Elizabeth Steel v. Research Medical Center

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 14-101897

Employee: Elizabeth A. Steele

Employer: Research Medical Center

Insurer: Ace America Insurance Company

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 September 28, 2021. The award and decision of Chief Administrative

Law Judge, Mark S. Siedlik issued September 28, 2021, is attached and incorporated by

this reference.

The Commission further approves and affirms 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 ______ 17th ______ day of August 2022.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Rodney J. Campbell, Chairman

Shalonn K. Curls, Member

NOT SITTING

Kathryn Swan, Member

Attest:

*Karla S. Hogg*

Secretary

**Injury No: 14-101897**

**FINAL AWARD**

**FINDINGS OF FACT AND RULINGS OF LAW**

1. Are any benefits awarded herein? Yes
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 19, 2014
5. State location where accident occurred or occupational disease was contracted: Kansas City, Jackson County, Missouri
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 sustained injuries as a critical care unit nurse when an agitated patient slammed his leg down on her head, neck, and shoulders while she was assisting in administering an IV to the patient.
12. Did accident or occupational disease cause death? No Date of death? N/A

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Elizabeth A. Steele

Injury No: 14-101897

1. Part(s) of body injured by accident or occupational disease: Neck, head, both shoulders, upper back, and development of depression, anxiety, and somatic symptom dysfunction from the chronic pain and effects of the physical injuries.

1. Nature and extent of any permanent disability: Permanent and total disability.

1. Compensation paid to date for temporary disability: -0-

1. Value necessary medical aid paid to date by employer/insurer? $101,844.19

1. Value necessary medical aid not furnished by employer/insurer? None

1. Employee's average weekly wages: 1,266.93

1. Weekly compensation rate: 844.62 for temporary total disability and $451.02 for permanent partial disability.

1. Method wages computation: By agreement of the parties.

COMPENSATION PAYABLE

1. Amount of compensation payable: Permanent total disability benefits beginning January 13, 2016 of $844.62 per week and said weekly benefits continuing for the lifetime of Employee pursuant to Section 287.200.1.

1. Second Injury Fund liability: None

1. Future requirements awarded: Ongoing PTD payments and Employer is directed to authorize and furnish additional medical treatment to cure and relieve Employee from the effects of her October 19, 2014 injuries in accordance with Section 287.140 RSMo said treatment to include pain management and psychiatric/mental health care.

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

The compensation awarded to the Employee shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to Employee: Frederick W. Bryant.

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**Injury No: 14-101897**

**FINDINGS OF FACT AND RULINGS OF LAW**

On June 8, 2021, the Employee, Employer, and Second Injury Fund appeared for final hearing. The Division had jurisdiction to hear this case pursuant to Mo. Revised Statutes Section 287.110. The Employee, Elizabeth A. Steele appeared in person and with counsel, Frederick W. Bryant. The Employer/Insurer, Research Medical Center and Ace American Insurance Co. appeared through their counsel, Christopher M. Ray and John R. Fox. The Second Injury Fund appeared through Assistant Attorney General Maureen T. Shine.

**STIPULATIONS**

The parties stipulated to the following:

1. That on or about October 19, 2014, Research Medical Center was an employer operating under and subject to the provisions of the Missouri Workers' Compensation law;
2. That on or about October 19, 2014, Elizabeth A. Steele was their employee working subject to the law in Missouri;
3. That Elizabeth A. Steele notified her employer of her injury and filed her claim in the time allowed by law;
4. That Elizabeth A. Steele's weekly compensation rate at time of her injury was $844.62/$451.02;
5. That on or about October 19, 2014, Elizabeth A. Steele sustained an accident arising out of the course of her employment.

**ISSUES**

The issues to be determined at this hearing are:

1. Nature and extent of Employee's permanent disability and whether Employee is permanently and totally disabled;

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Elizabeth A. Steele

Injury No: 14-101897

2) Whether the incident of October 19, 2014 caused the disability claimed;

3) Liability for past medical expenses;

4) Whether the Employer must provide the Employee with additional medical care in the future; and

5) Whether the Second Injury Fund is liable to the Employee.

The Claimant, Ms. Steele, testified as well as presented Exhibits 1 - 27. Exhibits 1 - 26 were admitted into evidence without objection; Claimant and Second Injury Fund Joint Exhibit 27 was admitted over the objection of counsel for the Employer/Insurer:

1. US Healthworks
2. ARC
3. Centerpoint Medical Center
4. Dr. James Zarr
5. Menorah Medical Center
6. Meritas Health
7. PainCARE
8. Premier Anesthesia
9. Premier Spine Care
10. Research Medical Center
11. Research Neurological Associates
12. Signature Psychiatric Hospital
13. Lilac Center
14. Timberline Knolls
15. Town Plaza Family Practice
16. Tri-County Mental Health
17. Brookside Counseling
18. Dr. Brent Koprivica report dated January 31, 2017
19. Dr. Brent Koprivica deposition taken February 14, 2020, with Deposition Exhibits 1-2
20. Allan Schmidt, PhD report of October 24, 2016
21. Allan Schmidt, PhD deposition taken June 25, 2020, with Deposition Exhibits 1-3
22. Terry Cordray report of March 5, 2018
23. Terry Cordray deposition taken March 3, 2020, with Deposition Exhibits 1-2
24. Dr. Todd Hill report of October 19, 2020
25. Dr. Todd Hill deposition taken January19, 2021 with Deposition Exhibits 1-2
26. Employee's current medication list
27. Elizabeth Steele deposition taken June 11, 2019

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Elizabeth A. Steele

Injury No: 14-101897

The Employer/Insurer presented no witnesses at the hearing, but presented the following exhibits which were admitted without objection:

A. Deposition of Dr. David Clymer, including his CV, report and engagement letter

B. Deposition of Dr. Guillermo Ibarra, including his CV and report

C. Deposition of Michelle Sprecker, including her CV and report

The Second Injury Fund presented no witnesses at the hearing, but offered jointly with Claimant Exhibit 27, Elizabeth Steele deposition taken June 11, 2019, which was admitted over the objection of counsel for the Employer/Insurer.

Ms. Steele (hereinafter referred to as Claimant) testified live at the hearing. Claimant is 47 years old. She graduated from high school in 1992. She has worked continuously in the labor market upon graduation from high school employed in various positions to include waitress, gift wrapping and retail sales associate. In 1997 she attended Johnson County Community College and received her certificate in massage therapy. She became a licensed massage therapist in both Kansas and Missouri and from 2002 to 2011 operated her own business as a massage therapist from her home. She decided to become a nurse and attended the Rockhurst University-Research College of Nursing program. She successfully completed her courses and obtained her degree, becoming an R.N. in May 2011.

