issued by the labor and industrial relations …...november 9, 2013, slip and fall work injury....

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

Employee:

Employer:

Insurer:

Additional Party:

FINAL AWARD DENYING COMPENSATION (Affirming Award and Decision of Administrative Law Judge

with Supplemental Opinion)

Jeannie Heberlie-Whistler

Riverview at the Park, Inc. (settled)

Healthcare Facilities of Missouri (settled)

Injury No.: 13-084576

Treasurer of Missouri as Custodian of Second Injury Fund

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by§ 287.480 RSMo. Having reviewed the evidence, read the briefs, and considered the whole record, we find that the award of the administrative law judge denying compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to§ 286.090 RS Mo, we affirm the award and decision of the administrative law judge to the extent it is not inconsistent with this supplemental opinion, including our revised facts and rulings of law on the issue of nature and extent of disability.

Introduction Employee was injured in the workplace on November 9, 2013, when she was employed by Riverview at the Park, Inc. as a nurse. She slipped and fell in the course of her duties, injuring her left upper extremity. Surgery on the left upper extremity resulted in November 2013. She was returned to work on December 4, 2013, with limitations, once she was off narcotic medication. This did not occur until the week of January 20, 2014. Her last day of work was January 27, 2014. At the time of the injury, employee was about 61 years of age.1 Employee settled her injury claim with the employer/insurer (employer) on or about May 4, 2017, for alleged permanent total disability, in the amount of $150,000.00 referable to the left shoulder and left wrist, and to the body as a whole, referable to psychiatric injury, with six weeks of disfigurement. The settlement included future medical to be funded by a Medicare Set Aside annuity. Transcript, page 537.

Discussion Affirmative findings vs. summaries of the evidence Section 287.460.1 RSMo tasks the administrative law judge in a workers' compensation case to issue an award "together with a statement of the findings of fact." Here, the administrative law judge did provide a thorough review of the evidence. However, the factual findings are interspersed throughout a 35 page decision that includes lengthy summaries of the evidence and notations within medical records. These passages were provided without the benefit of accompanying analysis or commentary from the administrative law judge as to how he viewed such evidence.

The courts have strongly cautioned us against issuing or approving these kinds of decisions:

Here, there are literally pages of testimony summarization. There are also pages of substantial discussion of abstract legal theory. The ALJ certainly diligently summarized all of the evidence as an impartial and uncritical scrivener. No doubt it was a useful reference tool for the ALJ's own use in understanding the facts. But because of the absence of findings (that is, the lack of critical evaluation and the failure to draw pertinent inferences from the evidence), the summaries, with

1 Employee's date of birth is October 19, 1952.

Injury No.: 13-084576 Employee: Jeannie Heberlie-Whistler

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all due respect, are of little value to this court .... We need to know what the Commission actually found to be operative and significant as it reviewed the testimony.

Stegman v. Grand River Reg'/ Ambulance Dist., 274 S.W.3d 529, 532 (Mo. App. 2008) (emphasis added).

In Stegman, the court concluded the award, as written, failed to comply with the requirements under§ 287.460.1, and that the court was therefore constrained to vacate it and remand the case to the Commission to provide an appropriate statement of the facts. Id. at 537. Here, we believe the award ultimately contains findings of fact and conclusions of law sufficient to permit judicial review, should this matter be subject to further appeal. We specifically adopt the Summary of Findings, Undisputed Facts, Issues, Exhibits, and Rulings on Objections on pages 1-4 of the award. We specifically adopt the Findings of Fact on pages 4-8 of the award, describing employee's early personal history. We specifically adopt the Findings of Fact describing the history of medical treatment described in those pages, through April 2014. However, because the findings regarding the medical issues after April 2014, are interspersed throughout lengthy summaries in pages 8-31, and include recitations of the type the courts have specifically cautioned us against, we discern a need to briefly summarize below the operative findings of fact and conclusions of law with respect to the issues identified at the hearing.

We agree with the administrative law judge's recitation of the employee's testimony and that she was truthful to the best of her recollection and perception of circumstances. However, taking into consideration her admitted difficulty in recalling the sequence or occurrence of certain events, we put greater weight on 2015 deposition testimony than later statements, which are somewhat inconsistent or conflicting.

We summarize, supplement, and revise the administrative law judge's findings and conclusions below, which we are hereby affirming and adopting as our own:

Nature and Extent of Disability Employee fractured her left humerus and elbow and injured her wrist in the November 9, 2013, slip and fall work injury. Surgery was performed on November 21, 2013, on the humerus by Dr. Joseph B. Byrne. She had ongoing issues with pain into 2014, despite being released to return to work by Dr. Byrne, as of January 2014, and by Dr. Robert R. Hagen in September 2014, after further treatment. Both doctors indicated light duty with restrictions. Employee attempted to return to work as a nurse for seven days in January 2014, but found she was not able to tolerate the workplace, noting difficulty completing tasks and frustration with the noise and chaos of the environment, and interacting with others. Employee last worked January 27, 2014.

Employee continued treatment for pain symptoms, receiving medications and injections throughout 2014. An additional manipulation and arthroscopic lysis procedure was performed on her left shoulder in April 2014. Employee complained of additional physical symptoms in the spring and summer of 2014; numbness in her left arm, and pain in her neck and left shoulder. She was then diagnosed with mild carpal tunnel syndrome of the left wrist, and neurogenic thoracic outlet syndrome (TOS), which were treated with a wrist brace and injections.


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She was found to be at maximum medical improvement for her fractures and shoulder injury as of June 16, 2014, by Dr. Byrne. Dr. Hagen, who treated her for TOS declared employee to be 70% better in terms of her neck, shoulder and chest wall complaints by October 2014.

An independent medical examination was conducted by Dr. Shawn Berkin, 0.0., on January 14, 2015, at the request of employee's attorney. While he deferred any opinion on disability due to depression and anxiety to the expertise of a psychiatrist, he rated her physical disability at 45% permanent partial disability referable to the fracture of the left shoulder resulting from the work injury; in addition to 25% permanent partial disability referable to the left wrist.2 At the time of rating, he imposed restrictions of only 15-20 pounds lifting with the left arm on an occasional basis, and 1 O pounds on a frequent basis, as well as avoiding lifting above the shoulder level.

Several providers noted psychological issues may be affecting employee's recovery and functioning, with varying diagnoses. As of January 30, 2014, employee was treated for depression and anxiety stemming from job issues, her recent medical issues and financial strain from being unable to work. Dr. Byrne noted in February 2014, that employee's depression may be affecting her overall outcome of successful recovery from physical symptoms. Dr. Jay Liss, M.D., (Perry County Memorial Counseling Center), diagnosed attention deficit disorder in April 2014. In May 2014, employee's therapist, Nicola Wissler, identified employee's concerns as financial stressors, employment, and physical health as contributing factors, to depression and anxiety.

In March 2015, Dr. Stephen Jordan, Ph.D., a neuropsychologist, performed a psychological evaluation prior to contemplation of surgery for TOS. He would not clear her for surgery due to her uncontrolled depression and anxiety. The doctor diagnosed pain disorder, with medical and psychological factors, severe anxiety and depression, and panic disorder. The doctor's opinion from review of post injury records, examination and interview of employee, was that she had controlled emotional functioning at the time of the work injury; that she was a reliable historian; and that if the prior reports were true, the work injury was the prevailing factor in her current episode of anxiety and depression. There were no records indicating she had experienced panic attacks, agoraphobia, generalized anxiety, post-traumatic stress disorder, obsessive compulsive disorder, attention deficit disorder, or social phobia, prior to the work injury.

Medical records show physicians noted some concern for depressive episodes prior to her November 9, 2013 injury at work. In large part, according to employee's report, those episodes were related to the death of her father and her ex-husband, and later a difficult divorce in 2009. Employee was treated with medications by her primary care physicians on occasion for depressive symptoms between 2010-2012.3 Employee was never treated by a psychologist or psychiatrist prior to the work injury. There is no indication that employee was

2 Dr. Berkin also opined there was evidence of preexisting disabilities at the time of the work injury, referable to the left wrist (15% permanent partial disability) from a non-work related fall in 1964 and due to hypertension (10% permanent partial disability), which he found to be hindrances or obstacles to employmenVreemployment at the time of primary injury. Employee does not rely on these alleged preexisting disabilities in its argument before the Commission. 3 A treatment note in May 2013, by primary care physician, Dr. Laurie Womack, regarding a visit for low back pain, mentions depression, with infrequent symptoms and identifies job stress.


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unable to work at any time due to psychological conditions prior to the work injury.

Dr. Stacey Smith, M.D., performed an independent psychiatric evaluation on behalf of employer on October 31, 2016, in which she opined that the medical records strongly suggest preexisting somatization4 and that the work injury is the prevailing cause of exacerbation of employee's depressive symptoms. At the time of evaluation, employee reported fear of crowds and of falling, loud noises, concern over finances, and poor vision and concentration. She expressed anger over the events since the work injury. Dr. Smith noted that she believed employee had minimized the extent of her pre-injury psychological vulnerabilities and complaints, based on the doctor's review of records. The doctor opined that employee is not capable of working at the present time, but could improve if she made therapeutic progress toward her psychological disability. She found employee was not at maximum medical improvement as of the date of examination.

Dr. Stuart Ozar, board certified in psychiatry evaluated employee at the request of the employer on May 17, 2016, and gave a deposition in January 2017. He diagnosed major depression disorder and panic disorder with agoraphobia as caused by the work injury. He opined that employee had "pathologic personality traits" that "compromise her adaptive flexibility." Transcript, page 518. He noted that her prior psychological conditions did not prevent her from working. 5 Id. Dr. Ozar noted prior "episodes of depression that were treated by her general medical physicians but were not of such severity that she was not able to work," Transcript, page 527; nor was referral to a psychiatrist found necessary. His opinion was that employee's personality traits created a "fragile egg" condition, in effect a preexisting psychological disposition. Because of this, the psychiatric state resulting after the work injury was more disabling than what could be explained by looking at each disabling condition by itself. Id. He identified her inability to work, secondary to the work injury, (along with pain and physical limitations), as affecting her previous ability to cope with difficulties, because she no longer had the outlet of work. However, Dr. Ozar did not review employee's 2015 deposition testimony in which she denies prior psychological disabilities impacting her functioning and she downplays any prior incidents of depression. The doctor's comment on this was that it was not uncommon for patients to downplay prior psychological issues. Dr. Ozar found preexisting psychiatric disabilities combined with the work injury to create a greater disability, such that Second Injury Fund liability was indicated. He found that she is not employable as a consequence of her psychiatric condition, and her current level of disability must be seen as a result of a combination of her preexisting condition and the physical and emotional consequences of the accident. Transcript, page 519. Dr. Ozar indicated that at the time he interviewed employee, he did not believe further progress in treatment would allow for employment, which is suggestive of a maximum medical improvement opinion. Transcript, page 482,487. In this respect we find Dr. Ozar's opinion to be persuasive; that as of the date of his examination, May 17, 2016, employee was at maximum medical improvement.

4 Dr. Smith opined that employee's pre-injury waxing and waning of mood and anxiety complaints would be consistent with preexisting somatization disorder. 5 We note employee's exhibit of attendance records in 2010-2011 from Southeast Missouri Hospital, however, without more direct evidence of the reasons for the attendance events noted therein, this evidence does not prove employee's ability to work was affected by any preexisting psychological condition.

Injury No.: 13-084576 Employee: Jeannie Heberlie-Whisller

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Dr. Liss provided a one page letter dated March 7, 2017, indicating he agreed with Dr. Ozar, noting that employee "had been diagnosed with clinical depression and anxiety" by her primary physician in 2012, prior to being treated al the Perry County Memorial Counseling Center.6 He added that she should continue psychiatric care and that the "ongoing treatment would be related lo the symptoms post injury, as these have become the most debilitating although originating from a lesser and more controlled set of symptoms prior to her injury." Transcript, page 301. He then opined that employee is totally disabled and unable lo work at this time, with follow up re-evaluation lo be conducted on a continued basis.

The Second Injury Fund requested an opinion by Dr. Adam Sky, a psychiatrist, in June 2017. His opinion was based on a comprehensive review of records and of the previous expert opinions and depositions, in addition lo employee's deposition. He also provided testimony by deposition. He opined that the work injury was the prevailing cause of her current psychological conditions. Dr. Sky opined his current diagnosis of major depressive disorder; moderate, recurrent; and that condition was caused by the work injury. He also noted generalized anxiety disorder and somatization disorder. Dr. Sky acknowledged the records suggested some preexisting psychological conditions - mild depression or dysthymia; possible mixed personality traits; but explained that we all have personality traits and it's just a matter of how much any of them affect us. He also found no prior evidence of the panic attacks, agoraphobia or fear of falling, which currently afflicted employee. He testified that any previous psychological issues did not hinder her ability to work. Transcript, pages 570, 57 4-75.

