In the Missouri Court of Appeals Western District NORMA HUFFMAN, ) ) Appellant, ) ) WD86436 v. ) ) OPINION FILED: TREASURER OF THE STATE ) OF MISSOURI – CUSTODIAN OF THE ) MAY 21, 2024 SECOND INJURY FUND, ) ) Respondent. )
Appeal from Labor and Industrial Relations
Before Division Two: Anthony Rex Gabbert, Presiding Judge, Karen King Mitchell, Judge, Janet Sutton, Judge
Norma Huffman appeals the Labor and Industrial Relations Commission’s
decision denying her workers’ compensation benefits for a permanent total disability
from the Second Injury Fund. We affirm.
Background and Procedural Information
Norma Huffman worked for approximately twenty-eight years for WireCo World
Group (“Employer”) where she performed a variety of tasks including operating
machinery, assisting with inventory, driving a forklift, and other aspects of manual labor.
Her last day working for Employer was October 27, 2015. Medical History and Claim Filings
Huffman began taking prescription medication for migraines in approximately
1987. She took that medication as needed for a bad migraine, which occurred once a
week on average. When those migraines occurred, they would affect Huffman’s work
and she needed to be in a dark room without noise. Over the years she was excused from
work due to “chronic migraines and disabilitating [sic] headaches.”
Huffman reported having taken Xanax for thirty years. The medical records
submitted by Huffman show that on August 23, 2005, she presented to a hospital
emergency room complaining that she was at work and suddenly became dizzy, numb,
short of breath, and anxious. She reported being exhausted from working too much and
stress from home and teenagers and life. She reported a past medical history of
hypertension and anxiety disorder. The “clinical impression” was that she was suffering
from “acute anxiety.” She was instructed to continue her current medications and follow
up with her primary care physician.
On June 14, 2007, Huffman presented to the emergency room reporting that she
was at work and did not feel there was enough air in the workplace and started to
hyperventilate. She felt hot and short of breath. She believed that lifting heavy items at
work may have contributed. She was scheduled for a stress test to rule out cardiological
factors.
On June 26, 2007, Huffman presented to the emergency room with a work-related
2-cm laceration on her right forearm which required four sutures.
2 On July 22, 2008, Huffman underwent an upper endoscopy as she was suffering
from severe esophagitis. On August 12, 2008, Huffman presented to the emergency room
complaining of back pain, lumbar pain, and lower back injury with abrupt onset. She
reported heavy lifting as a risk factor.
Huffman was diagnosed with diabetes mellitus around 2010. Huffman’s diabetes
remains uncontrolled despite medication. Obesity was noted as an ongoing issue in
Huffman’s medical records. Documentation indicates that she had a negative stress
echocardiogram in April 2010. On June 8, 2010, Huffman presented to the emergency
room after developing chest pain while at work accompanied by dizziness,
lightheadedness and difficulty breathing. A heart catherization was performed on June 8,
2010. It returned no concerning results.
Huffman presented to the emergency room on June 14, 2011 indicating that while
she was at work she had numbness in the right arm, perioral numbness and numbness on
the right side of her face and generalized weakness. She reported a history of
hypertension for ten years, metabolic syndrome, a history of migraines, gastroesophageal
reflux disease, chest pains off and on thought to be secondary to heavy labor work,
hypertriglyceridemia, arthritis, anxiety and depression. An echocardiogram, chest x-rays,
and brain scans were completed. Discharge diagnosis was “transient ischemic attack”
and “malignant hypertension.”
On January 19, 2012, Huffman underwent a cat scan of the abdomen and pelvis
for lower abdominal pain and diarrhea.
3 On April 1, 2012, Huffman presented to the emergency room with high blood
pressure accompanied by dizziness and numbness of the mouth. She was helping her
mother move in the heat when the symptoms occurred. She reported being off of her
blood pressure medication and not having a prescription. Her diagnosis was
“hypertension.” On September 24, 2012, Huffman presented at the doctor with irritable
bowel issues and abdominal pain. She stated that she experienced emotional life changes
when her son was in the hospital and she had it ever since. She was excused from work
September 17, 2012. Records show Huffman was thereafter excused from work by her
medical provider on November 29, 2012, and December 21, 2012, for “chronic migraines
and debilitating headaches.”
On January 23, 2013, Huffman had a follow up appointment for her diabetes,
blood pressure, cholesterol and laboratory results. The report indicated that she had a
“rough go as of late” as she was caring for ill parents and children and had no time for
herself. She was intermittently tearful throughout the history and physical. The report
stated that “Patient shows a pattern of neglect of her own personal medical conditions in
favor of taking care of her family.” On January 29, 2013, Huffman underwent an
exercise treadmill stress test for chest pains. On May 3, 2013, Huffman had a doctor’s
appointment regarding migraines and reported them to be better controlled and her mood
better. On June 10, 2013, and July 5, 2013, Huffman was excused from work for
“chronic migraines and debilitating headaches.”
4 In November 2013, Huffman had her right shoulder evaluated, reporting that she
injured the shoulder while pulling hard on a wire spool at work. The injury occurred on
October 2, 2013, and again on November 10, 2013. She missed work on November 11,
2013, and was evaluated on November 12, 2013, by a workers’ compensation doctor.