Claimant was hired upon graduation by Research and was assigned to the hospital's Critical Care Unit (CCU) where she worked until she was injured on the job on October 19, 2014. The CCU is a step below the intensive care unit (ICU), dealing with total care patients that are otherwise unable to care for themselves such as those on ventilators or feeding tubes. Claimant worked 12 hour shifts on the CCU unit with a minimum of 3 shifts per week. She worked the night shift from 6:30 in the evening until 7 am the next morning. She estimated 90% of her 12 hour shift involved standing and walking. There was very little sitting. Her job of a CCU nurse was physical in nature, requiring, in addition to the constant standing and walking, lifting, bending, stooping, twisting, and reaching overhead. Research required its nurses be able to lift up to fifty pounds and the amount of weight actually lifted, pushed or pulled would vary based on a patient's condition and needs as the CCU nurse was expected to bathe, change, re-position and lift patients as needed. Nurses were also expected to monitor their patients and chart patient progress which was usually done at the end of shift. The job also involved mental acuity, requiring the ability to analyze and interpret the conditions of those critically ill patients under her care, and to think, react quickly, and readily adapt to any changes.

When Claimant began working for Research in 2011 and up to the time of her injury at work on October 19, 2014, she was in good health, both physically and mentally. She had no physical conditions that restricted or limited her ability to work full time and fulfill all of her duties as a CCU nurse for Research. She was not under any restrictions or limitations due to any physical issues or conditions. She had no physical problems to her neck, head, shoulders, or upper or lower back that required limitations, light duty or other accommodations, extended time off or FMLA. She had no physical conditions requiring pain medication, physical therapy, epidural injections, nerve ablations, or functional capacity evaluations.

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Elizabeth A. Steele

Injury No: 14-101897

Likewise, Claimant had no pre-existing mental conditions that were a hindrance or obstacle to her job as a CCU nurse for Research. She was under no active care or treatment for any mental conditions or issues while employed by Research. She was not prescribed or taking any psychotropic medications. She was not in counselling nor had she ever been admitted to any inpatient facility for treatment. There were no mental issues affecting either her attendance or performance. She was under no restrictions or limitations due to any mental or psychological issues. There were no accommodations requested or provided due to any mental health issues.

While employed at Research, Steel had good performance reviews with no write ups, reprimands or other disciplinary action due to either attendance or performance. She was never denied raises. She has no issues while at Research with her co-workers, her supervisors and superiors, hospital administration or her patients and their families. She never complained about her job or work conditions nor was she dissatisfied or disillusioned with her occupational choice since becoming a nurse. To the contrary, she loved her job and the rewards and challenges of caring for patients, interacting with their families and the challenges the job presented to think on her feet and adapt to the variety of patient care situations presented on the critical care floor.

Nothing about Claimant's physical or mental state affected her ability to participate in her activities of daily living or her hobbies, which consisted of gardening, traveling and care and upkeep of her home.

In her entire working career up until the work injury of October 19, 2014, Claimant had no prior injuries at the workplace and no prior work-related injury claims. Claimant's prior medical history involved an injury claim when, as a teenager, she injured her TMJ in a car wreck. She has had no residuals from that injury. She had periods of bulimia off and on from around third grade through high school. She had an episode of anxiety following the death of her mother in 2000. Her primary care doctor prescribing Xanax, which Claimant took for approximately 6 months. She had no follow-up care. She also had some depression in 2001 after being diagnosed with ovarian cancer. The depression subsided in 2002 when her cancer went into remission. At the time of the October 2014 injury, Claimant had a history of migraine headaches and, since 2013, had been treated with Botox injections every three months at Research Neurological Associates (Exhibit 11). This treatment continued following the work injury and, in fact, had her regularly scheduled injection the day following the October 19, 2014, injury at work. (Exh.11, 9). Claimant testified the migraines did not adversely affect her performance as a nurse nor did it affect her attendance. She estimates she only missed a shift or two during her tenure at Research due to migraines. She also estimates she had migraines about three times a month and once every couple of months the migraine would be debilitating. (Exh.27, 53)

Claimant injured her neck, shoulders/upper back and head on October 19, 2014 while assisting with placing an IV in a large patient who had become combative and agitated. Claimant was squatted along the side of the bed holding down the patients' arm while another nurse initiated IV placement, when the patient suddenly lifted his right leg up and brought it down suddenly and forcefully, striking Claimant in the head and shoulder area, knocking her head first into the bed and her body down onto the floor, where her head then came into contact with the floor. (Exh.27, 49)

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Claimant had immediate pain to her neck and head that she described as feeling like electricity in her neck and throughout her body. (Exh.27, 50). She reported the incident to the nursing supervisor who requested she finish her shift because the CCU was shorthanded. (Exh.27, 50). Her regular schedule had her off the next 4 days during which her symptoms became progressively worse. When she returned to work, an incident report was completed and the Employer/Insurer initiated treatment for Claimant's injuries.

Claimant initially received treatment for her injuries at U.S. Healthworks on November 5, 2014 where Dr. Gilbert found upon examination muscle spasms in her trapezius which the doctor described as very obvious, especially on the right side of her neck extending into the shoulder. (Exh.1, 13). Dr. Gilbert diagnosed Claimant with acute cervical spine pain and trapezius spasms on the right side, which the doctor ascribed as being caused by the October 19, 2014 injury at work. (Exh.1, 14). Claimant's care at U.S. Healthworks included prescriptions for pain medications and muscle relaxers and a referral to physical therapy. She was placed on restrictions of no lifting over 10 pounds from floor to waist or waist to shoulder, no forceful pushing or pulling, and no reaching or overhead work. (Exh.1, 14). The employer Research accommodated those restrictions by assigning Claimant to answering phones and call lights without any direct patient contact. She remained in that light-duty post until she was released at maximum medical improvement by Dr. Zarr in January, 2016.

Claimant underwent therapy at Research from November $11^{\text {th }} through December 18^{\text {th }} (Exh. 10,13-45)$ and physical therapy did not improve her condition. She still had trapezius muscle spasms when seen again by Dr. Gilbert at U.S. Healthworks on December $5^{\text {th }} (Exh.1, 56) and at the December 12^{\text {th }}$ visit, Dr. Gilbert noted muscle spasms across the upper part of the shoulder, neck area, and on the trapezius muscle with decreased range of motion. An MRI of the neck was ordered which revealed some degenerative changes as well as disc bulging at C3-C4 and C6-C7 with disc bulging with protrusion at C5-C6. (Exh.1, 68-69). Following the MRI, Claimant was seen by Dr. Gilbert on January $16^{\text {th }}, 2015$ who referred Claimant for pain management for continued care and possible epidural spinal injections. (Exh.1, 73, 76) She was to remain under the initial work restrictions of no lifting over 10 pounds, no forceful pushing or pulling, and no reaching or overhead work. (Exh.1, 75).

Claimant was directed to Pain CARE for pain management and was first seen on February $12^{\text {th }}$. Following a physical examination, she was diagnosed with cervicalgia, degenerative cervical disc, cervical disc displacement and cervical radiculitis. (Exh.7, 8). A cervical epidural steroid injection was performed. (Exh.7, 9). Claimant states this did not improve her symptoms.

