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:

The Second Injury Fund offered Exhibit I, Dr. Oliveri's report. All exhibits were admitted without objection.

Claimant is 49 years old and currently resides in Kingdom City, Missouri. She did not complete high school, but did obtain her GED. Her work history includes a variety of jobs ranging from sedentary to heavy and unskilled to skilled such as detailing cars at a car wash, working as a waitress and a cashier, and stocking inventory at a parts store. In 1994, Claimant obtained a certificate in office technology. She then worked for the Department of Revenue and Department of Mental Health and Department of Natural Resources as a clerk/typist II.

In 1994, Claimant began work at the Fulton State Hospital as a Security Aide I. She supervised patients, kept notes on their behaviors, and responded to emergencies in the hospital. The job required her to run and respond quickly when patients were being combative. She had to restrain patients which required bending, stooping, kneeling, lifting, pushing, and pulling. At times, she was required to be "one-on-one" with a patient which required her to stay close to a particular patient during her shift; this could result in her sitting for several hours at a time without the ability to get up and stretch or walk around.

On March 10, 2015, Claimant was assisting with a combative patient and was kicked in the left knee. She treated conservatively at first but an MRI showed a meniscus tear on July 20, 2015. (Ex. 7) Claimant then underwent surgical repair by Dr. King on August 4, 2015. The surgery was an arthroscopic partial medial meniscectomy. (Ex. 9) He released her at MMI on October 1, 2015. However, due to ongoing complaints, she had additional injections and physical therapy.

Dr. King fully released Claimant on March 3, 2016. On that day, the physical examination showed full range of motion, no sign of any effusion, and no medial or lateral McMurray's. (Ex. 10). While there was some tenderness over the lateral retinaculum, her neurovascular exam was intact with normal gait. Dr. King found that functionally Claimant had all of her normal abilities. Dr. King had no explanation and no treatment to offer for Claimant's subjective complaints. (Ex. 10).

Claimant settled this claim with the employer for 17.5 % of the left knee.

While at work on October 14, 2014, a client assaulted Claimant. He hit her multiple times in the back of the head and neck, slammed her against a counter, threw her to the floor, continued to hit and kick her, and threw a chair at her. Claimant went to the Callaway Community Hospital. A CT of the lumbar area revealed degenerated discs at L5-S1 with posterior spondylitic spurring. A CT of her face was interpreted as negative. A CT of her head was interpreted as negative. Claimant returned to work after one day off. On December 12, 2014, Dr. Runde referred Claimant for a psychiatric evaluation.

Dr. Pribor, a psychiatrist, evaluated Claimant and found that she had pre-existing bi-polar disorder and alcohol use disorder. She had periods of manic behavior in her past with compulsive shopping, inability to sleep, hoarding, and then periods of depression where she would sleep constantly and have no desire to do anything else. She was also diagnosed with a pre-existing personality disorder. Dr. Pribor found that, since the assault at work, Claimant now suffered from PTSD, manifesting with paranoia, nightmares, flashbacks, triggers when she saw people that resembled her attacker. She indicated that the "symptoms from bi-polar disorder sometimes overlap with those from PTSD and she needs to have bi-polar disorder treated to have her fully in remission." (Ex. 1)

The employer sent Claimant for treatment with Dr. Amin, a psychiatrist. She diagnosed her with an adjustment disorder and recommended therapy; she also prescribed Lexapro and Prazosin (for nightmares). (Ex. 2) Claimant began counseling with Christina Arth. She was having nightmares, flashbacks, depression, fear of leaving the house, and severe anxiety in returning to work. She was diagnosed again with PTSD. (Ex. 18-19)

Claimant eventually settled her claim with the employer for 2.5 % of her left shoulder, 2.5 % of her cervical spine, and 10 % body as a whole referable to her psychiatric symptoms. The settlement included future medical treatment "for specific medications related to nightmares and post-traumatic stress disorder, to the extent that such treatment is directly related to and necessary as a result of the alleged work related injury that occurred on October 14, 2014."

