Workers’
Compensation Board
OPINION
ENTERED: July 15, 2016
CLAIM NO. 201489436
ELAINE COLLETT PETITIONER
VS. APPEAL FROM HON. JONATHAN WEATHERBY,
ADMINISTRATIVE LAW JUDGE
LESLIE COUNTY ATTORNEY/CHILD SUPPORT
DIVISION
HON. JONATHAN WEATHERBY,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. Elaine Collett
(“Collett”) appeals from the December 21, 2015
Opinion and Order and the February 24, 2016 Order rendered by Hon. Jonathan
Weatherby, Administrative Law Judge (“ALJ”) dismissing her claim against the
Leslie County Attorney Child Support Division (“Leslie County”). On appeal, Collett
argues the ALJ erred in finding her psychological impairment was not
work-related, and in determining she did not suffer a permanent impairment as a
result of her injury. For the reasons
set forth herein, we affirm.
Collett testified by deposition on August
6, 2015 and at the hearing held October 22, 2015. Her work for Leslie County primarily involved
opening and reviewing child support cases, interviewing clients, and working on
the computer. On January 22, 2014, her
husband drove her to work due to icy road conditions. As she was getting out of her husband’s
vehicle, Collett slipped on the ice in Leslie
County’s parking lot. She was able to
hold on to the seat and door to avoid falling to the ground, but jerked and
twisted her neck and back. She
experienced neck pain radiating down her arm into her fingers, and back pain
radiating to her hips, legs and feet.
Collett sought treatment at the Primary
Care Clinic and was off work for four days.
She returned to work on restrictions and continued to work until March
11, 2014. However, she missed days
during that period due to pain and medical appointments.
Collett indicated she has constant pain in
her cervical area radiating to her arms and hands, with numbness and tingling
as a result of the injury. She has
muscle spasms in her neck and shoulders.
She has constant pain in her low back, legs and feet with numbness and
tingling. She also experiences memory
problems, anxiety and depression.
Collett acknowledged a past shoulder injury
in 2010 and prior treatment for low back pain 2011, but denied a specific back
injury. She missed five to six weeks of
work at that time. Collett
denied any problems with fibromyalgia or migraine headaches prior to the work
injury.
Collett submitted the report of Dr. Robert
Hoskins who performed an independent medical evaluation (“IME”) on August 12,
2015. Collett
complained of neck pain and stiffness; intermittent pain and paresthesia about
the upper extremities to the hands; low back pain, stiffness and weakness;
intermittent pain and paresthesia about the lower extremities to the feet; and
multiple intolerances and limitations with instrumental activities of daily
living. Dr. Hoskins diagnosed cervical
strain/sprain; cervical radiculitis; cervical degenerative disc disease/disc
bulging; lumbosacral sprain/strain; lumbosacral radiculitis; lumbar
degenerative disc disease; and fibromyalgia.
Relative to the work injury, he assigned a 6% impairment rating pursuant
to the American Medical Association, Guides to the Evaluation of Permanent
Impairment, 5th Edition (“AMA Guides”). He opined Collett
has a 10% impairment rating for pre-existing cervical and lumbar
conditions.
Collett submitted the report of Dr. P. D. Patel who
performed an IME on September 4, 2015.
Dr. Patel diagnosed neck pain, low back pain, fibromyalgia and
depressive disorder. He assigned a 27%
impairment rating pursuant to the AMA Guides due to the work injury.
Both
parties introduced medical records from Primary Care Centers of Eastern
Kentucky, where Collett was treated for complaints of
migraines in 2009 and knee pain in 2010.
Lumbar x-rays in October 2010 revealed mild lower lumbar facet joint
osteoarthritis. Collett
was seen for low back spasms of three week duration on June 14, 2011, and was
diagnosed with low back and radicular pain.
She was treated from January 22, 2014 through August 21, 2014 in
connection with the work injury.
Leslie
County submitted the report of Dr. Russell Travis who performed an IME on
September 2, 2015. Dr. Travis noted Collett had a
normal neurological examination, no objective findings on examination, and
normal imaging studies. He felt Collett suffered from severe somatization. Dr. Travis assigned a 0% impairment rating
for the cervical and lumbar conditions pursuant to the AMA Guides.
Leslie
County submitted the report of Dr. Douglas Ruth who performed an independent
psychological evaluation on August 19, 2015.
Dr. Ruth diagnosed major depressive disorder, single episode, and panic
disorder, and assigned a 7% psychiatric impairment rating pursuant to the AMA Guides. In a September 16, 2015 supplemental report,
Dr. Ruth opined as follows concerning the cause of Collett’s
psychological complaints:
I
concluded that if it were determined that Mrs. Collett’s
pain were the result of a work injury, then her psychiatric complaints
similarly would be considered caused by that work injury. On the other hand, if it were concluded that
her complaints of pain were not related to the work injury, then her
psychiatric complaints would not be caused by that work incident. Dr. Travis’ findings provide evidence that
her complaints were not caused by the work incident.
Leslie
County submitted the report of Dr. Richard Sheridan who performed an IME on
January 28, 2015. He diagnosed resolved
acute cervical and lumbar strains referable to the January 22, 2014
incident. Dr. Sheridan opined the
incident did not result in a harmful change to the human organism as evidenced
by objective medical findings. He
assessed a 0% impairment rating for the cervical and lumbar conditions pursuant
to the AMA Guides.
The ALJ dismissed Collett’s claim in its entirety after finding as follows:
17.
The ALJ is compelled to reference that the Plaintiff is a sympathetic
figure who suffered a near fall for which she was prescribed Ibuprofen and 30
days of a mild muscle relaxer for muscle spasms.
