E.W. v. Kansas Cit Missouri School Dist.

• Decision Date: 03 September 2002
• Docket Number: No. WD 60296.,WD 60296.
• Citation: 89 S.W.3d 527
• Parties: E.W., Respondent, v. KANSAS CITY MISSOURI SCHOOL DISTRICT, Appellant, Second Injury Fund, Respondent.
• Court: Missouri Court of Appeals

Page 527

89 S.W.3d 527

E.W., Respondent, v. KANSAS CITY MISSOURI SCHOOL DISTRICT, Appellant Second Injury Fund, Respondent.

No. WD 60296.

Missouri Court of Appeals, Western District.

September 3, 2002.

As Modified November 26, 2002.

Motion for Rehearing and/or Transfer to Supreme Court Denied November 26, 2002.

Charles R. Brown, Kansas City, MO, for appellant.

Dean L. Christianson, St. Louis, MO, for respondent E.W.

Anne E. Hawley, Assistant Attorney General, Kansas City, MO, for respondent Second Injury Fund.

Before BRECKENRIDGE, P.J., LOWENSTEIN and SMART, JJ.

PATRICIA BRECKENRIDGE, Judge.

The Kansas City Missouri School District appeals the Labor and Industrial Relations Commission's award of permanent total disability benefits, temporary total disability benefits, past medical expenses, and future medical expenses to E.W., a high school teacher in the District. On appeal, the District argues that the Commission erred in finding that E.W. sustained a compensable psychiatric injury because she failed to prove that her injury was caused by extraordinary and unusual work-related stress. Additionally, the District argues that the Commission erred in holding it exclusively liable for E.W.'s psychiatric injury because E.W. had a history of mental difficulties without which she would not be permanently and totally disabled.

This court finds that E.W.'s claim was not for mental injury based upon workrelated stress, so the statute requiring proof of extraordinary and unusual work-related stress did not apply. Therefore, the Commission did not err in concluding that E.W. sustained a compensable psychiatric injury, and that portion of the award is affirmed. This court further finds that the Commission's determination that the Second Injury Fund is not liable was a misapplication of the law and was against the weight of the evidence. The award of the Commission is, therefore, reversed, and the cause is remanded to the Commission to determine the amount of permanent partial disability benefits due E.W. from the District and permanent total disability benefits due E.W. from the Second Injury Fund and enter its award accordingly.

Factual and Procedural Background

E.W. began working for the District in 1988. From 1988 to November 1996, E.W. held several positions within the District, including transition teacher, special needs transition teacher, mediator, and home school coordinator. For the 1996-97 school year, E.W. was assigned to teach math at Southeast High School.

On November 5, 1996, she was teaching an algebra class for approximately forty-five students when two boys in the class started arguing. The boys stood up and began walking toward the front of the class, threatening each other. When they reached E.W.'s desk, one of the boys picked up a three-hole punch from E.W.'s desk. The boys, ages seventeen and fourteen, then began to hit each other. E.W. instructed the rest of the students to move to the back of the room while she pushed an emergency call button to summon help from the front office. The boys continued to fight, knocking over chairs and smashing a fan into a wall. Since help had not arrived in response to the emergency call, E.W. asked one of the students in the class to go ask Coach Johnson, who had a walkie-talkie, to call for help. The student returned and told E.W. that Coach Johnson could not come to help. E.W. then sent another student to find administration and security.

As she waited for assistance from administration and security, E.W. went over to push the call button again. As E.W. turned around after pushing the call button, the boys, still fighting, slammed her into a bookshelf that was next to the wall. Her body hit the bookshelf, which was as tall as E.W.'s shoulders, and her head hit the wall behind the bookshelf. When the boys pinned E.W. against the bookshelf and were hitting her body with their bodies, she had flashbacks of sexual abuse she suffered as a child.

The boys fell off of her onto the floor and continued to fight. As they were rolling around on the floor, they rolled back into her and knocked the lower part of her body into the bookshelf. At that point, E.W. had an opportunity to kick the boys in the groin. She did not do so, however because she was afraid that the bigger of the two boys, a suspected gang member, was on drugs and might "go crazy" if she kicked him, and she was afraid that if she kicked the smaller of the two boys, he would be unable to defend himself against the bigger boy. The boys then got up and slid across her desk, knocking everything off of her desk. E.W. again pushed the emergency call button.

