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Hazeltine v. State

Court of Appeals of Missouri, Eastern District, Second Division

October 22, 2019

MARY KAY HAZELTINE, Appellant,
v.
STATE OF MISSOURI, SECOND INJURY FUND, Respondent.

          Appeal from the Labor and Industrial Relations Commission

          PHILIP M. HESS, PRESIDING JUDGE

         Introduction

         Mary Kay Hazeltine ("Claimant") appeals from the final award of the Labor and Industrial Commission ("Commission") denying her claim against the Second Injury Fund ("Fund"). On appeal, Claimant contends the Commission erred in denying her claim because it incorrectly found she: (1) did not have preexisting permanent disabilities that were a hindrance or obstacle to her employment before the work injury she sustained on June 15, 2012, and (2) failed to prove the nature and extent of her preexisting permanent disabilities and also the combination of her preexisting permanent disabilities and primary injury resulted in permanent total disability. We find the Commission's award concluding the Fund is not liable for Claimant's permanent and total disability is not supported by sufficient competent evidence. The decision of the Commission is reversed and remanded.

         Factual and Procedural Background[1]

         Claimant filed a claim for compensation on July 17, 2012, claiming she was injured because of a work accident that occurred on an assembly line while she worked for General Motors ("Employer") on June 15, 2012. Claimant also filed a claim against the Fund based upon preexisting disabilities. Claimant alleged she experienced significant psychiatric trauma as a victim of physical and sexual abuse and after her daughter's rape and murder in 1995.

         June 15, 2012 Injury

         Claimant began working for Employer as a summer worker on June 4, 2012. Claimant performed a variety of jobs for Employer, most of which involved the assembly of vehicles. While at work on June 15, 2012, Claimant was working on the assembly line when a tool rack suspended from the ceiling hit her on the head and left shoulder. Claimant did not recall being struck in the head, but she recalled being told by a co-worker she was struck. Claimant was taken to the emergency room. The emergency room doctor diagnosed her with a head injury, a head laceration, a left shoulder strain, and neck pain.

         Claimant returned to work after the accident, but she struggled to keep up with the job demands. Employer's plant was very noisy, which caused Claimant to suffer headaches and lose concentration. Claimant worked light duty for one week and worked one day of full duty before she was fired.[2] She has not returned to work since Employer fired her.

         Psychiatric Trauma Preexisting June 15, 2012

         Before the accident, Claimant experienced several psychiatric traumas. In high school in the 1970s, she was walking down the street in her neighborhood when a man pulled her into his basement and raped her. She was physically abused by a former partner. In 1995, a fellow student raped and murdered Claimant's daughter in a high school restroom. Claimant attended two counseling sessions after her daughter's murder, but because they did not help, she did not return. Claimant left her job at Hussmann Corporation, where she worked on the assembly line, in 1995 because of her daughter's death. A few years later, Claimant moved out of the area so she would not be near the school where her daughter was murdered. Claimant's primary care physician diagnosed her with mild anxiety and depression with insomnia after her daughter's death. He prescribed her Xanax and Ambien. In the years following her daughter's death, Claimant was heavily involved in the prosecution of her daughter's murderer.

         Administrative Hearing

         Claimant filed a claim for compensation against Employer and the Fund on July 13, 2012. Claimant settled with Employer for permanent partial disability of 4.5% of the body as a whole referable to the head, 10% of the body as a whole referable to her psychiatric disability, and 5.5% of the body as a whole referable to the left shoulder. The settlement totaled $30, 000 and was approved by an Administrative Law Judge ("ALJ") on February 9, 2016. The ALJ tried Claimant's remaining claim against the Fund for permanent and total disability benefits on March 6, 2018. Claimant offered the deposition testimony of three medical experts, the deposition testimony of a vocational rehabilitation expert, and her own deposition and hearing testimony into evidence. She also offered medical records into evidence that related to her treatment both before and after the accident. The Fund offered no evidence. The testimony Claimant presented is summarized as follows.

         Claimant's Testimony

         Claimant testified her daughter's rape and murder in 1995 was the reason she left her employment at Hussmann and stayed out of the workforce from 1995 until 2012. She testified she did not seek employment again until 2012 because she was not handling her daughter's death well. Shortly after her daughter's murder, Claimant abused alcohol. Her alcohol abuse resulted in several driving while intoxicated ("DWI") convictions. Because of her convictions, Claimant successfully completed the court-mandated Substance Abuse Traffic Offender Program and attended Alcoholics Anonymous and counseling sessions. Claimant testified she helped raise her four grandchildren when the first of them was born in 2004. She testified she would often watch her grandchildren daily and she had custody of one of her granddaughters for the first eighteen months of her life. She testified she returned to the workforce in 2012 because her grandchildren were starting school.

