Tamara Polston v. State of Missouri, Fulton State Hospital

injuries or conditions that do not aggravate or accelerate the subsequent work-related injury; or

(iv) A preexisting permanent partial disability of an extremity, loss of eyesight in one eye, or loss of hearing in one ear, when there is a subsequent compensable work-related injury as set forth in subparagraph b of the opposite extremity, loss of eyesight in the other eye, or loss of hearing in the other ear; and

b. Such employee thereafter sustains a subsequent compensable work-related injury that, when combined with the preexisting disability, as set forth in items (i), (ii), (iii), or (iv) of subparagraph a. of this paragraph, results in a permanent total disability as defined under this chapter . . .

We affirm the administrative law judge's determination that "Claimant is not permanently and totally disabled as a result of the October 2014 [primary] injury alone, or as a result of the October 2014 injury combined with any pre-existing conditions. Therefore, there is no Second Injury Fund liability as it relates to the October 14, 2014 injury." Award, p. 11.

We defer to the administrative law judge's first-hand assessment of employee's credibility, outlined in his award with respect to employee's companion claim in Injury No. 15-013956, tried in conjunction with this matter. The administrative law judge specifically discredited employee's testimony regarding her limitations, symptoms, physical and psychiatric conditions. He further found employee's subjective complaints unsupported by objective medical evidence.

We credit the opinion of board-certified neuropsychologist Dr. Michael Oliveri, who found that the employee demonstrated symptom magnification suggestive of secondary gain motivation. Dr. Oliveri declined to endorse a diagnosis of post-traumatic stress syndrome related to employee's work injury. We find Dr. Oliveri's expert opinion more credible than that of Dr. A. E. Daniel, who found employee permanently and totally disabled based on a combination of her current psychiatric disability and preexisting disability. Based on our deference to the administrative law judge's assessment of employee's credibility we attribute little weight to vocational expert Kristine Skahan's opinion, based on employee's subjective complaints, that employee is unable to compete in the open labor market.

We affirm the administrative law judge's finding that employee is not permanently and totally disabled as a result of disability resulting from her October 2014 injury, nor did this injury combine with employee's prior disability to result in total and permanent disability pursuant to the provisions of $\S 287.220 .3(2)$. We affirm the administrative law judge's conclusion that the Second Injury Fund has no liability in this case.

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

The award and decision of Administrative Law Judge Bruce Farmer, issued February 28, 2020, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

Given at Jefferson City, State of Missouri, this $\qquad 11th \qquad$ day of February 2021.

LABOR AND INDUSTRIAL RELATIONS COMMISSION


Robert W. Córnejo, Chairman


Reid K. Forrester, Member

DISSENTING OPINION FILED

Shalonn K. Curls, Member

Attest:

$\square$

The administrative law judge erred in finding that employee is not permanently and totally disabled and therefore precluded from an award of compensation against the Second Injury Fund pursuant to § 287.220.3(2).

Section 287.020.6 defines total disability "as the ability to return to any employment and not merely the inability to return to the employment in which the employee was engaged at the time of the accident." The test for permanent and total disability is whether, given the employee's situation and condition, she is competent to compete in the open labor market. Reiner v. Treasurer of the State of Missouri, 837 S.W.2d 363, 367. The most important question is whether an employer in the usual course of business would reasonably be expected to employ the employee in her present physical condition. Id. at 367. Additional factors such as work, experience, education, and age may be considered in determining employability. Reves v. Kindell's Merc. Co., Inc., 793 S.W.2d 917 (Mo. App. 1990).

Employee worked as a security aide in employer's state mental hospital. On October 14, 2014, one of employer's clients hit employee multiple times in the back of the head and neck, slammed her against a counter, threw employee to the floor, and continued to hit and kick employee, ultimately throwing a chair at her. Not only did employee's October 14, 2014, work accident result in disability, her forced viewing of a video of the assault sent employee into a severely mentally impaired state. After watching the video of the assault, employee started having nightmares, paranoia, and anxiety, depression, and memory problems.

It is significant that employee was in a delicate psychiatric state leading up to her October 14, 2014, violent assault. She took Paxil, Depakote, and Xanax and had started to have sleep problems due to her fears about attacks at work.

After the October 14, 2014, injury, Dr. Elizabeth Pribor diagnosed employee with preexisting bi-polar disorder. Increases in employee's medications led to her being groggy and unable to work. Employee had trouble doing her job due to her highly increased fears at work. She was fearful of an assault, and watched patients assault her co-workers. She became increasingly anxious about violence at the workplace. Employee was perfectly situated to have a highly disabling response to her subsequent assault on March 10, 2015, the subject of employee's companion claim.

Dr. Daniel outlined employee's prior mental health issues. His testing showed "depression including low mood, feelings of guilt and worthlessness, anxiety." He found the October 2014 injury to result in PTSD. Dr. Daniel found that employee had preexisting disability of 20 % of the body as a whole due to her preexisting psychiatric condition. He found her to be permanently and totally disabled "due to a combination of her current psychiatric disability and her preexisting disability." Transcript, 759.

Vocational expert Kristine Skahan pointed out that the employee was on psychiatric medications due to anxiety prior to her October 2014 injury at Fulton State Hospital. Employee's problems with persistence, concentration, and pace, as outlined by

Dr. Daniel, lead to inability to compete in the open labor market, as all jobs require employees to sustain these characteristics.

Dr. Daniel, Dr. Raymond Cohen, and vocational expert Kristine Skahan are all of the opinion that the employee is unable to compete in the open labor market and is permanently and totally disabled. The employee's testimony supports this finding. The Second Injury Fund offered no evidence to dispute the opinion of employee's vocational expert in this case.

The administrative law judge's denial of compensation in this case, based on disparaging employee's credibility and discrediting employee's experts regarding the nature and extent of employee's disability, precludes an award of compensation in employee's companion appeal in Injury No. 15-013956, involving a second violent assault employee sustained while working for this employer.

Because I find the employee credible and further because the weight of the expert testimony in the record supports a finding of permanent total disability, I respectfully dissent.

Shalonn K. Curls

Shalonn K. Curls, Member

Employee: Tamara Polston

Injury No.: 14-078566

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: State of Missouri

Fulton State Hospital (settled)

Additional Party: Second Injury Fund

Insurer: CARO (settled)

Hearing Date: October 29, 2019

Briefs filed: December 11, 2019

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: October 14, 2014
5. State location where accident occurred or occupational disease was contracted: Callaway County
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee assaulted by a patient.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Left shoulder, neck, psychiatric
14. Nature and extent of any permanent disability: Permanent Partial Disability settled by employer
15. Compensation paid to-date for temporary disability: $\ 16,418.04
16. Value necessary medical aid paid to date by employer/insurer: $\ 45,575.68

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 676.53
3. Weekly compensation rate: $\ 451.02
4. Method wages computation: Stipulation

1. Amount of compensation payable: None
2. Second Injury Fund liabil