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May 18, 2018 201568092

Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED:  May 18, 2018

 

 

CLAIM NO. 201568092

 

 

COMMUNITY NEWSPAPER HOLDINGS                   PETITIONER

 

 

 

VS.          APPEAL FROM HON. R. ROLAND CASE,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

TABATHA HART AND

HON. R. ROLAND CASE,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

AFFIRMING

 

                       * * * * * *

 

 

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

 

ALVEY, Chairman.   Community Newspaper Holdings (“CNH”) appeals from the January 9, 2018 Opinion, Award and Order rendered by Hon. Roland Case, Administrative Law Judge (“ALJ”).  The ALJ determined Tabatha Hart sustained a work-related left knee injury on August 13, 2015, requiring three surgeries.  He also determined she developed psychological conditions due to her physical injury requiring treatment with therapy and medications, and which resulted in the assessment of an impairment rating.  The ALJ awarded temporary total disability (“TTD”) benefits, permanent partial disability (“PPD”) benefits, and medical benefits, both for Hart’s physical injury and psychological condition.  CNH also appeals from the February 8, 2018 order denying its petition for reconsideration.

On appeal, CNH argues the ALJ erred in awarding income and medical benefits for Hart’s psychological condition.  It argues the ALJ’s decision is not supported by substantial evidence.  CNH specifically argues Dr. Dennis Sprague’s opinions, upon which the ALJ relied in finding Hart sustained a work-related psychological condition, are flawed because he was provided an incomplete or inaccurate history of her conditions.  It cites to the holding in Cepero v. Fabricated Metals Corp., 132 S.W.3d 839 (Ky. 2004). Because we determine the ALJ did not err in his determination regarding Hart’s condition, and substantial evidence supports his decision, we affirm.

Hart filed a Form 101 on August 31, 2016.  She alleged she injured her left knee on August 13, 2015 when she tripped over a pallet in her employer’s parking lot.  At the time of her accident, Hart worked in the mailroom for CNH.  Her job required her to place inserts and packs into newspapers.  That job required standing and walking throughout the day.  She was also required to lift forty-pound newspaper bundles.  Hart’s previous work history included working as a cashier, and manager for restaurants.  Hart later filed a motion to amend the Form 101 to include an allegation of a psychological condition stemming from her left knee injury.  The ALJ granted the motion to amend the Form 101 by order on May 7, 2017.

Hart testified by deposition on January 18, 2017, and at the hearing held November 8, 2017.  Hart was born on January 24, 1977, and is a resident of Lily, Kentucky.  At the time of her accident, she worked for CNH in London, Kentucky.  At the time of her deposition, she continued to work for CNH in a light duty capacity, earning the same hourly pay, but working fewer hours.  At the time of her hearing, she no longer worked for CNH, but was employed by an insurance agency selling policies.  She testified that while she was on light duty she was allowed to sit as needed.  She testified both at her deposition, and at the hearing, that she had never received treatment for post-traumatic stress disorder or depression prior to her left knee injury. 

On August 13, 2015, Hart was working the third shift for CNH.  She was on her way to the designated break area, at an unlit side of the building.  She did not see a black pallet in the parking lot.  She tripped over it and injured her left knee.  She completed her shift, and returned to work the following day, but was only able to work for a few hours.  She went to the hospital the next day.  She initially treated with Dr. Ronald Belhausen, an orthopedic surgeon.  He referred her to Dr. Darren Johnson, an orthopedic surgeon at the University of Kentucky.  Dr. Johnson performed three left knee surgeries, the last in January 2017.  She returned to work from the third surgery on February 20, 2017.  She testified that because of her injury and surgeries, she can no longer bend or squat, nor can she lift or carry heavy items.  She stated she has difficulty climbing stairs, and some days she limps more than others.

Hart stated she began having problems with anxiety, nervousness, panic attacks, and sleeping difficulty approximately four months after her second surgery, and began treating with Cumberland River Comprehensive Care.  She denied she had previously experienced previous bouts of depression.  When she underwent counseling, she started thinking back to a sexual assault she experienced when she was in college.  The counseling was sought due to her knee injury.