She was released to return to work with restrictions regarding lifting and pushing. After
an MRI and a follow-up appointment on November 14, 2013, Huffman was released to
“return to work without restriction.” On November 19, 2013, Huffman visited a
specialist to obtain a second opinion regarding her right shoulder pain. She reported
previously visiting the workers’ compensation doctor who stated that it was not a
workers’ compensation injury. She reported several additional active issues including
anxiety disorder, chest pain, depression, dizziness, insomnia, diabetes mellitus type II,
and migraine headaches. This doctor noted a partial thickness tear of the rotator cuff and
tendinosis based on the MRI. The doctor discussed with Huffman “how uncontrolled her
diabetes is” and that her blood sugars needed to be better controlled. She had a follow-up
visit on November 26, 2013, and reported improving on a daily basis.
On February 7, 2014, Huffman attended a follow-up appointment for her diabetes.
She reported her shoulder steadily improving. The doctor noted: “Depression. Mood is
stable. Continue current medication for that.” The discharge diagnosis was depression,
pain in right shoulder, and diabetes. On February 12, 2014, Huffman took FMLA from
work for the flu. Huffman obtained a medical excuse from work on April 6-7, 2014, for
“chronic migraines and disabilitating [sic] headaches.” On May 4, 2014, Huffman was
5 medically excused from work for two days for poison ivy. She visited the doctor on May
16, 2014, for a follow-up visit for her diabetes and other medical issues. The discharge
diagnosis was diabetes mellitus type II, hypertension, and obesity.
On June 19, 2014, Huffman reported to the emergency room for dizziness. She
reported hand numbness and tingling since January 2010. She stated that when she put
her earplugs on at work she felt like she was in a tunnel. A CAT scan was performed and
returned with “no acute finding.” She was excused from work June 19 and 20, 2014. On
October 2, 2014, Huffman returned for a three-month follow up and to review lab results.
The doctor noted that, “Unfortunately, labs are quite remarkable, they are significantly
abnormal. She continues to suffer from migraines. She continues to be fatigued. She
continues to have a significant amount of stress.” The record shows that Huffman’s
mother died mid October 2014, at the age of 80. On December 9, 2014, Huffman visited
the doctor due to a rash. She reported a lot of increased stress due to the loss of her
mother.
Huffman took a voluntary six-month layoff from work in February 2015 to mourn
her mother’s death. She looked into temporary jobs during that time to help with her
income. On February 12, 2015, Huffman went to the doctor for a four-month follow up
on “diabetes, hypertension, and other medical problems.” She had significant
improvement in her blood sugars. She reported occasional migraines but that they were
pretty well controlled.
6 On July 1, 2015, Huffman presented to the emergency room after a motor vehicle
collision wherein her car was hit from behind at low speed while she was stopped at a
stop light. Huffman was driving and wearing a seatbelt. The airbag did not deploy. She
reported neck pain and left shoulder pain. Huffman underwent X-rays and a CT scan at
that time which returned no remarkable findings. Huffman visited her doctor on July 8,
2015, for a follow up visit complaining of right arm/shoulder pain, lower back pain, and
chest pain. She also reported significant abdominal pain where the seatbelt was across
her abdomen. She reported that the car was totaled, and that it was quite a significant
accident. The doctor discussed Huffman’s anxiety level “which has obviously been
increased.” The doctor prescribed Clonazepam to be taken twice daily for “Anxiety
disorder NOS (300.00).”
One month later (August 2015), Huffman returned to work following her
voluntary layoff. On September 23, 2015, Huffman visited the doctor “for a follow up on
stress and a regular follow up.” Huffman reported that she had been undergoing a lot of
stress following her return to work after her six-month layoff. She reported a “significant
amount of stress at work, new job requirements and what not.” The doctor suspected
Huffman’s diabetes was uncontrolled and ordered labs to make that determination. The
doctor advised continued use of Prozac and Clonazepam for Huffman’s anxiety disorder,
indicating that the Prozac could be increased if necessary. Huffman declined the
increase. Huffman’s hypertension was well-controlled. She presented with soft tissue
7 lumps in her lower extremities. The doctor ordered an ultrasound to ensure they were
nothing more than lipomas.
Two days later, on September 25, 2015, Huffman was at work assisting another
worker in flipping a spool of metal wire weighing approximately 400 pounds. While
doing so, Huffman claimed to have heard and felt a pop in her right shoulder and the
onset of pain. Huffman’s primary doctor initially treated her for a rotator cuff injury.
The doctor referred her to a specialist who met with her on October 1, 2015. The primary
doctor also indicated that the office had received paperwork from the employer regarding
“very comprehensive testing for anxiety and mental fitness”, so the doctor referred
Huffman to “Psychiatry.”
The specialist for the shoulder issue, Dr. D.,1 did not believe the injury was work-
related and felt care and treatment should be on a personal health basis. The doctor
recommended an MRI scan if Huffman did not improve. Huffman visited another doctor,
Dr. M., on October 16, 2015. This doctor noted concern about an acute rotator cuff tear
and recommended an MRI scan. On October 22, 2015, the doctor restricted Huffman to
no overhead work and no lifting more than ten pounds using the right arm. Dr. M. opined
the injury was the prevailing factor in the need for care and treatment. Huffman was
1 Witnesses discussed herein will not be identified by name, pursuant to Section 509.520, RSMo Cum. Supp. 2023.
8 taken off work on October 27, 2015, and she did not perform any work for Employer
thereafter. Her official last day of employment was July 29, 2016.
