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:

[^0]

[^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.

[^0]

[^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 evaluate whether there is a synergistic effect in combination with the primary injury. We also agree with the judge's recognition that post-injury worsening of a condition, (unless it is caused or aggravated by the work injury), is not properly placed on the liability of the Fund. Likewise, the bladder condition required further surgery in July 2009, and any subsequent worsening of that condition would not be attributable to the Fund.

Therefore, we adopt the findings of the administrative law judge regarding Fund liability based on the synergistic effect of the preexisting incontinence issue and right shoulder injury with the primary carpal tunnel injuries. The Fund is liable for an additional 32.52 weeks of PPD, based on the disability ratings found by the administrative law judge, and his finding of a 331 / 3 % load factor.

We affirm and adopt the award of the administrative law judge as supplemented herein.

The award and decision of Administrative Law Judge Joseph E. Denigan is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

We approve and affirm the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $\qquad 30th \qquad$ day of December 2020.

LABOR AND INDUSTRIAL RELATIONS COMMISSION


Robert W. Córnejo, Chairman


DISSENTING OPINION FILED

Shalonn K. Curls, Member

Attest:

Secretary

The majority has voted to affirm the administrative law judge's award, granting a permanent partial disability rating for the primary injury of 16 % permanent partial disability (PPD) of each wrist, as combined for Second Injury Fund liability with preexisting incontinence ( 2.5 % PPD) and a right shoulder injury ( 15 % PPD). A 331 / 3 % loading factor was awarded as against the Second Injury Fund, which resulted in 32.52 weeks of PPD from the Fund. I would not disturb the PPD ratings as awarded on the primary, and identified preexisting disabilities. However, I disagree with the exclusion of the psychological injury as a preexisting disabling condition, and would include that preexisting condition as well, and in turn would modify the loading factor to be applied.

The administrative law judge excluded certain evidence, and the majority agrees with his rulings. I disagree, and I believe it is the improper exclusion of this evidence that led to the limited ruling on permanent partial disability. The evidence all relates to the psychological preexisting condition suffered by employee. I believe the exclusion of the entire deposition and report of Mr. Tim Lalk was an abuse of discretion in that it was an extreme ruling on an objection which -- while it had some merit, did not require an all or nothing approach. The stated objection to the reliability, and foundation of Mr. Lalk's opinion, did not warrant a complete expulsion of the evidence from the vocational rehabilitation expert. I would rule as follows.

1 Exclusion of the entire deposition testimony of Timothy Lalk, (Exhibit 16)

Mr. Lalk, a vocational rehabilitation specialist, provided opinion through a report and deposition, regarding employee's employability in the open market. Mr. Lalk reviewed the forensic report of Dr. Eli Shuter and considered it along with other materials in coming to his conclusions. Dr. Shuter is deceased. This exhibit was not admitted on the basis of hearsay, citing the case of Bruflat v. Mister Guy, Inc., 933 S.W. 2d 829, 833 (Mo. App.1996). ${ }^{6}$

Mr. Lalk's August 4, 2017 report did place some emphasis on his review of Dr. Shuter's report. The findings from the independent medical evaluation conducted by Dr. Shuter in May 2011, were reflected in the doctor's report, dated March 3, 2012 and that report is not in evidence. Mr. Lalk also placed significant emphasis on the report and opinion of Dr. Adam Sky, which is in evidence, along with other medical records.

An expert can consider facts not in evidence to form an opinion or inference, but admissibility of that opinion depends on 1) were facts reasonably relied on, and 2) do foundational facts meet a level of reliability? "The testimony of an expert who merely acts as a conduit for another expert's opinion is hearsay and inadmissible." Id. Mr. Lalk was not merely acting as a conduit for Dr. Shuter's opinion. He examined many different sources and examined and interviewed the employee himself. The administrative law judge upheld the objection and found that Mr. Lalk "relied" on Dr. Shuter's opinion. But when Mr. Lalk's testimony is read in context, it is clear that he did not merely rely on or adopt that report as his own. He had several sources, including his own observations during a lengthy interview with employee, upon which to come to his own conclusions. We are able to evaluate which portions of Mr. Lalk's

[^0]

[^0]: ${ }^{6}$ Subsequent history reflects overruled in part by Hampton v. Big Boy Steel Erection, (Mo. 2003) 121 S.W. 3d 220 at 227.