Dr. Sky acknowledged the records reflected treatment by her primary care physician for depression, but noted that where the liming of reports correlated with triggers from life changes, he would consider it more in the nature of a mood disorder, such as a grief reaction. He did not see evidence of a major depressive disorder prior to the work injury. He wouldn't adopt Dr. Stuart Ozar's "fragile egg" concept as a basis for asserting preexisting disability. He did not find any evidence that any mood disorder or depressive events affected her ability to function pre-injury. He doesn't adopt the general notion that patients are prone to discount their emotional symptoms, and noted that employee did seem to report her emotional state to her primary doctors, which does not demonstrate minimization of symptoms, as suggested by Dr. Ozar.

He noted that if no more treatment was obtained, in consideration of the primary care physician's prior notes of treatment with antidepressants, he would find a 15% partial disability referable to the preexisting psychiatric conditions. Transcript, page 611. Yet, it was his opinion that regardless of any prior psychiatric conditions, employee's level of functioning as a result of the work injury would be the same. Transcript, page 570-571, 593.

Dr. Sky opined that the preexisting psychological disorders were not a hindrance or obstacle to employment or reemployment. Dr. Sky's thorough, candid, and

6 While Dr. Liss would certainly have access to the treatment records from the counseling center and whatever records the referring doctor (Dr. Womack) provided, it is unclear from his record what the extent of his review of past history included, aside from identifying Dr. Ozar's independent medical evaluation.


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well-considered observations and opinion are more persuasive on the nature of employee's preexisting psychological issues.

Vocational rehabilitation specialist, Mr. Tim Lalk, prepared a report at the request of employee's attorney on December 11, 2015, after an interview with employee in October 2015. He reported that employee indicated that she would not do any work other than nursing because it was degrading and embarrassing. Transcript, page 426. She also reported that "she felt she had no restrictions or limitations related to the depression with regard to work until November of 2013." Transcript, page 431. His opinion was that employee is not able to secure and maintain any employment until her psychological symptoms are stabilized and she can function around others. He noted, it is only when you consider the psychological conditions that she is unemployable, because the physical restrictions placed on her would not keep her from all employment.

Supplemental Revised Rulings of Law We adopt the administrative law judge's rulings, to the extent those rulings of law, are not inconsistent with our rulings below.

Nature and Extent of Disability Attributable to Work lniury Employee has shown that the work injury of November 9, 2013, resulted in permanent disability in the nature of both physical and psychological injury. We agree with the administrative law judge that the evidence shows employee is permanently and totally disabled as a result of the work injury.

Employee has shown that as of the date of maximum medical improvement for her physical injuries (June 16, 2014), as opined by Dr. Byrne, she was also suffering from disabling psychological conditions resulting from the work injury and that those conditions continued throughout her treatment.

In order to determine the extent of disability, we must determine whether employee's condition is at a state of maximum medical progress.

Courts have used various terms to determine when an employee's condition has reached the point whether further progress is not expected, including the term maximum medical improvement ... Although the term maximum medical improvement is not included in the statute, the issue of whether any further medical progress can be reached is essential in determining when a disability becomes permanent and thus, when payment for permanent partial or permanent total disability should be calculated.

Cardwell v. Treasurer of Missouri, 249 S.W.3d 902, 910 (Mo. App. 2008)

"Once the rehabilitative process ends, the commission then must make a determination regarding the permanence of a claimant's injuries." Greer v. Sysco Food Services, 475 S.W. 3d 655, 669 (Mo. 2015).

The evidence supports the finding that employee is at maximum medical improvement for her psychological injuries, in that the rehabilitative process had ended by May 17, 2016. As of that date, as opined by Dr. Ozar, further progress in treatment would not allow for employment. While medical providers and evaluators have identified the need for ongoing psychological treatment and expressed hope that employee may improve with the right combination of


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pharmacological and therapeutic treatment, there is no certainty that employee will improve. We find those comments to be highly speculative regarding the effect of such treatment on a permanent disability rating.

At the point of Dr. Ozar's rating and evaluation, it was clear that employee was permanently and totally disabled. The evidence supports the conclusion that it was the work injury, including the psychological conditions which resulted from the work injury, that cause her permanent total disability.

There is evidence that employee had some episodes of depression prior to her work injury. However, employee has not met her burden of proof to establish that she had a prior psychological disability at the time of the work injury. We note Dr. Ozar's opinion in respect to the nature of any preexisting psychological conditions. But we are more persuaded by Dr. Sky's opinion on this aspect, and find that employee has not proven that any preexisting psychological condition was a disability of such seriousness as to constitute a hindrance or obstacle to employment or to reemployment.7

Because employee's work injury resulted in permanent total disability, we must deny the claim against the Second Injury Fund. All other issues are moot.

Decision We affirm and adopt the award of the administrative law judge as supplemented herein.

The award and decision of Administrative Law Judge Gary L. Robbins, issued September 6, 2018, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this -~;z~d ___ day of! December 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robe

Reio K. Forrester, Member

Cu~-~ Attest:

~ ,..,& --~ i\'"' Secretary

7 Section 287.220.2 RSMo provides that in cases of permanent disability, "if any employee has a preexisting permanent partial disability ... of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment" compensation under the Second Injury Fund may exist.

Employee: Jeannie M. Heberlie-Whistler Injury No. 13-084576

ISSUED BY DIVISION OF WORKERS' COMPENSATION

FINAL AWARD

Employee:

Dependents:

Employer:

Additional Party:

Insurer:

Appearances:

Jeannie M. Heberlie-Whistler

NIA

Riverview at the Park, Incorporated

Second Injury Fund

Healthcare Facilities of Missouri

Chris N. Weiss, attorney for the employee.

Injury No. 13-084576

Keyla S. Rhoades, attorney for the Second Injury Fund.

Hearing Date: June 11, 2018 Checked by: GLR/kg

SUMMARY OF FINDINGS

I. Are any benefits awarded herein? No.

2. Was the injury or occupational disease compensable under Chapter 287? Yes.

3. Was there an accident or incident of occupational disease under the Law? Yes.

4. Date of accident or onset of occupational disease? November 9, 2013.

5. State location where accident occurred or occupational disease contracted: Ste. Genevieve County, Missouri.

6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.

7. Did the employer receive proper notice? Yes.

8. Did accident or occupational disease arise out of and in the course of the employment? Yes.

9. Was claim for compensation filed within time required by law? Yes.

JO. Was the employer insured by above insurer? Yes.

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11. Describe work the employee was doing and how accident happened or occupational disease contracted: The employee fell injuring her left upper extremity.

12. Did accident or occupational disease cause death? No.

13. Parts of body injured by accident or occupational disease: Left upper extremity and psychiatric/psychological injuries.

14. Nature and extent of any permanent disability: See Award. The employee settled her case with the employer-insurer for alleged permanent total disability on May 4, 2017. The settlement was for $150,000.00 for alleged permanent total disability; representing $45,000.00 in back temporary total disability, and $105,000.00 referable to the left shoulder, left wrist and body as a whole, referable to psych and 6 weeks disfigurement. The employee received $103,753.75 after attorney fees and expenses. The attorney received $37,500.00. There were $8,746.25 in expenses. The employee also received a MSA funded in the amount of $60,679.00 via an annuity. It was initially funded by a deposit of $7,139.00 with deposits of $3,346.00 over 16 years.

15. Compensation paid to date for temporary total disability: $7,306.84

16. Value necessary medical aid paid to date by the employer-insurer: $63,086.04

17. Value necessary medical aid not furnished by the employer-insurer: NIA.

18. Employee's average weekly wage: $916.78

19. Weekly compensation rate: $611.19 per week for temporary total and permanent total disability and $446.85 per week for permanent partial disability.

20. Method wages computation: By agreement.

21. Amount of compensation payable: None. See Award.

22. Second Injury Fund liability: None. See Award.

23. Future requirements awarded: NIA.

No attorney's fees are awarded in this case.

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STATEMENT OF THE FINDINGS OF FACT AND RULINGS OF LAW

On June 11, Q.018, the employee, Jeannie M. Heberlie-Whistler, appeared in person and with her attorney, Chris N. Weiss for a hearing for a final award. The employer-insurer was not represented at the hearing as they had already settled their portion of the case by Stipulation for Compromise Settlement. The Second Injury Fund was represented by Assistant Attorney General Keyl a S. Rhoades. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with a statement of the findings of fact and rulings of law, are set forth below as follows:

UNDISPUTED FACTS:

I. Riverview at the Park, Incorporated, was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by Healthcare Facilities of Missouri.

2. On November 9, 2013, Jeannie M. Heberlie-Whistler was an employee of Riverview at the Park, Incorporated, and was working under the Workers' Compensation Act.

3. On November 9, 2013, the employee sustained an accident arising out of and in the course of her employment.

4. The employer had notice of the employee's accident. 5. The employee's claim was filed within the time allowed by law. 6. The employee's average weekly wage was $916.78 per week, resulting in a compensation

rate of $611.19 per week for temporary total and permanent total disability benefits and $446.85 per week for permanent partial disability benefits.

7. The employee's injury was medically causally related to the accident or occupational disease.

8. The employer-insurer paid $63,086.04 in medical aid. 9. The employer-insurer paid $7,306.84 in temporary disability benefits.

10. The employee had no claim for previously incurred medical bills. 11. The employee had no claim for mileage. 12. The employee had no claim for future medical care. 13. The employee had no claim for any temporary disability benefits.

ISSUES:

1. Liability of the Second Injury Fund for permanent partial or permanent total disability. 2. Maximum Medical Improvement/MM!.

EXHIBITS:

Employee Exhibits: 1. Medical records from Plaza Primary Care/Charity B. Sandvos, M.D. 2. Medical records from Penyville Family Care Clinic/Laurie A. Womack, M.D. 3. Medical records from Perryville Family Care Clinic/Laurie A. Womack, M.D. 4. Medical records from St. Francis Medical Center.

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5. Returned to counsel for the employee. 6. Medical records from Perry County Orthopedics and Sports Medicine/Joseph B. Byrne,

M.D. 7. X-ray photos. 8. Medical records from St. Louis Plastic & Hand Surgery/Robert R. Hagan, M.D. 9. Medical records from St. Louis Plastic & Hand Surgery/Robert R. Hagan, M.D. 10. Medical records from Perryville Memorial Hospital/Jay L. Liss, M.D. 11. Medical records from Perryville Memorial Hospital/Jay L. Liss, M.D. 12. Letter from Jay L. Liss, M.D. 13. Medical records from Perryville Memorial Hospital/Jay L. Liss, M.D. 14. Medical records from St. Francis Medical Center/Stephen Jordan, Ph.D. 15. Medical records from Perry County Memorial Hospital Counseling Center. 16. Letter from Nicola Wissler, LCSW. 17. Independent Psychiatric Evaluation from Stacey L. Smith, M.D. 18. Medical record of Price Gholson, Psy.D. 19. Deposition of Shawn L. Berkin, D.O. 20. Deposition of Timothy Lalk. 21. Deposition of Stuart J. Ozar, M.D. 22. Letter from Stuart J. Ozar, M.D. 23. Stipulation for Compromise Settlement/lnjury Number 13-084576.

Second Injury Fund Exhibits: A. Deposition of Adam J. Sky, M.D. B. Marked but not offered as an exhibit. C. Deposition of Jeannie Heberlie-Whistler.

RULINGS ON OBJECTIONS:

The Second Injury Fund objected to Employee Exhibit 5. That objection was sustained and the employee did not offer said document. The exhibit was returned to the employee.

STATEMENT OF THE FINDINGS OF FACT AND RULINGS OF LAW:

STATEMENT OF THE FINDINGS OF FACT:

Ms. Heberlie-Whistler was the only person to personally testify at trial. All other evidence was presented in the form of written reports, medical records or deposition testimony.

Ms. Heberlie-Whistler was born October 19, 1952. She graduated high school in 1971. As a younger woman, she worked as a nurse in the Illinois Department of Corrections. Ultimately, she moved to Missouri and began working at a residential facility for children. She has also worked as a police dispatcher. She obtained an associate' s degree in nursing at Southeast Missouri State University in 1986. She took other classes at Central Missouri State University to become certified to teach vocational courses. She also taught at a vocational school for seven years. She taught a course in careers in health. She left that job to seek better benefits. She had taken

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Employee: Jeannie M. Heberlie-Whistler Iajury No. 13-084576

courses towards a bachelor's degree in nursing, but she stopped these courses when her father became sick in 2004. She eventually received that certification.