Huffman filed an original claim for workers’ compensation on December 21,
2015, alleging that on September 25, 2015, she suffered injury to her “Right Shoulder,
Right Arm, Psychological, Body as a Whole.” She alleged that, during the course and
scope of her employment, she was helping another worker flip a 400-pound spool of
metal wire off of a pallet when she heard a pop and began to have excruciating pain in
her right shoulder and psychological injury while working for Employer.
On December 30, 2015, Huffman’s primary doctor, Dr. T, wrote a letter indicating
that Huffman had a rotator cuff tear and was in limbo as far as surgery. The doctor
indicated that Huffman was significantly impaired as far as heavy labor and
recommended intervention or a light duty work restriction, but would “defer that to the
ongoing workman’s compensation issues surrounding her shoulder.”
On January 21, 2016, an advanced practice registered nurse conducted a
psychological evaluation of Huffman to evaluate her “anxiety.” The “History of
Presenting Illness” portion states that Huffman discussed taking a voluntary layoff from
work to mourn her mother’s passing. Huffman reported that she also had to be off work
after the motor vehicle accident. She was then called back to work in August of 2015,
and “then everything began to get worse.” Huffman reported that people were leaving
and she had difficulty with her twenty-eight years of seniority, which was apparently
jeopardized when she took the voluntary layoff. Since she had returned to work, she had
9 increased anxiety and worry. She startled easily, tended to avoid crowds, had recurrent
memories of old abuses that were work related, and memories of sexually charged
comments in the past made by coworkers, informants and superiors in her job. She at
times had difficulty falling asleep because of everything going through her head. She
was quite worried about her job. She was a divorced, single mother of two sons, ages
thirty and thirty-one, who both lived with her. She viewed herself as loyal and a hard
worker. She feared losing her job. She had more migraines due to her anxiety and had
missed work at times because of them. She reported her mood at the examination to be
anxious and depressed. The recurrent memories Huffman discussed suggested possible
“posttraumatic stress symptomatology.” Therapy was strongly recommended with a
notation that she would do quite well as she was motivated for treatment and had good
insight. For her treatment plan, it was noted that Huffman’s Prozac had recently been
increased to 40 mg, and she was to “continue with the Prozac 40 and clonazepam 0.25 up
to twice a day as needed for anxiety.” She was provided information for counseling
resources, and agreed to utilize community resources she was aware of for any urgent
medical or psychiatric needs. Her “Diagnoses” were “Adjustment disorder with anxiety
and depression” and “Rule out posttraumatic stress.”
On July 27, 2016, Dr. M. performed surgery on Huffman’s right shoulder. Dr. M.
released Huffman to work full duty on September 22, 2016. After recovering from
surgery, Huffman worked as a dog walker for approximately six months, and as a stocker
for Wal-Mart for less than two weeks.
10 Huffman filed an amended claim for compensation on August 4, 2016, to include a
permanent total disability claim against the Second Injury Fund, alleging an October 2,
2013, preexisting disability to the right shoulder.
On November 30, 2016, Dr. R. conducted an independent medical examination on
behalf of Huffman and authored an addendum report on February 4, 2017. Dr. R. rated
the September 25, 2015, injury to Huffman’s right shoulder at 35% at the 232-week level
and provided no permanent restrictions. Dr. R. rated no other disabilities from the
September 25, 2015, work injury. Dr. R. stated in the original report that Huffman could
continue full duty work and was not likely to require future medical care. In the
addendum, Dr. R. stated that Huffman had returned to work performing light duty. The
doctor provided Huffman with permanent restrictions of lifting no more than twenty
pounds to chest level with both arms, no overhead lifting, and no repetitive reaching,
grasping, pushing or pulling.
On February 3, 2017, Huffman amended her claim to add preexisting disabilities
of “Diabetes, hypertension, multiple transient ischemic attacks, post-traumatic stress
disorder, heart problems and irritable bowel syndrome.”
On January 29, 2018, a stipulation for compromise settlement was approved
between Huffman and Employer, with Huffman settling her claim with Employer for
24% to the right shoulder at 232-week level. An addendum to the stipulation states that
the settlement closes the employee’s claim against Employer and the insurer, but that
Huffman’s claim against the Missouri Second Injury Fund remained open.
11 On March 7, 2018, Huffman obtained a psychological evaluation from Dr. J. The
stated purpose of the evaluation was to “assess the status of her current psychological
functioning and determine if and how her current psychological functioning is related to
her injury and premorbid adjustment.” Dr. K. was assessing Huffman at the same time,
as Dr. J.’s report notes that Huffman “was administered IPE testing during breaks with
Dr. [K.].”
On the Beck Depression Inventory, Huffman scored in the range of “moderate
depression.” On the BBHI2 test, which was noted as “a test intended to serve as a source
of clinical hypothesis about possible bio-psychosocial complications facing medical
patients,” Dr. J. reported that, “Her depression is a downstream psychological
consequence of her September 25, 2015 work-related injury.” Huffman scored high on
the Somatic Complaints Scale, and moderately high on the Pain Complaints Scale. Dr. J.
noted, “She is preoccupation by her pain experience which has a disabling effect.”
Huffman scored extremely high on the Functional Complaints Scale, with Dr. J. reporting
that, “Ms. Huffman reported an extreme level of perceived disability. Her perception of
functional disability is genuine and real. At the time of this evaluation this is part of her
identity.”