Claimant was then directed to see Dr. Travis Foxx, a board certified anesthesiologist who specializes in treating acute and chronic pain. He first saw Claimant on March $15^{\text {th }}$. He found her history and exam consistent with a diagnosis of brachial radiculitis, cervical spondylosis without myelopathy and displacement of a cervical disc without myelopathy. (Exh.8, 34). Dr. Foxx concluded with reasonable medical certainty Claimant's work injury was the prevailing factor in her multiple areas of pain. (Exh.8, 34). Under Dr. Foxx's care, Claimant had diagnostic cervical medial branch blocks, (Exh.8, 33) followed by radiofrequency ablations to the cervical medial branch nerves, (Exh.8, 29-30) and a series of three cervical epidurals, performed on June $1^{\text {st }}, June 9^{\text {th }} and July 20^{\text {th }}$ of 2015 . (Exh.8, 10-11, 16-17, 10-11). Dr. Foxx stated the necessity for the

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Elizabeth A. Steele

Injury No: 14-101897

epidurals was Claimant suffering from chronic pain which caused her psychological, social and physical impairment. (Exh.8, 7, 17). Claimant testified these treatments provided her temporary relief, but the pain would then return.

Contemporaneous with the treatment she was receiving in 2015 for her physical complaints from the work-related injury, Claimant developed mental health symptoms. She approached Research and was referred to the Employee Assistance Program, EAP. They referred her for counselling. Also at that time, her primary care physician referred her to the Lilac Center. Claimant saw psychiatrist Dr. Christine Trueblood at the Lilac Center on July 30, 2015. (Ex.13, 6) Dr. Trueblood's note indicated Ms. Steele had battled depression on and off for most of her life, but when the work-related incident occurred, she began to have chronic pain, insomnia, and her depression got much worse. Dr. Trueblood found Claimant had significant symptoms associated with her depression, including passive suicidal ideation. Dr. Trueblood also documented symptoms of panic attack along with severe depression. She noted Claimant had a history with bulimia developed in the fifth grade. Dr. Trueblood diagnosed Ms. Steele with depressive disorder due to another medical condition, borderline personality disorder, anxiety disorder due to another condition, pain disorder and bulimia. Dr. Trueblood assessed Claimant with a global assessment function (GAF) of 50 which indicates a serious level of impairment socially and occupationally. She felt that, if Claimant was able to get rid of her chronic pain and return to her job as a nurse, her depression and anxiety would resolve. Dr. Trueblood started her on the anti-depressant Cymbalta. (Exh.13, 10). Claimant continued her treatment with Dr. Trueblood through the rest of 2015 with a working diagnosis of major depressive disorder severe. She was prescribed additional anti-psychotic medications of Risperdal and Abilify.

Following Dr. Foxx, Claimant was next directed for her physical injuries to see orthopedic surgeon Dr. Adrian Jackson for an orthopedic evaluation and consultation. (Exh.9, 2). Dr. Jackson examined Claimant on August 12, 2015. Dr. Jackson found Claimant had a disc herniation at C5-C6, (Exh.9, 4) but without any radicular symptoms on exam, did not believe she was a surgical candidate. (Exh.9, 4).

Claimant was next directed to treat with physiatrist Dr. James Zarr. Dr. Zarr's impression after his initial exam on September 1, 2015 was Claimant had persistent neck pain which radiated into headaches and into both arms. He prescribed Norco, continued the 10-pound weight restriction with no forceful pushing, pulling, or overhead activities and recommended work conditioning. (Exh.4, 8). At the next appointment in October 2015, Dr. Zarr ordered vestibular therapy (Exh.4, 5). Also in October 2015, Research Neurological, where Claimant continued to receive Botox injections for her migraine condition, noted Claimant was having worsening neck pain and stiffness since the injury and needed a referral for Botox injections for cervical dystonia. (Exh.11, 1-2) Dr. Zarr next ordered additional work conditioning and a functional capacity evaluation. (Exh.4, 4). The FCE was performed on January 5, 2016 by ARC and results were considered invalid. (Exh. 2, 109). Dr. Zarr felt there was no further treatment that could improve her condition and released Claimant on January 13, 2016 at maximum medical improvement with a permanent 20-pound lifting restriction and continuing her on Norco. (Exh.4, 3).

Research had no work for Claimant under those restrictions and her employment with Research ended at that time. The director of nursing told Claimant the light duty job she had been

8 | Page

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Elizabeth A. Steele

Injury No: 14-101897

doing ended upon her release from care. The hospital H.R. department told her Research had no nursing jobs within her permanent restrictions and she had two weeks to find something in the HCA system. Research made no attempt to place her within their system or elsewhere. Claimant has not worked since being released from care by Dr. Zarr.

Following Claimant's release from care by Dr. Zarr in January of 2016, and the loss of her job there, her depression and overall psychiatric condition worsened. Dr. Trueblood noted increased suicidal ideations which resulted and referred her for an in-patient stay at a psychiatric hospital due to major depression and suicidal ideation. (Exh.13, 132-136)

The in-patient stay at Signature (Exh.12, 3) was the first of eight in-patient stays that Claimant has subsequently had due to her severe depression and suicidal ideations. Claimant's mental health care has included intensive out-patient programs at Signature.

She began trans-magnetic stimulation therapy sessions (TMS) in 2018. TMS involves magnets placed on a patient's head for the magnetic field to stimulate the nerve cells in the brain to help fight and treat depression, a newer alternative to electric shock therapy. (Exh.25, 24-25) Claimant has been on as many as six different medications at one time for her anxiety, depression, and mood stabilization. (Exh.13, 351)

In addition to the numerous in-patient psychiatric hospitalizations and extensive outpatient treatment, she has received continuing out-patient counseling. She was also referred to a residential care treatment program at Timberline-Knolls in Dallas, Texas. (Exh.14) Her GAF at admission was in the range of 30-39, representative of a major functional impairment. (Exh.14, 12).

Claimant testified she has ongoing complaints with chronic pain in her head at the base of her neck, pain in her shoulders, and arms and back pain. She needs to recline during the day with hot moist packs to try and relieve her pain. She needs to sleep propped up on pillows due to her headaches, neck, shoulders, and upper back pain. She has sleep disturbance with pain waking her throughout the night. She estimates 2-4 hours per night sleep would be considered good sleep. Driving is difficult and painful because she can't turn her head side to side and has to rotate her torso to check traffic behind and beside her. She has vestibular problems including dizziness, double and triple vision which affects her balance and ability to read. If she stands too long, she gets nauseous. She describes her neck as feeling like it is in a vice when it spasms. She has loss of range of motion in the neck and arms and feels tingling into her arms and fingertips and a sensation of things crawling underneath her skin. She has pain with any overhead activities to include washing and drying her hair. She even has difficulty putting on her tops and/or bra because of the lack of range of motion in the neck and upper back. Claimant testified she has recently returned to pain management under Dr. Latifah at KU Medical Center.

Since developing psychological conditions following her physical injuries, Claimant testified mentally she feels like she's kind of hanging on by a thread (Ex.27, 36, 37). She states she did not have disabling psychiatric issues until the October 19, 2014, injury and those conditions particularly exacerbated following the loss of her job at Research. She testified she is being treated

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Elizabeth A. Steele

Injury No: 14-101897

with counseling and has resumed TMS. She basically isolates herself and doesn't socialize. She still has daily suicidal ideations which vary in intensity and duration based on her degree of pain.

