Patricia Otwell v. Chrysler, LLC

reports of symptoms of depression and anxiety, childhood neglect and abuse, panic attacks and stress, and Ms. Toon's diagnosis of "major depression, recurrent; post-traumatic stress disorder; generalized anxiety disorder and gambling addiction." ${ }^{1}$ Mr. Lalk documented the employee's discussion of suicide ideation without intent in 2008 and her admission to an employer-provided partial day hospital program that year. His report referenced records from Srinivas

Chilakamarri, M.D. and the Hyland Behavioral Health Center showing employee's admission to Hyland on March 23, 2009, for suicidal ideation and homicidal ideation and her diagnosis there of "major depression, single episode, severe." ${ }^{2}$ He noted that the employee was admitted to St. Anthony's Medical Center on December 3, 2009, "because she was reporting thoughts of suicide, thoughts of wanting to die, panic attacks, decreased sleep and decreased appetite." ${ }^{3}$ Mr. Lalk referenced Dr. Eli Shuter's May 24, 2011, independent medical examination and March 3, 2012, report, which noted that EE continued to have symptoms of "low mood, daily crying, lack of energy, anhedonia, fear of making wrong decisions, being a burden to her family, worthlessness, guilt and hopelessness." ${ }^{4}$ Mr. Lalk referenced the May 15, 2017, report of psychiatrist Dr. Adam Sky, who assessed the employee as having "major depressive disorder; moderate to severe, recurrent; generalized anxiety disorder, post-traumatic stress disorder, [and] gambling disorder by history. . ."5 He noted Dr. Sky's opinion that the employee "had a 100 % permanent, partial psychiatric disability to the body as a whole with the prevailing cause being the combination of her pre-existing permanent, partial psychiatric disability synergistically combined with her primary occupational disease." ${ }^{6}$ Mr. Lalk recounted the employee's account during his meeting with her of physical and emotional abuse as a child, depression off and on throughout her life, and anxiety. Mr. Lalk found that due to symptoms and limitations as reported by the employee and Dr. Sky's opinion regarding the relationship between the employee's current level of psychiatric distress and all of her physical symptoms and limitations, the employee was unable to secure and maintain employment in the labor market or compete for any positions. Mr. Lalk concluded that the employee could perform in a sedentary or near sedentary job with as-needed access to a bathroom in an unskilled, entry level position only if her psychiatric condition improved to the point where a psychiatrist believed "her to be able to function consistently and at a reasonable pace and . . .in the presence of other workers, supervisors, and the public." ${ }^{7}$

Medical expert Dr. Volarich also opined, in his September 13, 2018, report, that the employee had a preexisting disability attributable to psychiatric disorders. Dr. Volarich deferred to a psychiatrist for assessment of the nature and extent of the employee's psychiatric disability. He further opined,

Based on my evaluation today, review of medical records, and review of a vocational assessment completed on 8/4/17 by Mr. Timothy G. Lalk, vocational assessment could not identify a job for which she could return to and thought that

[^0]

[^0]: ${ }^{1} Transcript, 681.

{ }^{2} Id., 682.

{ }^{3} Id., 683.

{ }^{4} Transcript, p. 684.

{ }^{5} Id., p. 686.

{ }^{6}$ Id., p. 695. Dr. Sky explained this somewhat confusing evaluation in a cover letter that accompanied his May 15, 2017, IME. In this letter Dr. Sky explained, "As noted in my report, I feel [the employee] has a permanent total psychiatric disability, 35 % of which was attributable to a preexisting psychiatric condition. It is my opinion that the preexisting psychiatric condition in combination with her work injury permanently and totally disabled her from a psychiatric standpoint. . . I feel that her preexisting psychiatric condition was a hindrance to employment prior to the work injury of February 10, 2009 though because an insurmountable obstacle and hindrance to employment subsequent to that injury." Transcript, 463.

${ }^{7}$ Id., pp. 696-697.

she was permanently disabled primarily as a result of her psychiatric disorders. I concur with that assessment. ${ }^{8}$

The uncontroverted expert opinions of vocational rehabilitation specialist Mr. Lalk and Dr. Volarich are consistent with the employee's testimony regarding her longstanding struggle with depression and anxiety, as well as the employer's clinic treatment records.

Based on this evidence, we find the employee had a significant preexisting psychiatric disability that was a hindrance or obstacle to obtaining and maintaining employment. We further find, based on the competent and substantial evidence in the record as a whole, including Dr. Adam Sky's IME, that the employee suffered preexisting psychiatric disability in the amount of 28 % PPD at the 400-week of the body as a whole level, totaling 112 weeks.

We credit the expert medical opinion of Dr. Volarich that the employee's preexisting psychiatric disability combined synergistically with disability attributable to the employee's primary injury and her other preexisting disabilities to result in a disability that was substantially greater than the simple sum or total of each separate injury or illness. Based on Mr. Lalk's expert vocational opinion, we further find that disability from the employee's primary injury and her preexisting disabilities has rendered the employee unable to compete for any position or secure and maintain employment in the open labor market.