The ALJ awarded Hart benefits in part due to the physical injury she sustained to her left knee.  In awarding PPD benefits, he relied upon the 10% impairment rating assessed by Dr. Frank Burke pursuant to the American Medical Association, Guides to the Evaluation of Permanent Impairment, 5th Edition (“AMA Guides”) for her left knee.  The ALJ noted Dr. Daniel D. Primm, Jr. assessed a 7% impairment rating pursuant to the AMA Guides.  The parties also introduced Dr. Johnson’s records, and those from the Baptist Health Group.  Since the ALJ’s award of PPD benefits for the left knee injury is not challenged on appeal, we will not review the medical records pertaining to that condition.

Hart filed Dr. Sprague’s June 27, 2017 report.  Dr. Sprague evaluated Hart at the request of her attorney.  Dr. Sprague noted he had reviewed records from Dr. Tim Allen who had evaluated Hart at CNH’s request.  He also acknowledged he had reviewed records from Dr. Nancy Graham and Dr. Yvonne Bishop from Cumberland River Comprehensive Care.  Dr. Sprague noted Hart’s previous unrelated right knee injury and surgery.  He also noted her August 13, 2015 left knee injury.  He specifically noted she had not had either inpatient or outpatient psychiatric or psychological therapy prior to the August 13, 2015 work injury.

Dr. Sprague diagnosed Hart with depressive features consistent with her medical condition with mixed features, body dysmorphia, and mild post-traumatic stress disorder.  He stated, “There was an indication of both anxiety and depressed features in behavior along with chronic pain symptoms.”  Dr. Sprague assessed a 7% impairment rating based upon the second edition of the AMA Guides, all of which he related to the work injury.  He stated none of the impairment rating was due to a pre-existing active condition.

Dr. Allen evaluated Hart on February 21, 2017 at the request of CNH.  In his report dated February 28, 2017, he noted the August 13, 2015 work injury, and subsequent surgeries.  He diagnosed Hart with post-traumatic stress disorder and persistent depressive disorder with anxious distress.  He determined her psychological conditions stem from a sexual assault she experienced while in college, and post-partum depression from the birth of her twins in 1997.  He found she was at maximum medical improvement from her psychological condition.  He found she does not require psychological treatment or medication due to her work injury, but may need it for her pre-existing conditions.  He assessed a 5% impairment rating pursuant to the second edition of the AMA Guides for her pre-existing psychological condition, and none due to her work injury.

CNH also filed records from Cumberland River Comprehensive Care for treatment and counseling Hart received from Drs. Graham and Bishop from April through September 2016.  The records reflect complaints of anxiety, depression, trouble sleeping, and nightmares.  Hart advised she had experienced nightmares since she underwent a sexual assault at the age of 17.  She also noted she had post-partum depression from the birth of twins in 1997.  Dr. Graham diagnosed Hart with post-traumatic stress disorder, social phobia, and depressive disorder NOS.  There is no indication in the records that she had ever received psychological or psychiatric treatment prior to the August 13, 2015 work injury.  The records reflect Drs. Graham and Bishop prescribed medication for her mental treatment.

A benefit review conference (“BRC”) was held on October 2, 2017.  The BRC order and memorandum reflects Hart allegedly sustained a work-related injury on August 13, 2015.  The contested issues included whether Hart retains the capacity to return to the work performed on the date of the injury. The other issues listed included benefits per KRS 342.730, work-relatedness/causation of Hart’s psychological condition, exclusion for pre-existing disability/impairment for the psychological condition; and TTD (rate/duration).

As noted above, the ALJ relied upon the 10% impairment rating assessed by Dr. Burke for the physical injury to Hart’s left knee.  Regarding Hart’s psychological condition, the ALJ found as follows:

The evidence concerning a psychological impairment consists of Dr. Sprague assessing a 7% impairment and Dr. Allen finding a 5% impairment. Dr. Allen felt the impairment was due to a pre-existing condition with no impairment related to the work injury; however, he did feel the work injury had exacerbated the pre-existing condition. On the other hand, Dr. Sprague assigned the 7% impairment totally to the work injury in question. Again, the ALJ has reviewed the conflicting evidence from Dr. Allen and Dr. Sprague and has considered the testimony of the plaintiff as well as her history. Although, the plaintiff obviously suffered a very traumatic event in the past, she was receiving no treatment prior to the injury of August 13, 2015. She was not receiving any psychiatric care prior to the injury in question. Subsequent to the injury, the plaintiff has begun receiving psychological treatment. Based on the time-line of no treatment prior to the injury of August 13, 2015 for at least a significant number of years and the fact that she was satisfactorily performing her job until the injury of August 13, 2015 and was receiving no active psychological care at that time, the ALJ is persuaded that the plaintiff does have a psychiatric impairment resulting from the injury in question. Even Dr. Allen admits that the injury in question exacerbated her pre-existing condition. Based on the timeline in this case, the ALJ is persuaded that if the plaintiff had a pre-existing psychiatric condition it was exacerbated by the injury of August 13, 2015. The ALJ is therefore persuaded that Dr. Sprague correctly assessed the plaintiff with a 7% psychiatric impairment due to the injury in question.

