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May 25, 2018 201263966

Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED:  May 25, 2018

 

 

CLAIM NO. 201263966

 

 

RYAN HOUSTON                                   PETITIONER

 

 

 

VS.       APPEAL FROM HON. JONATHAN R. WEATHERBY,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

GREENUP COUNTY FISCAL COURT AND

HON. JONATHAN R. WEATHERBY,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

AFFIRMING IN PART,

VACATING IN PART & REMANDING

 

                       * * * * * *

 

 

BEFORE:  ALVEY, Chairman, STIVERS and RECHTER, Members. 

 

ALVEY, Chairman.    Ryan Houston (“Houston”) seeks review of the February 7, 2018 Opinion and Order rendered by Hon. Jonathan Weatherby, Administrative Law Judge (“ALJ”), dismissing the reopening of his claim for injuries he allegedly sustained while working for Greenup County Fiscal Court (“Greenup”) as a sheriff’s deputy.  The ALJ previously dismissed Houston’s reopening in an Opinion and Order issued August 7, 2017.   This Board reversed that decision, in part, vacated it in part, and remanded it for entry of a decision resolving additional issues raised by Houston at the Benefit Review Conference, but not addressed in the ALJ’s decision.

          On appeal, Houston argues the ALJ erred as a matter of law in dismissing his claim for a psychiatric/ psychological injury.  Houston argues he did not raise the issue of a work-related psychiatric/psychological condition resulting from his work injury until the reopening because he was not diagnosed with the condition prior to the settlement of his claim.  We affirm in part, vacate in part, and remand for additional determinations.

          A car struck Houston on October 31, 2012, in the course and scope of his work as a sheriff’s deputy, as he attempted to make a traffic stop.  He settled his claim for injuries for a right ankle sprain, left foot fracture and left meniscal tear in a Form 110-I settlement agreement approved by Hon. J. Landon Overfield, Chief Administrative Law Judge, on November 25, 2014.  The settlement agreement reflects Houston received temporary total disability benefits from November 1, 2012 through June 2, 2013 at the rate of $503.16 per week for a total of $15,456.60, and medical benefits were paid on his behalf in the amount of $26,036.55.  The agreement reflects Houston was to receive $25.65 per week for permanent partial disability benefits.

          Houston filed a motion to reopen on May 18, 2016 alleging his condition had worsened.  He noted he had undergone additional surgeries, as well as psychiatric treatment due to his work injuries.  The motion to reopen was sustained by Hon. Robert L. Swisher, Chief Administrative Law Judge, in an order entered July 28, 2016.  Greenup contested the reopening, and filed a Special Answer asserting affirmative defenses of credit against any award for unemployment benefits received by Houston pursuant to KRS 342.730(5).  It also argued it is entitled to credit for any voluntary overpayment of income benefits.  Greenup additionally argued Houston failed to follow competent medical advice. 

          Greenup later filed a motion to dismiss the reopening.  It first asserted Houston was aware of his psychiatric condition at the time he settled his claim, but did not present or list it as a condition at that time.  It also argued Houston failed to present objective medical evidence of a causal connection between his complaints and a work injury.

          On August 7, 2017, the ALJ dismissed Houston’s reopening.  He found Houston failed to give notice of new conditions as soon as practicable.  He also stated he was unpersuaded Houston had increased impairment for the injuries listed in the Form 110.