She had worked in the past at Perry Oaks Nursing for one year. She left that job when she went to Riverview at the Park. She worked at Southeast Hospital from 2005 to 2012. She left the job when she made a medication error and was asked to resign. She was then employed for Riverview at the Park beginning in the summer of 2013. She worked there as a staff nurse providing medications. She pushed a cart and made rounds. She took orders, changed dressings, and checked beds. She was on her feet most of the time. She had to help lift patients. She worked five days a week for a total of forty hours. Overtime was discouraged.

Ms. Heberlie-Whistler divorced her second husband around 2009. On October 21, 2010, she saw Dr. Sandvos. At that time, it was noted that there was some difficulty somewhat with meeting home, work, and social obligations due to relationship problems. The symptoms were aggravated by conflict or stress at home or work. She was switched to a different medication.

On July 27, 2012, she established care at Perryville Family Care Clinic ("PFCC"). It was noted that she had symptoms of crying spells, depressed mood, fatigue, and concentration issues. Sleep issues were noted with narcolepsy. Job issues were noted as a stressor. She was treated with medications. On August 31, 2012, she noted the medication had improved her symptoms. She noted she was doing well "without any significant affective symptoms." Her symptoms were "fairly infrequent." She denied suicidal ideations and noted that her job was a stressor as she hated it. On May 1, 2013, she was seen for back pain and at that time it was noted that she reported crying spells, problems concentrating, fatigue, sadness, frustration, irritability and weight gain. Her symptoms were noted to be "fairly infrequent." Her job was noted as a stressor.

On November 9, 2013, Ms. Heberlie-Whistler was pushing a medication cart when she realized she was short something she needed. She left the cart to go get the item and she saw a yellow sign. She slipped in something that she thought was probably water and fell on her left side. She injured her left upper extremity.

On November 14, 2013, Ms. Heberlie-Whistler saw Dr. Byrne for complaints ofleft arm and knee pain. It was noted she had left shoulder, cervical, left forearm, left hip, and left knee pain. She reported slipping on water at work the previous Saturday. She was taking Percocet for pain control, using a shoulder immobilizer, and using a volar splint on her left forearm. X-rays showed a comminuted fracture of the left proximal humerus and an ulnar styloid fracture. Her left knee, left hip, and cervical spine x-rays were negative for fracture. At that time, Dr. Byrne recommended a CT of the left shoulder for further evaluation. She was given a new splint and immobilizer. Ms. Heberlie-Whistler was diagnosed with left closed fracture of the proximal humerus and left closed ulnar fracture. Dr. Byrne took her off work until November 18, 2013. On November 18, 2013, Dr. Byrne saw her again. He noted she was taking Percocet every four to six hours and Tramadol in between. A closer review ofx-rays showed a three to four-part fracture of the left proximal humerus with significant translation of the diaphysis. His assessment was left proximal humerus comminuted fracture and closed fracture of distal radius. A CT of the left shoulder confirmed his findings.

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On November 19, 2013, Ms. Heberlie-Whistler was seen for a preoperative evaluation before scheduled surgery on November 21, 2013. It was noted at that time she was positive for feelings of stress. She reported not having energy to get up and get motivated and having a hard time sleeping due to pain in her left arm. However, she was noted to be negative for anxiety or depression.

On November 21, 2013, Dr. Byrne performed an open reduction with internal fixation of the left proximal humerus. A photo of her post-surgical x-ray was introduced in evidence. On November 27, 2013, Dr. Byrne saw her for follow-up after her surgery. X-rays showed hardware in place. Ms. Heberlie-Whistler was noted to be doing well. She was ordered to do range of motion exercises and was given a short arm cast. She was to follow-up in one week to have the staples removed and begin passive range of motion of her shoulder. She was advised to remain off work until December 4, 2013. On that date, Ms. Heberlie-Whistler was advised to start physical therapy the follow week. Her staples were removed. She was advised she could return to work if she is off all narcotic pain medication with no use of the left arm. X-rays of the left shoulder and left wrist were ordered. On December 18, 2013, she reported doing physical therapy. She noted that she was having low back pain as well. X-rays showed a maintained reduction with hardware in place and a healed left distal radius fracture. She was advised to continue therapy and wean herself from her sling. She was placed in a freedom splint and was to return to work with limited duty. She was advised she would have to be off all narcotics and could not use her left upper extremity, but it was noted she did still need her pain medication due to pain. Dr. Byrne indicated she would need to see a spine surgeon if she had further concerns in regards to her low back as he was not evaluating her for that.

On December 30, 2013, Dr. Byrne saw her again. She noted her whole left arm still throbbed and hurt but she was getting better. She was still taking Norco in order "to have any kind of pain relief that makes it somewhat tolerable." Dr. Byrne placed her off work until he saw her back in two weeks. He believed the majority of pain was as a result of lack of range of motion and it should resolve as she gained increased range of motion with therapy and home exercise.

On January 13, 2014, it was noted that she had only attended nine of her eighteen therapy visits. She reported pain at night and stiffness in her left shoulder. Dr. Byrne noted that she had good range of motion in her left wrist, but she needed more physical therapy for her left shoulder. He did not recommend any more narcotics and advised her to stop any Norco she still had. She was started on Celebrex and was advised she could return to limited duty on January 20, 2014. She was told she could work with no use of the left upper extremity, no pulling, pushing, or patient care. She could do a sedentary job. Ms. Heberlie-Whistler repmted she was afraid she would drop or harm a patient if she had to use her left upper extremity.

On January 30, 2014, Ms. Heberlie-Whistler was seen for depression and anxiety at PFCC. Her condition had been getting worse. She had been prescribed Cymbalta, but she had not yet picked up the medication to start it. Her current symptoms included anhedonia, anxious mood, decreased ability to concentrate, fatigue, frustration, and irritability. Her symptoms were daily and she noted stressors of "job issues and her recent fracture left arm, considering selling home

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as hard to make payments, overall health issues." Her first day back to work was January 20, 2014, but she was not able to do it because she was "more nervous/has constant pain in her left arm." She was going to therapy three days a week and had severe pain the days after therapy. Her arm throbbed and it was hard to function or concentrate with all the pain. She had last worked January 27, 2014. It was noted that she felt numb and not herself and irritable that she cannot work. Dr. Womack said she was unable to return to work until her anxiety was under better control. She was placed off work for two weeks to allow her medications to start to work.

On February 1, 2014, Ms. Heberlie-Whistler presented with depression and anxiety to PFCC. Medications were noted to be Cymbalta and Buspar. Her symptoms included anhedonia, anxious mood, decreased ability to concentrate, fatigue, frustration, and irritably. Her symptoms were noted to be constant/daily. She reported she was starting to see a difference since a change in her medications. She reported she could "actually read something now but [was] still very on edge." Her stressors including "job issues and her recent fracture left arm, considering selling home as hard to make payments, overall health issues." She had applied for disability and was waiting on a decision.

On February 2, 2014, she began counseling at Perry County Memorial Hospital Counseling Center ("CC"). It was noted she was experiencing episodes of depression and an anxiety as a reaction to an iajury sustained in November 2013. Ms. Heberlie-Whistler had expected to receive accommodations and reported she had not. She had been on medical leave and noted distress over the "financial loss of being unable to work in addition to the side effects and pain related to the injury." Symptoms were noted to include excessive worry, panic attacks, rumination, unrealistic fear of falling, and agoraphobia. She was recommended to see a psychiatrist and undergo biweekly counseling to help with her anxiety and overall mood stabilization. On February 14, 2014, she was seen for follow-up at CC. She was noted to have chronic anxiety with guilt associated with work injury and her inability to return to work due to her physical limitations. She discussed guilt about leaving her work and the decision not to return. She discussed possibly selling her home, teaching per diem at a high school, moving in with her sister, or taking vacations. It was recommended she explore her interests and goals to see what she would like to achieve post-retirement.

Ms. Heberlie-Whistler followed up with Dr. Byrne on February 17, 2014. She missed three physical therapy appointments the previous week. She was very emotional and crying in the exam room. She reported being very depressed. She denied any suicidal ideations, but stated she did not feel like she could return to work. Dr. Byrne noted she was very depressed and that it may be affecting her overall outcome. He recommended continued therapy, but also the possibility of manipulation under anesthesia and the lysis of adhesions arthroscopically. He did not think she could handle the procedure at that time due to her depression. She was advised to work with no lifting, pushing, or pulling over ten pounds and not to reach above shoulder. She was ordered to follow-up in one month.

On February 21, 2014, Ms. Heberlie-Whistler attended counseling at CC. She was noted to have an improved mood with less crying and feeling more confident. She made the choice to retire

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from working at the nursing home as she could not meet the requirements following her injury. She felt confident about the decision and planned on applying for disability.

On March 11, 2014, she reported with depression and anxiety to PFCC. Her medications were noted to include Cymbalta and Buspar. She had symptoms that included anbedonia, anxious mood, decreased ability to concentrate, fatigue, frustration, and irritability. Her symptoms were daily but "not as severe/more manageable." She denied suicidal ideation and was noted to have filed for disability. She had just found out she was to have a surgery on her left arm again on April 3, 2014 to help remove scar tissue. She was worried that the return of bad weather would make her mood worse as she had been doing better with sunshine. Her assessment was depression and anxiety. She was treated with medications.

On March 14, 2014, she was seen at CC with improved mood, less crying, and feeling confident about resigning from work and applying for disability. She was pending a second surgery and was fearing the recovery process.

On April 2, 2014, Ms. Heberlie-Whistler saw Dr. Byrne. She noted that her three medial fingers were numb since her surgery; however, she had never mentioned it prior to her appointment that day. She reported her shoulder had been worse over the last two weeks. Dr. Byrne recommended manipulation under anesthesia with arthroscopic lysis of adhesions and a possible capsular release. She agreed to proceed with the procedure. Dr. Byrne thought her limited motion and the way she was holding her arm may be causing her paresthesias. He indicated an EMG/NCS could be performed in the future. Dr. Byrne performed the lysis and manipulation on April 3, 2014.

On April 18, 2014, Dr. Byrne noted that she was doing well without "significant complaints and states that already she [had] range of motion better than she was previously." She was on narcotic pain medications. She was noted to be pleasant and cooperative. Her sutures were removed and she was continued on three weeks of therapy. Her restrictions were no overhead activities, no lifting, pushing, or pulling over five pounds. She was given a TENS unit.

On April 29, 2014, Dr. Liss saw Ms. Heberlie-Whistler. She was noted to have applied for disability and was struggling with anxiety "in response to injury in November at work." She had recently returned to work although her employer was not making accommodations for her restrictions. She was on a two week leave due to her mental health and inability to work at the same level of functioning. She was noted to struggle focusing and relaxing, she had a history of anxiety, depression, and poor concentration, "more prominent" since trauma. She was noted to have seasonal depression. Dr. Liss noted her first husband had died in 2005 and she divorced her second husband in 2009. His records note she reported her second husband was an alcoholic, mentally abusive, and had threatened her. She was diagnosed with ADD and treated with Adderall.

On May 7, 2014, she noted pain of 3/10. She had increased range of motion, but continued complaints of paresthesia in her hand. She reported that now the numbness was in her whole hand and up her arm. She denied doing any repetitive activities. She was transitioned to home exercise program. It was noted she had no pain in her wrist. She had a negative Tine!' s and

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Phalen's tests. An EMG/NCS was recommended. It showed mild left carpal tunnel syndrome and was suggestive of axillary neuropathy.

On May 27, 2014, Dr. Liss saw her again. He noted she had a history of ADHD and reported her mood had improved and Adderall had helped. She was thinking better, but still had lower energy. She had applied for disability and had been turned down. She was going to appeal. She was continued on medications and diagnosed with ADHD.

On May 29, 2014, Nicola Wissler authored a letter confirming her current treatment diagnoses and medications. Her diagnoses noted major depression and generalized anxiety disorder. Under Axis IV: financial stressors, employment, and physical health were listed.

On June 16, 2014, Dr. Byrne saw Ms. Heberlie-Whistler for follow up. He opined she had reached maximum medical improvement for her shoulder and fracture. He noted she did have left carpal tunnel syndrome that was mild. He opined that the history of distal radius fracture can cause swelling in the carpal tunnel. He recommended a wrist brace as she indicated she did not want injections or surgery. She was given a splint to wear at night. It was noted that the left axillary nerve was not tested due to severe pain around the left shoulder. Dr. Byrne was uncertain if she had axillary nerve neuropathy. He recommended that she see a neurologist and indicated she should follow-up with him in two months for final evaluation.