 

. . .

 

Since the plaintiff has a 10% physical impairment and a 7% psychological impairment the combined values chart of the AMA Guides must be used. A 10% impairment with an additional 7% impairment equals a 16% whole person impairment based on the combined values chart and it is so found.

 

In this case the ALJ finds Dr. Burke correctly indicated the plaintiff would have a 10% physical impairment and Dr. Sprague correctly indicated the plaintiff would have a 7% psychological impairment. The combined values of these two values is 16% whole person impairment which carries a multiplication factor of 1 for a 16% permanent partial disability under KRS 342.730(1)(b).

 

However, the analysis does not end there as the ALJ must also determine whether the provisions of KRS 342.730(1)(c)1 or 2 apply.  Subparagraph one applies when the plaintiff lacks the physical capacity to return to the type of work he was performing at the time of his injury and has not returned to earning same or greater wages. If the plaintiff is earning same or greater wages a determination must be made as to whether the plaintiff will be able to continue doing so for the indefinite future. If employment is found to be not likely then the three multiplier would apply. See Fawbush vs Gwynn, [sic] 103 SW3d 5 (KY 2003).

 

In this particular case, the plaintiff did return to work at equal or greater wages following the injury. The plaintiff is not presently working at a job earning equal or greater wages. The issue is whether the plaintiff retains the physical capacity to return to the type of work performed at the time of her injuries. In this case, the ALJ is persuaded the plaintiff does have the physical capacity to return to work being performed at the time of the injury. The plaintiff did return to work earning equal or greater wages. However, she has since ceased that employment and started working for a different employer earning less wages. If an employee, for any reason, with or without cause, except where the reason is the employee’s conduct shown to have been an intentional and deliberate action with reckless disregard of the consequences either to himself or to another, the worker is entitled to a two factor pursuant to KRS 342.730(1)(c)2. See Livingood vs Transfreight, LLC, 467 SW 3rd 249 (KY 2015). In this case, although the plaintiff did return to work earning equal or greater wages, she has ceased that employment and is therefore entitled to the two factor since she is now earning less wages than what she was earning at the time of her injury.

 

The plaintiff will be entitled to a 16% whole person impairment rating multiplied by 1 multiplied by 2 and multiplied by $199.86 or the sum of $63.96 during the periods that she earns less wages that she did while working for the defendant employer. During the period of time that the plaintiff returns to work earning equal or greater wages the plaintiff will be entitled to the sum of $31.98. The appropriate award will be entered.

 

Both Hart and CNH filed petitions for reconsideration.  Hart requested the ALJ to specifically designate the periods to which she would be entitled to the application of the two multiplier contained in KRS 342.730(1)(c)2.  CNH argued the ALJ erred by failing to take into account the holding by the Kentucky Supreme Court in Cepero v. Fabricated Metals Corp., supra, in finding Hart sustained a compensable psychological condition.  It argued  Dr. Sprague made no mention of Hart’s previous problems with post-partum depression, sexual assault, and her strained/ contentious relationship with her abusive mother, among other factors.  It argued Dr. Sprague’s opinion is, “corrupted by his deficient, erroneous, incomplete, and/or inaccurate history.”  It requested the ALJ change his decision, and rely upon Dr. Allen’s report.

