled for "alleged permanent and/or total disability."

Dr. Jay Liss, a psychiatrist, conducted an examination of claimant on February 9, 2015. (Exhibit 3-47) Prior to the examination, Dr. Liss reviewed the vocational rehabilitation evaluation prepared by Mr. Lalk, as well as the Claimant's medical treatment records. Dr. Liss diagnosed Claimant as suffering from PTSD, depression, anxiety, and ADHD. He noted that Claimant had experienced issues with alcohol, but was currently attending AA and no longer had those problems.

When Claimant was seen by Dr. Liss, he was taking 10 medications. After examining Claimant, Dr. Liss confirmed the diagnoses of bipolar disorder, PTSD, posttraumatic stress disorder, and post-concussion syndrome. All of these diagnoses were a result of the January 18, 2003 assault. In addition, Dr. Liss diagnosed Claimant with pre-existing diagnoses of ADHD, Behavior and Emotional disorder of childhood resulting in depression, and PTSD. Dr. Liss

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opined that Claimant is permanently and totally disabled. He attributed 40% of that disability to Claimant's pre-existing disabilities and 60% to the assault of January 18, 2003.

The parties deposed Dr. Liss on October 19, 2018. (Exhibit 3-52) Dr. Liss testified he examined Claimant for one hour in 2015. Dr. Liss determined Claimant suffered from depression, anxiety, alcoholism, and ADHD. Dr. Liss agreed with Dr. Yasin's diagnosis of PTSD secondary to being hit on the head and to sexual abuse by his father when he was young. Dr. Liss determined that Claimant's pre-existing disability, and the disability attributed to his Workers' Compensation assault, rendered him permanently and totally disabled. Claimant's pre-existing conditions resulted in disability of 40% of the person as a whole, and the disability related to the January 18, 2003, assault as 60% person as a whole.

Dr. Liss testified Claimant would not be able to sustain an eight-hour per day job based on his background, opportunities, skills, and his accompanying disabilities. Dr. Liss opined Claimant could not handle any level of work stress.

On Cross-Examination, Dr. Liss agreed Claimant's psychiatric conditions are based, in part, on his subjective complaints. Claimant's early diagnosis of behavioral and emotional problems was related to his inability to: be appropriate in school and home settings, respond to commands and discipline, be emotionally stable, and not react in inappropriate or exaggerated ways.

Dr. Liss could not recall if Claimant told him he had been sexually abused by his father. However, his report does detail that Claimant was verbally abused by his mother. Claimant reported he began taking medication for depression when he was 13 years old. Depressive symptoms as a child would include lability, behavioral problems, moodiness, and refusal to behave in a consistent childhood fashion. Claimant received SSD from 1991 to 1997. Dr. Liss believed that was based on Claimant's psychiatric diagnoses.

In 1997, Claimant was admitted to the hospital three or four; he was 18 years old at the time. At that time, Claimant's depressive symptoms would have been more similar to adult symptoms.

Dr. Liss testified Claimant could have been diagnosed with PTSD as a child. Children who are exposed to, or witness trauma, as children develop PTSD even more frequently than those who were physically injured do. However, Dr. Liss did not ask Claimant to describe his symptoms prior to the assault in 2003 to determine if he indeed had PTSD or was having PTSD symptoms.

Dr. Liss agreed that all of the diagnoses Claimant had as a child, including depression, PTSD, ADHD, and behavioral and emotional disorders, would have effected Claimant's ability to work as a young adult. They would also have effected his ability to maintain employment. Claimant would have difficulty advancing vocationally and educationally.

Based on Claimant's work history contained in Mr. Lalk's report, Dr. Liss noted that all of his employment was at "very low levels". Claimant "followed the path of someone who, initially, was disabled in the vocational labor market following very menial jobs all the way to the end." The fact that Claimant never held a job for more than a year indicates disability to Dr.

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Liss. The only time Claimant sought work was in the break between the two times he received Social Security disability.