On July 12, 2014, a client assaulted Claimant. Dr. Runde diagnosed left neck and shoulder pain and subsequently placed Claimant at MMI on April 28, 2015. Due to persistent tingling in her left hand, Claimant saw Dr. Brown who performed left carpal tunnel release on her left wrist and released her to full duty without restrictions on October 25, 2017. This injury settled with employer for 15 % of the left wrist and 2.5 % of the left elbow.

In the 1990's, Claimant suffered an injury to her right elbow while at work, but it healed with no ongoing symptoms. She had no other ongoing physical injuries or symptoms leading up to her employment at Fulton State Hospital.

Psychiatrically, Claimant began having issues with depression in 1993 when her mother died. She also began to struggle with alcohol dependence which resulted in legal proceedings and the loss of her driver's license for 10 years. After her mother's death, Claimant's depression reached a level that lead her to check herself into the psychiatric ward of a local hospital. She then began using medications to treat her depression. In 2012, she went to her primary care physician for psychiatric symptoms. She testified that she had anxiety about the violent atmosphere at her job. Claimant began taking Depakote and Xanax for anxiety. She was also on and off different psychiatric medications including Celexa, Prozac, and Paxil.

Claimant continues to treat with Dr. Pribor and continues to take Prazocin as she prescribes (medical left open and covered by the insurer). Dr. Pribor provided a rating on March 12, 2019 of

5 % psych for stemming from the work injury and 20 % psych for pre-existing psychiatric conditions. (Ex. 20) She also continues to take Lexapro and Depakote as prescribed by her primary care physician.

When asked to explain her ongoing problems, Claimant testified that her knee catches and gives out on her and has caused her to fall. It is painful when she sits for over 20 minutes, stands for over 15 minutes, or walks more than 1-2 blocks. She continues to have trouble with stairs, stooping, and standing for even short periods. She testified that her knee is most comfortable when sitting with one leg under the other. She has ongoing difficulty with stairs, stooping, and sitting or standing for long periods. She put up railings at her home to help with stairs.

When asked about options for employment, Claimant testified that, due to her knee, she cannot sit for long periods and has to change positions every 15 minutes. She could not return to her last job due to requirements to sit or stand for long periods and her inability to stoop or kneel. She said she has too much anxiety to return to this environment. Claimant testified that she could not do office work because she cannot type because of symptoms in her upper extremity. She also testified that she cannot sit for more than 15 minutes at a time at a desk job due to knee pain.

Claimant testified that her psychiatric symptoms affect her ability to do any job as she struggles to focus, concentrate, or remember instructions. She is unable to stay on task. She also claims to have anxiety when leaving the house, trouble being or interacting with the public, and fear of strangers talking to her or coming to her home. She interacts with friends and family rarely and is not comfortable in social situations.

Claimant was evaluated by Dr. Daniel in February 2018. At the time of the evaluation, Claimant reported experiencing "nightmares, disturbed sleep, mild paranoia, not wanting to leave home, poor memory, poor concentration and confusion." Dr. Daniel administered psychiatric testing, reviewed medical records, and met with Claimant. He diagnosed her with PTSD and that the prevailing factor in leading to this condition was the workplace attack on October 14, 2014. Dr. Daniel found that the "workplace accidents dated July 12, 2014 and March 10, 2015 did not cause any psychiatric problems." (Ex. 22)

Dr. Daniel also found her to have a pre-existing condition of Bipolar II. Dr. Daniel assigned a 20 % disability rating referable to the PTSD from the October 14, 2014 injury and 20 % referable to the pre-existing condition of Bipolar II. He found her to be at MMI but in need of ongoing psychotherapy and medication. He also concluded that the "combined disability exceeds the numeric sum of the individual disability caused by the pre-existing condition and the disability caused by the work injury. Ms. Polston is now totally disabled due to the combination of her current psychiatric disability and her pre-existing disability." He further concluded, "Ms. Polston is unable to compete in the open labor market due to her psychiatric conditions, particularly due to inability to maintain sustained attention, concentration and mood stability. She is unable to work in an environment like the situation where the injury occurred." (Ex. 22)