Huffman scored high on the depression scale, with Dr. J. noting that “this level of
depression can impede physical rehabilitation and recovery,” and moderately high on the
anxiety scale, with Dr. J. noting that “her level of anxiety could impede physical
rehabilitation and recovery.” Dr. J. interpreted Huffman’s MMPI-2 scores to show that
12 “the intensity of her psychological distress is significant” and that “Ms. Huffman’s
psychological disabilities are complex.” Dr. J. also noted that “Ms. Huffman’s MMPI2
peak score occurs with very high frequency among individuals involved in personal
injury litigation.” On the Disability Assessment, Dr. J. reported that Huffman’s “results
indicate that Ms. Huffman’s ability to understand and communicate with other people,
her ability to get around, to take care of herself, and in getting along with others are
mildly to disabled.” Huffman “reported significant disability with regard to performing
household activities and working” and attributed that to medical problems. Dr. J. stated
that, “in my opinion her inability to remain active results in significant psychological
disability.”
Dr. J. diagnosed Huffman with Major Depressive Disorder, chronic, moderate;
Generalized Anxiety Disorder, chronic; and Unspecified Trauma-and stressor Related
Disorder (by history). Dr. J. issued the opinion that Huffman’s exposure to risk
(physically demanding, dangerous, third-shift work) in the course of her employment
working in a production capacity for Employer with a claim date of September 25, 2015,
is the direct, proximate and prevailing factor for her development of a Somatic Symptom
Disorder, persistent, pain type, and a Major Depressive Disorder, chronic, moderate. (Dr.
J. later stated in a deposition that the Somatic Symptom disorder was mistakenly included
and was not part of the diagnosis.) The doctor believed that Huffman’s prior episodes of
depression when family members passed and home stressors occurred could best be
described as Adjustment Disorder with depressed mood, but that “Huffman’s depression
13 following her work-related injury on September 25, 2015 had followed a different course
and has resulted in significant psychological disability.” Dr. J. stated: “This
psychological disability flows as the result of primary injuries described in her claim.”
Dr. J. noted that Huffman’s depression increases her pain experience. Further, that
“Given the length of time she has suffered from her psychological disability subsequent
to her September 25, 2015 injury, her condition is chronic and a diagnosis of adjustment
disorder is inappropriate.”
Dr. J. discussed Huffman’s longstanding treatment for anxiety and that she was
developmentally traumatized by her mother’s bipolar depression and ex-husband’s
emotionally and physically abusive behavior. Huffman’s traumatic life experiences had a
significant impact on her psychological development. Dr. J. opined that the evaluation
indicated that Huffman’s “psychological disabilities have deteriorated considerably
following her work-related injury on September 25, 2015.” Further, that “taken as a
whole, Ms. Huffman was clearly suffering severe multifaceted psychological disability
that impacted all aspects of her life on the day of her evaluation. Her psychological
disabilities are complex, long standing and taken as a whole are overwhelming.” Dr. J.
was of the opinion that Huffman had reached maximum psychological improvement, that
she perceived herself as disabled and unable to work, and that her belief that she is
functionally disabled has become part of her identity. Dr. J. stated that Huffman’s daily
pain experience, depression, and anxiety are here to stay.
14 Dr. J. assessed Huffman a total psychological disability rating of 45%, with 25%
assigned to her Generalized Anxiety Disorder and Unspecified Trauma or Stressor-
Related Disorder “which rise to the level of being pre-existing industrially disabling
psychological disabilities.” Further, that “as a result of her work-related injury which
occurred on September 25, 2015, Ms. Huffman has developed a Major Depressive
Disorder, moderate.” Dr. J. assigned “another 20% of psychological disability to the
psychological disability that resulted as a consequence of her work-related accident on
September 25, 2015.” Dr. J. additionally stated:
When one considers the significance of the primary psychological and physical disabilities resulting from Ms. Huffman’s injuries with a claim date of September 25, 2015 my opinion is that Ms. Huffman is not permanently and totally disabled based upon the combination of the psychological and physical disabilities attributable to the primary injury, in isolation.
It is my opinion that Ms. Huffman is permanently and totally disabled by the combination of her pre-existing industrially disabled physical and psychological disabilities in combination with the physical and psychological disabilities she incurred as a result of her work-related injury September 25, 2015.
Dr. J. recommended that Huffman’s medication protocol be re-evaluated by a
psychiatrist, noting that her current medications do not appear to be working; that she
receive treatment in behavior methods of pain management to combat her pain and
mitigate her depression as Dr. J. believed that Huffman’s pain perception from her
various medical ailments was increased by depression; that Huffman consult her church
leaders to address the resentment harbored toward Employer and medical professionals
15 regarding the September 25, 2015, work injury; and that Huffman seek remedies to
address her sleep disturbance.
Dr. K. also examined Huffman on March 7, 2018. The doctor expressed that the
evaluation was “specifically in reference to potential Second Injury Fund liability
associated with a primary work injury claim of September 25, 2015,” noting that the
primary work injury “was to the right shoulder.” Further, that the “additional issue” Dr.
K. was “looking at is whether or not additional Second Injury Fund liability is present
associated with this primary injury claim date.” Dr. K. reviewed Huffman’s “extensive”
medical records and was provided a copy of the Claim for Compensation. Consequently,
the doctor was aware that Huffman contended that she sustained right shoulder, right arm,
psychological, and whole-body damage at work on September 25, 2015.