Mr. Timothy Lalk conducted a Vocational Rehabilitation Evaluation of Claimant on July 11, 2008. (Exhibit 4-54) When Mr. Lalk met with Claimant, he noted that Claimant was nervous or uneasy during the interview. He showed very little modulation in his tone and there was very little animation in his face when he talked. Mr. Lalk did not administer any testing to Claimant because he had taken remedial courses at a community college and was able to maintain a grade point average of 3.0. Further, Claimant had completed a high school diploma; although he had difficulty in mathematics in writing.

Mr. Lalk opined Claimant would not be eligible for vocational rehabilitation services because his physicians had not indicated that he had improved to the point he could function in a job on a daily basis. In particular, Claimant's doctors have not indicated he could work in a position of stress without exacerbating his psychiatric condition. In a subsequent letter dated May 30, 2018, Mr. Lalk indicated that the conclusions of Dr. Liss and Dr. Malik were more consistent with his findings than those of Dr. Stacey Smith.

The parties deposed Mr. Timothy Lalk on October 29, 2018. (Exhibit 4-59) Mr. Lalk testified he met with Claimant on July 11, 2008, and reviewed extensive medical and other records both before and after that meeting. When Mr. Lalk asked Claimant to report his symptoms that most hindered him, Claimant reported it was his short-term memory loss and depression. Claimant reported to Mr. Lalk that he did not have any condition that limited his activities before his work injury. Claimant did tell Mr. Lalk that he had asthma when he was a child. He did not mention that he was hospitalized several times for asthma.

Mr. Lalk noted that people with psychiatric conditions generally do not acknowledge their limitations or see their conditions as hindrances. Mr. Lalk testified that, based on medical records, Claimant's asthma was a limiting condition. Mr. Lalk noted that someone with asthma should look for a job in a fairly climate-controlled environment.

Mr. Lalk noted Claimant had to repeat ninth grade twice and did not graduate from high school until he was 20 years old. Claimant did not mention math or reading difficulties in school. In fact, Claimant said he read a lot. Mr. Lalk believed Claimants's difficulties in high school were due to his mental health concerns. However, Claimant did tell Mr. Lalk that he dropped out of culinary school because of poor math skills. Claimant said he was supposed to have an Individual Education Program ("IEP"), but did not get the assistance he needed.

Claimant took some general study courses at a community college in the Fall of 2007, but then he dropped out when his grandfather passed away, and because of financial reasons. Mr. Lalk summarized Claimant's educational history by saying Claimant had some difficulty in school, fell behind, then failed some grades, was moved to a different school by his mother, caught up with his classmates, and graduated. Based on the educational records he reviewed, Mr. Lalk would diagnose Claimant with an affective disorder as a child, which was interpreted as a behavior disorder, learning disorder, or lack of motivation and discipline.

Mr. Lalk reiterated his opinion that based on the opinion of Dr. Shazia Malik, Claimant's treating psychiatrist, and Claimant's description of his current level of functioning, Claimant

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would be unable to secure and maintain employment in the open labor market. Claimant has severe symptoms which effect his ability to function. Claimant deals with depression and difficulty becoming motivated to do anything. Further, he has difficulty controlling his emotions and does not respond well to stress.

Mr. Lalk noted that Stacey Smith's opinion was written before Claimant was admitted to St. John's Mercy Medical Center in March 2007. When he was admitted in 2007, Claimant was diagnosed with bipolar affective disorder, PTSD, and had a Global Assessment of Functioning ("GAF") of 40. A GAF of 40 indicates that Claimant had an impairment of reality, communication, work, family relations, judgment, thinking, and mood. Mr. Lalk opined that no employer would be expected to hire Claimant in his current condition. Even if Claimant were able to secure a job, Mr. Lalk did not believe he could maintain his employment.

On Cross-Examination, Mr. Lalk testified that he only met with Claimant on one occasion for under two hours. Mr. Lalk prepared his May 30, 2018, addendum after reviewing additional records; he did not meet with Claimant again. Claimant has not had a driver's license since 2004, which would also effect his ability to find and maintain a job.

