                In the Missouri Court of Appeals
                        Eastern District
                                   DIVISION TWO

STACEY L. BLACKSHEAR,                       )   No. ED100251
                                            )
       Claimant/Respondent,                 )   Appeal from the Labor and Industrial
                                            )   Relations Commission
v.                                          )
                                            )
ADECCO,                                     )
                                            )
       Employer/Respondent ,                )   Filed: February 18, 2014
                                            )
and                                         )
                                            )
AMERICAN HOME ASSURANCE                     )
COMPANY c/o BROADSPIRE                      )
SERVICES, INC.,                             )
                                            )
       Respondent,                          )
                                            )
and                                         )
                                            )
TREASURER OF THE STATE OF                   )
MISSOURI, Custodian of the Second           )
Injury Fund,                                )
                                            )
       Appellant.                           )

                                      Introduction

       The Second Injury Fund (SIF) appeals from the Labor and Industrial Relations

Commission’s (Commission) decision awarding Stacey L. Blackshear (Claimant)

permanent and total disability from the SIF. We affirm.
                           Factual and Procedural Background

        On August 29, 2005, Claimant filed a Claim for Compensation alleging she

sustained injuries to her back, legs, and body as a whole while working for Adecco

(Employer).

       On April 12, 2012, a hearing was conducted on Claimant’s claims against

Employer and the SIF. The parties stipulated that Claimant sustained accidental injuries

arising out of and in the course of employment on August 23, 2005; Employer received

proper notice of the injury; the claim was made in a timely manner; and Claimant reached

maximum medical improvement (MMI) on March 30, 2010.

       The administrative law judge (ALJ) noted that neither Employer nor the SIF

disputed the fact that Claimant was permanently and totally disabled but they disagreed

on the question of whether her disability was the result of the August 2005 injury

(primary injury) alone or from a combination of the primary injury and her pre-existing

conditions. The ALJ concluded Claimant’s permanent total disability (PTD) was the

result of the last injury alone, and entered an award in Claimant’s favor against Employer

and found the SIF was not liable. Employer appealed the ALJ’s decision to the

Commission.

       In July 2013, the Commission issued its decision modifying the ALJ’s award.

The Commission found Claimant sustained an 85 percent permanent partial disability

(PPD) of the body as a whole as a result of the primary injury. The Commission found

Claimant had a pre-existing PPD from psychiatric conditions at the time of the primary

injury which constituted a hindrance or obstacle to employment and, when combined

with the primary injury, resulted in a “worse disability than would have resulted in the




                                             2
absence of [her pre-existing] conditions.” The Commission found Claimant had a PTD

and that her disability resulted from a combination of her pre-existing psychiatric

disability with the effects of the primary injury. One commissioner dissented, asserting

the decision of the ALJ awarding PTD benefits against Employer was correct and should

be affirmed. This appeal follows.

                                              Point on Appeal

            On appeal, the SIF argues the Commission erred in awarding benefits to

Claimant from the SIF because it did not first determine whether the primary injury

considered alone resulted in a PTD, in that the uncontradicted and unimpeached

testimony of Dr. David Volarich (Volarich) proves Claimant’s work accident rendered

her permanently and totally disabled.

                                            Standard of Review

           Pursuant to Section 287.495.1,1 on appeal this Court may modify, reverse, remand

or set aside the Commission’s award if: (1) the Commission acted without or in excess of

its powers, (2) the award was procured by fraud, (3) the facts found by the Commission

do not support the award, or (4) there was not sufficient competent evidence in the record

to warrant the making of the award.

           On review, the Court examines the record as a whole to determine if the award is

supported by sufficient competent and substantial evidence, or whether the award is

contrary to the overwhelming weight of the evidence. Hampton v. Big Boy Steel

Erection, 121 S.W.3d 220, 222-23 (Mo. banc 2003). While we review questions of law

de novo, we defer to the Commission on issues of fact. Townser v. First Data Corp., 215

S.W.3d 237, 241 (Mo. App. E.D. 2007). The Commission is the sole judge of the weight
1
    All statutory references are to RSMo 2012, unless otherwise indicated.


                                                       3
of the evidence and the credibility of the witnesses, which includes the weight to be given

expert opinions. George v. City of St. Louis, 162 S.W.3d 26, 30 (Mo. App. E.D. 2005).

We do not, however, view the evidence in the light most favorable to the Commission’s

award. Hampton, 121 S.W.3d at 222-23.

                                          Discussion

        Although raised in a single point, the SIF is actually raising two distinct

complaints on appeal: (1) the Commission erred by not assessing Employer’s liability for

the last injury in isolation, but instead considered Claimant’s pre-existing psychiatric

conditions as well when determining liability for her PTD, and (2) the Commission’s

award is not supported by sufficient competent evidence in the record.