On August 4, 2014, Ms. Heberlie-Whistler saw Dr. Hagan after her complaints of paresthesia. She reported numbness on her left side from the left side of her neck down into her fingertips. She noted pain in her collarbone that was very tender. She noted pain on the top of her wrist and in her elbow as well as in her armpit area. She noted her pain was a throbbing pain a lot and that when she had pain she would stop all activity and rest the arm. Grabbing objects and trying to lift things makes her pain worse. She reported her fingers curl up and she has to rub them to relax them. When given a questionnaire about her ability to do activities with her arm, shoulder, and hand, she marked unable on the vast majority of activities. She indicated she could only use one arm to drive and the seatbelt hurts her neck and shoulder. She reported being unable to prepare a meal, do household chores, do yard work, wash her back, or use a knife to cut food. She noted that her arm interfered with her normal social activities with family, friends, neighbors, or groups quite a bit to extremely. Dr. Hagan diagnosed neurogenic thoracic outlet syndrome and chronic anterior shoulder pain/neuroma. He ordered an MRI and steroid injections. She saw temporary relief from the injection.

An MRI of the left brachia! plexus taken on August 27, 2014, showed right greater than left sternoclavicular osteoarthrosis.

On September 26, 2014, Dr. Hagan saw Ms. Heberlie-Whistler for follow-up. He noted that she should be treated with medications and injections and he continued her on light duty with no working at or above the shoulder level and no repetitive movement. She was to follow-up in four to five weeks. She underwent injections of the upper, middle, and lower trunk of the brachia! plexus. On October 28, 2014, Dr. Hagan noted that she was 70% better. Her neck, shoulder, and chest wall pain had improved. She continued to have pain in her lateral shoulder and arm

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consistent with her fracture and hardware. She was less guarded and seemed pleased with the progress. She was continued on nonsteroidals, home therapy, and exercise program. She was also advised to continue with the same restrictions.

On November 25, 2014, Dr. Liss noted a history of ADHD and anxiety. Ms. Heberlie-Whistler was continued on medications and advised to follow up in three months. On December 11, 2014, Dr. Liss noted that she had a history of ADHD and anxiety. She was returning for follow-up due to start of retirement benefits. She reported crying daily for the past few months. He noted her mood appeared to be depressed and diagnosed her with ADHD. She was treated with medications and was advised to follow up in three months.

On December 12, 2014, Ms. Heberlie-Whistler saw Dr. Hagan for another round of injections. Dr. Hagan did not recommend surgery or further iajections. He indicated he would need to see her for follow-up and she may be discharged at that time. He did not recommend any changes in her medications or care at that time.

On January 13, 2015, Dr. Gholson issued an evaluation from the Counseling Center in regards to Ms. Heberlie-Whistler's request for certification for disability. She reported a good relationship with both parents. She had a loss of appetite, problems sleeping, irritability, lack of energy, and lack of concentration. She also noted crying and periods of frequent isolation. She reported an abusive husband as why a marriage had ended. She denied any mental health hospitalizations. She acknowledged counseling thirty years prior and at the present time. Dr. Gholson noted her diagnoses to be ADD, panic disorder, and depression. She was noted to have restricted left arm movement, to be "mildly anxious", and to have problems with her "occupation, finances and access to health care."

Dr. Berkin was retained by Ms. Heberlie-Whistler's attorney to conduct an evaluation. She saw Dr. Berkin on January 14, 2015 for an Independent Medical Examination/IME. Dr. Berkin prepared his IME on February 10, 2015 and testified by deposition on April 6, 2016.

As is his policy, Dr. Berkin reviewed medical records and interviewed Ms. Heberlie-Whistler. At that time he did not have any records from either Dr. Ozar or Dr. Sky to review. Dr. Berkin deferred any opinions regarding disability due to anxiety and depression to the expertise of a psychiatrist.

Dr. Berkin reported that Dr. Womack saw the employee on January 30, 2014 for depression and anxiety. At that time her symptoms were reported as: -anhedonia. -anxiety. -crying spells. -decreased concentration. -fatigue. -sadness. -irritability.

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Recent stressors were listed as issues at work and her recent left arm fracture. He reported that as of February 2, 2014, Ms. Heberlie-Whistler had seen her primary care provider for treatment for her depression. She indicated she could not return to work and was scheduled to see a psychiatrist. Dr. Byrne felt that her depression was affecting her participation in physical therapy and her overall outcome. In April 2014, Dr. Byrne performed arthroscopic lysis of adhesions of the left shoulder with manipulation and reported that Ms. Heberlie-Whistler was doing well. Her pain levels were reported as 3/10. With follow up injections from Dr. Hagan it was reported that she felt 70% better.

Dr. Berkin also reported that on January 23, 2015, Ms. Heberlie-Whistler was seen by Dr. Gholson for a psychological evaluation. Dr. Gholson diagnosed panic with agoraphobia and depression. Ms. Heberlie-Whistler reported that she was told by a psychiatrist that she was disabled. Dr. Berkin indicated that Ms. Heberlie-Whistler reported a history of depression and anxiety since 2005, but indicated that she was never seen by a psychiatrist until after her work injury.

During the physical examination of her left arm, Ms. Heberlie-Whistler complained that: -she had pain and tenderness in her left shoulder with limited motion of her arm. -she could not lie on her left side. -she had pain when she is reaching with her arm. -decreased sensations in her fingers and they become cold. -her arm was weak.

The only pre-existing injury that was noted by Dr. Berkin was a 1964 fracture to the left wrist for a roller skating accident. Ms. Heberlie-Whistler reported that her symptoms had improved, but she still had residual weakness in her wrist from the 1964 injury. Dr. Berkin had no records on this matter.

Dr. Berkin provided his diagnoses as: -comminuted fracture of the left proximal humerus involving the greater tuberosity of the surgical neck. -adhesive capsulitis of the left shoulder. -neurogenic thoracic outlet syndrome of the left shoulder. -fracture of the left distal radius. -left carpal tunnel syndrome. -status post open reduction and internal fixation of the left proximal humerus. -status post arthroscopy of the left shoulder with lysis of adhesions and left shoulder manipulation. -anxiety/depression.

Dr. Berkin gave lengthy conclusions stating: -Ms. Heberlie-Whistler injured her arm in November 2013 when she slipped and fell striking her arm. -she was treated at the ER and diagnosed with a fracture.

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-she received follow-up treatment by Dr. Byrne who performed surgery for open reduction and internal fixation of a comminuted fracture. -following surgery she attended physical therapy. -she developed adhesive capsulitis and she underwent additional surgery for arthroscopic lysis of adhesion with closed manipulations of the shoulder. -testing revealed a left carpal tunnel syndrome and axillary nerve neuropathy. -she was referred to Dr. Hagan who administered ultrasound guided injections of the brachia! plexus and scalene muscles. -in January 2015 she was evaluated by Dr. Gholson who diagnosed panic with agoraphobia and depression. -she is no longer working for her previous employer and is unemployed.

Dr. Berkin provided a causation opinion stating: -the industrial accident on November 9, 2013, was the prevailing factor in causing the commuted fracture of the left shoulder complicated by adhesive capsulitis and neurogenic thoracic outlet syndrome and fracture of the left wrist with carpal tunnel syndrome. -since her injury she has been treated by Dr. Liss for anxiety, panic and depression.

Dr. Berkin provided ratings: -permanent partial disability of 45 percent of the left upper extremity at the level of the shoulder. -permanent partial disability of 25 percent of the left upper extremity at the level of the wrist. -deferral regarding the cause and nature and extent of any disability due to depression and anxiety and its effects on her employability to the expertise of a psychiatrist. -an additional 15 percent permanent partial disability of the left wrist for the previous fracture. -permanent partial disability of IO percent for a history of hypertension. -these pre-existing disabilities represent a hindrance or obstacle to employment or reemployment at the time of the November 2013 injury. The combination of her disabilities is significantly greater than their simple sum and a loading factor should be applied.

Dr. Berkin also provided treatment recommendations: -use of nonsteroidal anti-inflammatory medication, muscle relaxants, and analgesics for control of her left arm and shoulder pain. A trial of gabapentin for control of neuropathic pain. -MRI of the cervical spine for potential discogenic cause ofleft arm pain. -participation in a home exercise program. -lifting with the arm should be limited to 15-20 pounds on an occasional basis and 10 pounds on a frequent basis. -avoid lifting with her arm extended from her body and should avoid excessive lifting or working with her arm above shoulder level. -she should remain as active as possible, but she should pace herself and take frequent breaks to avoid exacerbation of her symptoms or further injury to her left arm and shoulder.

As of March 23, 2016, Dr. Berkin further reported that he reviewed the records of Dr. Sandvos who provided care to Ms. Heberlie-Whistler in 20 IO and 2011. He reported that the records indicated that treatment was provided for dysuria, hypertension, diabetes, and back, pelvis and knee injuries following a fall. He said that the records did not change his opinions.

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At his April 6, 2016 deposition, Dr. Berkin acknowledged that: -he did not review Ms. Heberlie-Whistler's deposition and bases his evaluations on the subjective complaints of the employee. -he did not believe Ms. Heberlie-Whistler reported any complaints of hypertension. -even if the records indicate that the employee did not have surgery to her left wrist for her pre-existing injury it would not change his rating. -he did not talk to Ms. Heberlie-Whistler in detail about her anxiety and depression.

On March 9, 2015, Stephen Jordan, Ph.D., a neuropsychologist, saw Ms. Heberlie-Whistler for a Psychiatric Diagnostic Review. Ms. Heberlie-Whistler had already undergone surgery and was referred to him with thoracic outlet syndrome for a presurgical psychiatric evaluation.

Ms. Heberlie-Whistler reported that despite her prior care, she continues to suffer poorlycontrolled pain that she said significantly interferes with her daily activities. The report indicates that she has a history of depression prior to November 9, 2013. Dr. Jordan reported that the history of depression was with Dr. Womack, her family doctor. She never was referred to or saw a psychologist or psychiatrist for her pre-existing depression or anxiety. She reported that the depression has worsened since the irtjury since she felt "work was the only thing I had" after the deaths of her husband and father. Ms. Heberlie-Whistler stated that she planned to work to age 65 and now believes that her future plans have been destroyed by her ongoing physical limitations. Dr. Jordan reported that: -she was receiving psychiatric care through Dr. Liss and has seen a counselor at that practice. -she has poorly-controlled anxiety, irritability, and depression and is complaining of poor concentration since the injury.

Dr. Jordan reported that he did not have Ms. Heberlie-Whistler' s prior medical records so he was not sure of her emotional status around the time of her accident. Based on her report, he stated that she had controlled emotional functioning at the time of the fall. Dr. Jordan further reported that if this is true he would view the fall of November 9, 2013 (and cascade of events associated with the injury) as a prevailing factor of her current episode of anxiety and depression.

Dr. Jordan's diagnostic impression was: -pain disorder with medical and psychological factors. -major depression, recurrent, severe without psychotic features. -mixed anxiety disorder with generalized anxiety and panic.

Dr. Jordan made specific mention of the areas of Pain, Anxiety and Mood.

As to Pain he reported: -the pain arose after her fall of November 9, 2013. -she does not want further surgery. -she was returned to work and asked to push a 150 pound wheeled medical cart and she was unable to do that. -she was intolerant to the noise and increased pain with activity.

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-she elected to leave work and her workers' compensation benefits stopped. -she reported her current pain ranges from 7 /10 and was currently at 9/10. TENS Unit does help some. -weather changes, cold weather triggers throbbing. -her left hand is always cold.

As to Anxiety Dr. Jordan reported: -current panic symptoms include-palpations, sweating, trembling, shortness of breath, chest pain, nausea, light-headedness. -current generalized anxiety includes-persistent worry, restlessness, keyed up, easy fatigue, concentration, irritability, muscle tension, sleep disturbance. -Dr. Liss was treating her concentration problems with Adderall and her anxiety with Xanax. She takes an extra Xanax to address panic attacks that are typically triggered by working on her disability paperwork that she finds overwhelming.

As to Mood Dr. Jordan reported: -current depression include-insomnia, anhedonia, depressive cognitions, energy, concentration, appetite, psychomotor changes, episodic suicidal ideation. First episode of depression occurred after a hysterectomy in 1976 when she was treated with Prozac. Other stressors involved raising a hyperactive child and going to school while parenting. She said her husband died and her father died in 2007. Her plan was to work until she was 65 and she felt that "work was all I had" after her losses.

Dr. Jordan was unclear if Ms. Heberlie-Whistler was scheduled for any further surgery when he saw her. He reported that he would not clear her for surgery due to: -her uncontrolled depression and anxiety. -her outcome expectations are poorly developed and I am concerned about the symbolic value of her pain sensations (represents a reminder of her lost dreams/plans). She fears further loss of use of her arm through falls and/or surgical intervention.