Claimant testified she would like to be able to work. She attempted to return to school in 2017, but due to her physical and psychiatric conditions, she could not fulfill her academic obligations and dropped out after a semester. Claimant's current source of income is social security disability.

Medical Evidence

DR. P. BRENT KOPRIVICA

Dr. P. Brent Koprivica is Board certified in the field of occupational medicine (Exh.19, 9) and has been practicing in occupational medicine since 1981. (Exh.19, 7) He limits his practice now to the evaluation of work-related injuries and examining issues of disability and impairment from those injuries. (Exh.19, 4) He evaluated Claimant on January 31, 2017. (Exh.19, 17)

Dr. Koprivica found Claimant sustained physical injuries from being kicked about the head, neck, and back area by the combative patient while working as a nurse at Research on October 19, 2014. (Exh.19, 31) He felt the mechanism of injury was competent to produce Claimant's injuries which he diagnosed as C5-C6 disk protrusion, (Exh.19, 33-34) chronic neck pain, permanent myofascial injury to her cervicothoracic region, and increased frequency and severity of chronic headaches. (Exh.19, 54) The injury caused spasm in her neck, upper back pain, neck pain, and new headache complaints, (Exh.19, 32) and he believed her vestibular complaints flowed from the neck injury and neck spasms. He did not find the structural injury to her neck compromised her spinal cord and nerve roots to require surgical intervention. (Exh.19, 34) He concluded the work injury of October 19, 2014, was the prevailing factor in those conditions and to the development of disabilities from those conditions. (Exh.19, 55) Dr. Koprivica assigned 15% permanent partial disability to the body as a whole for the chronic cervicothoracic disabling pain and associated physical impairment and an additional 5% permanent partial disability to the body as a whole for the increase in severity and frequency of her headaches. (Exh.18, 24)

While Dr. Koprivica felt some of Claimant's complaints didn't fit what was wrong structurally, he found evidence of objective physical injury from the October 19, 2014, incident (Exh.19, 35) and believed psychological disability flowed from the primary injury. (Exh.19, 49) Dr. Koprivica further believed that the physical disability from the October 19, 2014, injury at work was sufficient to cause the psychological dysfunction Claimant experienced. (Exh.19, 41) Noting Dr. Schmidt's findings that Claimant had psychological disability from the October 19, 2014 incident, Dr. Koprivica determined Claimant was not consciously exaggerating symptoms, (Exh.19, 69) but the symptoms she described were her legitimate reaction to pain. (Exh.19, 51) He also did not interpret Claimant's responses on physical exam to mean she was malingering (Exh.19, 37-38) noting that people with psychological dysfunction will be inconsistent on exam (Exh.19, 37). Dr. Koprivica opined Claimant's presentation on exam was real, but a major portion of her disability was psychological and not physical. (Exh.19, 38, 86)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Elizabeth A. Steele

Injury No: 14-101897

Dr. Koprivica deferred to Dr. Schmidt on the extent of Claimant's psychological disability from the October 19, 2014 injury and adopted Dr. Schmidt's 25% permanent partial disability of the body as a whole for the psychological/psychiatric injuries from the October 19, 2014, incident. (Exh.18, 25). Combining the physical and psychological disabilities, Dr. Koprivica assigned Claimant a global 50% permanent partial disability to the body as a whole for the physical and psychological disability caused by the October 19, 2014, injury. (Exh.18, 25)

Dr. Koprivica concluded Claimant was permanently and totally disabled but did not think she was permanently and totally disabled due to the injuries of October 19, 2014, in isolation. He assigned a 15% permanent partial disability of the body as a whole for Claimant's pre-existing history of migraine headaches at 15% permanent partial disability of the body as a whole, and stated that disability, combined with her October 19, 2014 work injury, caused the permanent and total disability. (Exh.18, 26)

Dr. Koprivica did note one could reasonably find Claimant to be permanently and totally disabled on the last injury alone (Exh.19, 84) as she had profound disability from the primary injury (Exh.19, 99) and Claimant's psychological dysfunction in response to the October 19, 2014 injury realistically precluded her from effectively being accommodated in order to perform work as is customarily performed in the open labor market in any capacity (Exh.18, 26).

Dr. Koprivica assigned restrictions to Claimant indicating she should refrain from any above shoulder lifting, carrying or overhead reaching activities or tasks, avoid repetitive pushing or pulling against resistance, avoid awkward or sustained postures of the cervical spine, avoid activities that are jarring to the head or neck and only occasionally lift or carry with weight restricted to 20 pounds or less.

Dr. Koprivica stated Claimant was at maximum medical improvement (Exh.18, 24) and found the treatment Claimant received for her injuries was reasonable, usual and customary. (Exh.19, 56). He felt Claimant had lifelong treatment needs to include multi-disciplinary approach to chronic pain management with strong emphasis on psychological and psychiatric support. (Exh.18, 27 & Exh.19, 62).

DR. DAVID CLYMER

Dr. David Clymer is a Board certified orthopedic surgeon who evaluated Claimant on behalf of the Employer/Insurer on June 8th (Ex.A). Dr. Clymer testified he found significant symptom magnification upon his exam of Claimant, characterizing her as quite overly sensitive (Ex.A, 10). He believed her subjective symptoms may have been aggravated by some sort of chronic psychiatric issues. (Ex.A, 12) He testified that he observed pretty significant self-limitation with any range of motion, demonstrating essentially no range of motion in her neck during testing but better range of motion other times during exam. (Ex. A, 16, 17)

Dr. Clymer, however, did find Claimant sustained a 5% body as a whole disability referable to physical injuries she sustained on October 19, 2014. (Ex.A, 43, 44, 45) He also found the evaluations and treatments by various physicians for Claimant's physical injuries, which included epidural injections and work restrictions, were reasonable and appropriate (Ex.A, 46-49).

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Elizabeth A. Steele

Injury No: 14-101897

Dr. Clymer stated in his role as an evaluating orthopedist, he was not offering opinions about Claimant's psychiatric disability, any pre-existing psychiatric problems or any psychiatric injuries that may have resulted from the October 19, 2014, work incident. (Ex.A, 55) He defers to the psychiatrists/psychologists who treated, evaluated and diagnosed her mental health conditions (Ex. A, 56). He had no opinion on whether the physical injuries affected Claimant's psyche or caused any psychiatric or psychological reaction or disability. (Ex.A, 57, 58). He stated he was not suggesting Claimant had any motive for her presentation during his exam nor was he offering an opinion on what caused Claimant to present in that manner. (Ex.A, 65).

DR. TODD HILL

Dr. Todd Hill, a Board certified practicing psychiatrist, conducted a psychiatric evaluation of Claimant on September 8, 2020, issuing a report of findings dated October 19, 2020. (Exh.24) In addition to his interview of Claimant, Dr. Hill reviewed Claimant's medical records, focusing primarily on the psychiatric and psychological records and reports (Exh.25, 15).

Dr. Hill has treated and continues to treat patients for psychiatric issues and conditions that have developed from physical injuries sustained at work. He has also evaluated and provided opinions in workers' compensation matters on patient's psychiatric disabilities resulting from physical injuries (Exh.25, 7-8). As part of his practice, he has addressed and continues to address return to work issues as they relate to patients' psychiatric conditions (Exh.25, 9).