The ALJ issued two orders on February 8, 2018 regarding the petitions for reconsideration.  In the first order, he amended the award to include the dates to which Hart would be entitled to the application of the two multiplier.  In the second order, he overruled CNH’s petition for reconsideration.  He specifically held as follows:

IT IS HEREBY ORDERED that the Defendant’s petition is OVERRULED. The ALJ did consider the holding in Cepero vs. Fabricated Metals Corp., 132 SW3d 839 (Ky. 2004). However, as the ALJ discussed on pages 11 through 13 of his Opinion, he was persuaded by the opinion of Dr. Sprague that the psychiatric impairment was caused by the injury. The ALJ was particularly persuaded by the timeline since the Plaintiff specifically denied prior depression and alcohol or drug abuse. She specifically indicated she had received no prior psychological treatment. Additionally, even Dr. Allen admitted the injury in question exacerbated any pre-existing condition. Dr. Sprague specifically indicated her psychological complaints were the result of the work-related injury and explained the causal relationship as being “she developed symptoms of anxiety, depression as well as chronic pain symptoms post-status injury date August 13, 2015.” The ALJ is persuaded by the credible testimony of the Plaintiff concerning the lack of prior symptoms or treatment and the opinion of Dr. Sprague that the psychological impairment was caused by the injury of August 13, 2015.

 

On appeal, CNH argues the ALJ erred in finding Hart’s psychological condition compensable.  It argues it was improper to rely upon Dr. Sprague’s opinions because the information available to him was substantially incomplete or inaccurate.  CNH, relying upon the holding in Cepero v. Fabricated Metals Corp., supra, argues the ALJ’s decision regarding compensability of Hart’s psychological condition and treatment should be reversed. 

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 discretion to determine 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).  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).  Although a party may note evidence supporting a different outcome than that reached by an ALJ, such proof is not an adequate basis to reverse on appeal.  McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974).  The Board, as an appellate tribunal, may not usurp the 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 that otherwise could have been drawn from the record.  Whittaker v. Rowland, 998 S.W.2d 479, 481 (Ky. 1999).  As 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, 708 S.W.2d 641, 643 (Ky. 1986).

As an initial matter, we note that in order for Hart’s psychological condition to be considered pre-existing, CNH was required to prove it was both active and impairment ratable prior to the date of the accident.  Finley v. DBM Technologies, 217 S.W.3d 261 (Ky. App. 2007).  As noted above, there is no evidence of record establishing Hart’s condition was active prior to the work injury, or that she had ever received any treatment for such condition prior to August 13, 2015.

          CNH also argues the ALJ’s decision regarding Hart’s psychological condition is not supported by substantial evidence.  Citing to Cepero v. Fabricated Metals Corp., supra, CNH argues an opinion from a physician regarding causation who relies upon an inaccurate or largely incomplete history cannot constitute substantial evidence.  This case is distinguished from Cepero, which is an unusual case involving not only a complete failure to disclose, but also affirmative efforts by the employee to cover up a significant injury to the left knee only two and a half years prior to the alleged work-related injury to the same knee.  There is no evidence of such failure in this case.  The burden was on the employer to prove this failure and it did not do so.

In this instance, the evidence supports the ALJ’s decision regarding Hart’s psychological condition.  We note CNH’s argument that Hart had multiple prior events which could have caused or impacted her mental condition.  However, there is absolutely no evidence she had ever previously treated for such condition, prior to the work-related August 13, 2015 injury.  We also note that contrary to CNH’s assertion, Dr. Sprague outlined that he had Dr. Allen’s report, and the records from Cumberland River Comprehensive Care available to review at the time of his evaluation.  Merely because Dr. Sprague did not outline the contents of those records does not establish he did not review them.  We note Dr. Sprague was not deposed or cross-examined to determine what he  reviewed or considered in arriving at his decision.

          Based upon the foregoing, we determine the ALJ appropriately considered the evidence in finding Hart’s psychological condition is compensable.  The ALJ’s determination is supported by substantial evidence, and will not be disturbed.

          Accordingly, the January 9, 2018 Opinion, Award and Order and the February 8, 2018 order on reconsideration rendered by Hon. Roland Case, Administrative Law Judge are hereby AFFIRMED.

          ALL CONCUR.

 


 

 

COUNSEL FOR PETITIONER:

 

HON H CLAY LIST

3292 EAGLE VIEW LN, STE 350

LEXINGTON, KY 40509

 

COUNSEL FOR RESPONDENT:

 

HON TIM WILSON

309 NORTH BROADWAY

LEXINGTON, KY 40508

 

ADMINISTRATIVE LAW JUDGE:

 

HON R ROLAND CASE

657 CHAMBERLIN AVE

FRANKFORT, KY 40601