          In our previous decision issued on November 22, 2017, we noted as follows:

Houston was taken by ambulance to Our Lady of Bellefonte Hospital where he stayed approximately eight days.  Thereafter, he was treated by a number of physicians for his physical problems.  Houston testified the workers’ compensation carrier recommended all the physicians who treated him.  Following the accident, he experienced sleeping problems, including nightmares and panic attacks.  He was prescribed Ambien for his sleeping problems.  He started seeing Brooke Vass (“Vass”), a nurse practitioner in 2015 for panic attacks and because of sleeping problems.  Vass prescribed medications including Ambien and referred him to Dr. Leia Meenach (“Meenach”), an APRN.  Meenach prescribed medication for post-traumatic stress disorder (“PTSD”), panic attacks, and anxiety.  After Houston began seeing Meenach, the workers’ compensation carrier sent a nurse to accompany him on his visits to her.  Traumatic memories regarding the event regularly surfaced, and his legs continued to hurt.  Houston was unaware he had written a suicide note.  He testified the workers’ compensation nurse and Meenach agreed he needed inpatient care and he was sent to The Brook Hospital in Louisville in March or April 2016.  He stayed for seven or eight days.  Houston then underwent partial inpatient and outpatient therapy for two weeks to a month.  During that same period he began seeing Dr. Khodeir with whom he is still treating.  He underwent surgery on his left knee in November 2015 and on his right knee in December 2015, both performed by Dr. Love.  He also saw Dr. DeGnore who prescribed a left foot brace. 

 

Houston was also sent to Dr. Danesh Mazloomdoost for pain management.  Dr. Mazloomdoost referred him to Dr. Brett Scott, a neurosurgeon, for implantation of a permanent spinal cord stimulator.  Dr. Mazloomdoost had previously implanted a trial spinal cord stimulator.   In addition to performing implantation surgery, Dr. Scott also prescribed an AFO brace for his right foot. Both braces are for a dropped foot.  At the time of his deposition, Houston was only seeing Drs. Mazloomdoost and Khodeir.

 

During the pendency of the claim, Houston successfully amended his motion to reopen to include a claim for a work-related dental condition and the resulting treatment allegedly caused by the October 31, 2012, accident.  Greenup County filed a medical fee dispute concerning the compensability of Viagra. 

 

The June 7, 2017, Benefit Review Conference (“BRC”) Order and Memorandum reflects the parties stipulated Houston sustained a work-related injury or injuries on October 21, 2012, and the stipulated injuries were: “right ankle sprain, left foot fracture, and left knee muscle tear only.  All others listed below are denied.”  As to Notice, Greenup County stipulated it received due and timely notice of Houston’s injuries with the following proviso: “Yes as to above issues only.”  The contested issues were listed as: “benefits per KRS 342.730; work-relatedness/causation; notice; unpaid or contested medical expenses; injury as defined by the ACT; and exclusion for pre-existing disability/ impairment.  Under “Other” was listed: “(at issue) Psychological, Right knee left knee hip foot drop, dental; change or worsening of condition for stipulated injuries, statute of limitations for at issue injuries; failure to follow medical advice; propriety of raising a new issue in reopening. MFD reasonableness necessity and work-relatedness of dental, psychiatric and Viagra.”

 

          Houston testified at the June 7, 2017 hearing.    He denied receiving a diagnosis of psychiatric problems prior to the November 2014 settlement.  Houston did not return to work after his knee surgeries because he was advised he would have to go back on the road. 

          In our previous decision, this Board held as follows:

Houston contends on appeal that he is not required to self-diagnose his condition nor is he required to give notice of each category of symptoms as they manifest.  He argues the disabling symptoms for both the physical and emotional injuries worsened after the 2014 settlement.  Houston contends Greenup County’s insurer had notice of all work-related injuries and voluntarily paid for all medical treatment.  Houston further asserts his work-related physical condition has worsened and he developed additional physical impairment and PTSD which are directly related to his work-related physical injuries.  In light of the violent trauma he sustained, Houston posits the subsequent undisputed development of PTSD was foreseeable and likely. 

 

Houston also argues the ALJ’s opinion provides no guidance as to how notice may have been lacking.  Rather, the ALJ merely stated there was no notice of these claims within the allowable statute of limitations.  He argues a reopening does not require notice of each new medical diagnosis which develops from a work-related condition.  Houston also asserts the statute of limitations was tolled when he filed his initial claim; therefore, his motion to reopen was timely filed.  Thus, Houston argues the ALJ’s findings that a lack of notice and the statute of limitations bars his claim are erroneous as a matter of law.