Mr. Lalk testified that prior to the January 18, 2003, attack Claimant did not have a stable vocational history. In fact, he did not work for an entire year before returning to work for Ace Hardware. Then, Claimant only worked at Ace Hardware for two months.

Second Injury Fund Exhibit

Dr. Stacey Smith examined Claimant on April 28, 2005 at the request of his attorney. (Exhibit I) Dr. Smith met with Claimant, his mother, and reviewed medical records and reports. Claimant reported to Dr. Smith that he returned to work for the security agency following his attack. However, on June 14, 2003, he was terminated without notice. Claimant believes he was fired because he could no longer work in North St. Louis. Claimant began working at Roberto's Restaurant beginning in July, 2003. However, he left when his boss began to be abusive. Claimant did not seek work after that because his doctor put in writing that he could not work.

When asked about his medical problems, Claimant reported that he had asthma since he was a baby, PTSD, and severe constant headaches. Claimant reported that his assailants were screaming when they attacked him. He said they were screaming profanity and saying things like "you shouldn't have walked in on us".

When Claimant discussed his psychiatric admission on August 12, 2004, he said he was severely suicidal, he ended up in East St. Louis, there was an accident, and his car ended up on the railroad tracks. He "blacked out" he did not remember anything until the airbags released. On another occasion, Claimant was admitted to St. Anthony's Medical Center, and then transferred to Edgewood.

Following the assault, Claimant developed problems with his memory. He also experienced headaches with blurred vision and his mental processing had "slowed". Claimant reported that he becomes agitated easily following the assault.

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Related to his PTSD diagnosis, Claimant reported that he has "real stress" when he goes into bad neighborhoods and the "flashbacks come back". He reported that this occurred every two to three days. Claimant also reported that if he watched a violent movie, or heard people yelling and screaming, he might have a flashback. Claimant's self-confidence had decreased. Claimant had difficulty sleeping. Claimant's medications were not particularly helpful. When he was finally able to sleep, he would have a nightmare of the assault or something related to the assault.

Claimant granted his mother his Power of Attorney due to his poor memory. He thought that if someone was "trying to pull one over on" him, his mother could help. Claimant noted that he began drinking when he was 18 years old, and continued through the assault. Following the assault, he began drinking more and more. At his peak, Claimant was drinking 12 drinks a day. He stopped drinking after he was in Hyland Center. Claimant was currently attending AA.

Claimant denied having any difficulty in school when he was young. Claimant denied having been mentally physically or sexually abused. Claimant reported that he had no contact with his siblings in quite some time.

Claimant and his mother were under financial stress at the time he saw Dr. Smith. Claimant's mother was not working, and both Claimant and his mother had declared bankruptcy. In addition, Claimant was involved in an accident and had no insurance, so he was paying a $100 a month for the damage to the other car.

When Dr. Smith interviewed Claimant's mother, she reported that Claimant lost his self-confidence after the attack. She reported he becomes restless and anxious when they are in a bad area of town. Claimant developed severe headaches and started drinking more.

Claimant's mother appeared to be angry about the progress of his Workers' Compensation Claim, and the medical treatment he had received. She was quite angry that Claimant had never been referred to neurosurgery after the incidental finding of a pineal cyst in his brain. She also claimed that the wife of Claimant's neurologist, who was not a physician's assistant, wrote a letter saying that everything was okay. She reported that the staff of the hospital where Claimant was admitted after the railroad track incident was a "nightmare"; they were unresponsive and uncaring.

Claimant's mother reported Claimant applied for Social Security after his PTSD diagnosis. Claimant planned a career as a police officer and planned to attend the police academy, but was no longer able to do so. Claimant's mother brought up their financial issues, and indicated Claimant was receiving a small amount of money that did not even cover the cost of his medications.

Dr. Smith diagnosed Claimant with alcohol dependence, adjustment disorder due to mounting financial problems after leaving his restaurant job, PTSD (doubt) due to his assault, malingering symptoms, exaggeration, and several years of pre-existing anxiety and depression.