Import and testimony are reliable and persuasive, while separating those portions that suggest mere "parroting" of the doctor's opinion from the non-admitted report. I would admit both the deposition and the report of Mr. Lalk and give them the weight they deserve, given indicia of reliability, and whether the specific opinion comes from a sound foundational basis.

There are two letters: one dated March 19, 2002 Transcript, page 1107, and one is undated, although the body of that letter refers to an upcoming date of 10-10-01. It is addressed to Judy Isenberg, M.D. Transcript page 111. Employee refers to these letters as Exhibit 2 in her "Response to Second Injury Fund Objections to Admit Exhibits 4,14 and 16 , page $1^{\prime 8}$ but also refers to them as Exhibit 4 . The hearing exhibit index identified these letters as Exhibit 4.

Employee briefly testified about the letters, and appears to offer them as proof of psychological treatment as early as 2001. Employee also offers them to show an earlier period of treatment for psychological disorders. I would accept her testimony of recalling an encounter with Dr. Cometa. Aside from this purpose, (as refreshing recollection), the letters are not properly authenticated as a medical record, so their probative value is diminished. I would accept them into evidence for the purpose of showing how employee's recollection was refreshed, and would give them the weight they deserve.

The ruling to exclude consideration of portions of Dr. Volarich's testimony is tied to the reference to Mr. Lalk's report, which was excluded by the judge. Dr. Volarich did not rely solely on Mr. Lalk's report and opinion, but had other reliable bases for the foundation of his opinion and conclusions. I do note his indication that he would defer to the psychiatric expert on any such disability. I would accept Dr. Volarich's deposition testimony, taking into consideration the flaws pointed out by the judge, and would give it the weight it deserves.

The administrative law judge's rulings on objections to Dr. Sky's deposition testimony were not sustained to the extent of excluding his opinions, but merely cast doubt as to the persuasiveness of the doctor's opinion. While the judge found Dr. Sky not persuasive in regard to the existence or extent of any preexisting psychiatric illness, I do not wholly share this view. As with the other medical professionals, my view was that Dr. Sky relied on various sources of information in coming to his opinions. The flaws pointed out regarding the technical evidentiary objections are noted, and I take them into consideration.

[^0]

[^0]: ${ }^{7}$ Inexplicably, the March 19, 2002 letter has an identifier at the bottom as Claimant's Exhibit 4, Injury \# 11-015610 (sic), with court reporter initials and date of 3-6-19.

${ }^{8}$ See Exhibit A to Employee's Application for Review.

I would not disturb the administrative law judge's rulings on disability ratings relative to the primary injury ( 16 % PPD to each wrist) and regarding the preexisting right shoulder ( 15 % PPD) and incontinence disability ( 2.5 % PPD body as a whole). I would not disturb the judge's ruling that there is no psychiatric component to be attributed to the primary injury as I do not believe employee has proven work exposure as a prevailing factor to any psychological condition. However, I differ with the majority and the administrative law judge insofar as their finding of no preexisting psychological disability.

Even the employer's own records, coming from the Chrysler Clinic which provided care to its employees, support the finding that employee had psychological issues prior to her February 2009 primary injury. Her longstanding issues related to "abusive childhood and multiple failed marriages," are evidence of that. Award, page 3. This is included as a finding of fact in the award, but is not elaborated on by the administrative law judge. Employee had reported childhood abuse to several of the evaluators who interviewed her. She had prior mental health care and treatment over several years prior to 2009. One doctor recorded employee's report of a prior suicide attempt as a teenager, although no medical record confirms this.

Preceding the February 2009 work injury, employee had been seeing Elaine Toon, LPC, in therapy through the employer's clinic program as shown in the records in 2008. She had been admitted on more than one occasion to the employer's stress day program, due to difficulties observed by her supervisor at work, again prior to the February 2009 injury. Employee testified about frequent instances of being tearful at work, and difficulties keeping up because of her anxiety and mental health.

In late March 2009, shortly after her injury while employee was still off work, she was hospitalized for suicidal ideation. While the cause of the episode at that time appeared to be connected more directly to a situation regarding her marriage and family, the closeness in proximity to her last several months of work and not long after her counseling with Ms. Toon suggest this was a problem ongoing for some time.

Employee's abuse in childhood, as related by employee to Dr. Sky was found to result in a diagnosis of post-traumatic stress disorder (PTSD) at the time of his examination on May 15, 2017, along with major depressive disorder, recurrent, and generalized anxiety disorder. Elaine Toon had similar diagnoses in Dec 2007, in addition to a gambling addiction, which Dr. Sky found to have been resolved.

