Shipp v. Treasurer of State

• Court: Missouri Court of Appeals
• Writing for the Court: Gary M. Gaertner, Sr.
• Citation: Shipp v. Treasurer of State, 99 S.W.3d 44 (Mo. App. 2003)
• Decision Date: 18 February 2003
• Docket Number: No. ED 81274.,ED 81274.
• Parties: Juanita SHIPP, Appellant/Cross-Respondent, v. TREASURER OF the STATE of Missouri as Custodian of the Second Injury Fund, Respondent/Cross-Appellant.

Page 44

99 S.W.3d 44

Juanita SHIPP, Appellant/Cross-Respondent, v. TREASURER OF the STATE of Missouri as Custodian of the Second Injury Fund, Respondent/Cross-Appellant.

No. ED 81274.

Missouri Court of Appeals, Eastern District, Division Two.

February 18, 2003.

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Susan K. Roach, Law Office of Susan K. Roach, Chesterfield, MO, for appellant/cross-respondent.

Jeremiah W. (Jay) Nixon, Attorney General, M. Jennifer Sommers, Jill L. Selsor, Plia D. Cohn, St. Louis, MO, for respondent/cross-appellant.

GARY M. GAERTNER, SR., Judge.

Appellant, Juanita Shipp ("claimant"), appeals from the unanimous final award of the Labor and Industrial Relations Commission ("commission"), modifying the decision of the Administrative Law Judge ("ALP), finding that respondent, the Second Injury Fund ("SIF") was liable to claimant for sixty weeks of permanent partial disability for a total award of $17,683.80. The SIF cross-appeals the commission's award of additional permanent partial disability due to a combination of claimant's preexisting and primary injuries. We affirm.

Claimant filed a claim for compensation that alleged she suffered an injury to her left shoulder, left arm, left side, and left hand while working at Hazelwood Farms Bakery, Inc. ("employer") on August 13, 1998. Additionally, claimant filed a claim against the SIF alleging previous injuries to her back, right wrist, ribs, and chest. Claimant also alleged problems with hypertension and "present psychological psychiatric depression." Employer and its insurer settled their risk of liability with claimant for $17,500. The settlement was based upon fifteen percent permanent partial disability ("PPD") of claimant's left shoulder and six percent PPD of claimant's right elbow. However, a hearing was held by the ALJ on the single issue of the liability of the SIF.

At the hearing, claimant, who was forty-four years old at the time with an eighth-grade education, testified that she began working for employer in 1994 as a "miscellaneous worker." Claimant performed various duties on employer's assembly line. On August 13, 1998, claimant sustained an injury while she was scooping apples with a shovel out of one barrel and loading them into another barrel. Claimant, who is left-hand dominant, "felt something hot" and then heard a "pop" and her left shoulder began to hurt.

According to medical records and claimant's testimony, she saw a number of doctors in the days immediately following August 13, 1998. Claimant complained of left shoulder pain and right elbow pain. Claimant's private doctor, Dr. David Kantor, diagnosed left shoulder rotator cuff strain and right tennis elbow due to claimant's work injury of August 13, 1998. Dr. Kantor gave claimant a release from work and claimant began physical therapy. After approximately two months of physical therapy, claimant again saw Dr. Kantor who again diagnosed right tennis elbow and left rotator cuff strain, but he indicated claimant could return to work. However, claimant never actually returned to work because she was terminated for absenteeism.

At the time claimant was undergoing treatment for her injuries she was also under the care of a psychiatrist. Claimant had seen a psychiatrist since 1994 or 1995 for the treatment of major depression with psychotic features. Claimant claimed to hear voices and see "little bugs or little insects crawling on the television." Also, claimant testified she takes medication for her psychiatric problems. Records from the Mental Health Group were admitted into evidence.

In addition to her previous mental problems, claimant testified that she had suffered numerous previous physical problems. Prior to August 1998, claimant had been treated for back problems, hypertension, chest wall pain, and side pain. Additionally, claimant testified she had right wrist carpal tunnel syndrome and had undergone therapy and treatment prior to August of 1998. Also, claimant testified she had sustained an injury to her right elbow prior to August of 1998.

In addition to the medical records and claimant's testimony, three depositions were admitted into evidence. The depositions of Dr. Raymond Cohen, a board-certified neurologist, and Timothy Lalk, a vocational rehabilitation counselor, were submitted on behalf of claimant. The deposition of Dr. Sandra Tate was submitted on the behalf of the SIF.