         Claimant testified she had no trouble completing her job duties and working overtime for Employer before the accident. However, after her accident, Claimant testified her head "always hurts." She described her headaches as being "like somebody's pulling a shade down" over her eyes. Claimant testified she also experiences buzzing in her ears. When Claimant gets a headache, she has to go to a quiet place to lie down. Bright lights, loud noises, and crowds trigger Claimant's headaches. Claimant avoids driving and leaving the house. Claimant testified she encounters more triggers for her headaches when she is out rather than at home. Claimant was never treated for headaches before the accident. Claimant testified that, after the accident, her Xanax prescription was increased from two pills to three pills per day, although her medical records do not reflect this change.

         Claimant also testified that, following her injury, she cannot move her shoulder in certain positions; she puts her clothes on differently than before the accident. She also testified she developed dizziness and vertigo after the accident and her sleep habits have changed. Before the accident, Claimant slept only five to seven hours per day. After the accident, Claimant sleeps twelve or more hours per day. She testified she never experienced memory problems before the accident. After the accident, Claimant testified she has memory problems and they continue to worsen. She also testified she experiences mood swings and panic attacks since the accident.

         Expert Testimony

         Claimant offered the deposition testimony of Dr. Volarich into evidence. Dr. Volarich examined Claimant on November 4, 2013, and rated Claimant as having 10% disability of the body as a whole due to her closed head trauma causing concussion with post-concussive headaches, tinnitus, and vestibular dysfunction. He also found Claimant had 15% disability of the left shoulder due to rotator cuff tendinitis. In his deposition, Dr. Volarich testified the accident was the prevailing factor causing her symptoms, need for treatment, and resulting disability. Based on her medical records, Dr. Volarich also found Claimant suffered from anxiety and depression, however, he deferred to a psychiatrist for any psychiatric evaluation and diagnosis. Dr. Volarich testified that, in his thirty-four years of experience as a medical doctor, patients with depression have an "altered pain threshold" that makes subsequent injuries they sustain "worse." He testified "[t]hey perceive pain differently, more intensely, lasting longer periods of time, needing more medication, [and] more time for therapy to try to resolve or heal conditions."

         On July 15, 2015, after reviewing Dr. Liss' and Dr. Sky's report, Dr. Volarich issued an addendum to his initial report. In that addendum, he stated he found Claimant's psychiatric disabilities identified by Drs. Liss and Sky combined with the physical disabilities he rated on November 4, 2013, to create a substantially greater disability than the simple sum of the disabilities. On August 8, 2017, after reviewing Mr. England's vocational rehabilitation evaluation, Dr. Volarich issued a second addendum in which he stated he found Claimant permanently and totally disabled, primarily because of her psychiatric conditions.

         Claimant offered the deposition testimony of Dr. Sky into evidence. Based upon Claimant's subjective complaints, history, and medical records, Dr. Sky diagnosed Claimant with single episode major depression, anxiety disorder, post-concussive disorder, and alcohol abuse disorder in remission on April 1, 2014. Dr. Sky rated Claimant as having 25% permanent psychiatric disability preexisting the accident. He opined Claimant's preexisting psychiatric disability was "exacerbated" another 75% by the accident. Dr. Sky further found Claimant could not function in the open labor market due to her poor focus, lack of concentration, anxiety, and anhedonia.[3] Dr. Sky found these symptoms were caused by a combination of Claimant's preexisting psychiatric disability and the accident's exacerbation of that psychiatric disability. On cross-examination, Dr. Sky noted he did not review any "psychiatric" treatment records predating Claimant's work accident because several of her primary care physician's treatment records from 1995 to 1996 were destroyed in a fire and made unavailable. He noted in his report, however, that the availability of such records would not have materially changed his diagnosis or disability rating of Claimant. Dr. Sky indicated Claimant did not specify the psychiatric symptoms she experienced before the accident, but he recalled Claimant told him she experienced a generalized feeling of sadness. After the accident, Dr. Sky noted Claimant experienced several symptoms, including loss of focus, loss of concentration, and headaches.

         Claimant offered the deposition testimony of Dr. Liss into evidence. Based on the responses Claimant provided on written questionnaires and his interview with Claimant, Dr. Liss diagnosed Claimant with post-traumatic stress disorder ("PTSD") and associated anxiety and depression because of the accident on June 29, 2015. He also diagnosed Claimant with PTSD and associated anxiety and depression preexisting the accident. He reported the physiologic symptoms of her PTSD included "startle, sleeplessness, anxiety, and panic." Dr. Liss opined the core of Claimant's PTSD began with her daughter's murder but the accident "magnified" her symptoms. Dr. Liss rated Claimant as having 50% preexisting disability related to her PTSD. He rated Claimant as having 50% post-accident disability due to the aggravation of her PTSD, depression, and anxiety. He testified PTSD is neither treatable nor curable.

