Tamara Polston v. State of Missouri, Fulton State Hospital

(Affirming Award and Decision of Administrative Law Judge)

**Injury No. 15-013956**

**Employee:** Tamara Polston

**Employer:** State of Missouri, Fulton State Hospital (Settled)

**Insurer:** CARO (Settled)

**Additional Party:** Treasurer of Missouri as Custodian of Second Injury Fund

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated February 28, 2020, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Bruce Farmer, issued February 28, 2020, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this ______ 11th ______ day of February 2021.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

**DISSENTING OPINION FILED**

Shalonn K. Curls, Member

Attest:

Secretary

The administrative law judge erred in finding that employee is not permanently and totally disabled and therefore precluded from a claim for compensation against the Second Injury Fund pursuant to $\S 287.220 .3(2)$.

On October 14, 2014, a client of employer's state mental hospital 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. That injury is the subject of employee's separate companion claim, assigned Injury No. 14-078566.

The appeal herein involves employee's subsequent March 10, 2015, injury in which a combative client kicked her in the left knee. This appeal implicates employee's prior, October 14, 2014, injury as a preexisting disability.

The administrative law judge denied both claims, finding, as a threshold matter, that employee is not permanently and totally disabled and therefore not eligible for compensation from the Second Injury Fund pursuant to the requirements of $\S 287.220 .3(2)$. In this appeal, the administrative law judge further found that even assuming employee was permanently and totally disabled she failed to meet the requirements of $\S 287.220 .3(2)$ because none of her preexisting work related disabilities met the fifty-week threshold and employee's sole preexisting non-compensable disability, her psychiatric condition, did not aggravate or accelerate her March 10, 2015, left knee.

As discussed in my dissenting opinion in the companion appeal relating to employee's Injury No. 14-078566, I disagree with the administrative law judge's conclusion that employee is not permanently, totally disabled based on his pejorative assessment of employee's credibility and disparagement of her experts' opinions. Common sense dictates that a worker exposed on a daily basis to violent attacks as a security aide in a mental hospital risks mental disability.

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

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.

Dr. A. E. 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 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.

Based on this evidence, employee satisfies § 287.220.3(2) (a) a. (iii) which allows a claim for permanent total disability against the Second Injury Fund where:

(a) a. An employee has a medically documented preexisting disability equaling a minimum of fifty weeks of permanent partial disability compensation according to the medical standards that are used in determining such compensation which is:

(iii) Not a compensable injury, but such preexisting disability directly and significantly aggravates or accelerates the subsequent work-related injury and shall not include unrelated preexisting injuries or conditions that do not aggravate or accelerate the subsequent work-related injury; . .

After employee's October 14, 2014, injury, Dr. Elizabeth Pribor diagnosed her 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 March 10, 2015, assault, fewer than five months after her earlier, even more violent assault on October 14, 2014.

Dr. Daniel, Dr. Raymond Cohen, and vocational expert Ms. 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 based his denial of compensation herein on disparaging employee's credibility and discrediting the expert opinions employee produced regarding the nature and extent of her disability. I find the employee credible. I further find that the weight of the expert testimony in the record supports a finding that employee had preexisting mental disability that exceeded fifty weeks of permanent partial disability and aggravated the disability sustained in her last, March 10, 2015, work-related assault. Pursuant to § 287.220.3, the Second Injury Fund should therefore be liable for permanent total disability. Because the majority finds otherwise, I respectfully dissent.

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: March 10, 2015
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 knee
14. Nature and extent of any permanent disability: Permanent Partial Disability settled by employer
15. Compensation paid to-date for temporary disability: $\ 496.86
16. Value necessary medical aid paid to date by employer/insurer: $\ 22,492.13

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 570.23
3. Weekly compensation rate: $\ 380.15 - TTD/PTD/PPD
4. Method wages computation: Stipulation

1. Amount of compensation payable: None
2. Second Injury Fund liability: None
3. Future requirements awarded: None

Employee: Tamara Polston Injury No.: 15-013956

Dependents: N/A

Employer: State of Missouri

Fulton State Hospital (settled)

Additional Party: Second Injury Fund

Insurer: CARO (settled)

On October 29, 2019, the parties appeared for a final hearing. The Employee appeared personally and through her attorney, Christine Kiefer. The employer and insurer were not parties to the evidentiary hearing, having previously settled with the Employee. The Second Injury Fund appeared through its attorney, George Lankford, Assistant Attorney General. The hearing also addressed Injury No. 14-078566 and the evidence admitted will be considered in both cases. A separate award will issue in Injury No. 14-078566.

The parties agree that the issues in dispute are the nature and extent of the claimant's disability and the liability of the Second Injury Fund for permanent partial or permanent total disability.

The parties stipulated to the following facts:

1. That the Missouri Division of Workers' Compensation has jurisdiction over this claim;
2. That venue for the evidentiary hearing is proper in Cole County;
3. That the claim for compensation was filed within the time allowed by the statute of limitations, RSMO $\S 287.430$;
4. That both the Employer and Employee were covered under the Missouri Workers' Compensation Law at all relevant times;
5. That Claimant's average weekly wage is $\ 570.23 with compensation rates of $\ 380.15 for temporary total disability benefits, permanent total disability benefits, and permanent partial disability benefits;
6. That Employee sustained an accident arising out of and in the course of her employment The State of Missouri- Fulton State Hospital on March 10, 2015;
7. That the notice requirement of RSMO $\S 287.420$ does not serve as a bar to the claim for compensation;

1. That Employer paid medical benefits in the amount of $\ 22,492.13;
2. That Employer paid temporary disability benefits of $\ 496.86;
3. That Central Accident Reporting Office fully insured the Missouri Workers Compensation liability of The State of Missouri- Fulton State Hospital at all relevant times;
4. The employee and employer/insurer entered into a stipulation for compromise lump sum settlement for $\ 10,644.20 based on the approximate disability of 17.5 % of the left knee at the 160 -week level.

Claimant testified at the hearing in support of her claim. Claimant offered the following exhibits: