KELLEY V NURSES RX

KELLEY V. NURSES RX

Page 1

BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER

______

ERIN KELLEY, :

Claimant, :

vs. :

: File No. 5004520

NURSES RX, :

: A R B I T R A T I O N

Employer, :

: D E C I S I O N

and :

THE NEBRASKA PROPERTY & :

CASUALTY INSURANCE :

GUARANTEE ASSOCIATION, :

Insurance Carrier, : HEAD NOTE NO.: 1804

Defendants. :

______

STATEMENT OF THE CASE

This is a contested case proceeding in arbitration under Iowa Code chapters 85 and 17A. Claimant, Erin Kelley, sustained a stipulated work injury in the employ of defendant Nurses RX on February 23, 2001. She accordingly now seeks benefits under the Iowa Workers’ Compensation Act from Nurses RX and its insurance carrier, The Nebraska Property & Casualty Insurance Guarantee Association. While defendants agree that Kelley sustained a physical injury, they dispute whether Kelley sustained psychological injury.

The claim was heard and fully submitted in Council Bluffs, Iowa, on May 25, 2004. The record consists of Kelley’s testimony, her exhibits 1-27, and defendants exhibits A-UU.

ISSUES

STIPULATIONS:

Kelley sustained injury arising out of and in the course of employment on February 23, 2001.

The injury caused both temporary and permanent disability.

Kelley was off work from April 21, 2001 through the date of hearing.

Permanent disability should be compensated by the industrial method (loss of earning capacity).

On the date of injury, Kelley was single, entitled to one exemption, and had average weekly wages of $1,061.31. On those facts, published agency rate tables yield a compensation rate of $577.26, which is hereby adopted.

The cost of disputed medical care (all psychological in nature) is reasonable and, if called, providers would testify the care was necessary; defendants offer no contrary proof.
Defendants should have credit for benefits paid (162 weeks at the incorrect rate of $579.18.)

ISSUES FOR RESOLUTION:

Whether the stipulated work injury includes mental injury.

2. Extent of temporary disability.

Extent and commencement date of permanent disability.

Entitlement to medical benefits.

FINDINGS OF FACT

Erin Kelley is a 48-year-old psychiatric nurse, who obtained a B.S. degree in nursing in 1986 and whose entire work history thereafter is as a nurse.

Kelley has an extremely complicated psychological history stemming from ongoing sexual and physical abuse suffered in her family of origin. As described in various chart notes, this included satanic rituals, which need not be described in detail here, but were clearly horrendous in nature. She has experienced numerous psychiatric hospitalizations and suffers from depressive and dissociative disorders, post-traumatic stress syndrome, and sometimes uncontrollable multiple personalities numbering at times in the hundreds. (Exhibit N, page 22) Kelley has made a number of suicide attempts and has clearly had a struggle keeping her life in some semblance of order. Many of her hospital admissions were under her birth name of Anne Donohue or the alter ego name Andy Jensen (Kelley adopted her current name in approximately 1991 when she was being stalked by a patient); however, it came out during the course of this litigation that Kelley has no memory of those hospitalizations, presumably because they happened to her “alters.” She “loses” stretches of time when her body is inhabited by alters.

Nonetheless, Kelley is entitled to substantial credit for managing to maintain a relatively normal life despite all these impediments, and actually maintaining regular employment as a psychiatric nurse besides. This strikes the finder of fact as no small accomplishment. In addition to her psychiatric problems, Kelly also has a medical history including eating disorders, back pain, fibromyalgia, asthma and migraine headaches. A psychiatric evaluation accomplished by Janet McGivern, M.D., on June29, 1998 – almost three years prior to the work injury here – is illustrative:

HISTORY OF PRESENT ILLNESS: The patient is a 42 year old white single female who is known to me from previously being a patient. She has a long history of depression and describes the depression as constant. There’s also a lack of pleasure and lack of interest. She also has significant anxiety on some days describing it as ten out of ten. She feels tense. Her stomach gets upset and she has a headache. She reports her motivation is poor. Her concentration is poor. She’s only sleeping about two hours a night for the last six months. Her appetite was increased when she was on Wellbutrin and she gained about 20 pounds in three months on that. Her energy level is poor. She feels hopeless, helpless, worthless and guilty. She has suicidal thoughts but no plan or intent. She has no homicidal ideation, no hallucinations, no panic, no mania, no obsessive compulsive features.

