PIKE COUNTY BOARD OF EDUCATION VS. COMP SMITH (THERESA), ET AL.
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RENDERED: JULY 23, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001728-WC
PIKE COUNTY BOARD OF EDUCATION
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-05-92891
THERESA SMITH; HONORABLE CHRIS
DAVIS, ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: MOORE, NICKELL, AND WINE, JUDGES.
NICKELL, JUDGE: Pike County Board of Education appeals from a decision of
the Workers’ Compensation Board affirming the award of total disability benefits
to Theresa Smith. Pike County argues: (1) the award of benefits based solely
upon a psychological injury was erroneous; and (2) the award of benefits was not
supported by substantial evidence. After reviewing the record and the briefs, we
affirm.
Smith was employed as a special education teacher by the Pike
County school system. On February 22, 2005, she was injured while placing files
in a cabinet and a drawer slid out and hit her on the head and neck. After the
accident, Smith returned to teaching and finished out the school day. Smith was
examined at the Pikeville Medical Center on the night of the accident. Smith
completed the remainder of the school year without missing more than a couple of
days even though she was still in pain.
Smith continued experiencing pain and headaches from the stress in
her neck and back. She had difficulty performing tasks at home and began to visit
Dr. Hager, her family physician. Dr. Hager ordered an MRI and prescribed pain
medication and muscle relaxers. Eventually, he referred Smith to Dr. Gilbert at the
Spine & Brain Neurological Center in Lexington. Dr. Gilbert diagnosed Smith
with neck sprain, cervalgia, lumbar degenerative disc disease, shoulder pain,
lumbago, lumbar sprain, and muscle spasms. Following the evaluation, Smith
began visiting Dr. Upadhyay at the Spine & Brain Center in Pikeville. As part of
her treatment, Smith received epidural injections, which eased the pain, but not the
headaches. Dr. Upadhyay also prescribed Lidoderm patches and Valium. Dr.
Hager also referred Smith to Dr. Forester because of depression and anxiety she
was displaying in the course of treatment.
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Smith stopped teaching completely in February 2006. She qualified
for disability teacher retirement and brought workers’ compensation claims for
both physical and psychological injuries. Smith filed a motion before the
Administrative Law Judge (ALJ) to appoint a university evaluator to assess both
claims. The ALJ stated that he wanted to review the medical evidence and Smith’s
testimony before ruling on the motion. The ALJ conducted a hearing. The ALJ
concluded Smith’s physical injuries would not entitle her to permanent income
benefits, but she did have a permanent condition sufficient to award future medical
benefits for the cervical spine claim.
Regarding the psychological claim, the ALJ considered the reports of
Dr. Johnson and Dr. Ruth. Dr. Johnson examined Smith on April 21, 2008. He
reported Smith suffered from major depression and anxiety disorder. He noted
Smith had experienced depression from 1999 to 2002, prior to the work-related
injury, but these episodes had subsided. Dr. Johnson concluded the injury at
school had caused the current major depression. Dr. Ruth examined Smith on May
31, 2007. Dr. Ruth concluded Smith had provided an accurate medical history but
was malingering and had a preexisting depressive disorder.
The ALJ concluded a university evaluation was needed and entered a
referral order pursuant to Kentucky Revised Statutes (KRS) 342.315. Dr. Allen,
the university evaluator, concluded Smith did not have an active psychological
impairment prior to the injury, but acknowledged her clinical presentation was
exaggerated. The ALJ concluded Smith was permanently and totally disabled and
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awarded benefits accordingly. Pike County filed a motion for reconsideration,
which the ALJ denied. The Board affirmed. This appeal followed.
Pike County first argues the award of total disability benefits based
solely on a psychological injury was erroneous. This argument was not brought
before the Board and has been raised for the first time before this Court. “Any
party who seeks to appeal a decision of the Board to the court system must have
preserved an assertion of error by having raised it first to the Board.” Breeding v.
Colonial Coal Co., 975 S.W.2d 914, 916 (Ky. 1998). This argument was not
brought before the Board; therefore, we will not consider it.
Pike County next argues the award of total disability benefits was not
supported by substantial evidence. KRS 342.0011(11)(c) defines total disability as
“the condition of an employee who, due to an injury, has a permanent disability
rating and has a complete and permanent inability to perform any type of work as a
result of an injury.” The standard of review for appeals from a decision of the
Board is well-established:
KRS 342.285(2) provides that the Board shall not
reweigh the evidence and substitute its judgment for that
of the ALJ with regard to a question of fact. The
standard of review with regard to a judicial appeal of an
administrative decision is limited to determining whether
the decision was erroneous as a matter of law. Where the
ALJ determines that a worker has satisfied his burden of
proof with regard to a question of fact, the issue on
appeal is whether substantial evidence supported the
determination. Substantial evidence has been defined as
some evidence of substance and relevant consequence,
having the fitness to induce conviction in the minds of
reasonable people. Although a party may note evidence
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which would have supported a conclusion contrary to the
ALJ's decision, such evidence is not an adequate basis for
reversal on appeal. The crux of the inquiry on appeal is
whether the finding which was made is so unreasonable
under the evidence that it must be viewed as erroneous as
a matter of law.
Ira A. Watson Dep’t Store v. Hamilton, 34 S.W.3d 48, 52 (Ky. 2000).
Based upon his examination, Dr. Allen concluded Smith had a 10
percent impairment. He also concluded Smith’s depression was unrelated to her
previous episodes of depression. Dr. Allen’s conclusions were consistent with the
findings of Drs. Johnson and Forester. Smith testified she could not return to work
and was unable to perform tasks at home. Pike County is asking this Court to
reweigh the evidence and reexamine the credibility of witnesses. As stated above,
these are questions within the province of the ALJ as fact-finder. Pike County also
alleges Smith has returned to work and, as such, the award of total disability is
erroneous. Pike County has filed a motion to reopen the award. The motion has
not been ruled upon and it is outside the province of this Court to make factual
findings upon evidence not in the record. We conclude the award of total disability
was supported by substantial evidence.
Accordingly, the decision of the Workers’ Compensation Board is
affirmed.
ALL CONCUR.
Todd P. Kennedy
Pikeville, Kentucky
BRIEF FOR APPELLEE,
THERESA SMITH:
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R. Roland Case
Pikeville, Kentucky
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