Upon reviewing Huffman’s medical history, the doctor believed a significant
industrial disability to be Huffman’s history of diabetes mellitus which had historically
been poorly controlled. Dr. K. also believed there to be industrial disability associated
with headaches. These were the only two pre-existent industrial disabilities the doctor
believed had vocational implications of significance. The doctor did “not see evidence
that any of the other multiple diagnoses listed had vocational implications where she was
hindered or limited in her actual work or would have a significant obstacle to
reemployment.”
Dr. K. emphasized that the September 25, 2015, claim is not totally disabling
when considered in isolation. The doctor adopted the compromise settlement between
16 Huffman and Employer for 24% permanent partial disability to the right shoulder for the
September 25, 2015, workplace injury and assigned various restrictions. He assigned
15% permanent partial disability for prior disabling headaches, and 15% permanent
partial disability to the body as a whole for Huffman’s diabetes. The doctor did note a
“potential pre-existent industrial disability” of significance being the “issue of separate
psychological disability” for which the doctor recommended a mental health evaluation.
The doctor stated that the doctor would be willing to review any additional
psychological/psychiatric data and/or vocational data that becomes available, but that, “at
this point, it is my opinion that Ms. Huffman is, in fact, permanently totally disabled
based on the pre-existent physical and psychological industrial disabilities combined with
the additional disability flowing from the primary injury sustained on September 25,
2015.”
On February 14, 2019, Huffman underwent a vocational assessment by T.C. to
“determine her rehabilitation potential.” As part of the assessment, T.C. reviewed the
medical reports by Dr. K. and Dr. R., the psychological evaluation by Dr. J, and
Huffman’s September 6, 2018, deposition. T.C. considered Huffman’s diabetes, migraine
headaches, and the need to utilize medication at work, all significant hindrances and
obstacles to employment. T.C. opined that Huffman had no skills that transferred to light
or sedentary jobs. Further, that for lighter sedentary jobs, Huffman should be considered
an unskilled worker. T.C. concluded:
17 When one considers the entirety of the physical restrictions, noting the need to alternate sitting and standing, the psychological impairments precluding social functioning in combination with Ms. Huffman’s advanced age, high school education, lack of transferrable skills, it is my opinion that she is now totally vocationally disabled. It is my opinion the total disability is as a result of the pre-existing psychological issues, diabetes, migraine headaches, in combination with injuries to the right shoulder of September 25, 2015.
An August 30, 2020, addendum report was issued by Dr. K., prompted by Dr. J.’s
psychological evaluation of Huffman, T.C.’s vocational report, and the question of
Second Injury Fund liability. Dr. K. stated that neither the pre-existent headaches nor the
pre-existent diabetes would qualify to trigger Second Injury Fund liability. Dr. K. opined,
however, that, “if one considers the synergism of combining only the qualifying disability
represented by the preexistent psychological disability with the physical and
psychological disability for which the September 25, 2015, claim is the prevailing factor
in its development, it is my opinion that Ms. Huffman is, in fact, permanently totally
disabled.”
Administrative Law Judge and Commission Findings
The Administrative Law Judge (“ALJ”) hearing Huffman’s workers’
compensation case noted that Huffman had alleged that she suffered psychological injury
in the work accident of September 25, 2015, but settled that claim for 24% permanent
partial disability of the right upper extremity at the 232-week level. The stipulation
included no settlement for disability as to the alleged psychological injury. The ALJ
noted that, only after settling her claim with Employer did Huffman obtain expert
18 opinions regarding her psychological injury. The ALJ stated that, based on Huffman’s
allegation of permanent total disability and Second Injury Fund liability, Huffman must
show that the work injury of September 25, 2015, resulted in psychological injury which
combined with her pre-existing condition to aggravate or accelerate that condition
rendering her permanently and totally disabled. The ALJ concluded,
Claimant’s decision to settle her claim for disability to the right shoulder only must have significance. The evidence presented indicates no psychological disability as apportioned to her work-related accident on September 25, 2015 and subsequent settlement. That being the case, I find Claimant failed to meet her burden of proof to establish Second Injury Fund liability and therefore deny the claim for compensation to the Second Injury Fund.
The Commission affirmed and adopted the award of the ALJ, as supplemented.
The Commission stated that, Huffman alleged a preexisting psychological disability
related to major depressive disorder, generalized anxiety disorder, and unspecified
trauma, and to establish that she was entitled to compensation from the Fund, Huffman
“was required to establish that qualified preexisting psychological disability combined
with psychological disability related to her September 25, 2015 work injury to result in
permanent total disability.” The Commission noted that, “a Fund claim is necessarily
derivative from the employee’s primary work injury claim.” The Commission found that
the ALJ denied Huffman’s claim because the testimony of the employee and her experts
failed to persuade the ALJ, as a threshold issue, that Huffman sustained any
psychological disability related to her September 25, 2015 work injury. Further, that the
ALJ did not disregard or ignore the opinions of Huffman’s experts, but instead
19 discredited the experts’ views because their opinions were not sought until after
Huffman’s stipulation for compromise settlement based on 24% permanent partial
disability of the right shoulder at the 232-week level. The Commission found that the
ALJ did not err in considering Huffman’s primary injury settlement as a factor in
evaluating her Fund claim. The Commission independently concluded that Huffman’s
evidence, though not controverted, was insufficient to support her claim.
This appeal follows.