 

Concerning Greenup County’s reliance upon Slone v. Jason Coal Co., 902 S.W.2d 820 (Ky. 1995), in its motion to dismiss, Houston argues the facts in the case sub judice are different, as he merely had trouble sleeping and experienced nightmares after the accident for which he was prescribed medications by physicians who were not treating psychiatric conditions.  He asserts he was never diagnosed with a psychiatric condition or impairment and returned to work for almost a year and a half during which he settled his claim based upon an “orthopedic impairment.”  Since a psychiatric impairment was not present prior to the settlement, Houston argues he had no claim at the time of the settlement.  Houston outlines the psychiatric treatment he underwent, most of which occurred after November 25, 2014.  Houston argues the facts compel a finding contrary to that made by the ALJ.

 

. . .

 

         Houston argued he provided adequate notice pursuant to KRS 342.185.  He argued that notice to an employer of a physical injury adequately satisfies the requirement for notice of all conditions that may reasonably result from it.  Dawkins v. Lumber Co. v. Hale, 299 S.W. 991 (Ky. 1927) and Reliance Die Casting v. Freeman, 471 S.W.2d 311 (Ky. 1971). 

          We held as follows:

Houston’s failure to immediately report all body parts affected as a result of the accident does not equate to failure to give notice.  The ALJ’s finding that Houston failed to provide notice of “these claims” is erroneous as a matter of law.  The statute does not require notice of claims.  KRS 342.185(1) only requires notice of an accident be given to the employer as soon as practicable.  See Smith v. Cardinal Const. Co., 13 S.W.3d 623 (Ky. 2000).  Moreover, a worker is not obligated to give notice of a latent harm until the worker becomes aware of it.  Turner, Day and Woolworth Handle Co. v. Morris, 267 Ky. 217, 101 S.W.2d 921 (1937).  Likewise, if an employer receives notice of a work-related accident and what appears to be minor harm, it is excusable for the worker to fail to give notice of another more serious harm of which the worker is unaware.  Proctor & Gamble Mfg. Co. v. Little, 357 S.W.2d 866 (Ky. 1962).  This is especially true in the case sub judice as Greenup County and other law enforcement agencies were aware of Houston’s accident and his injuries on the date they occurred.  Keith Cooper, Greenup County Sheriff, acknowledged this during his April 3, 2017, deposition.  Sheriff Cooper unequivocally testified he was notified of the assault on Houston by the perpetrator but did not go to the accident scene.  Consequently, there is no question due and timely notice was provided to Greenup County, and notice is no longer an issue. 

 

In summary, if a worker gives notice of a work-related accident, and a harm resulting from the accident does not become apparent until sometime thereafter, further notice is not required until the harm develops into a compensable state.  Reliance Diecasting Co. v. Freeman, supra. Also, notice given to an employer by an employee of a work-related physical injury carries with it notice of all conditions which may reasonably be anticipated to result from the injury.  Dawkins Lumber Co. v. Hale, supra. Thus, the ALJ erred in finding notice had not been given.

 

We are unsure whether the ALJ dismissed Houston’s claim solely on the basis of what he perceived to be Houston’s failure to give notice, as he also stated Houston had not asserted “these claims” within the allowable statute of limitations.  In stating Houston did not assert these claims within the allowable statute of limitations period, the ALJ did not identify the claims to which he was referring nor the evidentiary basis for drawing this conclusion.  There are no findings of fact providing the evidence upon which the ALJ relied in reaching that conclusion.

   

Greenup County takes the position that Houston was required to give notice of all injuries and assert them within the allowable statute of limitations period.  Although the ALJ did not specifically so state, he may have relied upon the holding in Slone v. Jason Coal Co., supra, which does not address the failure to provide notice.  Rather, it relates to the timeliness of the claim asserted on reopening.  