(Exhibit V, page 1)

Prior to the work injury under consideration here, Kelley was last hospitalized for psychiatric reasons in July 2000. She thereafter began employment with Nurses RX, working in a facility known as Mercy Hospital. During the application process, Kelley told her future employer that she had a history of depression, but apparently concealed her history of multiple personality disorder. (Transcript, p. 34)

On February 23, 2001, Kelley sustained injury when she was attacked and struck in the head by a young male patient. She describes the incident as follows:

A. Yes. I was attacked by an adolescent who hit me in the side of my face closed-fisted, and my head was whiplashed, and I felt a pop in the back of my neck and severe pain and shoulder and neck pain.

(Tr., pp. 34-35)

Although Kelley continued to work until April 21, 2001, she was thereafter off due to continuing pain and upper extremity numbness and tingling. The cause was cervical disc herniation and spondylosis at C5-6, which was eventually addressed by a complete anterior discectomy and fusion at that level accomplished on October 30, 2001, by John Treves, M.D. (Ex. 4e, p. 3) The procedure was delayed while defendants decided whether or not to accept liability.

In a report dated May 2, 2002, Dr. Treves rated impairment at 25 percent of the whole person, anticipated that maximum medical improvement would be reached in May 2002, and offered the following comments on activity restrictions:

I think that a functional capacity evaluation might be helpful in delineating specific work restrictions so that she does not re-injure or aggravate her neck condition. Generally, I think she is best suited for light duty or sedentary work. I think she can lift frequently in the 0-10lb range. She probably can lift occasionally in the 10-25lb range, but should not lift more than 25lbs. She will best be suited for a job that does not involve extended periods with her neck in a flexed or extended position. She is not well suited for work at shoulder level or above her head. I do not imagine there will be significant limitations on standing, walking and sitting. It would be best for her to be employed in a position where she could change position if uncomfortable. She is not well suited to climbing, crawling, heavy lifting, bending and lifting and repetitive lifting. She is OK for repetitive hand movements, such as keyboarding.

(Ex. 4a, p. 4)

On August 15, 2002, Kelley underwent a functional capacity evaluation deemed valid by the examiner, physical therapist David Schremmer. The study found that Kelley had the ability to lift 30 pounds from the floor, 35 pounds from 12 inches to waist, 25 pounds overhead, and to carry 45 pounds, all on an occasional basis only. Kelley was found capable of working within a light-medium physical demand level. (Ex. T)

Kelley has not, however, returned to employment other than some volunteer work at an animal shelter. This is primarily due to her continuing and worsening psychiatric problems, which have resulted in multiple additional hospitalizations since her work injury. The primary dispute between the parties here is whether or not her psychiatric condition has been exacerbated and, if so, whether the exacerbation relates to the otherwise stipulated work injury.

This question is properly one for psychiatric experts to determine, but opinion in the record is mixed.

Most of Kelley’s psychiatric care since the work injury has come from Amy Schuett, M.D., who reported to Kelley’s attorney as follows on June 18, 2002:

Ms. Kelley’s diagnosis currently is major depressive disorder, severe, recurrent; dysthymia; dissociative identity disorder; post traumatic stress disorder; and borderline personality disorder. Ms. Kelley is currently hospitalized under a Board of Mental Health petition for acute exacerbation of these diagnoses and illnesses. In my opinion, reviewing Ms. Kelley’s history and records, it appears that her current condition can be related back to her injury in February, 2001, where she was assaulted at work. I believe her current illnesses of depression, post traumatic stress disorder and dissociative identity disorder have been aggravated in a material and substantial [manner]. She has required repeated hospitalizations since her injury in February of 2001 due to the exacerbation of her illnesses. Her depression and dissociative identity disorder have been difficult to treat. Her prognosis remains limited in that she continues to suffer symptoms.