Employee also recalled treatment for psychological issues in 2001, and reported depressed and anxious feelings to medical providers over several years, prior to the work injury. Medical records support that she was prescribed anti-depressant medications in years prior to her work injury.

As opined by Dr. Sky, employee had a preexisting psychological disability. I would adopt a rating in the range of 20-35 % body as a whole for this disability. As opined by Dr. Sky, this preexisting disability was a hindrance or obstacle to obtaining and

maintaining employment and it combined with her primary injury for a greater disability. I would find employee's overall disability, as a synergistic combination with her primary injury, the right shoulder, incontinence and psychological disability to be greater than a 331 / 3 % load factor, but short of permanent total disability.

The reason I am not convinced of permanent total disability as a combination of the preexisting and primary injuries I have identified, is that the medical evidence does not clearly establish the level of post-primary injury worsening of her psychiatric condition, as opposed to what can be attributed to the preexisting disability at the time of injury. Employee's primary injury was in February of 2009. She was off work for a significant period of time thereafter for treatment. She then chose to retire. She made various changes in her life. It wasn't until 2017, eight years later, that Dr. Sky had the opportunity to evaluate employee's mental condition. Likewise, Mr. Lalk's evaluation which found permanent total disability, was based on his examination of the employee five years post-injury (July 15, 2014), and while closer in time, still does not clearly establish the level of employee's disability at the time of the primary injury in this regard. ${ }^{9}$ Many of the records Mr. Lalk reviewed relative to psychiatric issues were long after the date of the primary injury. Employee also had some significant life events that occurred after she left employment, including a divorce and the death of a spouse.

Because I disagree with the majority and the administrative law judge regarding the existence of a permanent partial disability to employee's psyche that preexisted her work injury, I must dissent. I would find her combined disability for Second Injury Fund liability purposes to include PTSD, major depressive disorder-recurrent and generalized anxiety disorder. Therefore, I would increase the level of Fund liability to reflect that additional preexisting disability.

I respectfully dissent.

Shalonn K. Curls, Member

[^0]

[^0]: ${ }^{9}$ Mr. Lalk met with the employee to interview and evaluate her on July 15, 2014, but wrote a report August 4, 2017, with a supplemental statement on October 23, 2018. Transcript page 592. The Award at page 4 , only notes the year of his report as 8 years post-injury.

Employee: Patricia Parrish

Dependents: N/A

Employer: Chrysler, LLC

Additional Party: Second Injury Fund

Insurer: Old Carco, LLC

Hearing Date: March 6, 2019

Injury No.: 09-015610

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JED

1. Are any benefits awarded herein? Yes

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: February 10, 2009

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

1. Was above Claimant in employ of above Employer at 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 Claimant was performing and how accident occurred or occupational disease contracted: Employee performed repetitive hand task, including use of vibratory tools, on an automobile assembly line.

1. Did accident or occupational disease cause death? No Date of death? N/A

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

1. Nature and extent of any permanent disability: 16% of each hand; 32.52 additional weeks PPD from SIF.

1. Compensation paid to-date for temporary disability: None

1. Value necessary medical aid paid to date by Employer/insurer? $18,481.67

Revised Form 31 (3/97)

Page 1

1. Value necessary medical aid not furnished by Employer/insurer? None
2. Employee's average weekly wages: $\ 1,014.23
3. Weekly compensation rate: $\$ 676.15 / \ 404.66
4. Method wages computation: Stipulation

1. Amount of compensation payable:

56 weeks of PPD payable by Employer/Insurer

(settled)

1. Second Injury Fund liability: Yes

32.52 weeks of PPD payable by SIF

$\ 13,159.54

TOTAL:

$\ 13,159.54

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

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to Claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to Claimant:

Nancy Mogab

Issued by DIVISION OF WORKERS' COMPENSATION

injury Number: 09-015610

Employee: Patricia Parrish

Dependents: N/A

Employer: Chrysler, LLC

Additional Party: Second Injury Fund

Insurer: Old Carco, LLC

Hearing Date: March 6, 2019

Injury No.: 09-015610

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JED

This case involves a compensable repetitive trauma injury to Claimant resulting to Claimant in 2009. Employer previously settled its risk of liability. The Second Injury Fund ("SIF") remains a party to this case. Both parties are represented by counsel. The single issue for trial is the liability of the SIF. Claimant alleges permanent total disability on complex medical issues.