 

          This Board additionally noted:

Here, Houston contended that multiple psychological problems manifested and became disabling after he settled his claim.  Thus, on remand, the ALJ must enter findings of fact addressing whether Houston had a known psychiatric claim at the time the claim was settled in November 2014.

 

Finally, in the last paragraph of his findings of fact and conclusions of law, the ALJ stated he was unpersuaded by the evidence presented that there was increase in impairment for the injuries listed in the original claim.  However, the ALJ did not cite to the evidence upon which he relied in making that statement, nor did he identify “the injuries actually listed in the original claims.”  Voluminous medical evidence was introduced including testimony that after the settlement in November of 2014, Houston underwent surgery on both knees, implantation of a spinal cord stimulator, and was prescribed braces for both feet.

 

Further, the compensability of dental treatment and Viagra were listed as contested issues and never addressed by the ALJ.  Thus, on remand, the ALJ must identify the injuries he considered to be a part of the original claim and resolve Houston’s entitlement to certain dental treatment and the use of Viagra. 

 

After identifying the physical injuries encompassed by the November 2014 settlement the  ALJ must determine whether there was a worsening of impairment due to a condition caused by the injuries since the date of the award or order.  KRS 342.125(1)(b). 

 

In addition, on remand the ALJ must determine whether Houston was unaware of any physical or psychological conditions at the time of settlement which are causally connected to the October 31, 2012, work injury.  As previously pointed out, Houston is not required to self-diagnose his physical and psychological conditions.  Further, any condition which is directly attributable to the October 31, 2012, injury of which Houston was unaware at the time he was injured and which manifested after settlement may be compensable either in the form of temporary or permanent income and medical benefits. 

 

          Finally, the Board, in reversing in part, and vacating in part, the ALJ’s dismissal of Houston’s claim, stated as follows:

We emphasize the ALJ must provide a sufficient basis to support his determination.  Cornett v. Corbin Materials, Inc., 807 S.W.2d 56 (Ky. 1991).  Parties are entitled to findings sufficient to inform them of the basis for the ALJ’s decision to allow for meaningful review.  Kentland Elkhorn Coal Corp. v. Yates, 743 S.W.2d 47 (Ky. App. 1988); Shields v. Pittsburgh and Midway Coal Mining Co., 634 S.W.2d 440 (Ky. App. 1982).  While an ALJ is not required to engage in a detailed discussion of the facts or set forth the minute details of his reasoning in reaching a particular result, he is required to adequately set forth the basic facts upon which the ultimate conclusion was drawn so the parties are reasonably apprised of the basis of the decision.  Big Sandy Community Action Program v. Chafins, 502 S.W.2d 526 (Ky. 1973). Here, the ALJ failed to provide findings of fact citing to the evidence upon which he relied in order to allow meaningful review by this Board.  Therefore, the findings of fact other than those relating to the issue of notice and the dismissal of Houston’s claim on reopening will be vacated.

 

Accordingly, the finding Houston failed to give notice of his claims and the dismissal of his claim on reopening for that reason are REVERSED.  The remaining findings of fact and conclusions of law as well as the order contained within the August 7, 2017, Opinion and Order dismissing Houston’s claim on reopening are VACATED.  This claim is REMANDED to the ALJ for entry of a decision resolving the issues identified in the June 7, 2017, BRC Order and at the hearing in accordance with the views expressed herein. 

 

In the Opinion on Remand, the ALJ again dismissed Houston’s reopening.  In his decision issued February 7, 2018, the ALJ determined as follows:

This matter is before the ALJ upon Remand from the Worker's Compensation Board (the "Board") with direction to re-visit all contested issues listed in the June 7, 2017, BRC Order, in light of the reversal of the dismissal for lack of notice and failure to file in a timely manner. Accordingly, the following Findings of Fact, Conclusions of Law, and Order are hereby entered:

 

Change or Worsening of Condition        for the Stipulated Injuries to the Right Ankle, Left Foot, and            Right Knee Muscle Tear

 

     1.   An employee has the burden of proof and the risk of non-persuasion to convince the trier of fact of every element of his worker’s compensation claim. Snawder v. Stice, 576 SW2d 276 (Ky. App. 1979).