(Ex. 2a, p. 1)

Psychiatrist Timothy K. Tse, M.D., evaluated Kelley on March 20, 2004. Dr.Tse’s diagnoses include major depressive disorder, severe, posttraumatic stress disorder, and dissociative identity disorder. He reported:

Ms. Kelley continues to exhibit significant depressive and posttraumatic stress syndromes, and her functional abilities are greatly impacted by them. Prior to sustaining her February 2001 job-related injury, there was only occasional evidence of posttraumatic disorder symptoms. It is my opinion, on a more probable than not basis, that Ms. Kelley’s industrial injury and its sequelae exacerbated her posttraumatic stress disorder.

In her initial evaluation of Ms. Kelley on May 4, 2001, Dr. Kristine Oleson observed an increase in Ms. Kelley’s Abbreviated SCL 90 scores on the somatization, depression and anxiety scales. There after[sic] Ms. Kelley was admitted to the psychiatric unit at Alegent for her suicidal ideation with plan to overdose on her medications. She has had over five hospitalizations since sustaining her work injury and many of the hospitalizations were triggered by suicidal ideations and/or attempts. Although Ms. Kelley sought help for depression prior to her traumatic work injury, her pre-injury depressions symptoms were significantly less severe than her post-injury symptoms.

. . . .

An admission psychiatric screening of Ms. Kelley at the Two Rivers Psychiatric Hospital dated June 28, 2002 reported, “increase dissociative episodes.” The evidence demonstrates that Ms. Kelley’s traumatic work injury has retarded any progress she made to integrate the different personalities.

Ms. Kelley has not yet recovered from her psychiatric and medical conditions to be capable of employment. Based on my evaluation of Ms. Kelley, she still demonstrates deficits in her activities of daily living, social functioning, and cognitive functioning. Together with the restrictions on

her neck, Ms. Kelley is not presently capable of any gainful employment.

(Ex. 1a, pp. 6-7)

Psychological testing accomplished by clinical psychologist Michael Gillaspie, Ph.D., on May 22, 2002, resulted in the following diagnostic impression: “a woman with severe recurring major depressions (likely superimposed on dysthymia), prominent [posttraumatic stress disorder] symptoms and longstanding masochistic and borderline personality traits.” (Ex. 2e, p. 2) Dr. Gillaspie also noted that the 2001 patient assault triggered the most recent bout of psychiatric hospitalizations, but it is not clear whether this comment was intended as an opinion or merely a report of the patient’s history. (Id)

Psychiatrist Bruce D. Gutnik, M.D., evaluated Kelley at defendants’ request on March 24, 2004. Dr. Gutnik’s diagnoses are consistent with those of Drs. Tse and Schuett, including dissociative identity disorder, posttraumatic stress disorder, major depressive disorder, recurrent, and borderline personality disorder. (Ex. 15b, p. 35) However, Dr. Gutnik finds from his records review that Kelley’s “psychiatric conditions are no different now than they were prior to the incident at work on February 23, 2001, and further, that that incident has resulted in no substantial exacerbation of her previous underlying illnesses.” (Ex. S, p. 2) Dr. Gutnik would impose no activity restrictions or limitations on Kelley based on the 2001 injury, but very reasonably wonders “if Ms. Kelley could have maintained her license or obtained employment as a nurse if the licensing bodies and facilities in question were aware of the true degree of her psychopathology.” (Id) The finder of fact is troubled by that very question, but notes that no expert opinion on the issue – that is, from anyone associated with or professionally knowledgeable about the appropriate licensing board – appears in the many hundreds of pages of record evidence. On that basis, it will not be assumed that Kelley should have been ineligible for her profession prior to February 23, 2001 had the full truth been known.

Given an opportunity to address Dr. Gutnik’s remarks, Dr. Tse on April 4, 2004, reiterated his own opinion and noted that both Kelley’s treating psychiatrist (Dr. Schuett) and therapist (Barb Detlefsen, L.C.S.W.) think that the work injury aggravated her illnesses or “could have definitely triggered previously unresolved trauma and exacerbated the post traumatic symptoms she is currently experiencing.” (Ex. 1b, p. 2) Dr. Tse closed his report as follows:

In his mental status examination, Dr. Gutnik documented Ms. Kelley’s flashbacks and nightmares relating to her February 21, 2001 traumatic assault. I documented the same symptoms in my evaluation, as did all the psychiatrists who have treated Ms. Kelley since her work-related injury. Certainly, these consistently documented symptoms qualify, at the very least, as an exacerbation of Ms. Kelley’s previously diagnosed PTSD.