1. Claimant began work at Chrysler in 1984 and worked 25 years before the plant closing in St. Louis in 2009 and her retirement. Claimant testified at length about her experience with employer in parts and assembly work. She detailed her transfer to St. Louis from Alabama and the transition into the new positions.

1. Claimant sustained injury by repetitive trauma to her hands and wrists on the reported injury date. Claimant was diagnosed with CTS and underwent bilateral surgical releases.

1. Claimant settled this primary injury for 16 percent PPD of each hand (without reference to psychiatric disability).

1. Claimant testified at length about abusive childhood and multiple failed marriages, the details of which are not set forth here.

1. Claimant 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 characterization of the primary injury exceeded reasonable inferences that might be made from the approved settlement value.

1. In 2003, Claimant strained her right shoulder. No records are in evidence regarding this injury. She apparently continued work without accommodation and controlled symptoms with Tylenol.

WC-32-R1 (6-81)

Page 3

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 09-015610

1. In 2008, Claimant was diagnosed with stress incontinence and underwent bladder surgery. Recovery was complicated with infections and persistent urinary incontinence. She continues to experience problems.

Threshold Evidentiary Objections

Claimant's Exhibit 4 - Letters

The SIF raised an objection to the admissibility of Exhibit 4 as (1) unauthenticated and (2) inadmissible hearsay. The objection is well-taken. The two-page Exhibit consists of two letters by Dr. Michael Cometa, a licensed psychologist from Alabama. The first is dated 2002, and is addressed "To Whom It May Concern." It contains broad statements of diagnosis and disability without details or a records foundation. The second page is a status letter to Dr. Judy Isenberg. Both objections are sustained and the Exhibit is excluded.

Claimant's Exhibit 16 -

Mr. Lalk's Report & Deposition

Claimant offered the deposition of Mr. Timothy Lalk as Exhibit 16. He examined Claimant and reviewed the record in 2017 (8 years post-injury). Mr. Lalk testified that Claimant was unemployable in the open labor market. The SIF raised a threshold objection to the admissibility of Mr. Lalk's deposition on the basis that Mr. Lalk reviewed and relied on the forensic report of Dr. Eli Shuter (deceased). The objection is well-taken. As argued, Mr. Lalk details Dr. Shuter's comprehensive rating report at two places in his review portion and, later in the report, just preceding his Summary and Conclusions. At deposition, Mr. Lalk expressly admits he reviewed and relied on Dr. Shuter's findings in forming his own conclusions (p. 55). Accordingly, Exhibit 16 is excluded from evidence on the basis of hearsay. Bruflat v. Mister Guy, Inc., 933 S.W.2d 829, 833 (Mo.App. 1996).

Opinion Evidence

Dr. Volarich

Claimant offered the deposition and narrative reports of Dr. David Volarich as Exhibit 15. Dr. Volarich examined Claimant in 2018 (9 years post-injury). He examined Claimant and reviewed the available medical records.¹ Noteworthy here is that Dr. Volarich's narrative report (dated 2018) is silent on Claimant's psychiatric condition except for the phrase she has chronic psychiatric illness:

She tells me she had a stroke last week and she has chronic psychiatric illness.

Dr. Volarich apparently did not review any psychiatric medical records. (Exhibit 15; Depo Ex. 2, p. 5)

¹ Dr. Volarich's review of various legal assessments is unexplained. (See Exhibit 15; Depo Ex. 2, p. 11.)

WC-32-0.1 (6-81)

Page 4

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 09-015610

Dr. Volarich diagnosed pre-existing stress incontinence, the primary injury as treated for bilateral CTS and a right shoulder strain from 2008. He assigned a 2.5 percent PPD as per his reference to the settlement of the incontinence claim, 20 percent PPD of each wrist and 20 percent PPD to the right shoulder. In the rating portion of his report, Dr. Volarich specifically references Mr. Lalk's assessment that Claimant was permanently and totally disabled primarily as a result of her psychiatric disorders with which assessment Dr. Volarich concurred. As discussed above, Mr. Lalk's opinion is inadmissible. Accordingly, this portion of Dr. Volarich's opinion evidence is excluded from evidence.