Dr. Smith noted that neither Claimant, nor his mother, were reliable historians. Claimant's mother seemed to exaggerate his symptoms and his inability to function. Dr. Smith opined that the relationship between Claimant and his mother was problematic. Claimant's

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mother over focused on his symptoms to keep him close, which encouraged dependency and regression. Dr. Smith noted that Claimant's mother completely discounted Claimant's early psychiatric history, which included a near suicide attempt, five years of psychological counseling in his early teens, and taking antidepressant medication in his teens. Dr. Smith felt that Claimant's mother was enmeshed with Claimant and was using that to meet her own psychological needs and undermine his development.

Dr. Smith found that Claimant had an academic/vocational impairment prior to the assault. He had to drop out of culinary school. He had to repeat the ninth grade at least two times. In conclusion, Dr. Smith found Claimant had questionable functioning both before and after his attack at work.

RULINGS OF LAW

The Second Injury Fund is not liable to Claimant because Claimant was permanently and totally disabled prior to the attack at work on January 18, 2003.

Claimant seeks permanent total disability benefits from the Second Injury Fund. Under the statute, any disability attributable to the combination of the work injury with pre-existing disabilities is compensated, if at all, by the Fund. § 287.220.2 RSMo. For the Fund to be liable, a claimant must have a permanent partial disability that existed at the time of the primary injury and that was so serious "as to constitute a hindrance or obstacle to employment or re-employment." *Lawrence v. Treasurer of State-Custodian of 2nd Injury Fund*, 470 S.W.3d 6, 13 (Mo.App. WD 2015). The claimant's preexisting disability and disability from a subsequent injury must combine in one of two ways: "(1) the two disabilities combined result in a greater overall disability than that which would have resulted from the new injury alone and of itself; or (2) the preexisting disability combined with the disability from the subsequent injury to create permanent total disability." *Schussler v. Treasurer of State-Custodian of Second Injury Fund*, 393 S.W.3d 90, 98 (Mo.App. WD 2012) (quoting *Uhlir v. Farmer*, 94 S.W.3d 441, 444 (Mo.App. ED2003)), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 and 224 (Mo. banc 2003); see also section 287.220.1.

Claimant seeks recovery for permanent total disability benefits under the second set of circumstances. Section 287.020.6 defines "total disability" as the "inability to return to any employment and not merely [an] inability to return to the employment in which the employee was engaged at the time of the accident." *Carkeek v. Treasurer of State-Custodian of Second Injury Fund*, 352 S.W.3d 604, 608 (Mo.App. WD 2011). "The critical question is whether, in the ordinary course of business, any employer reasonably would be expected to hire the injured worker, given his present physical condition." *Id.*

The Fund is liable for permanent total disability benefits only when the claimant proves that he or she is permanently and totally disabled due to the combination of the primary injury and a pre-existing partial disability. *Glasco v. Treasurer of State-Custodian of Second Injury Fund*, 534 S.W.3d 391, 398 (Mo.App. WD 2017), transfer denied (Nov. 16, 2017), citing *Lawrence*, 470 S.W.3d at 14; § 287.220.2. The language of the statute "applies to a claimant who has a 'preexisting permanent partial disability,' not to claimants who are already [PTD]."

Revised Form 31 (3/97)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number 03-015767

Schussler, 393 S.W.3d at 98. If a claimant is PTD before his or her last work injury, an award in favor of the claimant cannot stand. *Stewart v. Zweifel*, 419 S.W.3d 915, 916 (Mo.App. SD 2014).

Under *Schussler*, limited, sporadic, or highly accommodated work does not constitute work in the open labor market. *Id.* at 97, quoting *Molder v. Missouri State Treasurer*, 342 S.W.3d 406, 413-414 (Mo.App. WD 2011). The *Schussler* Court affirmed the Commission's denial of Fund liability based on its determination that the claimant was permanently and totally disabled before her primary work-related injury. *Id.* at 94. The claimant's medical expert found she was totally disabled due to the combination of her primary injury (carpal tunnel) and her pre-existing conditions. *Id.* at 93-94. However, the vocational expert pointed out that her prior jobs had been "heavily accommodated." *Id.* at 95.