         In his deposition, Dr. Liss opined Claimant's preexisting PTSD was serious enough to constitute an obstacle or hindrance to employment or reemployment. Dr. Liss testified Claimant is totally and permanently disabled due to a combination of her preexisting disability and the disability resulting from the accident. On cross-examination, Dr. Liss admitted he did not separately list the PTSD symptoms Claimant experienced before and after her work accident in his report; instead, he listed all her symptoms related to PTSD, depression, and anxiety. Dr. Liss testified that, while there is an overlapping in the symptoms Claimant experienced, "new and exaggerated symptoms have occurred since the injury at work." He further testified that Claimant's preexisting PTSD "feed[s] on" her post-accident PTSD. Dr. Liss testified Claimant had panic attacks with flashbacks about her daughter's murder before the work accident, but he did not list these symptoms in his report. Dr. Liss confirmed the only psychiatric treatment Claimant received for any length of time was medication from her primary care physician. Dr. Liss stated that, had he seen Claimant before the accident, he would have thought she was permanently and totally disabled due to the horrific nature of her daughter's murder and her continued involvement in the subsequent prosecution of her daughter's murderer.

         Lastly, Claimant offered the deposition testimony of Mr. England, a vocational expert, into evidence. On March 16, 2015, Mr. England evaluated Claimant, and he issued his report on April 6, 2015. Mr. England concluded that, before the accident, she was able to compete for work in the open labor market because she had applied and been hired at Employer's plant and was working regularly. Mr. England concluded there was no physical reason Claimant could not work. However, based on Dr. Sky's and Dr. Liss' reports, Mr. England thought Claimant was permanently and totally disabled and could not compete for employment from a psychiatric standpoint after the accident. Mr. England also testified that Claimant's presentation would make it difficult for her to be hired; she had a flat affect, she appeared anxious, and she requested the lights in his office be turned off due to her photo-sensitivity during his evaluation of her.

         On cross-examination, Mr. England stated he did not review any medical records that predated Claimant's work injury. Mr. England indicated Claimant did not report any specific psychiatric symptoms she experienced relating to her daughter's death until after her work accident. Mr. England also stated Claimant did not indicate she had problems with focus and concentration before the work accident.

         Administrative Findings

         The ALJ issued her award on May 23, 2018, denying Claimant permanent total disability benefits from the Fund. The ALJ concluded Claimant did not "meet her burden of proving the nature and extent of any alleged preexisting psychological disability by a reasonable degree of certainty." The ALJ found, "other than testifying very briefly about leaving her job after her daughter's death, going to a therapist twice, and receiving Ambien and Xanax from her primary care doctor, Claimant did not testify about any actual symptoms prior to her work accident." The ALJ also found against Claimant because she "failed to offer any specific testimony, either at hearing or in her deposition, regarding how or whether her alleged preexisting psychiatric conditions constituted a hindrance or obstacle to employment."

         The ALJ found the expert testimony Claimant offered to support her contention of permanent and total disability due to the combination of her preexisting and primary disabilities was "not persuasive." The ALJ found the experts not persuasive because they had "little or no specific history of any prior psychiatric symptoms or problems" and only had preexisting psychiatric treatment records from Claimant's primary care physician to consult in reaching their opinions. The ALJ found Dr. Liss' testimony was not persuasive because he never mentioned Claimant suffered any specific preexisting psychiatric symptoms or limitations and some of his answers contradicted each other.[4] Similarly, the ALJ found Dr. Sky's testimony was not persuasive because he did not recall Claimant reporting any specific preexisting symptoms other than Claimant drinking excessively after her daughter's death. The ALJ noted Dr. Volarich made no assessment of psychiatric diagnosis, and Claimant did not provide Mr. England any history of specific mental or physical problems in the years between her daughter's death and her employment with Employer.

         Claimant appealed the award to the Commission. A majority of the Commission found the ALJ's award was supported by sufficient competent evidence and affirmed the ALJ's decision.

         Commissioner Curtis E. Chick, Jr. filed a dissenting opinion. He found Claimant proved the combination of her preexisting disabilities and primary injury caused permanent total disability, thus entitling her to relief against the Fund. Commissioner Chick concluded the majority of the Commission used an incorrect analysis in concluding that Claimant was not entitled to relief against the Fund. Commissioner Chick disagreed that Claimant had to prove her preexisting disabilities constituted a hindrance or obstacle to employment or reemployment; instead, Commissioner Chick maintained Claimant was only required to prove her preexisting disabilities had the "potential to combine with a work-related injury in the future so as to cause a greater degree of disability than would have resulted in the absence of the condition." (alteration in original). Given Claimant's ...


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