Otwell v. Treasurer of Mo., ED 109447

CourtCourt of Appeal of Missouri (US)
Writing for the CourtKURT S. ODENWALD, Presiding Judge
Citation634 S.W.3d 850
Parties Patricia (Parrish) OTWELL, Appellant, v. TREASURER OF MISSOURI as Custodian of the Second Injury Fund, Respondent.
Docket NumberNo. ED 109447,ED 109447
Decision Date02 November 2021

634 S.W.3d 850

Patricia (Parrish) OTWELL, Appellant,
TREASURER OF MISSOURI as Custodian of the Second Injury Fund, Respondent.

No. ED 109447

Missouri Court of Appeals, Eastern District, DIVISION ONE.

FILED: November 2, 2021

For Appellant: Nancy R. Mogab, 130 S. Bemiston Ave., St. Louis, MO 63105.

For Respondent: David C. Drescher, 815 Olive St., Ste. 200, St. Louis, MO 63101.

KURT S. ODENWALD, Presiding Judge


Patricia (Parrish) Otwell ("Otwell") appeals from the decision of the Labor and Industrial Relations Commission (the "Commission") awarding her permanent partial disability ("PPD") against the Treasurer of Missouri as Custodian of the Second Injury Fund (the "SIF"). Otwell settled her case with Daimler Chrysler ("Employer") following her diagnosis of

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bilateral carpal tunnel syndrome (the "Primary Injury") and subsequently sought an award of permanent total disability ("PTD") from the SIF as a result of the combination of her Primary Injury with her preexisting disabilities, including psychiatric illness. Otwell raises five points on appeal. Point One asserts the Commission erred in excluding all testimony from vocational expert Timothy Lalk ("Lalk"). Point Two challenges the Commission's exclusion of testimony from a different expert witness based on the exclusion of Lalk's testimony. Point Three claims the Commission erred in finding Otwell had no preexisting psychiatric disability contributing to a PTD finding because the record supports a finding that Otwell suffered from a preexisting psychiatric disability at the time she suffered the Primary Injury. Point Four asserts the Commission erred in finding that the award for the Primary Injury could not support an award of PTD against the SIF. Point Five maintains the Commission erred in denying PTD, or erred in not awarding PPD for the Primary Injury combined with preexisting disabilities of the right shoulder, incontinence, and psychiatric illness, because the evidence supported a finding that Otwell had preexisting psychiatric disability. Because the Commission abused its discretion in excluding the entirety of Lalk's testimony, we grant Point One. On remand, we direct the Commission to admit Lalk's report and deposition testimony into evidence and determine its impact, if any, on the Commission's award. The remaining points on appeal raise issues that the Commission will necessarily revisit on remand in light of Lalk's testimony and its reevaluation of Otwell's claim of preexisting psychiatric disability. For that reason, our holding on Point One is dispositive of this appeal and moots our consideration of the remaining points on appeal. Accordingly, we reverse the Commission's award and remand for further proceedings consistent with this opinion.

Factual and Procedural History

Otwell, now sixty-three years old, began working for Employer in 1984 and continued until May 2009, when Otwell accepted an offer to retire following the closure of Employer's St. Louis plant.

Otwell reported complaints of bilateral upper extremity pain to Employer in February 2009, when she developed occupational injuries to her hand due to repetitive actions. On February 10, 2009, Employer referred Otwell to a physician, and Otwell was ultimately diagnosed with bilateral carpal tunnel syndrome. Otwell underwent carpal-tunnel release surgery in April 2009.

The same year, Otwell filed a workers’ compensation claim against Employer for the Primary Injury. Otwell initially alleged PPD, and she settled her Primary Injury claim with Employer in February 2010. In January 2016, Otwell amended her claim, seeking coverage under the SIF for PTD. Otwell alleged she was unemployable in the open labor market and was permanently and totally disabled due to the combination of her Primary Injury with preexisting disabilities of a prior shoulder injury, incontinence, and psychiatric illness. Otwell has not been employed following her retirement from her job with Employer in 2009.

Otwell settled her Primary Injury claim with Employer for 16% PPD on each wrist. Otwell later pursued her claim for PTD against the SIF before an Administrative Law Judge ("ALJ"), who conducted a hearing on Otwell's SIF claim on March 6, 2019.