        The determination of whether a claimant is permanently and totally disabled is

based upon the claimant’s ability to compete in the open labor market. Highley v. Von

Weise Gear, 247 S.W.3d 52, 55 (Mo. App. E.D. 2008). “The primary determination is

whether an employer can reasonably be expected to hire the employee, given his or her

present physical condition, and reasonably expect the employee to successfully perform

the work.” Id. (internal citations omitted).

        Section 287.220 creates the SIF and imposes liability on the fund in certain cases

of permanent disability where there is a pre-existing disability. Section 287.220; Hughey

v. Chrysler Corp., 34 S.W.3d 845, 847 (Mo. App. E.D. 2000). The SIF is liable where a

claimant establishes either that he is permanently and totally disabled due to the

combination of his present compensable injury and his pre-existing partial disability or

that the combination of his present compensable injury and his pre-existing permanent

partial disabilities create a greater overall disability than the sum of the disabilities




                                               4
independently. Highley, 247 S.W.3d at 55; Elrod v. Treas. of Missouri as Custodian of

Second Injury Fund, 138 S.W.3d 714, 717-18 (Mo. banc 2004).

        “In deciding whether the Second Injury Fund has any liability, the first

determination is the degree of disability from the last injury.” Hughey, 34 S.W.3d at 847,

citing Stewart v. Johnson, 398 S.W.2d 850, 854 (Mo. 1966). A claimant’s pre-existing

disabilities are irrelevant until employer’s liability for the last injury is determined.

Hughey, 34 S.W.3d at 847. “If a claimant’s last injury in and of itself rendered the

claimant permanently and totally disabled, then the Second Injury Fund has no liability

and employer is responsible for the entire amount.” Id.

        On appeal, the SIF contends the Commission did not follow the mandates of

Hughey, asserting the Commission “leapt right to a decision” that the combination of

Claimant’s conditions rendered her totally disabled.

        A plain reading of the Commission’s decision, however, indicates otherwise. The

Commission directly addressed this issue in its opinion, stating:

                 Section 287.220.1 requires us to first determine the compensation
        liability of the employer for the last injury, considered alone. If employee
        is permanently and totally disabled due to the last injury considered in
        isolation, the employer, not the Second Injury Fund, is responsible for the
        entire amount of compensation. “Pre-existing disabilities are irrelevant
        until the employer’s liability for the last injury is determined.” Landman
        v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 248 (Mo. 2003).

The Commission explicitly found that Claimant sustained an 85 percent PPD of the body

as a whole as a result of the primary injury. After recognizing the necessity of first

determining the liability of Employer for the last injury considered alone, the

Commission reiterated its factual findings that Claimant was not permanently totally

disabled as a result of the primary injury alone. The Commission repeatedly stated that




                                               5
Claimant’s PTD resulted from a combination of her pre-existing psychiatric disability

and the effects of the primary injury.

       The SIF also, essentially, argues the Commission’s award is not supported by

sufficient competent evidence in the record. Specifically, the SIF contends that Volarich

was the sole medical expert to address the question of whether the primary injury alone

resulted in Claimant’s PTD, and his testimony unequivocally supported such a finding.

The SIF contends Volarich’s opinion that Claimant’s PTD is the result of the primary

injury alone is uncontradicted or unimpeached because he was the only expert to testify

to the vocational impact of both the physical and psychiatric components of the primary

injury. The SIF asserts the Commission’s decision is silent as to why it rejected

Volarich’s opinion and the Commission erred because it may not, without explanation,

disregard uncontradicted and unimpeached testimony.

       The SIF’s argument misses the mark in several respects. First, a review of the

record reveals that Volarich’s testimony was not uncontradicted.

       Volarich, an osteopathic physician, conducted an independent medical

examination of Claimant in August 2010. Following this examination, Volarich

concluded that as a result of the primary injury Claimant suffered a 70 percent PPD of the

body as a whole rated at the lumbosacral spine due to a disc herniation at L5-S1, a rating

which accounts for Claimant’s ongoing back pain, lost motion and ongoing left lower

extremity radicular symptoms. Volarich testified Claimant had multiple pre-existing

psychiatric conditions including bipolar disorder, depression and anxiety. Volarich

testified he did not perform any sort of psychiatric evaluation on Claimant, “other than to

note that her mental status, she was depressed.” Volarich stated he did not hold himself




                                             6
out as a psychiatric expert. In his report, Volarich stated simply, “Disability exists as a

result of her psychiatric diseases. I defer to psychiatric evaluation for those

assessments.” Volarich further testified he did not diagnose Claimant with any

psychiatric disorder as a result of the August 2005 accident, stating, “I’d leave that up to

psychiatry to assess.” However, Volarich ultimately opined that Claimant sustained a

PTD as a direct result of the work-related injury and any associated psychiatric disability

from this injury standing alone. Volarich explained that his assessment was based upon

Claimant’s ability to work before the accident, Claimant’s assertion that her pre-existing

psychiatric conditions were under control, and the significant deterioration in her

psychiatric conditions after the primary injury. Volarich further opined that even though

Claimant was permanently totally disabled, she may be able to perform some activities on

a limited basis within the restrictions he detailed in his report, which included that

“[Claimant] should change positions frequently to maximize comfort and rest when

needed, including resting in a recumbent fashion.”