 

     2.   The ALJ finds that the Plaintiff has failed to establish any worsening of condition for the above-referenced stipulated injuries. Specifically, the evidence in the record that addresses the impairment of the Plaintiff with respect to these issues other than that listed in the Form 110 Settlement Agreement (Dr. Best's 6% impairment) suggests that the Plaintiff has a lesser impairment.

 

     3.   The ALJ finds that the opinion of Dr. Zerga on this point is persuasive and convincing. Dr. Zerga assessed a 5% whole person impairment and noted that the surveillance video that he reviewed revealed that the Plaintiff exhibited at worst a mild gait derangement and was capable of returning to work as a police officer with no limitation on lifting or bending.

 

     4.   The ALJ finds based upon the opinion of Dr. Zerga after reviewing the surveillance video depicting the Plaintiff that the Plaintiff has fialed[sic] to establish a worsening of condition for the stipulated injuries of right ankle sprain, left foot fracture, and left knee muscle tear. The claim for benefits based upon a worsening of the referenced conditions is therefore hereby DISMISSED.

 

Statute of Limitations for Psychological Issues

 

     5.   As dictated by the Board, a finding regarding whether or not the Plaintiff had knowledge of his psychiatric issues at the time of the 2014 settlement must be initially made herein and is potentially dispositive.

 

     6.   The ALJ finds based upon the report of Kieth[sic] Haas, LCSW that the Plaintiff clearly had knowledge of his psychiatric issues prior to 2014. The referenced report specifically indicates that the Plaintiff reported the development of symptoms immediately following the incident and that the occurrence of the work injury triggered[sic] memories of other traumatic events that pre-dated the work incident. This constitutes clear and unambiguous evidence that the Plaintiff was aware of his psychological symptoms at the time of the 2014, settlement. Specifically, the Plaintiff makes a clear reference to the onset of symptoms having occurred immediately following the work incident.

 

     7.   The ALJ finds that the reported complaints of the Plaintiff as credibly documented by Kieth[sic] Hass demonstrate a clear acknowledgement of psychiatric complants[sic] that pre-date November of 2014. Accordingly, the ALJ finds that the Plaintiff's claim for benefits as a result of his psychiatric condition is barred by the statute of limitations and is therefore hereby DISMISSED.

Work-Relatedness of Dental Issues/ Failure to Follow Medical Advice

 

     8.   The foregoing findings most likely render this issue moot however the Order on Remand requires that all issues be addressed. ALJ is most persuaded on this issue by the thorough review and opinion provided by Dr. Isabel Hay who found bssed[sic] upon her review of the clinical notes, that a full mouth extraction was not indicated for the management of Mr. Houston’s pain complaints of dental and facial pain.  Dr. Hay cited the lack of obvious dental pathology such as dental decay, periodontal disease, or dental fractures in support of her opinion.

 

     9.   She further convincingly added that indications for a full mouth extraction include teeth that are severely damaged by dental caries, periodontal disease, periapical infections, trauma with multiple fractures, longitudinal fractures, and/ or an extensive periodontal bony defect and pointed out the notable absence of such pathology.   10.  Dr. Hay also agreed with the finding of Dr. Preston that the Plaintiff could have received routine dental treatment and that a full mouth extraction was not necessary. The opinions of Drs. Hay and Preston have convinced the ALJ and the ALJ thus finds that the full dental extraction at issue was not reasonable or necessary.

Compensability of Viagra

 

     11.  An employee has the burden of proof and the risk of non-persuasion to convince the trier of fact of every element of his worker’s compensation claim. Snawder v. Stice, 576 SW2d 276 (Ky. App. 1979).