Otwell alleged various disabilities predated her 2009 Primary Injury. In 2008, Otwell developed urinary incontinence and

634 S.W.3d 854

underwent bladder sling procedures and additional therapy. Otwell attributed her incontinence to having operated a particular machine while working for Employer. Otwell settled her claim for this injury with Employer for 2.5% PPD. Otwell also claimed a right shoulder injury that occurred while working for Employer prior to 2005.

Otwell further alleged she suffered from a psychiatric disability that pre-dated the 2009 Primary Injury. At the hearing before the ALJ, Otwell testified about her history of mental illness stemming from abuse outside her employment. Otwell alleged that the combination of her preexisting psychiatric disability and physical impairments rendered her permanently and totally disabled.

In support of her claim for PTD, Otwell proffered expert witness testimony from Lalk, a vocational rehabilitation counselor. Lalk prepared an eighteen-page vocational rehabilitation evaluation report in 2017 after he interviewed Otwell in 2014 and reviewed her medical records and deposition.1 Lalk concluded that Otwell was unable to maintain employment in the open market and was permanently and totally disabled. Lalk conducted a personal interview and vocational testing of Otwell during which he observed Otwell had difficulty communicating, poor mood control, and often stopped to cry between questions. Otwell told Lalk that she had experienced depression throughout her life.

In addition to interviewing Otwell, Lalk reviewed her medical records from a number of physicians and counselors dating back to 2005. Relevant to this appeal, Lalk remarked that the 2005 medical records showed Otwell complained of difficulty sleeping. Lalk further reported that Otwell's treating physician in 2007 recorded Otwell's complaints of stress and anxiety, and prescribed her medication for depression. Lalk also reviewed records from 2007 through July 2009 of Elaine Toon ("Toon"), a licensed professional counselor who treated Otwell. Toon's records disclosed complaints of depression and anxiety that Otwell reported she had suffered most of her life. The counselor's records indicated Otwell raised issues of suicidal ideation, childhood neglect, and abuse. Toon diagnosed Otwell with major depression recurrent, post-traumatic stress disorder ("PTSD"), generalized anxiety disorder, and gambling addiction. Counseling records from January 2008 indicated Otwell described having panic attacks and stress related to her work as well as other physical, mental, and emotional issues. Lalk also reviewed records related to Otwell's hospital admission on March 23, 2009, for suicidal and homicidal ideation with a diagnosis of major depression. Otwell was subsequently released, but was hospitalized again in December 2009 for reported suicidal ideation, panic attacks, and decreased sleep and appetite following the loss of her husband. Otwell's hospital records revealed an assessment of major depression and with an indication of a single, severe episode. Lalk also reviewed the records of psychiatrist Dr. Adam Sky ("Dr. Sky"), who performed a 2017 independent psychiatric exam ("IPE"). Dr. Sky's records indicated Otwell suffered from depression beginning in the late 1980s and had a history of major depression disorder, moderate to severe recurrent, generalized anxiety disorder, PTSD, and gambling disorder.

As part of his review of Otwell's medical records, Lalk read a 2012 report prepared

634 S.W.3d 855

by Dr. Eli Shuter ("Dr. Shuter"). Dr. Shuter had conducted an independent medical evaluation ("IME") of Otwell in 2011 but died before testifying in Otwell's proceedings. The ALJ had ruled Dr. Shuter's report inadmissible because the report was prepared by a non-testifying expert. During Lalk's deposition, the SIF cross-examined him as to whether he "relied" on Dr. Shuter's report in reaching his conclusions regarding Otwell's PTD. Counsel for the SIF defined "rely" as "reviewed, read, looked at and then subsequently came to your conclusions because of reviewing, reading and looking at those things." Based on the SIF's definition, Lalk answered yes. Lalk's report first mentions Dr. Shuter in his medical records review on page six and discusses Dr. Shuter's report for one page of the twelve-page review of medical records. Lalk noted that Dr. Shuter indicated Otwell reported having anxiety and depression since the 1990s when she first received psychiatric treatment, and that Dr. Shuter identified multiple preexisting disabilities, including anxiety and depression. Lalk testified that he reviewed Shuter's IME along with Dr. Sky's IPE and other medical records.

Lalk testified he did not know precisely when Otwell's psychiatric symptoms began. But based on his review of all the medical records provided to him and his discussions with Otwell, Lalk opined that Otwell reported psychiatric conditions predating the Primary Injury, particularly depression and anxiety dating back to the 1980s or early 1990s....

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