Dr. Jordan reported minimal somatization, severe anxiety and severe depression. He also indicated that the records show no previous history of delirium, dementia, head injury, learning disability, attention deficit disorder. He also reported no previous history of panic attacks, agoraphobia, social phobia, obsessive-compulsive disorder, generalized anxiety, post-traumatic stress disorder. As to mood he also reported no previous history of grandiosity, decreased need for sleep, sexual indiscretions, pattern of impulsive decisions, recurrent failure to comply with medical recommendations, "doctor shopping".

Dr. Jordan stated that Ms. Heberlie-Whistler was judged to be a reliable historian. Leaming and memory revealed grossly intact recall for recent life events. She exhibited intact insight into their conditions, with abstract reasoning, and intact judgment. She exhibited fluent speech.

Ms. Heberlie-Whistler provided her sworn deposition on June 23, 2015.

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She testified that: -she got hurt at Riverview on November 9, 2015. -they sent her back to work too soon. She told them about her pain and numbness and stuff-my nerves were just shot. -she loved working at Riverview. -her surgery did not stop the pain. -she has seen a psychiatrist due to her injury. -she saw Dr. Liss because of anxiety and depression-crying all day. She attributed this to everything she had been going through since November 9, 2013. -she said she started feeling depressed after the accident when the doctor said it's broke and sent me home. I knew there was something more serious. -her anxiety and depression got worse. She cried every day because she knew her career was ruined. She said in the beginning she just cried all the time. It was hard to get through everything on my own. No income, seeing my house in disarray, could not do anything and had to depend on people. I couldn't do anything. -she talked about everything with Dr. Liss and Ms. Wissler-nightmares, would remember the fall, anxiety and pain, what's coming, anxiety and depression of losing my future because I had planned on retiring at 65, not 62. -she describes her mood as melancholy. "I used to be happy and cheerful and I used to have so much energy. I don't any more. I have nothing." -prior to her accident she never saw a counselor except when her dad died. She said she had the typical sadness when you lose a parent-it got better. -she saw no psychiatrists or psychologists in the past. -the normal depression from family dying went away. -she said she had no anxiety due to her job. Says she was fine dealing with the stresses of her job. "Go to work, whatever happens at work stays at work. That was my career". -she said they sent me back to work too soon. "It was so painful and I could not handle the loud noises, all the people, all the complaints. My nerves were just frayed and I couldn't take the loudness and that disorganized stuff they were doing." She said her arm was hurting a lotpulsating. With that you can't stand loud noises, the phones ringing, people screaming and yelling ... I just couldn't take it". -prior to the accident she had no physical or psychological issues performing her job. She said she loved her job. -she said she had no physical or psychological problems in performing all of her past jobs. Had exhaustion while working at Southeast. Worked a lot of shifts. Says was physical exhaustionshe was tired. Once she was released she had no more problems. She was just tired. -she had migraines a long time before the accident. She missed work due to migraines. Onc.e every couple months-six a year. They were controlled with medication. She now gets a headache once in a while but is not a migraine. -she agreed that prior to the accident she did not have the same issues with anxiety or depression that she has had since the accident. She says she did not cry like this, was not moody like this and wasn't irritable like this. -she had no problems with her left wrist prior to the accident. -she had no nightmares prior to the accident. Now the nightmare that she has is like she is standing upright and falls backwards. Had this reoccurring nightmare since the accident.

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-she does not cook. She attributes this to her physical problems with her wrist. -she doesn't want to fall as she does not want to go through that pain again. She is "afraid" of falling. -she does not have the tolerance of public exposure anymore. She can't tolerate the people, the drama, that crap that they fuss about. -when she was asked if she has more issues with physical pain or psychological issues that she developed, she said "The pain I have every day makes me tired and grumpy, makes me irritable and I don't know when I'm going to snap but what I say may not be very nice. You can't do that with a public job. And I don't want to be that way." "I was always a nice, gentle person who tried to get her work done right, and I can't do that no more. I can't stay focused really long enough even to go from point A to point B sometimes, and you can't do that in a public job. You've got to be on target. But I couldn't-I wanted to hit that girl up there at Riverview." -this is a new experience. "I'm easygoing. I want everybody happy. I want everybody to bejust have a nice, normal workday and we all go home at the same time. No conflicts, no nothing. I don't argue, I don't want any more--okay." -she said that if it had not been for the injury she would still be working until retirement at 65.

Mr. Lalk was retained by Ms. Heber lie-Whistler's attorney to conduct a vocational assessment. He interviewed her on October 26, 2015, prepared his Vocational Rehabilitation report on December 11, 2015, and testified by deposition on April 20, 2016. Mr. Lalk did not administer any testing due to the level of her education and because she was a registered nurse.

In his report and deposition testimony, Mr. Lalk included many statements or assessments made by Ms. Heberlie-Whistler or others about her physical and mental condition. Some of those statements she made include: -she believes that her psychiatric condition started with her accident at work. She said that she had been unable to tolerate noise or people moving around her. When in these situations she says feels like she carrnot breathe. When Mr. Lalk asked for clarification she said when everyone is talking at the same time she cannot hear a single conversation. When he asked what she did to control these symptoms she said that she stays home 24/7-I don't go anywhere. She believes she is becoming more antisocial. She lets the phone ring, does not want to go anywhere, and does not invite people to her house. -when she was asked to describe her primary problems she responded that, "I can't be around crowds". She reported that when she returned to work she found that some nurses had loud voices and she could not tolerate this along with her pain. She described her work situation as "chaos" and wanted to tell workers to shut up as she had no more patience. Mr. Lalk reported that he observed no pain behavior. -she says she stopped working when she had the second surgery. -she told him she had no medical condition which had limited her activity until her work accident. -when Mr. Lalk asked her about her history of depression, he reported that she said this occurred

after her father passed away and other situations such as an infant dying when she was a nurse. She believes it was exacerbated because she was working too many hours. "I was a workaholic". -she reported that she had no restrictions related to her depression with regard to her work until November 2013, and her depression now is a lot worse.

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-she could not remember when she left Riverview. She said that even though she could physically do the work, it made her anxious. She said the pain, anxiety and nightmares were too much for her-the chaos and noise at work were not tolerable. -she has not looked for another job as she says she is unable to tolerate a workplace. If she tried to work with the public she would be too frustrated listening to "whiny" voices. She said she was not to do some other work different than nursing because it would be degrading, embarrassing, and she would not have the patience. She said "I dwell on what I used to do". She said she was worried about the future.

When Mr. Lalk asked her about her physical problems, some of the comments she made were: -her left extremity throbs all the time and is tender. · -her arm is weak. -her left armpit hurts. -problems increase with activity. -she reported no problems with her left wrist. -her low back has been hurting for a long time. -she now has daily headaches and when severe they cause dizziness and nausea. -she said she has no limitations with regard to standing and walking but she reported a fear of falling. She said that her fear of tripping and falling is with her most of the time.

Ms. Heberlie-Whistler told Mr. Lalk that her current symptoms that kept her from working developed with the injury of November 9, 2013.

In his report, Mr. Lalk included a section called Summary and Conclusion. He reported that: -although Ms. Heberlie-Whistler said she has no medical condition prior to 2013 which limited her activity, in 2009 she sought treatment for pain in her lumbar spine, left knee, left hip and left leg. -2010 records show that she was being treated for hypertension, diabetes and depression. -she fractured her left wrist as a child-roller skating. -in 2010 she fell and hurt her elbow. -in July 2012, he reported that she told her primary care physician that her symptoms of depression has been progressively worsening, while she told him that her current symptoms that keep her from working developed with the injury of November 9, 2013. -Dr. Byrne allowed her to return to work on December 4, 2013, with no use ofleft arm. She told the doctor she was afraid she would drop a patient. -Dr. Womack says she returned to work on January 20, 2014. As of January 30, 2014, he said she was experiencing worsening anxiety and depression. -she did not return to work as of January 27, 2014, and was referred for psychiatric counseling. -March, 2014 records from Perry County Memorial Counseling Center indicate that she was experiencing episodes of depression and anxiety as a reaction to her November 2013 injury. She was also experiencing distress over her financial loss. Her symptoms were excessive worry, panic attacks, rumination, unrealistic fear of falling, agoraphobia and physical pain exacerbated by mood, along with increased irritability and frustration. -she was referred to a psychiatrist and diagnosed with major depressive disorder and moderate and generalized anxiety disorder.

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-she began seeing Dr. Liss on April 29, 2014, and he diagnosed anxiety disorder at that time. -Dr. Berkin saw her on January 14, 2015. -on January 13, 2015, she saw a psychologist. The diagnostic impression was panic disorder with agoraphobia, ADD, and depressive disorder. Global Assessment of Functioning was 50. -Dr. Jordan on March 9, 2015 said that the cascade of events associated with the injury was the prevailing cause of her current episode of anxiety and depression which he described as uncontrolled.

Mr. Lalk further reported that: -Ms. Heberlie-Whistler reported that her primary problem was the inability to be around other individuals. -her psychiatric condition seems to be the predominant reason for her inability to return to employment. -the restrictions of Dr. Berkin would not prevent someone with her training and background from returning to some form of employment. -her psychiatric condition would, however, prevent her from functioning at a level expected by an employer on a day-to-day basis.

Mr. Lalk indicated that: -I cannot recommend any vocational rehabilitation service for Ms. Heberlie-Whistler. -I do not believe that she is able to secure or maintain any type of employment and cannot compete for any position until the symptoms related to her depression, anxiety, panic disorder/agoraphobia have stabilized and reached a point where she can function outside of her home and around other individuals.

In addition to the statement and opinions that Mr. Lalk provided in his report, he was further questioned at his deposition. He agreed that he has not seen Ms. Heberlie-Whistler since his evaluation and is not aware of her current condition.

He reported that: -she was angry that she was initially denied social security. -he agreed that she told him that her psychological condition started with the work accident, but there is some inconsistency when you look at the medical records. He explained that he took this as her trying to explain between her current condition and her prior condition. As far as she was concerned she had no work restrictions regarding depression prior to her accident. She said she got worse after the accident. -her deposition testimony was consistent as she said there that her psychiatric condition started after her work accident.

Mr. Lalk said that it is only when you consider Ms. Heberlie-Whistler's psychiatric condition that she becomes unemployable.

Ms. Heberlie-Whistler's attorney asked Dr. Ozar to see her and provide an Independent Medical Examination. He was asked to provide his medical opinion regarding her current and preexisting psychiatric condition, the degree of disability associated with any psychiatric condition,

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and the prevailing cause of any disability. Dr. Ozar saw her on May 17, 2016, prepared a report dated August 1, 2016, and testified by deposition on January 11, 2017.

In his report under the caption Medical Opinions he reported that: 1. Ms. Heberlie-Whistler suffered from psychiatric conditions prior to her work accident. The records indicate that her doctors felt that her level of depressive mood and number of symptoms of depression warranted treatment trial with antidepressants. She attributes these episodes to losses in her personal life, particularly that of her father and first husband. She was able to continue work during these episodes and he had no evidence that her ability to work declined. Her quality of life certainly was diminished and immersion in work was often a major strategy for distracting herself from painful affects. Her psychiatric condition should be viewed as more than episodes of depression, but as a function of her personality structure. She displays pathologic personality traits that compromise her adaptive flexibility and limit her ability to maintain healthy and supportive personal relationships. With the limits of this type of evaluation I am reluctant to diagnose a particular Personality Disorder, but highlight masochistic, depressive, and histrionic traits, all of which are related in great part to her strong unfulfilled dependency needs. Her personality structure has left her quite vulnerable to episodes of anxiety and depression. Her childhood developmental history strongly predisposed her to difficulties maintaining a healthy and secure sense of self, and thus healthy, adaptive, functioning as a wife and mother. 2. The work injury of November 9, 2013, and the subsequent physical pain and limitations was the prevailing causal factor in her psychiatric disability. The depth and intensity of her depressive symptoms were significantly increased after that date and for the first time in her life prevented her from being able to function at work. Additionally, she developed new symptoms of Panic Disorder with Agoraphobia after the injury. 3. The sum of the disability arising from her psychiatric condition prior to the accident and the disability arising from the psychiatric conditions that were caused by the work accident is greater than a simple additive sum. While it is hard to quantify emotional and psychiatric disability in a mathematical way, the underlying personality vulnerability, combined with the loss of work function and the loss of the use of work to manage her emotional state, led to a much more entrenched and intense psychiatric state that is more disabling than what would be explained by looking at each disabling condition by itself. 4. Ms. Heberlie-Whistler is not employable as a consequence of her psychiatric condition. I do believe that her current level of disability must be seen as a result of a combination of her preexisting condition and the consequences, emotional and physical, of her accident. The fact of her disability was caused by the accident, as it is evident that she was able to work prior to the accident. She was a "fragile egg" who did not have the inner resources, given her pre-existing level of disability, to recover from her work-related injury.