Claimant was also evaluated by Dr. Cohen on April 16, 2018. His diagnoses and ratings are as follows:

1. July 12, 2014- left elbow strain/sprain; s/p left wrist surgical release for carpal tunnel syndrome ( 15 % wrist, 5 % elbow, consistent with prior settlement)
2. October 14, 2014- post-traumatic vascular headaches, cervical strain/sprain, left shoulder sprain/strain, PTSD ( 15 % neck, 10 % shoulder, defer PTSD to psychiatrist)
3. March 10, 2015- s/p knee surgery for left knee medial meniscus tear ( 15 % knee, consistent with prior settlement)

Dr. Cohen also diagnosed pre-existing anxiety disorder and depression

Further, Dr. Cohen opined that her pre-existing conditions or disabilities from the July 2014 and October 2014 injuries combined with the last injury to create a greater disability than their simple sum. He found her pre-existing conditions were a hindrance or obstacle to her employment. He concluded, "due to the combination of all of the disabilities, it is my opinion Ms. Polston is permanently and totally disabled and not capable of gainful employment in today's open labor market. This permanent total disability, in my opinion, is due to a combination of the last injury combined with her prior injuries."

Dr. Cohen also stated, "In regard to the synergistic effect of the primary work related injury to the left knee from the work related injury of March 10, 2015 and the pre-existing disabilities to her left elbow, left wrist, cervical spine, and head, she would have difficulty working in any occupation in which she would have to do any repetitive use of the left elbow and left shoulder, no lifting more than 10 pounds except on rare occasion. No repetitive pushing or pulling with this extremity. Limited overuse with the left shoulder."

Dr. Cohen also stated, "She should be restricted from any repetitive use of the left hand, forceful use of the left hand, no exposure to vibration, no keeping the wrist or hand in any type of awkward position, and no work or activity in which fine touch or use of the fingers on small objects is required. Due to the severity of the headaches, she should be allowed to go into a dark quiet room if needed. If the headache does not resolve within 2 hours, she should be allowed to go home. She should be restricted from any worker activity in which she does any repetitive movements of the head and neck, no sustained positions of the neck, and no keeping the head and neck in any type of awkward position.'"

In conclusion Dr. Cohen stated, "Due to the combined or cooperative action of forces of the injuries to her left knee from the primary injury along with the pre-existing conditions to the left elbow, left wrist, left shoulder, head and neck this would cause her to have great difficulty doing those types of work." (Ex. 23)

Kristine Skahan, a certified vocational counselor evaluated the Claimant on October 8, 2018. She met with Claimant, administered vocational testing, reviewed medical records, and reached conclusions regarding Claimant's ability to work and compete in the open labor market. She found her restrictions put her in the "less than sedentary" category, and there are not jobs that are less than sedentary. If one puts aside the restrictions of Dr. Cohen addressing the upper extremity, she is still unable to work due to the need to lie down in a dark room with headaches, and due to the opinion from Dr. Daniel regarding her psychiatric limitations. The inability to concentrate, work at a normal pace, maintain attention and mood stability took her out of the labor

market. She concluded that the claimant was permanently and totally disabled and unable to compete in the open labor market based on the combination of neck, shoulder, elbow, knee, head injuries. (Ex. 24)

Dr. Oliveri, a board certified neuropsychologist, evaluated Claimant on November 2, 2015. The evaluation consisted of a clinical interview, formal neuropsychological testing, and review of pre-and-post-injury medical records. (Ex I) The evaluation noted numerous issues with validity:

"performance validity was marginal;"

"qualified validity due to marginal performance validity findings;"

"grossly invalid profile at an uninterruptible level due to indications of symptom overendorsement:"

"she endorsed an excessive number of infrequent responses at uncommon levels even for individuals with genuine severe psychopathology;"

"her level of endorsement suggests non-credible levels of reporting in somatic and cognitive (memory) domains;"

"due to symptom over endorsement, further interpretation is contraindicated:'

Dr. Oliveri concluded:

"Invalid levels of symptom reporting raising concern of symptom over-endorsement. Overall, her psychological symptom reporting cannot be taken at face value. Such findings raise concern for symptom magnification. Due to invalid levels of symptom reporting (exceeding psychiatric reference groups), the diagnosis of PTSD is not supported."