I therefore stand by my previous medical opinion that Ms. Kelley is functionally impaired due to the exacerbation of her mental illnesses as a result of her February 21, 2001 injury. I hope this letter is helpful to you. Thank you very much.

(Id)

Although the issue is close, it will be resolved in favor of the opinions of Drs. Tse and Schuett. Dr. Schuett is Kelley’s treating psychiatrist, and has had the opportunity to deal with the patient over an extended time. Dr. Tse is, like Dr. Gutnik, highly qualified and has a very reasonable opinion. In fact, Kelley was capable of employment before February 21, 2001, and is not now. She is currently receiving Social Security Disability benefits and does not seem likely to return to the competitive labor market any time soon. The reason for this is physical and mental disability directly caused by or exacerbated by her work injury on February 21, 2001.

CONCLUSIONS OF LAW

Although the hearing report includes the language “Defendants admit physical nature of injury and deny mental component” with respect to the “arising out of and in the course of employment” issue, this is more properly seen as a causation injury. Kelley clearly sustained injury arising out of and in the course of employment and the injury clearly caused physical impairment. The real issue is whether the work injury caused a mental injury.

As claimant herein, Kelley has the burden of proving by a preponderance of the evidence the injury is a proximate cause of the psychological disability on which her claim is in part based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. AllAmerican, Inc., 290 N.W.2d 348 (Iowa 1980).

While a claimant is not entitled to compensation for the results of a preexisting injury or disease, its mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956). If claimant has a preexisting condition or disability that is materially aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961). The aggravation must be more than “slight” to constitute an injury. Ziegler v. United States Gypsum Co., 252 Iowa 613, 106 N.W.2d 591 (1960).

Based on the expert opinion reviewed above, it is found that Kelley’s work injury materially aggravated her preexisting psychological condition. Her current condition is, accordingly, compensable under the Iowa Workers’ Compensation Act.

The amount of compensation awarded for unscheduled injuries depends upon the extent of the industrial disability resulting from the injury.Mortimer v. Fruehauf Corp., 502 N.W.2d 12, 15 (Iowa 1993). Industrial disability measures an injured worker's lost earning capacity.Myers v. F.C.A. Servs., Inc., 592 N.W.2d 354, 356 (Iowa 1999). In assessing whether a claimant has sustained a loss of earning capacity, the workers' compensation commissioner is required to consider all "factors that bear on [the claimant's] actual employability."Second Injury Fund v. Hodgins, 461 N.W.2d 454, 456 (Iowa 1990) (quoting Guyton v. Irving Jensen Co., 373 N.W.2d 101, 104 (Iowa 1985)). These factors include not only the claimant's functional disability, but also his age, education, qualifications, experience, and ability to engage in similar employment. Myers, at 356. The commissioner's primary focus in the determination of industrial disability is therefore on the ability of the worker to be gainfully employed.

Total disability does not mean a state of absolute helplessness. Permanent total disability occurs where the injury wholly disables the employee from performing work that the employee’s experience, training, education, intelligence and physical capacities would otherwise permit the employee to perform. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). The test has been further described by the agency as follows:

The focus for evaluating total disability is on the person’s ability to earn a living. Diederich v. Tri-City R. Co., 219 Iowa 587, 594, 258 N.W. 899, 902 (1935). The question is not whether the person is physically and mentally capable of working because virtually anyone who is conscious is capable of performing some type of work. The question is whether the person is capable of performing a sufficient quantity and quality of work that an employer in a well-established branch of the labor market would employ the person on a continuing basis and pay the person sufficient wages to permit the person to be self-supporting.

Tobin-Nichols v. Stacyville Community Nursing Home, File No. 1222209 (App. Dec.2003).

Kelley may someday recover her psychological balance to the extent necessary to reenter competitive employment. For now, and for the foreseeable future, however, the combination of her physical impairment and psychological distress disable her, as Dr. Tse has opined, from competitive employment. She is accordingly entitled to permanent total disability benefits commencing April 21, 2001, and continuing during such time as she remains under a total industrial disability.