 

     12.  The ALJ finds that there has been no showing of work-relatedness for the use of this medication and that absent any evidence to that effect, the Plaintff[sic] has failed to meet his burden to establish the work-relatedness of the medication.

 

ORDER

 

IT IS HEREBY ORDERED AND ADJUDGED as follows:

 

1.   For the foregoing reasons, it is hereby ordered that the Plaintiff’s claim for benefits as a result of an alleged worsening of condition shall be and hereby is DISMISSED. The Medical Fee Dispute regarding dental treatment and the medication Viagra is hereby resolved in favor of the Defendant.

 

Neither party filed a petition for reconsideration.  On appeal, Houston argues the ALJ again erred in dismissing the reopening.  He argues he was not required to “self-diagnose” or provide notice of each condition as the symptoms manifested.  Reliance Diecasting Co. v. Freeman, supra.  He argues Greenup had actual notice that he sustained work-related injuries, and it voluntarily paid for all of his treatment.  He argues his condition has worsened, including additional serious neurological conditions, additional physical impairment, and post-traumatic stress disorder (“PTSD”).  Houston admits he had trouble sleeping, and had nightmares after the work-related incident, for which he was prescribed sleep medication.  However, he denies he was treated for any psychiatric conditions, nor was he diagnosed with such condition until after he settled his claim in 2014. 

Greenup counters that Houston is merely asking this Board to reweigh the evidence, and make factual determinations, which it is not permitted to do.  In the alternative, it argues the ALJ’s decision is not clearly erroneous, and a contrary result is not compelled.

In our previous decision, this Board directed the ALJ to determine whether Houston was aware of psychiatric or psychological conditions in November 2014 when he settled the claim.  We noted Houston was not required to self-diagnose either his physical or psychological conditions.  We additionally directed that any condition directly attributable to the October 31, 2012 work injury which manifested after the settlement may be compensable.  We additionally directed the ALJ to determine whether Houston had sustained a worsening of his physical conditions.

We initially note that as the claimant in a workers’ compensation proceeding, Houston had the burden of proving each of the essential elements of his cause of action.  Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979).  Because Houston was unsuccessful in his 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).  The function of the Board in reviewing the ALJ’s decision is limited to a determination of whether the findings made by the ALJ are so unreasonable under the evidence they must be reversed as a matter of law.  Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000).

          As fact-finder, the ALJ has the sole authority to determine the weight, credibility and substance of the evidence.  Square D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993).  Similarly, the ALJ has the sole authority to judge all reasonable inferences to be drawn from the evidence. Miller v. East Kentucky Beverage/Pepsico, Inc., 951 S.W.2d 329 (Ky. 1997); Jackson v. General Refractories Co., 581 S.W.2d 10 (Ky. 1979).  An ALJ is vested with broad authority to decide questions involving causation.  Dravo Lime Co. v. Eakins, 156 S.W.3d 283 (Ky. 2003).  The ALJ may reject any testimony and believe or disbelieve various parts of the evidence, regardless of whether it comes from the same witness or the same adversary party’s total proof.  Magic Coal Co. v. Fox, 19 S.W.3d 88 (Ky. 2000); Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999).  Mere evidence contrary to the ALJ’s decision is not adequate to require reversal on appeal.  Id.  In order to reverse the decision of the ALJ, it must be shown there was no substantial evidence of probative value to support his decision.  Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986).

The Board, as an appellate tribunal, may not usurp an ALJ’s role as fact-finder by superimposing its own appraisals as to the weight and credibility to be afforded the evidence or by noting reasonable inferences could otherwise have been drawn from the record.  Whittaker v. Rowland, supra.  So long as the ALJ’s ruling with regard to an issue is supported by substantial evidence, it may not be disturbed on appeal.  Special Fund v. Francis, supra.