"Evaluation results do not provide support for residual acquired brain-behavior dysfunction. Her performance is atypical for patients with residual acquired brain injury (in relation to the nature of the injury in this case)."

"Evaluation results do not provide a valid representation of an acquired psychiatric condition due to the 10/14/2014 injury in light of invalidity. The invalidity is more in keeping with features of symptom magnification. Her current presentation is better explained by psychological factors, such as longstanding anxious coping unrelated to the injury, and/or behavioral/motivational factors (secondary gain)." (Ex. I)

In determining whether the Second Injury Fund has liability, the first determination is the amount of disability from the work injury of October 2014. If the last injury alone renders the claimant permanently and totally disabled, then any pre-existing disabilities are irrelevant, and SIF has no liability. In that case, the employer alone is responsible for the permanent total disability benefits. Patterson v. Central Freight Lines, 452 SW 3D 759, 764 (Mo. App. 2015).

The term "total disability" is defined as the "inability 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." Section 287.020. The test for determining permanent total disability is whether the employee is able to compete in the open labor market. Scott v. Treasurer of the State of

Missouri as Custodian of the Second Injury Fund, 417 S.W.3d 381, 386 (Mo. App. 2014). Missouri courts have determined that in cases involving PTD, the Fund is only liable when the PTD is the result of a combination of a preexisting partial disability and a disability from a subsequent injury and it has no liability if the claimant is rendered permanently and totally disabled as a result of the last injury alone. Loven v. Greene County, 63 S.W.3d 278, 283 (Mo. App. 2001). The court went on to state that any impairment the claimant had from the preexisting injury was "irrelevant unless it combines with the second injury to produce a greater disability than would have resulted from the last injury itself." Id. at 81 .

The March 10, 2015 date of injury in this case falls under section 287.220 as amended by the General Assembly in 2013. The Missouri Supreme Court recently held that "Section 287.220.3 applies to all PTD or PPD claims against the fund in which any injury arising out of or in the course of employment, including the subsequent compensable injury, occurred after January 1, 2014." Cosby v. Treasurer of the State of Missouri-Custodian of the Second Injury Fund, 579 S.W.3d, 202, 207, (Mo. banc 2019).

In pertinent part, section 287.220 .3 reads as follows:

(1) All claims against the second injury fund for injuries occurring after January 1, 2014, and all claims against the second injury fund involving a subsequent compensable injury which is an occupational disease filed after January 1, 2014, shall be compensated as provided in this subsection.

(2) No claims for permanent partial disability occurring after January 1, 2014, shall be filed against the second injury fund. Claims for permanent total disability under section 287.200 against the second injury fund shall be compensable only when the following conditions are met:

(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:

(i) A direct result of active military duty in any branch of the United States Armed Forces; or

(ii) A direct result of a compensable injury as defined in section $\underline{287.020}$; or

(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; 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; . . .

The claimant in a workers' compensation case has the burden to prove all the essential elements of her claim. Jefferson City Country Club v. Pace, 500 S.W.3d 305, 313 (Mo. App. 2016).

Claimant has failed to meet her burden of proof. The last injury alone to the left knee does not support a PTD finding. The surgery was an arthroscopic partial medial meniscectomy. Dr. King's final physical examination showed full range of motion, no sign of any effusion, and no medial or lateral McMurray's. (Ex.10). While there was some tenderness over the lateral retinaculum, her neurovascular exam was intact with normal gait. Dr. King found that functionally Claimant had all of her normal abilities. Dr. King had no explanation and no treatment to offer for Claimant's subjective complaints. (Ex. 10). Dr. King released Claimant to full duty without restrictions.

