Patricia Otwell v. Chrysler, LLC

An application for review was filed by the Fund on July 16, 2019, setting forth the issue: the administrative law judge erred in finding a synergistic combination between employee's alleged pre-existing disabilities and her current primary disability, such that a 33.333 % load factor was warranted.

At page 1 of the Award, item \# 13, the Award states:

1. Part(s) of body injured by accident or occupational disease: Low Back

This is in error. The primary injury claimed by employee is bilateral carpal tunnel syndrome.

We correct the Award at page 1, item \# 13 as follows:

1. Part(s) of body injured by accident or occupational disease: bilateral carpal tunnel syndrome

At page 2 of the Award, item \# 23, the Award states:

1. Future requirements awarded: prescription drugs (see narrative award)

This is in error, as the only two parties to the hearing were the Second Injury Fund and the employee. No liability would extend to the Fund for prescription drugs under the law.

We correct the Award at page 2, item \# 23, as follows:

1. Future requirements awarded: Not Applicable.

Employee challenges several evidentiary rulings by the administrative law judge, and requests that we review them. The objections by the Fund to employee's request to admit certain exhibits were taken under submission at the hearing, and were ruled on in the Award at page 4 - 6. The administrative law judge upheld some of the objections to the evidence, as explained in the Award and decision. We adopt the administrative law judge's rulings in sustaining the objections as noted in the Award. We see no abuse of discretion in these rulings.

The administrative law judge was able to observe the employee's demeanor at the hearing. ${ }^{3}$

On that basis and in consideration of the evidence presented, he was able to make some observations and conclusions in a summary fashion, regarding the level of claimed disability and employee's representations of her injuries and conditions. As he noted in his Findings of Fact on page 3:

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[^0]: ${ }^{3}$ In his Rulings of Law at page 8, the administrative law judge also noted his observation of claimant's demeanor at trial as normal, not suggestive of anger or sadness. He mentioned her domestic issues throughout adulthood as impacting her psychological condition. In reference to her credibility, he noted the lack of records of hospitalization or treatment records to corroborate her claim of suicidal thoughts pre-dating the primary injury.

1. Claimant ${ }^{4}$ testified she retired in February 2009. She was briefly hospitalized in March 2009 for depression and anxiety. Claimant testified very confidently and easily followed the Q and A format. Her residual complaints and characterizations of the primary injury exceeded reasonable inferences that might be made from the approved settlement value.

The record further corroborates and expands upon the judge's findings.

Employee believes her last day of work at the employer's plant was February 25, 2009, before being off for medical reasons. Transcript, page 40-41. However, employee remained as an employee for some time after February 25, 2009. She was in a partial day clinic provided by the employer because she was unable to work due to a health condition in the early months of 2009. Chrysler clinic records show various physical complaints reported by employee through her employment, including the later months of 2008 (coinciding with her bladder symptoms) and several months in 2009.

From March 23 - 27, 2009, employee was briefly hospitalized due to mental health issues. She indicated that she had suicidal thoughts and nothing was going right with her home and husband. Transcript, page 42. There is no record in evidence of hospitalization for mental health prior to that time.

Elaine Toon, Licensed Professional Counselor, saw employee for therapy on and off in 2008 - 2009. Employee attended a part-time day clinic for stress sponsored by her employer in late February 2009. Notes from some of those sessions suggest employee had difficulties dealing with personal, family and marital issues.

In April 2009, employee underwent bilateral carpal tunnel surgeries, performed by Dr. David German.

The last entry in the Chrysler clinic records which were provided ${ }^{5}$ is on May 1, 2009. There are two entries on that date; one indicates "Non-Occupational Visit-stress Leave", and the second indicates "RT Shoulder Sprain \& Bil hand/." Transcript, page 108. The entry indicates the nature of an upcoming assignment "if she is not currently on sick leave and that she will be full duty in regards to both hands." The projected date is obscured on the copy of the record. Id. Following the entry is the name MALAK MD. Id.

Employee believes she may have returned to work for a few days after her hand surgeries, but that she "...didn't like just floating. And I would try to get a job but I never would qualify, I was afraid." Transcript, page 43. Thereafter she took retirement.

At the time employee chose to accept a retirement option from the employer in May 2009, the plant where she had been working was in the process of closing. Employee moved back to Alabama.

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[^0]: ${ }^{4}$ The parties and the administrative law judge refer to the claimant in several instances. We use the term employee as defined in the statute at $\S 288.020 RSMo. Throughout this Final Award, those terms are interchangeable.

{ }^{5}$ Discussion on the record suggests that there was some difficulty in retrieving all records, due to the clinic closure. Transcript pages 32-35.

Employee applied for Social Security disability around the time of ending her employment.

Employee underwent a mesh removal surgery in July 2009, related to complications from her October 2008 bladder surgery which had been to address incontinence.

Dr. David German released her from care on September 14, 2009 and identified only a 5 % permanent partial disability at the wrist. No future medical treatment was identified by the doctor. Transcript, page 68. Employee had no disability rating or restrictions identified for psychiatric conditions at that time. Dr. Volarich noted that he didn't think she had restrictions for the right shoulder strain prior to primary wrist injury in February 2009. Transcript, page 518. She had no permanent restrictions identified for her incontinence issue, however, Dr. Volarich explained that lifting excessive weight in excess of 10 pounds would put pressure on the abdomen and could cause incontinence. Employee's work experience has been in factory work, which required lifting and pulling,

Given all these circumstances, a reasonable inference is that at the time employee chose to take her retirement, there were several life factors impacting that decision, aside from the level of disability she was experiencing.

For Fund liability in a permanent partial disability case, there must be a substantially greater disability resulting from the combination of the primary injury and the preexisting condition(s) claimed. $\S 287.220 .2$ RSMo. In order to prove such a synergistic effect between a primary injury and preexisting condition, there must be proof that the two conditions interacted in such a way that the total disability is greater than the mere sum of the two disability ratings.

The point of reference for when this synergistic combination is to be evaluated is at the time of the primary injury, in this case February 10, 2009. So we look to what the evidence shows at the time of injury, and whether employee had other hindrances or obstacles to employment or re-employment. If so, did those conditions combine with the primary disability to create the required synergistic effect?

A right shoulder strain injury was identified as a preexisting condition. We adopt the judge's rating of 15 % PPD ( 34.8 weeks). It is reasonable to make a connection between two injuries to the upper extremities, in this case a bilateral injury to the wrists creating a synergistic effect with the right shoulder. Dr. Volarich explained this synergistic effect in the adjustments employee had to make to adapt to certain functions on the job, given these two conditions.

The preexisting incontinence disability was rated at 2.5 % PPD. The administrative law judge found a synergistic effect between upper and lower body. Given that employee's work experience has been limited to factory work, involving pushing and pulling at various weights and pressure exertions, these job components would further be affected by a disabling incontinence condition interacting with the upper body limitations.

Employee: Patricia (Parrish) Otwell

We agree with the administrative law judge's ruling that the psychological conditions which employee identifies are not clearly proven as disabling at the time of the February 10, 2009 primary injury. In that regard, employee has not met the first step of the analysis before we would evaluat