Dr. Cohen saw claimant twice during the course of 2000 and reviewed "voluminous records" regarding the health of claimant. Dr. Cohen opined that claimant had a twenty-five percent PPD at the left shoulder and a twenty percent PPD at the left elbow. In regard to claimant's injuries which preexisted August of 1998, Dr. Cohen opined that claimant had a twenty-five percent PPD of the whole person due to depression, a twenty percent PPD of the whole person due to hypertension, a fifteen percent PPD of the whole person due to left chest wall syndrome, a twenty percent PPD at the right elbow, and a thirty percent PPD at the right wrist. Dr. Cohen concluded that claimant's "preexisting conditions or disabilities combine[d] with the primary work-related injury to create a greater overall disability than their simple sum and that [the] preexisting conditions or disabilities combine with the primary work-related injury to render [claimant] permanently and totally disabled and not capable of gainful employment in today's open labor market."

Lalk, who evaluated claimant after meeting with her in 1999 and reviewing her medical records, opined that claimant was not employable in the open labor market due to her physical and psychological disabilities and her limited education. However, Lalk, in his vocational rehabilitation evaluation report, indicated there were conflicting reports among the medical records he reviewed. Lalk conceded that, if in fact claimant had limitations only on her right non-dominant upper extremity (which was in accordance with some of the medical records), then claimant's employment opportunities would be limited but "she might have success in looking for jobs such as office cleaner/housekeeper."

Dr. Tate, who examined claimant three times between November of 1998 and January of 2000, opined that claimant had reached maximum medical improvement and that claimant should be able to return to work without restrictions. The last time Dr. Tate examined claimant she found that claimant had continued left shoulder complaints with no objective findings, and there was also symptom magnification upon physical examination of claimant. Also, claimant's previous right lateral epicondylitis (tennis elbow) had resolved and claimant reported only left upper extremity problems. Dr. Tate, upon her final examination, found no objective evidence of injury.

Claimant was found to not be permanently and totally disabled. However, the AU found claimant "sustained a fifteen percent PPD of the left shoulder and five percent PPD of the right wrist as a result of the primary injury." The ALJ also found claimant had "pre-existing PPD of the right wrist and right elbow which [were] found to constitute fifteen percent PPD of the right upper extremity at the level of the shoulder." The ALJ further found that the record "supports a finding of twenty to twenty-five percent pre-existing PPD referable to depression." With regards to all other preexisting injuries and disabilities alleged by claimant, the MA found that she failed to prove the "PPD threshold element" which would trigger potential SIF liability.

In determining the liability of the SIF, the ALJ, under the heading "Pre-Existing PPD of the Right Arm," found that the fifteen percent PPD of the right upper extremity at the level of the shoulder combined with the primary injury to the left arm to equate to an increased overall PPD of ten percent of the body (forty weeks).

In determining the liability of the SIF, the ALJ, under the heading "Pre-Existing PPD for Depression," found that "[c]laimant's overall disability is not made worse by the depression, however serious, due to a combination with the primary injury; the two disabilities merely co-exist." Therefore, the ALJ found no increased overall PPD because claimant had not shown the synergistic (or combination) effect of the depression with the primary injury.

The ALJ awarded claimant forty weeks of compensation from the SIF for a total award of $11,789.20.

The commission agreed claimant was not permanently and totally disabled. The commission also found the ALJ was correct in finding fifteen percent PPD of the right upper extremity at the level of the shoulder combined with the primary injury to equate to an increased overall PPD of the body. However, the commission noted that "[t]echnically this may have been better phrased as [fifteen percent] of the arm or upper extremity [instead of fifteen percent PPD of the right upper extremity at the level of the shoulder], but we believe that just as where there are injuries to multiple parts of the body it may be appropriate to `rate' on the body as a whole [citation omitted] where there are injuries to different parts of an arm, it may often be appropriate to consider the disability of the entire arm." The commission found it was not significant that the ALJ referred to the proportionate loss of use of the right shoulder instead of the proportionate loss of use of the right arm.

In modifying the ALJ's award, the commission found that claimant sustained disability for depression in combination with the other injuries equivalent to five percent of the body as a whole or twenty weeks. The commission stated that "[b]ased upon [claimant's] description of her problems, the medical records and Dr. Cohen's testimony we find it credible that depression, as significant as [claimant's], could exacerbate the impact of the physical injuries to create greater disability than the simple sum. Conversely, the physical injuries may easily...