However, such discretion is not unfettered.  In reaching a determination, the ALJ must properly apply the law, provide findings sufficient to support his finding, and inform the parties of the basis for the decision to allow for meaningful review.  Kentland Elkhorn Coal Corp. v. Yates, 743 S.W.2d 47 (Ky. App. 1988); Shields v. Pittsburgh and Midway Coal Mining Co., 634 S.W.2d 440 (Ky. App. 1982); Big Sandy Community Action Program v. Chafins, 502 S.W.2d 526 (Ky. 1973).

In the Opinion on Remand, the ALJ determined Houston had not sustained a worsening of his physical condition, despite additional surgeries, based upon the evaluation and reports of Dr. Joe Zerga.  Dr. Zerga performed a physical examination, reviewed medical records and reports, and a surveillance video of Houston’s activities.  The impairment rating he assessed was less than the one reflected in the settlement agreement.  Dr. Zerga’s opinions support the ALJ’s determination that Houston did not sustain a worsening of his physical condition, and no contrary result is compelled. 

However, the ALJ’s determination regarding the compensability of Houston’s psychiatric/psychological issues remains deficient.  As noted above, the ALJ was directed on remand to determine whether Houston was diagnosed with such condition prior to settling his claim in November 2014.  On remand, the ALJ determined that based upon the report of Mr. Keith Haas, LCSW (“Mr. Haas”), Houston “clearly had knowledge of his psychiatric issues prior to 2014.”  A review of Mr. Haas’ records filed by Greenup fails to support the ALJ’s determination. 

Houston filed as evidence notes from Mr. Haas dated July 13, 2016 and September 23, 2016.  Mr. Haas described Houston as having PTSD linked to life-threatening experiences he encountered in the line of duty as a sheriff’s deputy.  He additionally noted Houston’s PTSD has had, and continues to have, a significant impact on his mood and functioning, and will impair his ability to work.  He noted Houston’s symptoms are severe.

We note Greenup filed Mr. Haas’ April 22, 2016 treatment record.  He noted Houston experienced many difficult situations as a law enforcement officer, but none had significant impacts on his mood or functioning until after the 2012 incident.  However, Mr. Haas’ records fall short of establishing Houston was diagnosed, or his conditions manifested prior to the settlement of his claim.  In fact, despite the ALJ’s findings, at no time did Mr. Hass state Houston was diagnosed with a psychiatric/psychological condition prior to the settlement of his claim in November 2014.  Therefore, we must vacate the ALJ’s determination dismissing Houston’s psychological claim. 

We have also reviewed the psychiatric and psychological evidence, including the records, reports and depositions of Dr. Tim Allen, Dr. Dante Oreta, Leia J. Meenach, APRN (“Nurse Meenach”), and Dr. Mohamed S. Khodeir.  None of these providers appear to support the ALJ’s determination that Houston was diagnosed with a psychological condition at the time of or before he settled his claim.  We acknowledge Dr. Oreta, in his somewhat illegible office note of December 9, 2013, noted Houston had some trouble sleeping since he was struck by a car the year before, and prescribed Ambien.  However, he did not diagnose a specific psychological or psychiatric condition.  Similarly, Nurse Meenach noted on January 28, 2016 Houston had some difficulty with sleep, flashbacks, anxiety, and panic attacks, but she did not specifically diagnose a psychological condition.  Nor does her note appear to establish Houston’s condition manifested prior to or at the time of the settlement of his claim.

We find Slone v. Jason Coal Co., 902 S.W.2d 820 (Ky. 1995) is inapplicable as a bar to Houston’s claim. In Slone, the claimant failed to assert a psychiatric injury in his original claim "although it was known to him by the use of ordinary prudence and diligence." Id. at 822. The claimant then asserted a worsening of the known psychiatric condition on reopening.  Here, although Houston was experiencing some difficulty sleeping, the ALJ has failed to point to evidence that he was aware of or had been diagnosed with a psychological condition at the time he settled his claim.  As noted above, the evidence particularly relied upon by the ALJ is that of Mr. Haas who did not see Houston until 2016, long after the claim was settled.