Dr. Ozar reported that when Ms. Heberlie-Whistler was asked about her injuty she immediately described the disabling consequences. She said that: -"Ruined my career, had weight restrictions, couldn't do anything repetitive" .

. -inability to stand large crowds. -inability to stand loud talking. -her body does not work like it used to.

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-can't remember like she used to. -she agreed that she was hopeless and did not see her condition as fixable.

Dr. Ozar reported that her first thoughts after the accident were that: -"there goes my home ... can't afford it". -"the pain was catastrophic ... rather give birth to 10 kids".

Dr. Ozar reported that Ms. Heberlie-Whistler saw a psychiatrist for the first time after her work injury and onset of anxiety and depression. She reported that: -she had trouble remembering that she had any prior episodes of depression and stated that the intensity and quality of her prior and current depressions seemed very different in her mind. -she said that she could not say for sure that she was depressed before her injury. -she noted that her marriage and jobs were rocky and that she managed her feelings by burying herself in work. -she did not think that she needed a psychiatrist prior to her accident. She did identify "down times" from divorce and when her dad and first husband died. -she loved her job, her patients and her coworkers. She never had troubles at work. She said she could work a lot, mow her own very big yard, and stay active with friends.

Dr. Ozar stated that after her work injury and a failure to fully recover she experienced her depression much more deeply.

Dr. Ozar also reported on other statements that Ms. Heberlie-Whistler made: -she reported that she had a blast growing up on a farm. -she talked fondly of her dad. -she stated that she was too proud to ask for anyone's help. -she said she was "high strung" as a kid. -she reported that her mother is still alive and they have a good relationship. -she reported a sick sister that needed a lot of surgeries and care. She connected her desire to be a nurse to these childhood memories. She wished to have her own "pink baby". -she married twice and described her marriages and jobs as "rocky". She said her second husband was a tug boat engineer and was gone 6 months out of the year. She said he was an alcoholic and had affairs with "every chick in the bar". She said "divorce is like death". -she lives alone in a big house that she can no longer care for. She sees her house as her "comfort zone". -her son is alive and currently disabled. She relates it to the onset of severe diabetes when he was an officer on a submarine. All other family is out of state. -she is just making it on her SS retirement payments. She has applied for SS disability. Her plan to retire at 65 blew up in smoke. -she has lived alone since 2008. She knew she could make it financially even though "they said I wouldn't". -she has worked steadily since 16. She worked as an RN steadily. -she cannot think of any work she can do. She says she is unable to do clerical work as she gets spasms in her arm and neck. "Most significantly, she is unable to be around people due to her irritability and intolerance of noise".

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-she views herself as a caretaker and rescuer. It is "what nurses do". "I put my heart and soul into people". Her whole importance in life is lost. -she worries she will be a drag on others.

Dr. Ozar summarized his opinions in his Assessment. He reported that: -"There is considerable evidence from the interview and medical records that Mrs. H-W has experienced, since her work injury, symptoms consistent with Major Depression Disorder and Panic Disorder with Agoraphobia. There is also substantial evidence prior to the injury, Mrs. HW, had episodes of depression that were treated by her general medical physicians but were not of such severity that she was not able to work or was felt to need referral to a psychiatrist." -"There also is considerable evidence from the diagnostic interview that Mrs. H-W endured significant emotional trauma in her developing years to render her vulnerable to relationship difficulties and depression. She had sufficient psychological resources to allow her to maintain her emotional equilibrium and avoid psychological breakdown in the face of quite masochistic marital relationships. Her ability to cope was supported by her ability to immerse herself in work that involved caretaking. She minimized or denied her own needs to be taken care of and took on the role of caretaker of others. Depressive feelings and symptoms would appear periodically, especially when triggered by personal losses, such as the death of her father. Her persistent attitude has been that there is no one, particularly no man, whom she can count on to take care of her. Thus her inability to work secondary to her injury, persistent pain and physical limitations have taken away her means of maintaining her emotional well-being". -She has been able to establish a positive relationship to her psychiatrist and therapist but finances have limited her access to counseling or medications that she has found to be helpful. -She is at an age where retraining is not reasonable and thus, work not an option, it will be a challenge for her to recognize her modes of adaptation to restore some balance in her moods and anxiety. A consistent and reliable relationship with a supportive therapist will be important to prevent further deterioration in her functioning.

Dr. Ozar testified by deposition and offered additional comments and opinions in this case. He testified that it is common that people have ups and downs in life that they consider that is just the way life is; where someone from the outside could be objective and say they were something that could be addressed or treated. He said that Ms. Heberlie-Whistler painted a rosy picture about her prior employment. It is important to her that she be able to work. When she couldn't work it affected her greatly. Dr. Ozar also said it is clear that she did not see herself as having a psychiatric illness that required seeing a psychiatrist. However it was clear that she had evidence of symptoms of depression and anxiety, among other things, and that she had gotten some treatment from general practitioners. She saw that primarily as situational, that she was responding to issues primarily in her marriage or losses. In some ways she minimized or even forgot that she had these episodes.

Dr. Ozar's general impression was that going to work was highly valued by Ms. HeberlieWhistler. He testified that Ms. Heberlie-Whistler had episodes of depression prior to her accident that were of less severity.

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Dr. Ozar testified that the details of her upbringing sounded very disturbing. He said that his underlying impression was a chaotic life, a lot of insecurity and a profound sense of being isolated and alone without her needs being met. He said that she had pride that she was one of the few in her family that got an advanced education. He also said that her relationships in her marriages were very disturbing and not healthy. He said that Ms. Heberlie-Whistler is profoundly isolated, it is not that she doesn't want to be around people, it's that being around people is profoundly disturbing to her-"she lives in her own mind". He reported that she was not cognitively impaired in any way but it was clear that she was not very psychologically minded-she could describe her symptoms but she could not reflect on herself.

Dr. Ozar said the records show absences from Southeast Hospital. He indicated that he did not know the details of the absences, but speculates that these absences supported his opinion of preexisting depression. He indicated that this shows a deficit in her personality in the terms of being able to manage her life. He said that part of her coping ability involved immersing herself in a work situation and telling herself she was able to support herself and be a caretaker to others. He said this helped her marginally so that her underlying anger and depression would break through where there were profound events like the death of her father. He testified that this accident "sort of collapsed all of her usual abilities to manage herself emotionally and regulate herself'.

Dr. Ozar testified as to his Conclusions: -Ms. Heberlie-Whistler had episodes of depression that were documented prior to her work injury that had responded to treatment. -she worked despite these episodes and was able to keep her job. Some of the reasons she was absent from work were due to depression. -he says that there is significant difference between the depth and intensity of her depressive symptoms after the accident and these interfered with her ability to work. -he said that it appears that she had new symptoms that were not there before. -he says she had prior depression and some anxiety prior to the accident and significant symptoms of panic, agoraphobia after the accident. The latter were not present before accident. -he says that the psychiatric condition prior to the accident and the disability arising from the conditions that were caused by the work accident were greater than the simple additive sum. He explained that you have to look at depression in the context of someone's overall functioning. How a person comes into an injury will predict something about how they will be able to respond to the injury. You can say she had depressive symptoms, she had a disorder, she had difficulty based on her upbringing and how she developed as a person-she had difficulty doing that without being able to be overwhelmed by feelings. So by putting the two together led to the situation that not only did she have more significantly more symptoms afterwards, that the two added together caused her not to be able to overcome and escape them. -the work accident and the loss of work to manage her emotional state was significant. -her need to be a person in a paiticular job was a key element in her being able to keep her head above water. And without that she did not have any other resomces or any other way to flexibly readjust or find some new way to maintain her emotional equilibrium. -she is not employable due to a function of her psychiatric condition. -he does not believe that she could show up at a job and function. He is not hopeful that this will change. He said that she lost all ability to regulate her emotions, her anxiety, her mood, to

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engage with people, to be able to concentrate and focus without being constantly distracted by her anxiety and fears. -he agrees that this was a combination of pre-existing condition and the consequences of her work accident. -he talks about his use of the term "fragile egg". He says the consequences of falling may affect a fragile person differently than they would affect someone who had other sort of strengths and resources to call on-so Ms. Heberlie-Whistler was fragile and vulnerable and could break easily nonetheless it would not break until you dropped it. The dropping in this case is the work accident.

Counsel for the employer-insurer cross examined Dr. Ozar. He testified that Ms. HeberlieWhistler' s prior psychiatric condition should be viewed as more than episodes of depression, but more of a function of her personality disorder. He indicated that her personality structure would have been present prior to her accident. He stated that the sum total of all of her abilities to cope and manage and make sense of the world, her personality structure existed prior to the accident.

His opinion was that her current level of disability must be seen as a combination of her preexisting and work injury.

Dr. Ozar also indicated that: -Ms. Heberlie-Whistler was inconsistent in saying she loved and hated her job. She told him that she loved her job and her coworkers and her patients prior to her 2013 accident. -he did not know why she missed work, as he did not have any direct evidence as to why she missed work. -it is common to have a period of depression after a death. -he was not aware that Ms. Heberlie-Wbistler had reported that she had the typical sadness when her father passed away, but it got better. -he did not review her deposition testimony. -she did not indicate any nightmares prior to her accident. -she did not tell him that prior to the injury she had any difficulty being in a large crowd or talking to people. -he does not recall that she was able to give a clear indication of what her current anxiety and depression was related to. -in her history she did not report that she was depressed prior to the injury. -she never told him that she had any feeling of agoraphobia or felt uncomfortable about leaving her home prior to the accident. -she never told him that she had any feeling of not being able to do her job up until the accident of November 9, 2013. -he did not discuss any physical problems that she had prior to November 9, 2013. -she has been alone since 2008.

Dr. Ozar testified that he agreed that there were disruptions that were temporary and Ms. Heberlie-Whistler got through them. He said he always assumed that her baseline had some elements of depression and anxiety in it. He reported that he did not see her as a smoothfunctioning person other than she was able to hold a job.

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Dr. Ozar testified that there is a very mixed picture of what was going on. He indicated that not all injuries are psychologically traumatic, but there are some that are. He says it depends on the circumstances that somebody attributes to it. He indicated that the immediate meaning of Ms. Heberlie-Whistler's injury "had some sense of my life is over, something terrible is about to happen". He says that she was overwhelmed by her feeling that this is something she cannot repair or that she was never going to be able to work again.

Dr. Ozar was asked if he was aware that Ms. Heberlie-Whistler was asked what she felt was causing her anxiety and depression and crying and she said everything that has happened to her since November 9, 2013. He responded that he had not read her deposition, and was not aware of that statement, but he is aware that she is preoccupied and overwhelmed by everything that has happened since the injury. He said that one of the ways of managing and keeping her selfesteem up was keeping her mind focused on being a caretaker at work.

The employer-insurer sent Ms. Heberlie-Whistler for an Independent Medical Examination to Dr. Smith. She conducted her evaluation on October 31, 2016 and prepared her Independent Psychiatric Evaluation on November 16, 2016. At that time Ms. Heberlie-Whistler was not working. She was receiving $1,405.00 per month due to social security disability and Medicare insurance. Dr. Smith reviewed medical records and included as list of the records she reviewed in her report.

Dr. Smith reported Ms. Heberlie-Whistler's complaints as: -fear of falling. -crowds. -loud noises. -finances. -poor memory. -poor vision.

In addition she reported that: -was sent home from the hospital too quick and was not provided some health assistance. -she lived alone at the time. -the post-op recovery period was physically and emotionally difficult for her. -she did not return to work. -she has physical restrictions that prevent her from returning to work.

Dr. Smith indicated that Ms. Heberlie-Whistler was currently depressed and under care of Dr. Liss. She said that treatment is not been effective as she is quite depressed and is struggling with discomfort and "frustration" and anger at what she has had to go through. She said that based on records, she minimized the extent of her pre-injury psychological vulnerabilities and complaints. She reported that what she says about her underlying pre-injury medical health belies what is found in her medical records.

Dr. Smith reported that the prior records strongly suggest pre-existing Somatization Disorder and that pre-existing waxing and waning mood/anxiety complaints are consistent with this picture.

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She said that her prior relationship history, marriages to abusive alcoholic men supports profound underlying dependent personality traits/needs also consistent with somatization disorder.

Dr. Smith reported that Ms. Heberlie-Whistler denied any pre-injury psychiatric treatment, but she was prescribed psychiatric prescriptions for depression/anxiety over the years. She supposedly tried suicide in September 2016. She said that she closely watched her reaction to this comment. She says it suggests multiple prior suicide attempts

Dr. Smith noted that: -Dr. Liss diagnosed ADHD combined type and Anxiety Disorder, unspecified. -Dr. Ozar diagnosed Major Depressive Disorder. Panic Disorder with Agoraphobia.

