Hazeltine v. Second Injury Fund, No. ED 107630

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: Philip M. Hess, Presiding Judge
• Citation: 591 S.W.3d 45
• Docket Number: No. ED 107630
• Decision Date: 22 October 2019
• Parties: Mary Kay HAZELTINE, Appellant, v. State of Missouri, SECOND INJURY FUND, Respondent.

591 S.W.3d 45

Mary Kay HAZELTINE, Appellant,
v.
State of Missouri, SECOND INJURY FUND, Respondent.

No. ED 107630

Missouri Court of Appeals, Eastern District, DIVISION TWO.

Filed: October 22, 2019
Motion for Rehearing and/or Transfer to Supreme Court Denied November 25, 2019
Application for Transfer Denied February 4, 2020

FOR APPELLANT, Daniel R. Keefe, Keefe & Griffiths, P.C., 10 South Broadway, Suite 500, St. Louis, Missouri 63102.

FOR RESPONDENT, Mary J. Sommers, Assistant Attorney General, PO Box 861, St. Louis, Missouri 63188.

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 Background¹

Claimant filed a claim for compensation on July 17, 2012, claiming she

591 S.W.3d 51

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.

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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

591 S.W.3d 53

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...