Dr. Hill diagnosed Claimant with: (1) major depression, recurrent and severe; (2) somatic symptom disorder with predominant pain; (3) generalized anxiety disorder; and (4) a history of eating disorder consistent with bulimia (Exh.25, 36). Dr. Hill concluded Claimant's diagnosed psychiatric conditions were permanent and he does not expect them to improve significantly over time (Exh.25, 39). He does not expect Claimant to return to her pre-injury mental health level (Exh.25, 39). Dr. Hill stated the work-related incident of October 19, 2014 was the direct, proximate prevailing factor in the development of Claimant's major depression disorder, somatic symptom disorder and generalized anxiety disorder (Exh.25, 38, 103) and Claimant's perception and reaction to the pain caused by the physical injuries of October 19, 2014 created the psychiatric diagnosis (Exh.25, 108).

Dr. Hill opined Claimant had an overall 40% body as a whole psychological disability, attributing 35% as a result of the October 19, 2014 work-related injury with the remaining 5% to pre-existing conditions of an eating disorder and to anxiety she experienced following the death of her mother (Exh.25, 43). He did not feel her pre-existing psychological disability or conditions impaired her ability to maintain employment (Exh.24, 20).

Dr. Hill concluded Claimant was PTD based on her physical disability from the October 19, 2014 injury, along with her current psychiatric disability (Exh.25, 106). At the time of his evaluation, Claimant was taking six medications strictly for her mental health to include Wellbutrin, Cymbalta, Braylar, Adderall, Valium and Clonazepam in addition to a muscle relaxer Soma. (Exh.25, 30-31). Dr. Hill found her medication regimen alone "would not be consistent with an individual who could function in a work-related setting on a day to day basis. The side

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Elizabeth A. Steele

Injury No: 14-101897

effects alone for this combination of medications are disabling" (Exh.24, 20). Dr. Hill noted Claimant was not taking any of these medications prior to the work-related injury of October 19, 2014 (Exh.25, 96).

Dr. Hill felt, due to the October 19, 2014 injury and its effects, Claimant needed future psychiatric care of medication management, ongoing weekly therapy, behavioral pain management and psychotherapy as well as continued transcranial magnetic stimulation (TMS) (Exh.25, 41-42 and Exh.24, 20). Dr. Hill felt Claimant's psychiatric treatments since the 2014 injury involving numerous psychotropic medications and in-patient hospitalizations painted a treatment resistant picture (Exh.25, 27).

From his review of Claimant's records and from his own evaluation of her, Dr. Hill did not find evidence of malingering behaviors. (Exh.25, 44-45). He explained Claimant's subjective complaints exceeding objective findings on exam is inherent in the diagnosis of somatic dysfunction because the patient's primary focus and concentration is their pain (Exh.25, 45-46). Dr. Hill was confident based on his examination and its consistency with the treatment records and evaluation reports, that he was not fooled by Claimant's presentation (Exh.25, 35 & Exh.24, 20). Dr. Hill thought her presentation was consistent with the mental status examinations in her records of someone with major depression and generalized anxiety disorder with some pain disorder issues (Exh.25, 34).

DR. ALLAN SCHMIDT

Dr. Allan Schmidt, a licensed psychologist with a Ph.D. in psychology, (Exh.21, Depo Exh 1) evaluated Claimant on October 13, 2016 and authored a report of findings dated October 24, 2016. (Exh.20) Dr. Schmidt has been a practicing clinical psychologist since 1984. (Exh.21, 4) He has treated and evaluated patients with psychological conditions developed from work-related physical injuries. (Exh.21, 6). In addition to rendering opinions on psychological disability in workers' compensation matters, (Exh.21, 7), he has spent years as a consultant to work hardening programs. (Exh.21, 9).

Dr. Schmidt conducted a 1 1/2 hour interview with Claimant and administered psychological tests to her. (Exh.21, 13-14) The psychological tests given included the Beck Depression Inventory-II (BDI), the Millon Clinical Multiaxial Inventory IV (MCMI-IV), the Symptom Checklist 90 Revised (SCL-90R), the Beck Anxiety Inventory (BAI) and the Battery for Health Improvement BHI) and are widely used and accepted in the mental health field. (Exh.21, 21-22). Dr. Schmidt has vast experience in administering, scoring and evaluating these tests in his career. (Exh.21, 9-10). He was confident the results of psychological tests accurately reflected Claimant's condition (Exh.21, 87) and he found nothing in the test results that suggested any attempts by Claimant to manipulate her results or that her answers were less than credible. (Exh.21, 88).

Dr. Schmidt diagnosed Claimant under the most recent Diagnostic and Statistical Manual of Mental Disorders (DSM-V) with: (1) a major depression disorder and (2) somatic symptom disorder with predominant pain. (Exh.20, 5) Under the prior DSM IV, Dr. Schmidt noted the major depressive disorder diagnosis includes a pain disorder associated with both psychological

13 | Page

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Elizabeth A. Steele

Injury No: 14-101897

factors and a medical condition, and Claimant exhibited symptoms of personality disorder, chronic pain, loss of vocational options with a Global Assessment of Function (GAF) of 50. A GAF of 50 indicates serious symptoms or serious impairments in psychological, social or occupational functioning. (Exh.20, 5) Claimant's GAF score is consistent with a diagnosis of a somatic symptom disorder which by definition involves a significant impairment to social, occupational and other areas of function (Exh.21, 45) involving a pain disorder where the patient focuses primarily on pain and is overwhelmed by pain. (Exh.21, 43). Dr. Schmidt explained somatic symptom disorder is not malingering but an unintentional reaction to being overwhelmed by pain and not knowing how to cope with it. (Exh.21, 43).

Dr. Schmidt concluded the injury of October 19, 2014 and the resulting physical limitations from that injury was the prevailing factor in the development of her depression and chronic pain/somatic disorder. ((Exh.20, 4) (Exh.21, 37)

Dr. Schmidt assigned a 30% body as a whole psychological disability to Claimant with 5% being prior to her injury and 25% a result of the October 19, 2014 injury. (Exh.20, 4) Her psychological disability caused moderate impairment with her activities of daily living, her social functioning and her concentration, and marked impairment in her adaption ability. (Exh. 20, 4). While moderate impairment levels impede some but not all useful functioning, (Exh.20, 4) marked impairment to adaption significantly impedes useful functioning and negatively impacts her occupationally with social interaction, problem solving, and consistent and reliable job attendance and performance. (Exh.21, 40-42)

Dr. Schmidt expressed that due to the October 19, 2014 injury and its effects, Claimant needed future mental health care with continued psychological counseling and continued psychotropic medications, (Exh.21, 87) "to try to stabilize her at this point." (Exh.21, 47-48) He reviewed Claimant's treatment records subsequent to his own evaluation and did not see any significant improvement in her condition (Exh. 21, 47), feeling "she's—still continues to be overwhelmed and she has what I would characterize as treatment-resistant depression at this point." (Exh.21, 87)

DR. GUILLERMO IBARRA

Dr. Guillermo Ibarra is a board certified psychiatrist who was retained by the Employer/Insurer. Dr. Ibarra conducted a psychiatric evaluation of Claimant on May 15th, 2020 (Ex.B, 5). He too diagnosed Claimant with somatic symptom disorder and persistent depressive disorder. (Ex.B, 15) He agrees with Dr. Hill and Dr. Schmidt that part and parcel of the somatic symptom disorder diagnosis is there is no misrepresentation by the patient (Ex.B, 57-58). He testified he had no reason to doubt Claimant's symptoms were honest and well intentioned (Ex.B, 21, 57). He discounted malingering as a factor in this case (Ex.B, 25). Dr. Ibarra also agrees with Dr. Schmidt that marked impairment of adaption impedes useful function and constitutes a serious impediment. (Ex.B, 59). Dr. Ibarra is in agreement with Dr. Schmidt's opinion that Claimant has a 30% body as a whole psychological disability with 5% of that disability pre-existing the October 19, 2014 injury (Ex.B, 30).