Standard of Review
“The Commission’s decision must be ‘supported by competent and substantial
evidence upon the whole record.’” Weibrecht v. Treasurer of Missouri, 659 S.W.3d 588,
592 (Mo. banc 2023) (quoting Mo. Const. art. V, sec. 18). On appeal, the Commission’s
factual findings are conclusive and binding in the absence of fraud. Id. (citing Section
287.495.1).2 We defer to the Commission’s determinations regarding the credibility of
witnesses and weight of the evidence. Id. On appeal, we only review questions of law
and may modify, reverse, remand for rehearing, or set aside the award on only four
grounds: 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; 4)
There was not sufficient competent evidence in the record to warrant the making of the
award. Id. (citing Section 287.495.1(1)-(4)). The evidence is examined in context of the
2 All statutory references are to the Revised Statutes of Missouri as updated through 2015, unless otherwise noted.
20 whole record when determining “if it contains sufficient competent and substantial
evidence to support the award, i.e., whether the award is contrary to the overwhelming
weight of the evidence.” Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-223
(Mo. banc 2003). The evidence is viewed objectively, and not in the light most favorable
to the award. Id. at 223.
Point on Appeal
Huffman contends on appeal that the Commission and ALJ erred in entering
awards denying her compensation on the basis that she did not sustain a psychological
injury and disability from her September 25, 2015 work accident, arguing there was not
sufficient competent evidence in the record to warrant making that award. Huffman
contends that, in light of the whole record, including uncontradicted and unimpeached
testimony from medical and psychological experts, and in light of the applicable law,
Huffman’s prior stipulation for compromise settlement with Employer and the timing of
medical and psychological testimony are so non-probative that no reasonable mind could
believe that Huffman did not sustain a psychological injury and disability from her
September 25, 2015, work accident. We disagree.
To trigger Fund liability for claims occurring after January 1, 2014, the following
conditions need to be met:
a. An employee has a medically documented preexisting disability equaling a minimum of fifty weeks of permanent partial disability compensation according to the medical standards that are used in determining such compensation which is:
21 (i) A direct result of active military duty in any branch of the United States Armed Forces; or
(ii) A direct result of a compensable injury as defined in section 287.020; or
(iii) Not a compensable injury, but such preexisting disability directly and significantly aggravates or accelerates the subsequent work- related injury and shall not include preexisting injuries or conditions that do not aggravate or accelerate the subsequent work-related injury; or
(iv) A preexisting permanent partial disability of an extremity, loss of eyesight in one eye, or loss of hearing in one ear, when there is a subsequent compensable work-related injury as set forth in subparagraph b of the opposite extremity, loss of eyesight in the other eye, or loss of hearing in the other ear; and
b. Such employee thereafter sustains a subsequent compensable work-related injury that, when combined with the preexisting disability, as set forth in items (i), (ii), (iii), or (iv) of subparagraph a. of this paragraph, results in a permanent total disability as defined under this chapter…
§ 287.220.3(2)(a).
The record shows that Huffman suffered from a variety of ailments prior to
September 25, 2015, including anxiety and depression, and was prescribed medication to
address those issues. The record shows “active” anxiety and depression in 2011.
Significant psychological stressors for Huffman unrelated to work are noted as having
occurred prior to September 25, 2015, and Huffman took a six-month voluntary layoff
from February 2015 to August of 2015. On July 1, 2015, Huffman was rear-ended at a
stoplight and complained of right arm/shoulder pain and significantly increased anxiety.
22 The doctor prescribed Clonazepam to be taken twice daily for “Anxiety disorder NOS
(300.00).”
When Huffman returned to work following her voluntary layoff, records show that
she was experiencing a “significant amount of stress at work, new job requirements and
what not.” A doctor suspected Huffman’s diabetes was uncontrolled and ordered labs to
make that determination. The doctor advised continued use of Prozac and Clonazepam
for Huffman’s anxiety disorder.
Just after Huffman’s September 25, 2015, work incident, she was referred to
“Psychiatry” for “very comprehensive testing for anxiety and mental fitness” due to
paperwork her primary doctor received from Employer but felt unqualified to address.
The doctor noted regarding Huffman’s anxiety that “she has occasional flares, which
trigger migraines and there is a complex interplay between the two. She will
occasionally need to miss work because of that, but I cannot predict the future and cannot
predict the occurrences and I cannot necessarily weigh in on her fitness for work from a
psychiatric standpoint.” This was written three months after September 25, 2015, and
there was no mention of the September 25, 2015, work incident in the letter.
Notably, in the January 21, 2016, evaluation which occurred as a result of that
referral, although the death of Huffman’s mother, her voluntary layoff, fear she may not
be able to work up to her own standards, and fear of job loss were all noted as increased
stressors that impacted her anxiety, Huffman’s September 25, 2015, alleged work injury
is not mentioned in the report except for a notation of “Rotator cuff tear” under the
23 “Medical/Surgical History” portion of the report. Huffman’s “Diagnoses” were
“Adjustment disorder with anxiety and depression” and “Rule out posttraumatic stress.”
Therapy was strongly recommended with a belief that Huffman would respond well as
she was motivated for treatment and had good insight. For a treatment plan, it was noted
that Huffman’s Prozac had recently been increased to 40 mg. She was to “continue with
the Prozac 40 and clonazepam 0.25 up to twice a day as needed for anxiety.” Huffman
was provided information for counseling resources, and agreed to utilize community
resources she was aware of for any urgent medical or psychiatric needs.