Under some circumstances, the Second Injury Fund has been found liable despite the worker's significant pre-existing disability and sporadic work history. For example, in *Stewart v. Zweifel*, 419 S.W.3d 915, 916-17 (Mo. Ct. App. 2014), the employee suffered from a host of maladies, qualified for Social Security Disability, and worked only sporadically in part-time positions to supplement her income. Despite her medical problems, the employee competed for and won all her jobs in the open labor market—jobs not "heavily accommodated" or even accommodated at all. Under these circumstances, the employee was found to be totally disabled after her primary injury, and the Second Injury Fund was held liable. *Id.* In the instant case, the facts are much more similar to those of *Schussler* and *Glasco*, and are unlike *Stewart*.

The present matter is a very complicated and difficult case. One of the difficulties is the lack of reliable testimony from either Claimant or his mother. This case is further complicated by the fact that the medical providers and examining physicians relied on the unreliable histories given by Claimant and his mother in reaching their diagnoses and conclusions.

From the beginning, there are contradictions in the records. While Claimant and his mother allege that his father was abusive, records from his childhood reflect that he was removed from his mother's custody because she was abusive. (Exhibits 1-1, 1-4, 1-9, 1) There is no mention in any of Claimant's childhood records of physical, mental, or sexual abuse by his father. In fact, his father appears to have asked the school to evaluate Claimant to determine why he was not succeeding in school. Claimant's father is noted as "supportive" in the records. (Exhibits 1-4, 1-9)

The first time there is any mention of abuse by Claimant's father is in 2004 records from St. Anthony's Medical Center. (Exhibit 2-27, 2-30, 2-34). However, Claimant reported that he "did not feel anything" about the assault.

Further, contrary to his mother's testimony, Claimant did not have a complete turnaround when he returned to live with her. Claimant continued to treat for depression and have difficulty in school. When he was admitted to the hospital for asthma, Claimant's records indicate he was smoking a pack a day; and had begun smoking since he was 12 years old. His mother continued to smoke in the home, even though Claimant's doctors had advised her to quit. A social work referral was made because of concerns regarding Claimant's home life. (Exhibits 1-8, 1-11)

Revised Form 31 (3/97)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number 03-015767

Almost immediately upon regaining custody of Claimant, his mother applied for, and received, Social Security for Claimant. Those payments continued until Claimant was 18 years old. (Exhibit 1-6)

Claimant's history after he graduated from high school, at 20 years old, is also confusing. Claimant and his mother testified he dropped out of culinary school because of his asthma. However, Claimant told Mr. Lalk it was because he could not do the math needed to pass his courses. (Exhibit 4-54)

Claimant's employment history is then quite sporadic. He worked for some employers for a couple months and for others for as little as two weeks. (Exhibit 1-12) Further, Claimant's work was heavily accommodated, such as Roberto's, where he came in only when he felt up to it, and came in late and left early as necessary.

When Claimant recounted his attack in his testimony, he testified that he developed PTSD because the assailants called him things he was called when he was teased as a child. However, this fact is not contained anywhere in Claimant's records; including the police report and his treatment records. (Exhibits 2-15, 2-16)

Claimant did not seek psychiatric treatment until 19 months after his attack. This treatment occurred after Claimant stole his roommate's car, went to the casino and lost his money, and crashed his car on railroad tracks in East St. Louis. (Exhibit 2-26) When the police found Claimant on the railroad tracks, they believed he was attempting suicide. When Claimant was admitted to the hospital, his blood alcohol count was .123; he reported he had been abusing alcohol since he was 21 years old.