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Elizabeth A. Steele

Injury No: 14-101897

Dr. Ibarra's initial opinion on causation, however, differs from Dr. Hill and Dr. Schmidt. Dr. Ibarra does not dispute that the October 19, 2014 incident at work caused Claimant physical injury (Ex.B, 36) nor that Claimant sustained physical disabilities due to her injuries (Ex.B, 36). But Dr. Ibarra opines the event of October 19, 2014 was not sufficient to cause the number of symptoms Claimant has had since and the Claimant was pre-disposed to developing mental and/or psychological disability (Ex.B, 22, 27). However, Dr. Ibarra cites no facts to support his theory of pre-disposition. Rather, he admits he doesn't know either the extent or duration of any prior mental health treatment Claimant may have had earlier in her life or of any mental health conditions that interfered with her schooling or education (Ex.B, 55). He admits Claimant was fully functioning in her job prior to the October 19, 2014 injury (Ex.B, 48). He admits he is unaware of any negative effect on her work due to any type of prior psychiatric or mental condition (Ex.B, 48). He admits there were no other events before October 19, 2014 that caused Claimant's pre-disposition to manifest (Ex.B, 65-66). He is not aware of any prior inpatient psychiatric hospitalizations before the October 19, 2014 injury (Ex.B, 52).

Dr. Ibarra acknowledges on cross examination the work-related injury of October 19, 2014 was the proximate cause and was the straw that broke the camel's back in the development of Claimant's current psychological and mental status. (Ex.B, 67, 68 and 69).

Vocational Evidence

TERRY CORDRAY

Terry Corday, a certified vocational rehabilitation counselor since 1975 (Exh.23, 107) interviewed and vocationally tested Claimant on January 4, 2018. His report of findings was dated March 5, 2018. (Exh.22) He also reviewed the medical records and reports on Claimant to determine her functionality and limitations. (Exh.22, 2).

He concluded Claimant is vocationally permanently and totally disabled and that no employer in the usual course of business seeking persons to perform duties of employment in the usual and customary way would reasonably be expected to employ Claimant in her existing physical and mental condition. (Exh.22, 22) Mr. Cordray notes in arriving at his conclusion that the employability standard is from the employer's perspective of whether they would hire the individual to perform the work required in the employment based on Claimant's vocational profile. (Exh.23, 98-99)

Mr. Cordray noted the permanent 20-pound lifting restrictions placed on Claimant by treating physiatrist Dr. Zarr places her in the light-work category, (Exh. 23, 22) and precludes her from performing her occupation as a patient care nurse (Exh.23, 46). Nursing is considered a medium strength demand job requiring the ability to lift up to 50 pounds, (Exh.23, 40) and there are no lighter jobs in the patient care field. (Exh.23, 41). Mr. Cordray found the light-duty job Claimant worked at Research after her injury until released from care by Dr. Zarr is akin to a ward clerk, which are no longer used, and is not a real job that is an option now. (Exh. 23, 62-63)

15 | Page

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Elizabeth A. Steele

Injury No: 14-101897

Mr. Cordray noted her pre-nursing occupation of a massage therapist was a medium demand job and thus her physical lifting restrictions prevented her from returning to that occupation. (Exh.23, 41).

Mr. Cordray emphasized the significance vocationally of Claimants' psychological and mental condition and in particular her marked impairment to adaptation found by Dr. Schmidt. Adaption in the vocational setting involves adapting to new processes, new work rules, a new workplace, new work and new co-workers. (Exh.23, 21). Marked adaption in the vocational area is so severe it affects the ability to work at a job and precludes employment. (Exh.23, 21, 47).

Mr. Cordray finds Claimant's adaption deficit prevents her from using her nursing degree and background in non-patient care settings such as utilization or quality control even if those positions were within her physical capacities (Exh.23,22) because she would be unable to adapt to work environments she wasn't familiar with, to include light nursing jobs. (Exh.23, 24). He stated hospitals don't place employees with permanent restrictions (Exh.23, 29) and Research accepted her as being disabled rather than attempting to find her alternative employment. (Exh.23, 31).

Mr. Cordray also finds Claimant's employability adversely affected because her continuing psychological care and interventions cause problems with reliability and attendance. (Exh.23, 43, 44). While he believes she is smart enough to be retrained, those issues make it unlikely she could attend training on an ongoing basis (Exh.23, 43, 44). This observation is consistent with Claimant's testimony she attempted to return to school in 2017 and dropped out after a semester because of attendance and concentration issues from her physical and mental conditions.

Mr. Cordray found Claimant's psychological condition prior to the October 19, 2014 work-related injury was not vocationally disabling prior to the October 19, 2014 work-related injury, (Exh.23, 83) but that her psychological response and current psychological presentation along with her physical restrictions/limitations now make her totally vocationally disabled. (Exh.22, 22). He further clarified his position in his deposition that her physical restrictions and her psychological reaction to the October 19, 2014 injury take her out of the open labor market and render her permanently and totally disabled without consideration of any prior conditions. (Exh.23, 95-96).

MICHELLE SPRECKER

Michelle Sprecker is a vocational rehabilitation counselor who was retained by the Employer/Insurer to complete a vocational assessment of Claimant. (Exh.C, 7). Ms. Sprecker met with Claimant on June 11, 2020 and issued her report on that assessment on December 29, 2020.

Ms. Sprecker found, based solely on Dr. Zarr's 20-pound lifting restriction, that Claimant could not return to her pre-injury position of registered nurse-critical care unit (Exh.C, 38), the occupation of nursing or any of her pre-injury jobs prior to nursing (Exh.C, 39) with the exception of waitress, sales associate or cashier or wrapper. (Exh.C, 40-41). But considering Dr. Zarr's restrictions in isolation, Ms. Sprecker concluded Claimant could work in the open labor market

16 | Page

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Elizabeth A. Steele

Injury No: 14-101897

listing a few alternatives to include telemarketer, security guard, fast food worker, hostess and light assembly production worker. (Exh.C, report p.28).