As part of her assessment she said that Ms. Heberlie-Whistler appeared fed up with the process and the numerous required evaluations. She said she does not think she will get better, feels alone, estranged from family and unsupported. Her insight is poor.

Dr. Smith's Diagnostic Impressions were: -Somatization DO -long history of (pre-existing) mood and anxiety problems. -Personality DO (traits consistent with Somatization disorder) -Clear exacerbation of depressive symptoms due to work-related arm injury. -Continued physical discomfort.

She further stated that: -the prevailing cause of her exacerbation is her arm injury. -her arm fracture was significant and her difficult lonely recovery was a considerable stress. It disrupted the structure caused by her work which provided a major source of her self-esteem, a major plus in her life. -medical records support pre-existing Somatization Disorder. -her social/marital history support pre-existing personality dysfunction. Self-defeating, passive-dependent, depressive, and borderline features present. -she recreated the victim in both her marriages, and she has done the same to an extent within the Workers' Compensation treatment system, post injury. -her post-injury antidepressant medication regimen has been insufficient with too much reliance on stimulants and sedatives.

She said that she wishes to return to Cymbal ta but will not speak up for herself which she says is emblematic of her personality and complicates further her inadequately treated Depressive Disorder. She also stated that she is not presently at psychiatric MMI. She reported that this is a fragile woman, who had a bad arm break, at a bad time in her life. She is angry and resentful that she did not receive home health assistance post discharge, though she did not request it. She further reported that she needs a directive behavioral approach-Dr. Liss should see her more. Dr. Smith also said that based on Ms. Heberlie-Whistler's comments about Dr. Liss, she is not sure that is where she should remain. She suggested that with adequately aggressive antidepressant coverage she likely would not require stimulants or sedatives.

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Dr. Smith opined: -that Ms. Heberlie-Whistler is not capable of working currently. No one would hire her at this moment. She would respond/behave poorly if placed in a light duty or work hardening setting now. -she believed that she could improve if she demonstrates a willingness to engage positively in the treatment process. A return to nursing is not likely given her physical restrictions. -with appropriate psychiatric treatment, work is a possibility. When her depression improves she would present more maturely. -once she makes psychiatric progress, her physical restrictions should be reevaluated.

Dr. Sky is a psychiatrist who was retained by the Second Injury Fund to conduct a review of Ms. Heberlie-Whistler's medical records. He was not allowed to interview her personally, as the law does not give the Second Injury Fund that right. He reviewed and derived his opinions from reviewing her medical records that existed prior to November 9, 2013 and those that were generated after the accident including her deposition testimony and psychiatric records. He reviewed the same pre injury and post injury medical records that were provided to the other medical providers for their review. In addition, he had the opinions of psychiatric/psychological counselors to review. Dr. Sky included a list of the records he reviewed in his Independent Medical Evaluation/Chart Review.

Dr. Sky conducted his evaluation on June 11, 2017 and prepared his report with the same date. He testified by deposition on February 23, 2018.

In his report he included some of the information that he found in the records. He indicated that: -according to the charts, Ms. Heberlie-Whistler was in her usual state of physical and mental health when she had her accident. -immediately after the accident she told her employer that she became very depressed as a result of the pain and decreased mobility. -as of November 19, 2013, Dr. Womack reported that Ms. Heberlie-Whistler was "negative for anxiety or depression". As of December 31, 2013, Dr. Womack reported that she was "positive for anxiety". -as of February 2014, Ms. Heberlie-Whistler began seeing Dr. Liss and his counselor Nicole Wissler. Ms. Heberlie-Whistler reported "episodes of depression and anxiety as a reaction to an injury sustained in November 2013". Ms. Wissler reported that Ms. Heberlie-Whistler "expresses distress over financial loss and being unable to work in addition to the effects of the pain related to the injury". Symptoms reported were "panic attacks, ruminations, unrealistic fear of falling, agoraphobia, physical pain exerted by mood, increased irritability and frustration, depressed mood, flat effect, decreased appetite, feelings of helplessness/hopelessness, unstable mood, ctying frequently, easily distracted, and obsessive organization".

Dr. Sky stated that according to the records, pre-existing psychiatric history is generally limited to treatment by her primary care physician, as Ms. Heberlie-Whistler did not see a psychiatrist, psychologist or other mental health professional prior to her work injury. Her primary care physician, Dr. Womack, documented a diagnosis of depression in 2010.

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Dr. Sky noted the opinions of Dr. Ozar and Dr. Smith: -Dr. Ozar felt Ms. Heberlie-Whistler's current diagnosis was consistent with major depression with panic and agoraphobia. He said her symptoms and disability were worse secondary to a preexisting personality vulnerability; namely "masochistic depression and histrionic traits" as well as dependency needs. He described her as being a "fragile egg" in terms of her innate personality structure. -Dr. Smith felt her diagnosis was consistent with pre-existing somatization disorder as well as long history of pre-existing mood and anxiety disorders, as well as personality traits consistent with a somatization disorder. She thought there was a clear exacerbation of her pre-existing depressive symptoms due to the work-related arm injury.

Dr. Sky gave his Diagnostic Impressions:

Diagnoses subsequent to November 9, 2013 injury at work: -Major depression: moderate, recurrent. -Generalized anxiety disorder. -Somatization disorder. -Left humerus fracture with repair.

Diagnoses predating the November 9, 2013 injury at work: -Dysthymia. -Hypertension. -Hysterectomy by history. -Wrist surgery by history. -Hypothyroidism. -Hypercholesterolemia. -Possible epilepsy.

Dr. Sky provided his Conclusions: 1. The alleged work injury of November 9, 2013 was the prevailing cause of her current psychiatric symptoms and diagnoses. 2. It is impossible to determine the nature and extent of any permanent partial psychiatric disability resulting from the alleged work injury of November 9, 2013. This is because we see no documentation that she has reached maximum medical improvement. Dr. Smith and Dr. Ozar in their IME's said that she would likely benefit from more aggressive psychopharmacologic and psychotherapeutic interventions. They say that only once these types of treatments are pursued then a proper assessment as to whether she has a permanent paitial psychiatric or even permanent total psychiatric disability can be ascertained. 3. There were minimal pre-existing psychiatric disabilities which would have been synergistically exacerbated or worsened by the November 9, 2013 alleged work injury. Ms. Heberlie-Whistler had not previously seen a psychiatrist, she was not seeing a therapist or counselor, and her mood and affective symptoms seemed to be mainly related to life stressors according to contemporaneous records. She was able to work on a regular basis and function in day-to-day activities without limitation. That being said, her primary care physician did note

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some depression and anxiety and did treat her with antidepressants so she would be assigned a pre-existing permanent partial psychiatric disability of 15% to the body as a whole.

Dr. Sky provided a great deal of additional information when he gave his deposition on February 23,2018.

He indicated that he sees 120-150 patients a week and performs 2-3 IME's a week which he described as a tiny part of his practice. He agreed that he was not allowed to meet with Ms. Heberlie-Whistler, but commented that the records he reviewed were pretty thorough and in addition he did review her deposition. He explained that after her injury, Ms. Heberlie-Whistler became very depressed as a result of the pain and the decreased mobility of the injury, and that is why her case has a psychiatric standpoint.

Dr. Sky was asked about Dr. Ozar's report. He said that Dr. Ozar was a professor of his 30 years ago. He says Dr. Ozar is a Freudian analyst. Freudians focus more on personality disorders, disorders that may base back into childhood. He said Dr. Ozar is a psychoanalyst by training. Dr. Ozar said that Ms. Heberlie-Whistler had a major depression with panic and agoraphobia. Dr. Ozar also said that her symptoms were worse because of a pre-existing personality vulnerability-namely, a masochistic depression, (Dr. Sky says this isn't actually a recognized diagnosis), and histrionic traits as well as dependency needs. Dr. Ozar described her as being fragile as an egg-in other words, anything would trigger an exacerbation of her mood symptoms.

When asked ifhe agreed with Dr. Ozar's assessment, Dr. Sky answered that is hard to say as he did not meet Ms. Heberlie-Whistler. Dr. Sky said that both Dr. Smith and Dr. Ozar felt there were some pre-existing issues. Dr. Sky said he agreed with Dr. Ozar that she had some preexisting mixed personality traits with some of the features he described, but he did not adopt the fragile egg concept.

Dr. Sky was asked to compare Dr. Smith's report to Dr. Ozar's. Dr. Sky said that Dr. Smith also felt there were some pre-existing issues but the exact ones are up to debate. He said they disagreed on the terminology. Dr. Smith felt that she had some pre-existing mood and anxiety disorders as well as some personality traits, and she thought that the current depression, her current symptoms were an exacerbation of a pre-existing depression symptom.

Dr. Sky gave his diagnoses saying Ms. Heberlie-Whistler met the criteria for a major depressive disorder, moderate, recurrent, as well as a generalized anxiety disorder and a somatization disorder. When he was asked from a psychiatric standpoint, which diagnoses did she have that predated her work injury he responded that based on the reports of Dr. Smith and Dr. Ozar, she may have had what we call mixed personality traits. He said that we all have personality traits-the question is how much do they affect us. He also reported that Ms. Heberlie-Whistler also had a dysthymia which would be defined as a mild depression.

Dr. Sky stated that Ms. Heberlie-Whistler is suffering from a major depression as it relates to her work injury:

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-when you look at the symptoms that she presented to Dr. Liss and Ms. Wissler, all of those symptoms would be consistent with a major depressive disorder.

Dr. Ozar opined that he believes that the psychological/psychiatric component is making Ms. Heberlie-Whistler believe that her physical problems are worse than they really are. Dr. Sky said he agreed with this-he says this is a description of a somatization-type syndrome. He said that a somatization disorder is where a person instead of saying I'm feeling sad, they convert it to physical symptoms, i.e., we have aches and pains but they are not based in physiology-that is a somatization disorder.

Dr. Sky was asked to describe how Ms. Heberlie-Whistler was doing prior to the accident. He said that: -prior to the accident she had never seen a psychologist or psychiatrist. She saw a counselor for her son. -her primary care physician felt that she had a depression going back as far as 2010. He had prescribed a number of antidepressants for her including Bupropion, but the doctor never felt the need to refer her to a psychiatrist. -Ms. Heberlie-Whistler was working and functional. She did not miss work because of her mood symptoms. He said she also was doing pretty well given her multiple difficult marriages and problems concerning her son. He agreed with the assessment that she had controlled emotional functioning up until her fall.

Dr. Sky testified that in her deposition Ms. Heberlie-Whistler said that the reason she felt depressed was the fall. He said that there may have been some mild depression prior to the accident-she had some issues at home-issues with her family-her doctor had some concerns about depression before. He says the depression was relatively mild. He reported that it was in the dysthymia range-a mild depression at the time of her fall. Now she relates her emotional problems to her fall.

Dr. Sky testified as to his conclusions: -the injury of November 8 (sic), 2013, was the prevailing cause of her current psychiatric symptoms and diagnosis-the major depression is a result of the November 9, 2013 injury. -she did have some psychiatric issues beforehand-mild depression or dysthymia. -she had personality traits as we all do. As Dr. Ozar said, some of those may lead her to be a fragile-type person, but her symptoms were under control. -her current psychiatric diagnosis/major depression was a result of the November 8 (sic), 2013 injury. -because she has not received aggressive/appropriate psychiatric treatment of appropriate psychopharmalogic treatment, it is difficult to assess whether she has reached maximum medical improvement. He agreed with Dr. Smith that once these are pursued then we can determine whether she has a permanent partial or permanent total disability. -if she gets no more care, Dr. Sky would assign a 15 % rating to a pre-existing partial psychiatric disability. He says it is low because she was functioning well. She wasn't seeing any kind of mental health professionals and there is not a whole lot of evidence that there were any significant depression symptoms or major depression symptoms prior to the injury.

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-he saw no indication in the records that any symptoms were having any impact on her ability to do her job duties. She was happy in her job and felt like she was functioning well there up until the work injury. He saw no evidence of hindrance or obstacle to employment or reemployment prior to her work injury. -he agreed with Dr. Ozar and Dr. Smith that her mood or her psychiatric condition is playing a role in her physical complaints-this is somatization.

Based on the records he read, Dr. Sky testified that if you ignored her prior conditions and just looked at her work history, i.e., pretend that she was 100% healthy before; Ms. Heberlie-Whistler would be in the same psychiatric place that she is now due to the last injury. He testified that: -prior to the injury there was no indication of panic attacks. -there was nothing in the records that she was suffering from agoraphobia prior to the work injury. -there was no indication of a fear of falling. -there was no record that she had any hospitalizations due to psychiatric conditions prior to her work accident. -prior to her work injury, there were no records indicating that she missed any work due to psychiatric conditions.