Dr. Sky - Psychiatrist

Claimant offered the deposition and narrative reports of Dr. Adam Sky, psychiatrist, as Exhibit 14. Dr. Sky examined Claimant and reviewed medical records. Family history includes early teenage marriage with two daughters with whom she has poor relationships, multiple marriages. On examination, Claimant was oriented and exhibited fluid speech without any indication of confusion, phobia or dissociative disorder. She exhibited average intelligence. Testing revealed moderate to severe depression and anxiety along with post-traumatic stress disorder. She had driven eight hours from Alabama for her IME with Dr. Sky.

Foundation - Objection

In the opening portion of his deposition, Dr. Sky, acknowledges reviewing Dr. Cometa's letters (Ex. 4) and, in response to a leading question, that characterized the letters as "records," acquiesces in the character of the exhibit as [medical] records. Objection was timely (p. 14). The representation to Dr. Sky, as a witness, that the materials from Dr. Cometa are "records" is misleading to the reader. As discussed above, Exhibit 4 is inadmissible as unauthenticated and as inadmissible hearsay. Even if admissible, the letters are not treatment records that might otherwise be certified as business records. While no portion of Dr. Sky's deposition may be stricken, the extent to which Dr. Sky relied on the letters goes to the weight of his opinion.

Also noteworthy, is the witness' acknowledgement that Dr. Chilikammari's pre-accident records are not in evidence. Only his 2009-2010 records are in evidence. Still further, a brief hospitalization March 23-27, 2009 at St. Anthony's (St. Louis), following her February retirement is referenced but Dr. Sky admits he did not actually review those records.

Accordingly, Dr. Sky's suggestion that pre-existing psychiatric illness is well documented is not persuasive. This is especially important with regard to critical events such as alleged states of Claimant being suicidal before the reported injury.

Seven Day Rule Objection

The SIF objected to Claimant's attorney's effort to recast or enlarge the breath of Dr. Sky's permanent disability opinion by incorporating (1) the stress incontinence and (2) the CTS "to render her unable to compete in the open labor market and, therefore, totally and permanently disabled[.]" (pp. 40-41.) Dr. Sky had, a few pages earlier, opined per his narrative report to a 35 percent pre-existing psychiatric PPD and a 100 percent psychiatric disability as a result of the combination of her "pre-existing permanent partial psychiatric disability synergistically

WC-32-R1 (6-81)

Page 5

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 09-015610

combined with her primary occupational disease." (p. 33) The earlier statement, as quoted makes no mention of stress incontinence.

Upon review, the Compromise Lump Sum Settlement only references, as pertinent, repetitive trauma and hand and wrist PPD. It mentions no psychiatric PPD. Further, such a settlement under the statute carries an adjudicative signature and it may be fairly inferred that the underlying medical record for the settlement vetted any claim of psychiatric PPD having arisen out of the CTS claim. Indeed, the February 8, 2010 settlement is supported by a final examination and rating report dated September 22, 2009 from Dr. David German, hand surgeon. Dr. German assigned a PPD rating with no mention of a psychiatric feature secondary to the CTS:

"[Claimant] was doing very well with at least 75-80 improvement in symptoms." (See Exhibit 1.)

Dr. Sky describes a period of treatment for depression per Claimant's history beginning in Alabama as early as 2001, but he has no records before 2009. Dr. Pope's record before 2009 are PCP records which contain undeveloped references to "mild distress" and "mood disorder as circled words on the examination forms. Dr. Pope is not a psychiatrist. Thus, the alleged pre-existing psychiatric disability lacks documentation by treatment records, but relies largely on anecdotal evidence from Claimant. Nevertheless, Dr. Sky assigned a 35 percent pre-existing psychiatric PPD and a 100 percent psychiatric disability as a result of the combination of her "pre-existing permanent partial psychiatric disability synergistically combined with her primary occupational disease." Dr. Sky did not apportion the degree of permanent disability related to the primary CTS injury contemplated in Exhibit 1.

Moreover, Dr. Sky did not assign any specific PPD to the "primary occupational disease." The settlement of the primary injury for CTS does not reference any psychiatric disability. (Exhibit 1.) He also believed Claimant would require ongoing treatment for psychiatric symptoms. Thus, Dr. Sky's deposition testimony contains foundation flaws, a valid *Seven Day Rule* objection, and an omission inasmuch as he failed to assign a specific amount of PPD to the primary injury. It must be observed that critical patient history on complex medical treatment remains unverified.