The uncontroverted medical and vocational expert opinion evidence in the record supports the conclusion that the employee is PTD as a result of significant, longstanding preexisting psychiatric disability in combination with disability from her primary injury and other preexisting disabilities. No evidence in the record supports the conclusion that the employee is PTD solely because of the deterioration of her psychiatric condition after her 2009 primary injury. The fact that, after her primary injury, the employee experienced divorce and the death of a spouse and elected to accept the employer's retirement option offered in conjunction with its plant closing does not constitute medical testimony as to the cause of the employee's PTD. We are not authorized to substitute our own opinion, unsupported by competent and substantial evidence in the record, regarding the medical causation of the employee's permanent total disability. See Abt v. Miss Lime Co., 388 S.W.3d 571, 581 (Mo. App. 2012) and Williams v. City of Jennings 605 S.W.3d 152, 160 (Mo. App. 2020).

The SIF is liable to the employee for weekly PTD benefits beginning May 15, 2017, the date psychiatrist Dr. Sky found the employee to have achieved maximum medical improvement. ${ }^{9}$ Based on our evaluation of employee's disability relating to the primary injury of 16 % PPD of the right and left wrists rated at the 175-week level ( 56 weeks), the SIF owes employee weekly PTD benefits starting May 15, 2017, at the differential rate of $\ 241.49 for 56 weeks, and thereafter at the stipulated weekly PTD benefit rate of $\ 676.15. The weekly payments shall continue for the employee's lifetime or until modified by law.

For necessary legal services rendered to the employee, Nancy R. Mogab, Attorney at Law, is allowed a fee of 25 % of the compensation awarded, which shall constitute a lien on said compensation.

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

[^0]

[^0]: ${ }^{8} Id., 558.

{ }^{9}$ Transcript, 468

From: 09-015610

From: 09-015610

Employee: Patricia (Parrish) Otwell

-4-

Given at Jefferson City, State of Missouri, this 9th day of February 2022.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

SEPARATE OPINION FILED

Reid K. Forrester, Member

SEPARATE OPINION FILED

Shalonn K. Curls, Member

Attest:

Secretary

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of vocational expert Mr. Timothy Lalk's report and testimony and Dr. David Volarich's complete IME, as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I concur with Chairman Cornejo's award insofar as it concludes that the employee herein sustained some degree of psychiatric preexisting permanent partial disability. I further agree with the majority's finding that employee's preexisting psychiatric PPD consisted of 28 % PPD based on the 400 -week body as a whole level.

I disagree with the majority's award because it finds that the employee is PTD. Mr. Lalk's vocational testing demonstrated that the employee has post-high-school level reading comprehension ability, which equips her to learn the duties of any unskilled, entry-level position. The evidence further showed that the employee voluntarily left her job to accept her employer's retirement option. The employee should not be awarded permanent total disability benefits under these circumstances.

I would calculate SIF liability as follows:

PPD related to primary injury: 16 % PPD of the right and left wrists at the 175week level: $28+28=56$ weeks

Preexisting PPD: 2.5 % at the 400 -week BAW level for incontinence: 10 weeks 15 % PPD at the 400 -week level related to the right shoulder: 34.8 weeks 28 % PPD at the 400 -week level for psychiatric disability (added) 112 weeks Total: 212.8 weeks

+331 / 3 % BAW loading factor $=133.32$ weeks total SIF liability for PPD

A PPD award against the SIF of 133.32 weeks at the stipulated rate of $\ 404.66 equals $\ 53,949.27. This represents a $\ 40,789.73 increase in the Commission's original $\ 13,159.54 PPD award. I consider such an award more than fair to the employee in this case.

Because the majority finds otherwise, I respectfully dissent.


I concur with the majority's award. I write separately to explain why my opinion herein is to some extent inconsistent with the Dissenting Opinion I filed to the Commission majority's December 30, 2020, award.

My December 30, 2020, dissent urged reversal of the administrative law judge's evidentiary rulings regarding admission of vocational expert Mr. Timothy Lalk's expert opinion and a portion of Dr. David Volarich's IME report. The Missouri Court of Appeals Eastern District agreed with this portion of my opinion.

My earlier dissent further urged support for assessing an increased level of permanent partial disability against the Second Injury Fund. It explained:

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 the injury. ${ }^{10}$

I noted the employee's absence from work after her primary injury due to treatment, her choice to retire, significant life events after she left employment, including a divorce and the death of a spouse, and the time-lapse between her primary injury and the expert opinions of Dr. Adam Sky and vocational expert Mr. Lalk. I noted that the employee's experts considered psychiatric treatment issues she experienced after the primary injury.

As explained in the majority's award, this analysis was incorrect as a matter of law. The employee met her burden of proving medical causation of her permanent total disability (PTD) by producing expert vocational and expert testimony establishing that her preexisting disabilities, including significant preexisting psychiatric disability, combined synergistically with disability attributable to the employee's primary injury and other preexisting disabilities to result in PTD. A finding, unsupported by any of the expert medical opinions in the record, that postinjury worsening of the employee's psychiatric disability due to life events such as divorce and death of a spouse may have rendered the employee PTD, inappropriately substitutes the Commission's own opinion on the issue of the cause of the employee's disability. See Abt v. Miss Lime Co., 388 S.W.3d 571, 581 (Mo. App. 2012) and Williams v. City of Jennings 605 S.W.3d 152, 160 (Mo. App. 2020).

For these reasons, I disavow the above-referenced findings included in my earlier Dissenting Opinion.

Shalonn K. Curls, Member

[^0]

[^0]: ${ }^{10}$ Patricia (Parrish) Otwell vs. Chrysler, LLC, Old Carco, LLC, and Treasurer of Missouri as Custodian of Second Injury Fund, Inj. No. 09-015610 (LIRC, December 30, 2020), Dissenting Opinion, p. 4.