On remand, the ALJ is again directed to review the evidence and make a determination regarding whether Houston has a psychiatric or psychological condition, which had manifested at the time of the settlement of his claim in November 2014.  If there is no such evidence, the ALJ must determine whether Houston has a compensable work-related psychiatric or psychological claim, the extent of the condition, and entitlement to income or medical benefits.  We do not direct a particular result, but any determination must be based upon the evidence. 

We next address the ALJ’s determination regarding Houston’s dental treatment.  Relying upon Dr. Isabel Moreno Hay, DDS, the ALJ found Houston’s full mouth extraction is not compensable.  Dr. Hay’s opinions constitute substantial evidence upon which the ALJ could rely in arriving at his decision, and a contrary result is not compelled; therefore, we affirm the ALJ’s determination on this issue. 

Finally, this Board is permitted to sua sponte reach issues even if unpreserved but not raised on appeal. KRS 342.285(2)(c); KRS 342.285(3); George Humfleet Mobile Homes v. Christman, 125 S.W.3d 288 (Ky. 2004).  The ALJ determined Houston’s treatment with Viagra is not compensable.  He specifically found, “that there has been no showing of work-relatedness for the use of this medication and that absent any evidence to that effect, the Plaintiff has failed to meet his burden to establish the work-relatedness of the medication.” 

We note that notwithstanding the holding in C & T Hazard v. Chantella Stollings, et al., 2012-SC-000834-WC, 2013 WL 5777066 (Ky. 2013), an unpublished case from the Kentucky Supreme Court, a long line of reported decisions establishes in a post-award medical fee dispute, the employer bears both the burden of going forward and the burden of proving entitlement to the relief sought, except that the claimant bears the burden of proving work-relatedness. National Pizza Company vs. Curry, 802 S.W.2d 949 (Ky. 1991); Addington Resources, Inc. v. Perkins, 947 S.W.2d 421 (Ky. App. 1997); Mitee Enterprises vs. Yates, 865 S.W.2d 654 (Ky. 1993); Square D Company v. Tipton, supra.

The ALJ addressed treatment with this medication pursuant to previous direction by this Board.  We note there were no specific medical bills in dispute regarding this medication.  We also note Greenup did not support its medical dispute with any medical opinion.  There do not appear to be any disputed bills for such treatment in the record, nor does the record appear to contain any evidence either supporting the use of the medication, or finding it unreasonable or unnecessary.  It is apparent that Greenup did not satisfy its burden of going forward with this medical dispute, and it is premature for the ALJ to make a determination regarding compensability for such treatment.  Therefore, the ALJ’s determination regarding the compensability of treatment with Viagra is hereby vacated.  On remand, the ALJ shall review the record to determine if evidence exists supporting Greenup’s burden of going forward on this issue, or whether this medical dispute should be dismissed.

Accordingly, the February 7, 2018 Opinion on Remand rendered by Hon. Jonathan R. Weatherby, Administrative Law Judge, is hereby AFFIRMED IN PART, VACATED IN PART and REMANDED for additional determinations in accordance with the direction set forth above.

          STIVERS, MEMBER, CONCURS.

 

          RECHTER, MEMBER, CONCURS IN PART, DISSENTS IN PART, AND DOES NOT FURNISH A SEPARATE OPINION.

 

COUNSEL FOR PETITIONER:

 

HON STUART E ALEXANDER

2010 EDGELAND AVE

LOUISVILLE, KY 40204

 

COUNSEL FOR RESPONDENT:

 

HON MARCEL SMITH

300 EAST MAIN ST, STE 400

LEXINGTON, KY 40507

 

ADMINISTRATIVE LAW JUDGE:

 

HON JONATHAN R WEATHERBY

657 CHAMBERLIN AVE

FRANKFORT, KY 40601