Dr. Sky testified that it is very common for someone who has an injury to also have accompanying psychiatric complaints with it. People can suffer from a somatization disorder from an injury even if they had no psychiatric problems prior to an injury. He said a typical complaint from someone after an injury is that they have no energy.

Dr. Sky was asked that if Ms. Heberlie-Whistler gets no treatment, would her psychiatric complaints alone keep her from working. He responded: -that is a difficult to say without seeing her. -from the records, even without the physical injury, she would have significant workplace limitations. Since she is a nurse he is particularly concerned about her ability to focus, concentrate, follow procedures as this requires 110 percent concentration. So, even if she was physically I 00%, he would have serious concerns about her working as a nurse. -her diagnoses of major depression and attention deficit disorder affect a person's ability to focus and concentrate. These would hinder her employment.

Prior to the accident, Dr. Sky: -saw no records that affected her ability to focus and concentrate. -from a psychiatric standpoint, prior to the injury, he saw nothing that indicated that she was not functioning as a healthy person. -there was nothing indicating that Ms. Heberlie-Whistler was suffering from panic attacks. -there was nothing showing she was suffering from agoraphobia. -there was no documentation about a fear of falling.

Dr. Sky testified that people who have mild depression and take medication can recover and go back to work with a healthy baseline. Prior to the injmy, Dr. Sky said there was no indication

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from Ms. Heberlie-Whistler's testimony that she could not do anything pertaining to a personal or work standpoint.

Dr. Sky's opinions were challenged by Ms. Heberlie-Whistler's attorney.

He agreed that prior to her work accident she had mild depression and that risk factor for this can come from major life changes, trauma or stress. He said that death can trigger depression but it is more like a limited mood disorder that is called grief reaction. He also agreed that an abusive marriage and divorce can fall into this category.

Dr. Sky commented that the record does not explain why Ms. Heberlie-Whistler missed some time at work. He testified her work situation prior to the accident as being one where she didn't have any difficulty meeting her obligations and she was happy with her employment. He again commented that Dr. Jordan, in 2015, indicated in his records that the prevailing factor of her anxiety and depression was the work injury.

When asked about judging credibility without seeing Ms. Heberlie-Whistler in person Dr. Sky responded: -generally yes, but in this case there were a lot of consistencies between the people who did get to meet her-there are not a whole lot of differing stories. -he took exception to the word speculation, he said "educated speculation".

Dr. Sky further responded that Ms. Heberlie-Whistler testified that prior to her work injury she didn't have any difficulty meeting her obligations and she was happy with her employment. In her deposition she said everything changed after her work injury. He reiterated that the prevailing cause of Ms. Heberlie-Whistler's major depression and somatization disorder and anxiety is the 2013 work injury.

Dr. Sky agreed that the psychiatric care that Ms. Heberlie-Whistler got was reasonable but he would not agree that it is completed. He does not agree that she is at MMI. He also stated that there was no evidence that she was minimizing her psychiatric problems. He commented that he does not think Ms. Heberlie-Whistler was trying to paint a "rosy" picture of her past problemsshe was describing her perception of her past psychiatric history. He also commented that there is not a scintilla of evidence that she was being dishonest about her past functioning. Dr. Sky could not predict how long Ms. Hebrlie-Whistler will need psychiatric care.

RULINGS OF LAW:

Liability of the Second Injury Fund for Permanent Partial or Permanent Total Disability

The employee and her counsel chose to settle her case with the employer-insurer on May 4, 2017. The settlement document indicates that the issue of pe1manent total disability was negotiated as part of the settlement. The employee settled her case for a total of $150,000.00. By that settlement the employee made a decision not to pursue the issue of pe1manent total disability liability with the employer-insurer due to her accident ofNovember 9, 2013. The employee, by

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settling the primary issue with the employer-insurer, lost the ability to have a trial determination as to whether the employer-insurer would be responsible to pay permanent total disability benefits.

The employee now maintains that she is permanently and totally disabled due to a combination of the disabilities that pre-existed her November 9, 2013 accident and the disabilities that arose from that accident. They are pursuing permanent total disability benefits from the Second Injury Fund. The Second Injury argues that they have no liability as their position is that the employee is permanently and totally disabled as a result of the disabilities from the November 9, 2013 accident alone.

As the evidence documents, the ultimate decision in this case is based on psychiatric/psychological evidence. There are multiple and differing opinions about the employee's psychiatric/psychological disability. There is a substantial amount of evidence, with differing opinions, centering around the employee's depression and anxiety. There are differing opinions as to the significance of the employee's psychiatric/psychological state that pre-existed November 9, 2013.

One consistency in this evidence is that there are a lot of opinions on depression and anxiety that are inconsistent with and at odds with each other. The employee has provided her opinions as to the effect of any anxiety and depression problems that preceded November 9, 2013, and the effect of any anxiety and depression problems that were caused by the accident of November 9, 2013. There is an opinion that the employee is not reliable on this issue. Some opinions say that the anxiety and depression evidence that preceded November 9, 2013 was substantial. There also is the opinion that the employee only suffered mild depression due to the events that preceded November 9, 2013. There are opinions that the employee has reached MMI and opinions that she has not reached MMI and is in need of further care.

One area of agreement is that the employee is currently suffering from depression and anxiety. There is a lot of disagreement as to the cause and severity of her current psychiatric/psychological state. One opinion is that the cause of the employee's state of depression and anxiety is due to the cascade of events that were caused by the November 9, 2013 accident. Another opinion is that her current state of depression and anxiety is due to a combination of the depression problems she had prior to November 9, 2013, and the depression and anxiety problems that were caused by her accident.

There is more than adequate evidence that the employee is permanently and totally disabled and is currently unemployable in the open labor market. Other than determining that the employee is not at MMI and is in need of additional medical care, the experts agree and the evidence supports that the employee's current psychiatric/psychological state prevents her from working.

Based on a consideration of all of the evidence, the Court finds that the employee is permanently and totally disabled. The next step is to determine what caused the employee to be permanently and totally disabled. As you read the evidence, you find that the employee had made many statements concerning her anxiety and depression. She had made statements about her anxiety

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and depression problems, or the lack thereof, prior to November 9, 2013, and the severity and source of her anxiety and depression problems following her accident. In large part, it is her statements that the psychiatric/psychological experts have utilized as the basis for forming their opinions and conclusions. The evidence supports a position that the employee has been truthful.

The principal evidence that determines whether the employee is permanently and totally disabled from the last accident alone or from a combination of her pre-existing psychiatric/psychological disabilities and the psychiatric/psychological disabilities that resulted from her accident of November 9, 2013 is the existence, significance or degree of her pre-existing psychiatric/psychological disabilities. The principal psychiatrists who offered their opinions on the existence, significance and degree of the employee's pre-existing psychiatric/psychological disabilities are Dr. Ozar and Dr. Sky. Without again detailing everything that the doctors stated, or reported, a short form would be to say that Dr. Ozar's opinion is that the employee's preexisting psychiatric/psychological disabilities were substantial and affected her ability to function. At a minimum, he suggests that her childhood, her marriages and divorce, etc. were so substantial that they affected her ability to cope and deal with life. He says her disabilities combined and resulted in permanent total disability. Dr. Sky's opinion is that while the employee experienced problems in her life prior to November 9, 2013, she was able to deal with them and lead a normal life. He indicated that these prior experiences and events were minor and situationally related to events such as the death of her father and husband and divorces. The record shows that there were no problems that adversely affected her job. When you consider all of the evidence in the case, there is evidence to support the opinions of either Dr. Ozar or Dr. Sky.

After considering all of the evidence in the case, paying particular attention to what the records document as to the employee's pre-existing anxiety and depression, the Court generally finds that Dr. Sky's psychiatric/psychological opinions are supported by the underlying medical records and are more credible and reliable than those of Dr. Ozar. The Court specifically finds that the psychiatric/psychological opinions of Dr. Sky as to the severity of the employee's pre-existing anxiety and depression are supported by the evidence and are more credible and reliable than the opinions of Dr. Ozar in this area. The major difference between the doctors' opinions is that Dr. Sky says that the employee's pre-existing depression was caused by life stressors that she dealt with and overcame. He classified the problems as mild. Despite statements of the employee to the contrary, Dr. Ozar traces the employee's pre-existing depression and anxiety all the way back to her childhood and suggests that the employee's entire personality was so affected that her depression and anxiety was severe. The Court has previously outlined many of the statements made by the employee that support this determination. The Court has also outlined the records of the medical providers that suggest that her pre-existing anxiety and depression was not so debilitating that she could not function. Generally the records document that the employee had controlled emotional functioning at the time of her November 9, 2013 accident. Even Dr. Ozar reported that the records indicate that the employee's anxiety and depression prior to her accident were not severe. Specifically, that they were not severe enough that they affected the employee's ability to work or warranted a referral to a psychiatrist. He testified that there were pre accident disrnptions that were temporary and the employee got through them. Dr. Ozar testified that the employee's accident collapsed all of the employee's usual abilities to manage herself emotionally

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and regulate herself. Dr. Ozar even indicated that the evidence presented a mixed picture of what was going on. He testified that there is a significant difference between the depth and intensity of her depressive symptoms before and after the accident. Dr. Sky testified that if you ignored the employee's prior conditions, pretend that she was 100% healthy before her accident; she would be in the same place she is now due to the last injury itself. In formulating his opinions about disability, he was the only medical expert that consider the employee's accident in isolation before he considered the combination.

The Court has made the determination that the opinions of Dr. Sky support the decision that she is permanently and totally disabled as a result of the disabilities caused by the last accident alone and not due to a combination between her disabilities that existed prior to and after her accident.

There is no question that the employee turned to her work and her profession to help deal with her anxiety and depression caused by events in her life. She placed a great deal of importance on working and being able to be independent and take care of herself. The evidence shows that prior to her accident that ability was never affected. Her work was her rock that she relied on to deal with or get through the problems that she was confronted with. The employee's statements confirm this. Prior to her November 9, 2013 accident, she knew she always had a future. She always had her job and her career prior to November 9, 2013. As the evidence documents, the accident ofNovember 9, 2013 changed all of that. The employee told her medical providers and testified that everything changed after her accident. The evidence shows that she was devastated by the accident. As she indicated her future was ruined. As she stated "I have nothing" - her career was ruined. There is evidence that whatever problems she had prior to her accident were minor, temporary and situational. The psychiatric symptoms that she presently has are of an entirely different nature than any past diagnosis. As an example she is now diagnosed with panic disorder, agoraphobia and somatization. She was not diagnosed with any of these symptoms prior to her accident. The anxiety and depression that developed after the accident was profound. The employee testified that prior to her accident she did not have the same issues with anxiety and depression that she has developed since the accident. She testified that since the accident her depression became much worse and she had symptoms that did not exist prior to her accident. She believed that her psychiatric condition started with her accident. There is credible and convincing evidence that the employee is permanently and totally disabled and unemployable in the open labor market. There is credible and convincing evidence that the present psychiatric/psychological problems that the employee suffers from are solely derived from her accident ofNovember 9, 2013.

Based on a consideration of all of the evidence, the Court finds that the employee is permanently and totally disabled due to the combined physical and psychiatric/psychological disabilities that were created as a result of the November 9, 2013 accident standing alone. The employee is to be commended for working through her many problems in her life; however, as she says it was her work accident, not what preceded her work accident, that has led to her current psychiatric/psychological situation.

The employee has failed to prove that the Second Injury Fund is liable for any permanent partial disability.

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In summary, the Court finds that the Second Injury Fund has no liability is this case.

Date of Maximum Medical Improvement

The Court has found that the employee is permanently and totally disabled. However, the Court ruled that said disability was due to the disabilities that the employee incurred as a result of the accident of November 9, 2013, in and ofit itself.

Based on the Court's ruling that the employee is permanently and totally disabled as a result of her November 9, 2013 injury, a determination of a date of maximum medical improvement is unnecessary and moot. The Court has not made a determination of the date of maximum medical improvement.

In conclusion, the Court finds that the employee failed to prove that she is permanently and totally disabled as a result of the combination of the disabilities derived from her primary injury and her pre-existing disabilities. The Court has found that the employee is permanently and totally disabled as a result of the last injury alone, therefore the Second Injury Fund is not ordered to pay any benefits to the employee. The employee's claim against the Second Injury Fund is denied.

ATTORNEY'S FEE:

No attorney's fees are awarded in this case.

INTEREST:

No interest will accrue in this case.

Made by:

lcertifylh~lon 9-&·-/f{ I delivered ·" copy of Iha foregoing ~ward to the p~rt1es lo the case, A complete record _of the method of delivery ~nd date of service upon each party Is retained with the executed award in the Division's case file.

Gary L. Robbms Administrative Law Judge

Division of Workers' Compensation

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issued by the labor and industrial relations …...november 9, 2013, slip and fall work injury....

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