While the boys were on the floor on the other side of her desk, a female student in the class approached the boys with a pencil in her hand and held it over the boys as if she was going to stab them with it. E.W. grabbed her by the wrist and asked her what she was doing. The female student said she was going to stab the boys because they had damaged her purse during their fight. E.W. sent her out of the room.

As the female student left the room, another student came in and helped E.W. break up the fight. The two boys were removed from her classroom. E.W. worked the rest of the day, but was edgy and jumpy. That night, E.W. felt pain in her right leg and back, and she had a headache. She was also unable to sleep.

The next day, E.W. returned to work but was shaky and scared. She taught that day but did not teach the class in which the fight had occurred. E.W. was then reassigned to work in the front office of Southeast High School. E.W. worked for a week in the front office before she stopped working per her doctor's orders.

When E.W. asked for a referral to a doctor following the incident, the District sent her to the Business and Industry Health Group, where she received medical care and physical therapy for injuries to her neck and back. Also, because E.W. appeared weepy and upset and reported that she had not been able to sleep well since the incident, had nightmares, and was very concerned for her safety, the Business and Industry Health Group referred her to New Directions for psychological counseling.

During E.W.'s initial assessment at New Directions, her psychologist, Dr. Peter Cocolla, noted that after the November 5, 1996, incident, E.W. had symptoms of recurrent and intrusive distressing recollections of the incident; recurrent distressing dreams of the incident; flashback episodes; shaking and stomach pain when thinking about returning to the school; the desire to avoid returning to the classroom or the school building; diminished interest in teaching; difficulty falling asleep; irritability and anger; impaired concentration; exaggerated startle response; and chronic diarrhea. Dr. Cocolla diagnosed E.W. with acute stress disorder and recommended continued psychological counseling and a psychiatric evaluation.

The District referred E.W. to KU Medical Center for psychiatric evaluation and treatment. E.W. told psychiatrists at KU Medical Center that since the November 5, 1996, incident she felt anxious all of the time, was exhausted, had difficulty sleeping and eating, felt angry and frustrated, had chronic diarrhea, had recurrent distressing dreams of the incident and had shaking and stomach distress when she thought about returning to the classroom. The psychiatrists at KU Medical Center diagnosed E.W. with post-traumatic stress disorder and recommended that she be treated with antidepressant therapy and counseling. E.W. received medication and psychiatric treatment from KU Medical Center from December 1996 through April 13, 1999.

In addition to psychiatric treatment, E.W. received psychotherapy. In April 1997, the District referred E.W. to Dr. Garth Matthes, a psychologist. During their initial session, Dr. Matthes noted that E.W. appeared anxious and seriously distressed, and exhibited symptoms of post-traumatic stress disorder. Dr. Matthes recommended that she not return to the school setting at that time and that she receive therapy for six months to one year. E.W. received counseling from Dr. Matthes until October 1997, when he withdrew from her case because he felt that the workers' compensation insurance carrier's antagonism was interfering with his ability to effectively treat E.W. Dr. Matthes did, however, strongly recommend that E.W. not return to work in the District or in any school setting until she receives further therapy to treat her post-traumatic stress disorder.

After Dr. Matthes withdrew from treating her, E.W. did not receive psychotherapy again until April 1998, when the District referred her to Dr. Stanley Butts, a psychologist. Dr. Butts diagnosed E.W. with post-traumatic stress disorder, major depression disorder, and panic disorder. E.W. received psychological counseling from Dr. Butts until July 31, 1998, when Dr. Butts withdrew from her case. E.W. did not feel that Dr. Butts was helping her. E.W. did not receive any further psychotherapy after Dr. Butts withdrew from her case.

On October 2, 1998, E.W. filed a claim for compensation with the Division of Workers' Compensation. In her claim, E.W. alleged that on November 5, 1996, while in the course and scope of her employment, she was slammed against a wall by two students who were fighting. She further alleged that the incident caused her to suffer injuries to her head, neck, back, arms, legs, and psychiatric condition. E.W. alleged that she was permanently and totally disabled as a result of the November 5, 1996, accident. E.W.'s claim included a claim against the Second Injury Fund. Specifically, E.W. alleged that she had suffered injury to her psychiatric condition before November 5, 1996.¹

In its answer to E.W.'s claim for compensation, the District admitted that E.W. was involved in an accident arising out of and in the course of her employment on November 5, 1996. The District denied, however, that all of the injuries E.W. alleged were...