RULINGS OF LAW

Medical causation, which is not within the common knowledge or experience of lay understanding, must be established by scientific or medical evidence showing the cause and effect relationship between the complained of condition and the asserted cause. *McGrath v. Satellite Sprinkler's Sys.*, 877 S.W.2d 704, 708 (Mo. App. 1994). An expert's opinion must be supported by facts and reasons proven by competent evidence that will give the opinion sufficient probative force to be substantial evidence. *Silman v. Wm. Montgomery & Assoc.*, 891 S.W.2d 173, 176 (Mo.App. 1995), citing *Pippin v. St. Joe Mineral Corp.*, 799 S.W.2d 898, 904 (Mo.App. 1990). Any weakness in the underpinnings of an expert opinion goes to the weight and value thereof. *Hall v. Brady Investments, Inc.*, 684 S.W.2d 379 (Mo.App. 1984).

WC-32-R1 (6-81)

Page 6

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 09-015610

In order for the Second Injury Fund to be liable for total disability benefits, claimant must establish that her total disability is due to the combination of primary injury with her then pre-existing disabilities. See *Boring v. Treasurer of Mo., Custodian of the Second Injury Fund*, 947 S.W.2d 483, 489-90 (Mo.App. E.D. 1997). In cases where permanent total disability results only from the combination of the primary injury, the pre-existing conditions and unrelated post primary injury progression of pre-existing conditions, the Second Injury Fund is not liable for permanent total disability. The Second Injury Fund is not liable for any post-accident worsening of an employee's pre-existing conditions which are not caused or aggravated by the last work-related injury or for any conditions which arise after the last work-related injury. *Lammert v. Vess Beverages, Inc.*, 968 S.W.2d 152 (Mo.App. 1994); *Lawrence v. Joplin R-VIII School Dist.*, 834 S.W.2d 789 (Mo.App. 1992).

It is Claimant's burden to prove "not only causation between the accident and the injury but also that a disability resulted and the extent of such disability." *Griggs v. A.B. Chance Co.*, 503 S.W.2d 697, 703 (Mo.App. W.D.1973). A claimant must provide expert testimony where he is asking the court "to discern the percentage of disability attributable to a particular workplace injury where there has been another injury that contributed to the disability." *Bock v. City of Columbia*, 274 S.W.3d 555, 560 (Mo.App. W.D. 2008). Expert testimony is also necessary when the injury is beyond the lay understanding. *Id.* At 561.

Permanent disability must be demonstrated and certified by a physician. See Section 287.190.6(2) RSMo (2016). Here, any award of permanent disability must be certified by either Dr. Volarich or Dr. Sky. With complex medical issues, treatment records alone are not sufficient unless certified by a physician. Psychiatric issues are not within the understanding on lay witnesses.

Claimant's primary settlement is unremarkable for its percentage, or severity, of PPD and the wrist ratings from her medical expert are also quite modest even from the vantage point of the 2018 examination date by Dr. Volarich. Here, Claimant did not meet her burden in proving she was permanently and totally disabled from a combination of her primary occupational disease with her then pre-existing conditions. Claimant is likely permanently and totally disabled only after considering unrelated post-primary injury progression of pre-existing conditions.

Dr. Volarich noted in his narrative report that Claimant described how her right shoulder limitations combined with her hand symptoms, but did not describe any combination between her urinary incontinence and her bilateral CTS. He never found permanent total disability except upon consideration of Mr. Lalk's vocational assessment.

Dr. Sky took a history from Claimant that the CTS surgical releases were not entirely successful inasmuch as she has numbness and tingling in all five right fingers and to a lesser extent on the left. Claimant's settlement, with counsel, belies this characterization. First, the severity of the settled amount of PPD is unremarkable at 16 percent bilaterally, the settlement accords no additional PPD for right hand symptoms, and she returned to work. It is difficult to

WC-32-R1 (6-81)

Page 7

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 09-015610

understand how this modest level of PPD might form the basis of a disability combination that results in permanent total disability.

The medical record does not suggest Claimant needs to avoid all employment but only that which requires heavy lifting or repetitive arm work. Sedentary or retail work seems viable and Claimant's extended experience in one industry (i.e automotive) bolsters this option. Consistent with this analysis is the holding in Ransburg v. Great Plains Drilling, 22 S.W.3d 726 (Mo.App. 2000). In that case, a 60-year-old construction worker fell and required both neck and shoulder surgeries. The record included evidence that the employee was capable of performing sedentary work and received social security benefits and a pension. The employee admitted not having sought alternative employment. The court held employee's testimony itself was sufficient to find he had no motivation to return to work. Social security benefits and a pension are irrelevant for purposes of determining overall disability but are relevant to determine the ability or motivation to return to work. Id.