18.
The ALJ is persuaded by the credible objective medical evidence in this
claim that indicates a significant history of prior similar complaints as well
as the thorough report of Dr. Travis that concludes that she had a normal
neurological examination resulting in a 0% impairment
for the cervical and lumbar spine.
19.
The ALJ finds that Dr. Travis was particularly convincing in that he had
sympathy for the Plaintiff but was shocked that the MRI and X-ray results were
normal and unremarkable despite her presentation as being incapacitated.
20.
The ALJ also finds that despite the Plaintiff’s implication that she was
taking Cymbalta for depression, the records indicate that it was actually
prescribed to her for fibromyalgia which is a condition whose symptoms appear
to pre-date the work incident. The ALJ
finds the Plaintiff’s near fall resulted in 0% whole person impairment as
concluded by Dr. Travis and as such, any psychological impairment is not
causally work related.
Collett filed a petition for
reconsideration arguing the ALJ did not properly address the psychological
injury. She noted the ALJ found her
psychological condition was not compensable because the physical injury did not
produce an impairment rating. She
further noted Leslie County stipulated that she sustained the physical injury,
so the ALJ was required to address whether psychological impairment was a
direct result of the traumatic event. Collett also argued the ALJ erred in finding the work
injury resulted in a 0% impairment rating as she continues to have debilitating
pain and is limited in her activities.
On reconsideration, the ALJ found
as follows:
This matter having come before the
undersigned on plaintiff’s Petition for Reconsideration of the Opinion and
Order dated December 21, 2015; and the defendant employer having filed a
response; and it appearing that the dismissal of the claim was based on evidence
of record, including the opinion of Dr. Travis that the plaintiff has sustained
no permanent impairment rating or injury from her work incident, and the
opinion of Dr. Ruth that plaintiffs [sic] psychiatric complaints would only be
related to the work incident if the underlying complaints of pain were related
to that incident; it is hereby ordered that the petition for reconsideration is
overruled.
On appeal, Collett
argues the ALJ erred as a matter of law in finding her psychological impairment
was not work-related. Collett notes the ALJ in the Opinion and Order based the
determination on a lack of an impairment rating related to a physical
injury. However, KRS 342.0011(1) only
requires that the mental harm directly result from a physically traumatic
event. Collett
notes it was stipulated she sustained a work injury on January 22, 2014 and
asserts it is uncontradicted that she experienced a
physically traumatic event. The opinions
of Drs. Ruth and Patel establish she has an impairment rating for her
psychiatric condition.
Collett further argues the ALJ erred in
finding the work-related injury resulted in no impairment rating. She contends the evidence compels a finding
she has an impairment rating for her cervical and low back condition, and that
the injury caused depression and anxiety resulting in a psychological
impairment rating.
As the claimant in a workers’
compensation proceeding, Collett
had the burden of proving each of the essential elements of her cause of
action. Snawder v. Stice, 576 S.W.2d 276 (Ky.
App. 1979). Because she was unsuccessful in that burden, the
question on appeal is whether the evidence compels a different result. Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App.
1984). “Compelling
evidence” is defined as evidence that is so overwhelming,
no reasonable person could reach the same conclusion as the
ALJ. REO Mechanical v. Barnes, 691 S.W.2d 224 (Ky. App. 1985)
superseded by statute on other grounds as stated in Haddock v.
Hopkinsville Coating Corp., 62 S.W.3d 387 (Ky. 2001).
KRS 342.0011(1) states an “[i]njury . . . shall not include a psychological, psychiatric, or
stress-related change in the human organism unless it is a direct result of a
physical injury.” “[I]n instances where
the harmful change is psychological, psychiatric, or stress-related, it must
directly result from the physically traumatic event.” Lexington-Fayette Urban
County Government v. West, 52 S.W.3d 564 (Ky. 2001). Collett is correct in noting a
psychological condition may be compensable even where the physical injury did
not produce a permanent impairment rating.
Thus,
for Collett to prevail upon appeal, the evidence must
compel a finding that there was a physical injury which directly caused her
psychological condition. Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984).
Upon review of the totality of the evidence, we cannot say the proof compels a
finding in Collett’s favor. Dr. Travis, whom the ALJ found to be
persuasive, stated there were no objective findings on examination and her
imaging studies were within normal limits.
Dr. Ruth indicated the psychological condition could only be found to be
related to the work injury if the work injury caused her pain. He noted Dr. Travis’ report is evidence her
complaints were not caused by the work incident.
The ALJ was not persuaded Collett’s pain complaints were related to the January 2014
injury. Thus, based upon Dr. Ruth’s
opinion, he could reasonably conclude the psychological condition was not
related to the physical trauma. The ALJ’s factual findings are
supported by the opinions of Drs. Travis and Ruth, which constitute substantial
evidence. Special Fund v. Francis, 708 S.W.2d 641 (Ky.
1986).
While Collett has identified evidence supporting a different
conclusion, this fact is insufficient to prevail on appeal. As such, the ALJ acted within his discretion
to determine which evidence to rely upon, and it cannot be said the ALJ’s
conclusions are so unreasonable as to compel a different result. Ira A. Watson Department
Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000).
Accordingly, the December 21, 2015
Opinion and Order and the February 24, 2016 Order rendered by Hon. Jonathan
Weatherby, Administrative Law Judge, are hereby AFFIRMED.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON EDMOND COLLETT
PO BOX 200
ASHER, KY 40803
COUNSEL
FOR RESPONDENT:
HON JEFFREY DAMRON
PO BOX 351
PIKEVILLE, KY 41502
ADMINISTRATIVE
LAW JUDGE:
HON JONATHAN WEATHERBY
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601