The records of CetnterPoint, and the report of Dr. Stacey Smith, all note a concern regarding Claimant's "enmeshed" relationship with his mother. That relationship is apparent throughout the records. Although Claimant is an adult, his mother was usually present during appointments with his doctors. She would get very angry when Claimant's treatment did not proceed as she thought it should. (Exhibits 2-38, I)

There also appears to be a thread of financial issues throughout the records. Both Claimant and his mother declared bankruptcy. At times, Claimant's SSD was the only income for him and his mother. When Claimant was hospitalized following the railroad track incident, he discussed financial concerns. (Exhibits 2-38, I)

Dr. Liss' opinion supports that Claimant's childhood mental illness caused his behavioral problems and prevented Claimant from succeeding academically. Dr. Liss explained the difference between depression and PTSD in children and adults. (Exhibit 3-52) Dr. Liss opined that Claimant displayed the symptoms of childhood mental illness, which, in Dr. Liss' opinion, led to significant psychiatric disability. (Exhibit 3-52) These behavioral symptoms described by Dr. Liss mirror the behaviors and problems contained in Claimant's childhood school records. The symptoms of Claimant's childhood mental illness caused him to repeat numerous grades and graduate at a much later time than his peers. Claimant, thus, did not compete academically as a result of his psychiatric conditions.

Revised Form 31 (3/97)

Page 24

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number 03-015767

Claimant's mental disorders persisted into adulthood, preventing Claimant from ever successfully competing in the open labor market. At Hearing, Claimant confirmed his sporadic work history. The entirety of Claimant's work history occurred between the ages of 18 and 24. Despite spanning only seven years, Claimant worked for 17 employers. (Exhibit 1-12) Again, Claimant's recall of his employers at Hearing and to experts of the case was not consistent, but, what is consistent is that Claimant's work was sporadic, varied, short-term, and usually lasted for less than a year. Often, Claimant was fired for his inability to maintain steady work or for emotional conflicts with co-workers.

Claimant's work history is similar to the claimants in *Molder* and *Schussler*. Claimant's work history prior to his primary injury was sporadic and typically lasted for less than one year. At trial, Claimant testified that out of all 17 jobs he held, he only worked one position for more than a year. Claimant was fired from many jobs because he was unable to meet production goals or stay on track, including the sports bar he worked at in Ohio and Houlihan's. (Exhibit I) Claimant also quit or was fired due to "emotional problems," including from his job at Bob Evans, the Nestle factory, and Roberto's Trattoria. (Exhibit I) Claimant was not able to meet the essential functions of his work or compete in the open labor market.

After reviewing Claimant's work history, it was Dr. Liss' opinion that Claimant never successfully competed in the open labor market. Dr. Liss opined that Claimant was severely hindered in his ability to obtain and maintain employment due to his psychiatric condition. Mr. Lalk also recognized Claimant's unstable work history, and noted that it contained significant periods of unemployment.

Claimant is a tragic figure. He had a difficult childhood and has struggled as an adult. He was involved in a violent attack at work. But, the evidence does not support a claim against the Fund for a combination of his pre-existing and primary disabilities. Claimant suffered from psychiatric disability as a child, and as an adult, but there is no evidence of a combination. In addition, Claimant did not receive any psychiatric treatment for 19 months following the attack at work; discounting a connection between that attack and worsening of his symptoms.

Revised Form 11 (3/97)

Page 25

Issued by DIVISION OF WORKERS' COMPENSATION

Claimant's sporadic and varied, and short-term work does not constitute work in the open labor market. See *Molder*, 342 S.W.3d at 409; *Schussler*, 393 S.W.3d at 93. From the onset of his psychiatric history, Claimant was unable to compete with others, both academically and vocationally. Claimant's work history indicates that he was permanently and totally disabled prior to his primary injury. The Fund is not liable for Permanent Total Disability benefits in this case because Claimant failed to prove that he is permanently and totally disabled due to a combination of his primary and pre-existing disabilities.

As the Fund is not liable for permanent total disability, I will not address the issue of the date of maximum medical improvement, which is only relevant when calculating benefits.

I certify that on **5-31-19** 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 **__________________________**

**Lee B. Schaefer**

Administrative Law Judge

Division of Workers' Compensation

Revised Form 31 (3/97)

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