Ms. Sprecker concedes, though, Dr. Zarr was treating only Claimant's physical injuries and he did not treat or address her psychological or mental conditions. (Exh.C, 41). Ms. Sprecker acknowledges she must factor into her vocational assessments psychiatric and psychological conditions when they exist. (Exh.C, 42). She agrees Claimant's vocational presentation includes mental and psychological issues and conditions in addition to her physical restrictions. (Exh.C, 48).

When considering the report of Dr. Koprivica, which encompasses both Claimant's mental and psychological issues and conditions along with her physical restrictions, Ms. Sprecker concludes Claimant could not return to any prior employments and could not assess the open labor market. (Exh.C, 42-43).

When considering the report of psychologist Dr. Schmidt, which focuses solely on Claimant's mental and psychological issues and conditions, Ms. Sprecker concludes Claimant could not return to any prior employments and could not assess the open labor market. (Exh.C, 42).

Also when combining either Dr. Schmidt or Dr. Ibarra's opinions on Claimant's mental and psychological issues and conditions with the physical restrictions imposed by Dr. Zarr, Ms. Sprecker concludes Claimant is also permanently and totally disabled. (Exh.C, 44, 69).

Ms. Sprecker agrees with Mr. Cordray that Claimant's marked impairment on adaption is a significant factor vocationally as it limits Claimant's transferability of skills to new jobs and environments. (Exh.C, 49-50, 89).

Permanent Total Disability

Total disability is defined in the statute as the inability to return to any employment and not merely an inability to return to the employment which the employee was engaged in at the time of the accident. See Section 287.020(6) R.S. Mo., 2005; Fletcher v. Second Injury Fund, 922 S.W.2d 402 (Mo. App., 1995); Kowalski v. M-G Metals and Sales, Inc., 631 S.W.2d 919 (Mo. App. 1982); Crums v. Sachs Electric, 768 S.W.2d 131 (Mo. App. 1989).

The phrase "inability to return to any employment" has been interpreted as the inability of the employee to perform the usual duties of the employment under consideration, in the manner that such duties are customarily performed by the average person engaged in such employment. Kowalski v. M-G Metals and Sales, Inc., 631 S.W.2d 919 at 922. The test for permanent total disability is whether, given the employee's situation and condition, he or she is competent to compete in the open labor market. Reiner v. Treasurer of the State of Missouri, 795 S.W.2d 479, 483 (Mo. App. 1990). An injured employee is not required, however, to be completely inactive or inert in order to be totally disabled. The key is whether any employer in the usual course of business would reasonably be expected to employ the injured worker in her present physical condition. Boyles v. USA Rebar Placement, Inc., 25 S.W.3d 418 (Mo. App. W.D. 2000); Cooper

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Elizabeth A. Steele

Injury No: 14-101897

v. Medical Center of Independence, 955 S.W.2d 570 (Mo. App. W.D. 1998); Brokman v. Henry Transportation, 924 S.W.2d 286 (Mo. App. 1996).

On the issue of whether Claimant is permanently and totally disabled, I find the medical and vocational evidence clearly supports the conclusion that Claimant is, in fact, permanently and totally disabled.

There is no dispute Claimant sustained a physical injury to her neck, head and upper back from the October 19, 2014 work-related incident when she was kicked by the agitated patient. She had immediate objective symptoms of spasm across the neck and trapezius as found on initial treatment and an MRI taken shortly after the injury revealed a herniated disc at C5-C6. The mechanism of injury where the patient's leg dropped unexpectedly with force on Claimant's head and neck while she was squatting over him is sufficient force to produce the physical injuries Claimant was diagnosed with of a herniated disc at C5-C6, chronic neck pain, and myofascial injury to her cervicothoracic region with increased frequency and severity of headaches. Claimant had no prior history of traumatic injury to these areas and no prior history of treatment for complaints to those areas.

While Dr. Koprivica and Dr. Clymer disagree on the extent of disability Claimant sustained due to her physical injuries from the October 19, 2014 incident, both agree she did have a disability due to those injuries and the work-related injury was the prevailing factor in that disability. Both also agree all the treatment Claimant received for those injuries was reasonable and appropriate.

The treatment records and reports support Claimant has a disability from her work-related injury. Dr. Gilbert who first rendered care to Claimant for these injuries felt they were serious enough to warrant light-duty work restrictions, physical therapy and later a referral to pain management. The pain management specialists, Dr. Eubanks at PAIN Care and Dr. Foxx at Premier Anesthesiology, believed cervical epidurals were needed to treat Claimant's conditions they diagnosed as cervical disc displacement and cervical/brachial radiculitis. Dr. Foxx specifically noted the work place injury was the prevailing factor for the injury and the epidurals were needed because Claimant suffered from chronic pain which caused her psychological, social and physical impairment.

Though orthopedic surgeon Dr. Jackson did not believe Claimant was a surgical candidate, he did diagnose a herniated disc at C5-C6 due to the injury. And Dr. Zarr, despite the invalid FCE result, felt Claimant's injury necessitated a permanent 20-pound lifting restriction.

Based on the medical evidence and Claimant's testimony as to the effects of the physical injury on her activities of daily living, I give more weight to Dr. Koprivica's 20% PPD to the body as a whole for the physical injuries arising from the October 19, 2014 injury than Dr. Clymer's 5% PPD rating.

Concerning Claimant's mental/psychological condition, the three mental health experts who testified in this matter - Dr. Hill, Dr. Schmidt, and Dr. Ibarra - agree Claimant has a

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Elizabeth A. Steele

Injury No: 14-101897

psychological disability. Dr. Schmidt and Dr. Ibarra ascribe a 30% body as a whole psychological disability with 25% apportioned to the October 19, 2014 injury and 5% preexisting. Dr. Hill opines Claimant's overall psychological disability is higher at 40% body as a whole with 5% assigned as preexisting the October 19, 2014 injury.

All three mental health experts agree that Claimant has a major depression disorder and somatic symptom disorder that developed subsequent to her October 19, 2014 injury. All three agree there is no malingering or misrepresentation on Claimant's part in her presentation where her subjective symptoms exceed objective findings. All agree such a presentation is not intentional but is inherent in someone with a somatic symptom disorder, as they focus and concentrate upon their pain. Dr. Ibarra, retained by the Employer/Insurer, testified he had no reason to doubt Claimant's symptoms were honest and well intentioned.

The disagreement between the mental health experts is on the cause of the diagnosis as Drs. Hill and Schmidt find the October 19, 2014 work injury was the prevailing factor in the Claimant's development of her major depression disorder and somatic symptom disorder, while Dr. Ibarra believes the conditions would have developed eventually without the October 19, 2014 injury. However, on cross-examination, Dr. Ibarra concedes the work-related injury of October 19, 2014 was the straw that broke the camel's back and thus the proximate cause and of Claimant's current psychological and mental status.

I find the opinions of Dr. Hill and Dr. Schmidt more credible on the causation issue than Dr. Ibarra's. Claimant did have preexisting psychological issues with episodic depression upon her mother's death and upon her own diagnosis of cancer. However, Claimant was able to function fully educationally attending college to obtain a massage therapy certificate and nursing school to obtain her RN degree and there is no evidence she had any mental or psychological issues or conditions that interfered with her schooling, was under any sort of treatment for any such conditions, or was prescribed or was she taking any psychotropic medications during that time period.