       Dr. David B. Robson (Robson), an orthopedic surgeon specializing in the

treatment of spinal disorders, treated Claimant, performing three of Claimant’s four back

surgeries. Robson testified Claimant sustained a 25 percent PPD of the body as a whole

as result of the primary injury. Robson testified Claimant’s permanent restrictions are a

20-pound weight limit and no bending, stooping, twisting or awkward positions, which

he would classify as light duty restriction. Robson stated that, with regard to her lumbar

spine, it would be “fine” if Claimant found work within those restrictions. Robson did

not attempt a psychiatric diagnosis.




                                              7
       Dr. Wayne Stillings (Stillings), a physician who is board-certified in psychiatry

and neurology, evaluated Claimant on October 20, 2008 and October 20, 2010. Stillings

testified Claimant’s pre-existing psychiatric conditions included bipolar disorder; social

phobia; chronic post-traumatic stress disorder; and a personality disorder, with depressive

and borderline personality traits. Stillings testified that, as a result of the August 2005

accident, Claimant’s bipolar disorder became more severe and she developed a mood

disorder with major depressive episodes; an anxiety disorder; and a pain disorder.

Stillings concluded Claimant suffered a 40 percent psychiatric PPD of the body as a

whole as a result of the primary injury, attributing a 10 percent PPD to each newly

developed or aggravated condition. Stillings testified Claimant’s pre-existing psychiatric

conditions adversely affected her occupational functional capacity, contributing to her

termination from two or three jobs and a deficiency of occupational motivation and

advancement. Stillings testified Claimant is permanently totally disabled from a

psychiatric standpoint. With regard to her ongoing psychiatric treatment, Stillings opined

that 25 percent is due to the primary injury and the remaining 75 percent is due to her

pre-existing psychiatric conditions.

       Dr. Gregg Bassett (Bassett), a physician specializing in general psychiatry,

examined Claimant on January 28, 2011. Bassett testified Claimant’s pre-existing

conditions included a mood disorder (bipolar); an anxiety disorder with features of post-

traumatic stress disorder; social phobia; panic attacks; agoraphobia; somatoform disorder

and a personality disorder with histrionic, borderline, and dependent traits. Bassett

testified the primary injury aggravated Claimant’s pre-existing mood, anxiety,

somatoform and personality disorders. Bassett testified Claimant would not be able to




                                              8
return to work due to a combination of her pre-existing psychopathology and the injury-

related aggravation of the pre-existing psychopathology. Bassett rated Claimant as

having a 50 percent psychiatric PPD with half attributable to the pre-existing conditions

and half to the injury-related aggravation of her pre-existing psychopathology.

          Timothy Lalk (Lalk), a vocational rehabilitation counselor, evaluated Claimant on

December 7, 2010. Lalk testified that based upon the opinions of Volarich and Stillings

and Claimant’s symptoms and limitations, Claimant would not be employable in the open

labor market. Lalk stated that based on Claimant’s described symptoms and Volarich’s

restrictions it would be difficult for her to perform activities at even a sedentary level and

that “in addition to these physical limitations, she’s been described as having a

psychiatric condition with symptoms so severe that she could not be expected to function

in any type of employment on a routine basis…and I do not believe any potential

employer would consider her[.]” Lalk testified Claimant’s assertions that “her life was

fine before” the August 2005 injury were contrary to her psychiatric records. Lalk

testified Claimant’s pre-existing psychological conditions affected her employment and

that Claimant’s inability to be employable in the open labor market and to maintain

employment is due to a combination of her pre-existing disabilities and the primary

injury.

          With respect to Volarich’s opinion that Claimant was permanently totally disabled

from the primary injury alone, Lalk stated, “I would defer to his remarks about her

orthopedic impairments, but if he’s saying something that contradicts the – the

psychiatric findings or the opinions of those psychiatric evaluators, then I could not defer

to him…I would have to defer…to the psychiatrist over to Dr. Volarich regarding her




                                              9
psychiatric condition and the causes of the psychiatric disability.” Lalk opined that

Claimant’s low back condition does not preclude her from all types of employment and

noted that Volarich’s report does not require Claimant to lie in a recumbent fashion, just

to change positions frequently to maximize comfort and rest when needed.