Nothing in the record shows that Huffman followed up on this advice. The record
lacks any indication that over the next two years Huffman sought psychiatric treatment or
addressed her anxiety and depression in any manner other than how she had always
addressed her anxiety and depression—via prescriptions of the same medications she had
been taking prior to September 25, 2015. When Huffman met with Dr. J. more than two
years after September 25, 2015, Huffman reported to Dr. J that she had used Xanax
several times a week for her adult life. Neither Prozac nor Clonazepam are mentioned
specifically in Dr. J.’s report, and there is no record as to what extent Huffman actually
used the prescribed medications. When Huffman visited her primary doctor on May 27,
2016, the doctor noted that Huffman was under a lot of stress and was having a lot of
anxiety, and continued to be in a state of struggle with her employer over benefits and
overall health. Huffman was in chronic pain, but was not taking her pain medication as
prescribed as she was cutting the medication in half and disposing of the rest. The doctor
24 noted that she “has had some panic and significant psychosocial stressors.” The doctor
advised that Huffman pursue psychological assistance, believing Huffman to have
“uncontrolled depression which I think is contributing and may be causal” for other
symptoms, and inadequately treated anxiety disorder. Again, nothing in the record
suggests that these recommendations were pursued. Moreover, where the record shows a
significant interplay between Huffman’s physical pain and psychological distress,3
Huffman’s recorded failure to follow through with prescribed treatments to address her
pain raises significant question as to the level Huffman’s physical and psychological
conditions could have improved had she done so. Likewise, where Dr. J. indicated that
Huffman’s level of anxiety and depression “can impede physical rehabilitation and
recovery,” the lack of any record of follow-through with recommended psychological
treatments raises similar questions as to the level Huffman’s physical and psychological
conditions could have improved. A reasonable fact finder could justifiably consider
Huffman’s experts’ permanent disability conclusions to lack credibility where remedial
treatments, or the lack thereof, are not addressed by those experts.
In viewing the record as a whole, we disagree with Huffman’s contention that the
stipulation for compromise settlement and the timing of the medical and psychological
evidence Huffman used to support her claim are so non-probative that no reasonable
3 Dr. J. reported that Huffman had a preoccupation with her pain experience which had a disabling effect. Further, that Huffman reported an unusual level of diffuse somatic complaints, and was aware that her level of stress contributed to the intensity of her physical problems.
25 mind could believe that she did not sustain a psychological injury and disability from her
September 25, 2015, work accident. The timing of the post-settlement evidence is
significant because Huffman claimed in her filings to have suffered a psychological
injury from a work accident on September 25, 2015, but two years later when the
compromise settlement was reached, despite having numerous consultations, treatment,
surgery on her shoulder, and even recommendations for counseling to address ongoing
anxiety and depression, there was no evidence to support a psychological work injury or
disability specifically related to September 25, 2015. One could reasonably expect that,
where a primary psychological work injury/disability was claimed, the voluminous pre-
settlement medical records would have documented it in some fashion. A reasonable
fact-finder could presume that, where there are no records documenting a psychological
injury specific to September 25, 2015, in the two years following September 25, 2015,
and a psychological injury was claimed but not included in the settlement with Employer
regarding September 25, 2015, there was no psychological injury related to September
25, 2015. Consequently, it was not unreasonable for the ALJ/Commission to view with
skepticism consultations regarding Huffman’s psychological condition that were obtained
more than two years after the alleged primary psychological injury and after Huffman
settled her primary injury claim for no psychological injury.
Huffman cites Seifner v. Treasurer of Missouri, 362 S.W.3d 59 (Mo. App. 2012),
and argues that her settlement with Employer was separate from her case against the
Second Injury Fund, and the parties are free to fully litigate each aspect of the case,
26 including the employee’s final injury. Huffman argues that her settlement with Employer
cannot be used as conclusive evidence regarding the nature of her primary injury. While
the Commission is not bound by the terms of a settlement, it “does serve as relevant
evidence of the nature and extent of the employee’s permanent disability attributable to
the primary injury.” Treasurer of the State-Custodian of the Second Injury Fund v. Steck,
341 S.W.3d 869, 873 (Mo. App. 2011). The settlement here is part of the record which
we review and, as discussed above, is relevant in this case.
The Commission independently concluded that Huffman’s evidence was
insufficient to support her claim of a psychological injury stemming from September 25,
2015. Reviewing the record as a whole, along with the Commission’s credibility
determinations, we find sufficient competent evidence in the record to support that
conclusion. Dr. J., whom Huffman relies on for her claim, opined that, “While I hope
Ms. Huffman’s psychological condition will improve, and I am recommending treatment,
I do not believe it will improve in a material way. Psychological treatment outcomes are
palliative, not curative at this point.” Dr. J. also concluded that Huffman had reached
“maximum psychological improvement.” The doctor noted that, Huffman’s “current
medications do not appear to be working, especially with regard to her depression,” and
recommended that her current medication protocol be re-evaluated by a psychiatrist. Yet,
more than two years prior to Dr. J. issuing his opinion, counseling was strongly
recommended for Huffman with a belief that she would respond well. This never
occurred. Huffman used the same psychiatric medication for years prior to September
27 25, 2015, and despite Dr. J.’s conclusion that Huffman’s psychological condition
deteriorated after September 25, 2015, there is no indication that she ever consulted a
psychiatrist to address whether her medications should be evaluated for effectiveness. A
reasonable factfinder could conclude that Dr. J.’s opinion that Huffman’s psychological
condition could not be alleviated with treatment lacked foundation where two years after
the alleged disabling psychological injury there had been no attempt at curative
treatment.