Claimant was also able to function fully occupationally as there is no evidence she had any mental or psychological issues or conditions that interfered with her employment. Rather, she worked full time and full duty at her various occupations and was able to operate her own business as a massage therapist for nearly 10 years. She was under no active treatment nor taking any psychotropic medications. She was able to work full time, full duty as a CCU nurse for the Employer and was under no psychological limitations or restrictions. There are no records of any incidents, reprimands, write-ups or complaints concerning Claimant's performance while working for the Employer.

There is also no evidence which contradicts Claimant's testimony that she had no mental or psychological issues or conditions at or before the October 2014 injury that affected Claimant's ability to participate in her activities of daily living or her hobbies.

The treatment records show the development of Claimant's psychological disability from this injury which began during the time she was receiving cervical ablations and epidurals from Dr. Foxx. She testified, and the treatment records show, she was depressed and anxious because

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Elizabeth A. Steele

Injury No: 14-101897

of the continued pain and worries about how her injuries may affect her career as a nurse. Her mental health became progressively worse as her pain persisted and reached a point of severity after she lost her job as a nurse that inpatient hospitalizations was prescribed and ongoing mental health interventions, to include an additional 7 inpatient admissions, became necessary.

This is consistent with the causation opinions of Drs. Hill and Schmidt and more consistent with the facts of this case, where her psychological condition becomes disabling following the chronic pain from the work injury of October 19, 2014, than Dr. Ibarra's theory of predisposition and inevitability. While we might speculate on what might happen, we have an injury event that actually occurred and precipitated the psychiatric disability that all 3 mental health experts say flowed following that injury.

I agree with the mental health experts and Dr. Koprivica that Claimant presents herself in a forthright and believable manner. I find her testimony on her limitations due to the physical and psychological injuries credible. I find that, while there is psychological overlay in her physical complaints, that the evidence in this case is overwhelming that this psychological overlay derives from the chronic pain she perceives from the physical injuries and from the agreed upon psychiatric diagnosis of the major depressive disorder and somatic symptom disorder with predominant pain.

I find, based on the mental health experts reports and testimony, that Claimant sustained a 35% PPD to the body as a whole due to her psychological disability caused by the October 19, 2014 work injury. But I further find that, when the physical disabilities from October 19, 2014 are combined with the psychological disability that developed from those disabilities, that Claimant is permanently and totally disabled.

Claimant's mental/psychological disability from these injuries is extremely serious. She has a global assessment of function (GAF) of 50 which indicates serious symptoms or serious impairments of psychological, social and occupational function. Her marked impairment in adaption significantly impedes useful function and negatively affects her occupationally with social interaction, problem solving and consistent reliable job attendance and performance. Mental health experts, Dr. Hill, Dr. Schmidt, and Dr. Ibarra, felt marked impairment on adaption was extremely serious to her mental health.

Vocational expert Terry Cordray testified that vocationally marked adaption is so severe it affects the ability to work at a job and precludes employment. He explained Claimant's marked impairment in adaption prevents her from using her nursing degree and background in non-patient care settings because she will be unable to adapt to work environments she wasn't familiar with and to follow the procedures found in new job settings, and adapt to new co-workers, new bosses, new rules, and new procedures. An additional expert retained by the employer, Michelle Sprecker, agreed marked impairment on adaption is a factor vocationally as it limits Claimant's transferability of skills to new jobs and environments.

Dr. Hill and Dr. Koprivica testified that Claimant is permanently and totally disabled. Dr. Koprivica felt Claimant's permanent total disability was due to a combination of her psychological and physical injuries from the October 19, 2014 injury and her pre-existing history of migraine headaches. Dr. Koprivica did note, however, that it was certainly reasonable for a

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Elizabeth A. Steele

Injury No: 14-101897

Claimant to be permanently and totally disabled on the last injury alone. Dr. Koprivica opined that her psychological dysfunction in response to the October 19, 2014, injury realistically precluded her from accessing the open labor market in any capacity.

Dr. Hill's opinion was that Claimant's physical injuries in combination with her psychological injuries from October 19, 2014 are the basis for total permanent disability. He found the extent of medication she was taking, along with the side effects of this medication alone, make her unemployable.

I agree with Dr. Hill and find, based on the extent of Claimant's psychological disability due to the October 19, 2014, injury and the physical injuries sustained on that date, that they in isolation cause Claimant to be permanently and totally disabled.

Both vocational experts, Mr. Cordray and Ms. Sprecker, find that with Claimant's physical restrictions from the October 19, 2014 injury are combined with her psychological and mental conditions, she is unemployable. Mr. Cordray is of the belief physical restrictions and psychological reaction to the October 19, 2014 injury, make her permanently and totally disabled in isolation irrespective of any prior disabilities. Ms. Sprecker finds the only scenario in which Claimant was employable was if only Dr. Zarr's physical restriction of lifting greater than twenty pounds was utilized. Ms. Sprecker admitted, however, that Claimant's true vocational profile would have to include her mental and psychological issues and conditions and when those are combined with Dr. Zarr's limitations, she is permanently and totally disabled. Thus, both the medical and vocational evidence clearly supports a finding that Claimant is permanently and totally disabled due to the effects of the October 19, 2014 injury in isolation. As such, I find no liability on behalf of the Second Injury Fund in this matter.

Claimant had the burden of proving all material elements to her claim. *Fischer v. Arch Diocese of St. Louis-Cardinal Richter Inst.*, 703 S.W.2d 196 (Mo. App. E.D. 1990); overruled on other grounds by Hampton v. Big Boy Steel Erectors, 121 S.W.3d 220 (Mo. Banc 2003); *Griggs v. A.B. Chance Company*, 503 S.W.2d 697 (Mo. App. W.D. 1973); *Hall v. Country Kitchen Restaurant*, 935 S.W.2d 917 (Mo. App. S.D. 1997). Claimant met her burden of proof as set out.

I further find based on the opinions of Dr. Koprivica, Dr. Hill and Dr. Schmidt that the Employer/Insurer shall provide future medical care to cure and relieve from the effects of the work-related injuries to include additional pain and medication management for both her physical and psychiatric injuries.

I further find Claimant reached maximum medical improvement when released at MMI by Dr. Zarr on January 13, 2016 and her employment with Research ceased. Her permanent total disability benefits would commence to run at that point in time. Based on the foregoing, the Employer/Insurer is responsible for paying the full permanent total benefits at the rate of $844.62 per week from that date and continue with said weekly payments so long as the Claimant Elizabeth Steele remains so disabled and entitled to benefits pursuant to law.

21 | Page

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Elizabeth A. Steele

Injury No: 14-101897

The compensation awarded Claimant Elizabeth Steele shall be subject to a lien of 25% of all payments hereunder in favor of Frederick W. Bryant, her attorney, for necessary legal services rendered.

I certify that on Sep 28 2021

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: *Haomi Basson*


*Mark Siedlik*

Mark S. Siedlik,

Chief Administrative Law Judge

Division of Workers' Compensation