       Karen Kane-Thaler (Kane-Thaler), a vocational consultant, met with Claimant on

March 24, 2011. Kane-Thaler testified that Volarich and Robson’s physical restrictions

allow for sedentary to light duty work and do not prevent Claimant from returning to the

work force. However, the addition of the psychiatric restrictions and diagnoses as

documented by Bassett and Stillings prevent Claimant from accessing jobs in the open

labor market. Kane-Thaler testified Claimant’s pre-existing psychiatric conditions

impacted her ability to maintain employment prior to the primary injury and the

combination of Claimant’s pre-existing psychiatric conditions and the effects of the

primary injury renders Claimant unemployable. Kane-Thaler testified that a claimant

who must lie down during the day to relieve or to control pain symptoms would not

necessarily be precluded from obtaining any type of employment. With regard to

Volarich’s opinion, Kane-Thaler testified that she would defer to Volarich’s medical

opinion as to whether the physical aspect of Claimant’s injury would render her

permanently totally disabled.

       Thus, a review of the evidence clearly indicates that Volarich’s opinions and

conclusions, including his testimony as to Claimant’s physical and psychiatric

disabilities, were not uncontradicted and unimpeached. In fact, the overwhelming weight

of the evidence presented contradicted Volarich’s opinion as to Claimant’s psychiatric

disability. Volarich provided almost no support for his conclusions about Claimant’s




                                            10
psychiatric disability, indicating he did not perform any psychiatric evaluation on

Claimant other than to note her mental status; he did not hold himself out as a psychiatric

expert; and he did not diagnose Claimant with any psychiatric disorder as a result of the

August 2005 accident. Volarich also repeatedly stated that he would defer to a

psychiatrist’s evaluation and assessment of those conditions.

       Bassett and Stillings, both specialists in psychiatry, testified at length to

Claimant’s pre-existing psychiatric conditions and the psychiatric effect of the primary

injury. The fact that these doctors did not provide an opinion as to Claimant’s physical

impairments does not render their conclusions as to Claimant’s psychiatric conditions

less relevant. Furthermore, both vocational experts testified that while they would defer

to Volarich’s expert medical opinion regarding Claimant’s physical disability, they found

that Claimant’s PTD was the result of a combination of her pre-existing psychiatric

conditions and the effects of the primary injury.

       In its decision, the Commission specifically set forth Stillings’s and Bassett’s

findings regarding Claimant’s psychiatric disability resulting from the primary injury and

Volarich’s and Robson’s findings as to Claimant’s physical disability resulting from the

primary injury. The Commission then went on to find that Claimant’s suffered an 85

percent PPD of the body as a whole from the primary injury for her physical and

psychiatric conditions. The Commission also explicitly stated it found the opinions of

Lalk, Kane-Thaler, and Bassett persuasive with respect to the cause of Claimant’s PTD.

On the face of the decision, it is clear the Commission fulfilled its duty of assessing the

credibility of the witnesses and weighing the evidence in making a determination.




                                             11
       The SIF’s argument presumes that in assessing whether a claimant is permanently

totally disabled as a result of a work-related injury, the Commission may only rely on the

opinions and conclusions of experts that attempt to address the entirety of this question

and may not rely on any evidence that speaks to only part of it. However, this simply is

not required, and the case sub judice perfectly illustrates why the SIF’s point must fail.

Here, Claimant has both physical and psychiatric disabilities which impair her ability to

compete in the open labor market. With the exception of Volarich, all of the medical

experts in this case confined their opinions and conclusions to their area of expertise, be it

orthopedics or psychiatry. Although Volarich provided an opinion as to both Claimant’s

physical and psychiatric disabilities, he also qualified that he would defer to a psychiatrist

on the assessment of Claimant’s psychiatric conditions. In recognition of the common

practice of specialized medicine, the Commission can and must be able to accept an

expert’s testimony in his area of expertise and then assess and weigh the collective

evidence when making its determination.

       The Commission’s determination that Claimant sustained an 85 percent PPD of

the body as a whole as a result of the primary injury and that the SIF was liable for PTD

benefits because Claimant was permanently totally disabled due to a combination of her

pre-existing psychiatric disability and the effects of the primary injury was supported by

sufficient competent evidence in the record.

       Based on the foregoing, the SIF’s point on appeal is denied.




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                                     Conclusion

       The decision of the Commission is affirmed.



                                           _____________________________
                                           Sherri B. Sullivan, J.

Lawrence E. Mooney, P.J., and
Robert G. Dowd, Jr., J., concur.




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