Similarly, here, Claimant is ambulatory and seems capable of sedentary work and, apparently, had not sought employment after the plant closure. While not exactly on point, the court in Ransburg held that the admission was competent evidence and, thus, it has some probative value here. The admission gains meaning when coupled with the lack of evidence on curtailed activity; Claimant drove eight hours to an IME from Alabama. Claimant no longer actively treats, manages her personal needs, has no domestic help and apparently drives an automobile. This is substantial competent evidence that Claimant's permanent injury is partial, not total.

Allegation of Psychiatric Disability

The record does not contain evidence that suggests Claimant has any psychiatric disability that is medically causally related to the work incident. To the contrary, Claimant's appearance at trial was normal and lacking in any demeanor suggestive of anger or sadness. Nevertheless, domestic problems appear to have followed Claimant into adulthood as evidenced by her multiple marriages and strained relationships with her adult children. Relevant to credibility, however, was Claimant's single reference at trial that she felt "suicidal" yet no pre-Claim hospitalization or treatment records corroborate this assertion.

In addition, substantial psychiatric pre-Claim medical evidence is not in evidence and, based upon Dr. Sky's substantial rating for pre-existing PPD, is based upon Claimant's anecdotal recollection or her patient history to Dr. Chilikammari who treated her post-injury. Incidentally, Dr. Chilikammari's notes also indicate Claimant's alertness and clear speech with no suicidal tendency.

This leaves unclear how Dr. Sky posits the existence of a work related psychiatric diagnosis as expressly stated in his report. His findings also fail to identify any severe disabling upper extremity pain that might predicate a psychiatric disability. He did not rate the primary injury of CTS. Thus, Dr. Sky did not identify a work related psychiatric injury and, second, if, arguendo he could so identify, he did not explain to what degree Claimant's alleged psychiatric condition, or other disability, was due to the work injury as opposed to any pre-existing conditions, or subsequent deterioration. Claimant's psychiatric condition, if any, is not medically

WC-32-R1 (6-81)

Page 8

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 09-015610

documented as pre-existing the reported injury and, thereafter, is not identified by any means as part of the primary CTS injury settled. Again, the record contains no objective pre-Claim evidence of psychiatric disability. The fact of Claimant not working since the plant closing was essentially unexplained at trial. Dr. Sky's analysis and testimony in this case is simply unpersuasive and not a sufficient basis to impose PTD liability against the SIF.

The current disability is determined to be 16 percent PPD of each wrist (56 weeks). The pre-existing PPD referable to urinary incontinence is found to be 2.5 percent PPD of the body (10 weeks). The right shoulder PPD is found to be 15 percent (34.8 weeks). There is neither pre-existing treatment records nor other evidence to support a finding of significant pre-existing psychiatric disability; the absence of any severely disabling pre-existing psychiatric PPD is consistent with Claimant's 25 year service record with Employer up until her voluntary retirement upon closure of the St. Louis plant in 2009.

SIF Liability

SIF liability is premised on the combination of the primary and pre-existing disabilities. Section 287.220.1 RSMo (2000). Again, in order for the SIF to be liable for permanent total disability, an employee must establish that the PTD is due to the combination of the primary injury with the pre-existing disability. Boring, supra. Emphasis is on the pre-Claim conditions that hindered employment not simply an employee's condition at the time of trial.

Here, the medical evidence and other evidence of disability, before 2009 and from the CTS wrist settlement, suggest Claimant's disabilities are a hindrance and obstacle to employment or reemployment. Here, Claimant's primary injury and right shoulder and incontinence conditions constitute common opposing limb and upper body-lower body synergy.

The opinion evidence and other evidence suggest Claimant's combined PPD equates to increased overall PPD of 33 and 1/3 percent of a body, or 133.32 weeks. Thus, after the pre-existing PPD plus the current PPD (100.8) are deducted from the combined disability, the synergistic effect results in an additional 32.52 weeks of PPD liability against the SIF.

Conclusion

Accordingly, on the basis of the substantial competent evidence contained within the whole record, Claimant is found to have sustained an additional 32.52 weeks PPD from the SIF as a result of the combination between the primary injury and the synergistic pre-existing PPD.

I certify that on 6-27-19 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 __________________________

W.C.32-R1 (6-81)

Page 9