Claimant's primary argument is that she is PTD due to the combination of the primary injury and her pre-existing disabilities. Here, too, Claimant has failed to meet her burden of proof. First, I do not find Claimant's testimony credible regarding her limitations, symptoms and physical and psychiatric conditions. I find that her subjective complaints are not supported by the objective medical evidence.

This finding is supported by the medical evidence. Dr. Oliveri, a board certified neuropsychologist, issued a report that raises serious questions about Claimant's credibility and renders suspect any medical opinion that relies primarily on Claimant's subjective complaints. Dr. Pribor's records note that Claimant presents with "an atypical presentation where her reported symptoms do not match with her mental status exam." (Ex. 1) Dr. Pribor documents "gross exaggeration" of her complaints. Id. ("When one looks at her presentation objectively, one does not see the symptomatology that she complains about.")

Dr. Daniel, Claimant's retained expert, noted that Claimant's test response "resembles that of individuals that report an unusual number of psychological symptoms which may reflect an exaggerated picture of their current psychological problems." (Ex. 22) While Dr. Daniel concluded that Claimant's psychiatric condition was caused by the October 14, 2014 incident, I do not find his opinions credible in light of the substantial medical documentation of Claimant's symptom magnification and exaggeration.

Likewise, I reject Ms. Skahan's opinions regarding Claimant's ability to compete in the open labor market as her opinions are based primarily on Claimant's subjective complaints and medical opinions that rely on those subjective complaints.

Therefore, I find that the Claimant has failed to prove that she is permanently and totally disabled.

Here, assuming Claimant is permanently and totally disabled, her pre-existing conditions do not meet the requirements of section 287.220.3. Specifically, Claimant's pre-existing work injury of October 14, 2014 does not reach the 50 -week threshold. The settlement agreement entered into evidence at trial provides ratings of 2.5 % of her left shoulder ( 5.8 weeks), 2.5 % of her neck ( 10 weeks), and 10 % body as a whole referable to her psychiatric symptoms ( 40 weeks). While Dr. Cohen provides his own ratings for the October 14, 2014 injury, he agrees with the stipulations in Claimant's other two claims. The fact that this is the only injury where he provides his own ratings makes them not credible. Therefore, none of those disabilities rise to the level of 50 weeks as required by 287.220 .3 .

Claimant's July 12, 2014 work injury does not rise to the requisite level of disability of 50 weeks. Dr. Cohen agreed with the settlement amount of 15 % ( 26.25 weeks) of the left wrist and 2.5 % ( 5.25 weeks) of the left elbow. While both Dr. Daniel and Dr. Pribor provided a 20 % rating referable to Claimant's pre-existing psychiatric condition, which does meet the requisite 50 weeks, it does not fit into one of the four categories set forth in section 287.220.3. It was not a direct result from a military related injury, it was not a work injury, and it is not to the opposite extremity of the primary.

Finally, Claimant's claim does not fall under section 287.220.3(2) (a) (iii). Claimant's preexisting disability that was not a compensable injury is her psychiatric condition. This pre-existing disability did not directly and significantly aggravate or accelerate the "subsequent work-related injury" to the left knee. No medical professional offered a credible opinion that it did so. In fact Dr. Daniel found no psychiatric problems from the left knee injury. To the extent that Claimant claims that her psychiatric condition affected her knee injury, I do not find her credible. Claimant's pre-existing psychiatric condition is unrelated to the primary work injury. Therefore, even if Employee was PTD, she does not meet the requirements for Second Injury Fund benefits.

Claimant has failed to meet her burden in proving that she is permanently and totally disabled. Even if she met her burden in proving she was PTD due to combination of her primary and then pre-existing injuries, she does not meet the conditions required to receive Second Injury Fund benefits under 287.220.3. Therefore, I find that the Second Injury Fund is not liable in this case.


Made by:

Bruce Farmer

Administrative Law Judge

Division of Workers' Compensation