Likewise, the record shows that when Huffman “reported significant disability
with regard to performing household activities and working” and attributed that to
medical problems, Dr. J. concluded that, “in my opinion her inability to remain active
results in significant psychological disability.” The record is replete with medical
problems suffered by Huffman unrelated to any September 25, 2015, work injury,
including preexisting uncontrolled diabetes, obesity, hypertension, irritable bowel
syndrome, depression, anxiety, and pain related to other occurrences such as a June 30,
2015, car accident. Dr. J. does not explain that Huffman’s inability to remain active
resulted from any September 25, 2015, injury. Huffman worked for several months as a
dog walker after September 25, 2015. Further, the record shows a significant period of
inactivity by Huffman directly preceding September 25, 2015, when she voluntarily took
six months off from work.
Dr. J. states that Huffman suffered depression from September 25, 2015, different
from any she had previously suffered. Dr. J. states that Huffman’s prior depression when
28 family members passed, etc., could best be described as Adjustment Disorder with
depressed mood. Dr. J. states that Huffman suffered deep grief reactions when family
members died, but that antidepressant medications were appropriate treatment methods to
help her through those times “and she always maintained her occupational and
social/interpersonal adjustment while struggling with these most difficult life events.”
Dr. J. opines that Huffman’s depression following September 25, 2015, followed a
different course resulting in significant psychological disability. Yet, nowhere in Dr. J.’s
report does the doctor acknowledge the six months Huffman took leave from work just
prior to September 25, 2015, to grieve her mother’s death, and how this might be
reconciled with his statement that Huffman had always previously maintained
occupational adjustment. Two days prior to September 25, 2015, Huffman reported that
she was undergoing a significant amount of stress from simply returning to work.
A reasonable fact finder could find that Dr. J.’s conclusion that Huffman’s
depression took a different course after September 25, 2015, lacked credibility where the
basis for the conclusion (i.e., that with prior difficult life events Huffman always
maintained her occupational and social/interpersonal adjustment) is not supported by the
record.
There are other inconsistencies in the record that a reasonable fact finder could
find cut against Huffman’s claim of a September 25, 2015, psychological injury and
permanent disability. After Huffman’s shoulder surgery, she was given a full release on
September 22, 2016. Although some records indicate that Huffman lasted less than two
29 weeks as a stocker at Walmart because she could not meet the physical demands, when
asked in a deposition if she was unable to continue work “because of your conditions”
she responded, “Yes. Because my foreman, my boss was kind of mean and it made me
feel like it was Wire Rope all over again with the bosses there.” Huffman’s own
testimony does not necessarily support that it was for physically or psychologically
disabling reasons that she quit working for Walmart.
On March 7, 2018, Dr. K. reviewed all of Huffman’s medical records prior to
reaching a conclusion and only noted two pre-existent industrial disabilities of
significance—her diabetes and headaches. Although Dr. K. considered of significance a
potential pre-existent industrial disability of a separate psychological disability and
recommended a mental health evaluation, Dr. K. made no mention of a psychological
injury related to September 25, 2015.
Two and a half years later, on August 30, 2020, Dr. K. issued an addendum
indicating that the doctor had reviewed Dr. J.’s psychological evaluation of Huffman and
T.C.’s vocational report. This is the first time Dr. K. referenced a psychological
component to Huffman’s September 25, 2015, work injury claim and Dr. K. essentially
accepted Dr. J.’s conclusion that there was a separate psychological/psychiatric disability
for which the primary work injury claim of September 25, 2015 was the prevailing factor
in its development. We note that Dr. K.’s addendum was based off of Dr. J.’s written
report which opined that Huffman’s exposure to risk (physically demanding, dangerous,
third-shift work) in the course of her employment working in a production capacity for
30 Employer with a claim date of September 25, 2015, was the direct, proximate and
prevailing factor for her development of a Somatic Symptom Disorder, persistent, pain
type, and a Major Depressive Disorder, chronic, moderate. Dr. J. later stated that the
Somatic Symptom Disorder diagnosis was a mistake and should not have been included.
It is unknown if this redaction by Dr. J. would have affected Dr. K.’s ultimate
conclusions. Regardless, where a reasonable fact finder could consider Dr. J.’s
conclusions to lack credibility, and Dr. K.’s opinions are based on Dr. J.’s findings, a
reasonable fact finder could conclude that Dr. K.’s conclusions lack credibility as well.
“A reviewing court considers whether the Commission could have reasonably
made its findings, and reached its result, upon consideration of all the evidence before it.”
Hornbeck v. Spectra Painting, Inc., 370 S.W.3d 624, 629 (Mo. banc 2012). We may not
substitute our judgment on the evidence, “and when the evidence before an
administrative body would warrant either of two opposed findings, the reviewing court is
bound by the administrative determination, and it is irrelevant that there is supportive
evidence for the contrary finding.” Id. (internal quotation marks and citation omitted).
Huffman had not only the burden of producing evidence to support her claim, but also the
burden of persuading the fact finder to view the facts in a way that favored her. Mar. v.
Treasurer of State, 649 S.W.3d 293, 299-300 (Mo. banc 2022). Huffman met her burden
of production, but not her burden of persuasion.
The Commission did not err in entering awards denying compensation to Huffman
on the basis that she did not sustain a psychological injury and disability from a
31 September 25, 2015, work accident as there is sufficient competent evidence, in light of
the whole record, to warrant the award.
Conclusion
The Commission’s Final Award is affirmed.
_______________________ Anthony Rex Gabbert, Judge
All concur.