STAPLES, INC. V. DIANNE C. KONVELSKI; DONNA H. TERRY, Administrative Law Judge; and WORKERS' COMPENSATION BOARD
Annotate this Case
Download PDF
RENDERED: AUGUST 23, 2001
TO BE PUBLISHED
STAPLES, INC.
V.
APPELLANT
APPEAL FROM COURT OF APPEALS
NO. 2000-CA-000150-WC
WORKERS’ COMPENSATION BOARD NO. 98-01707
DIANNE C. KONVELSKI;
DONNA H. TERRY,
Administrative Law Judge; and
WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION OF THE COURT
AFFIRMING
An Administrative Law Judge (ALJ) determined that the claimant was totally
occupationally disabled by the combination of a work-related injury to her arm and
psychological conditions that resulted from the injury. Appealing, the employer
asserted that the existence of thoracic outlet compression and depression was not
established by objective medical findings as required by KRS 342.001 l(1) and that the
treating psychiatrist lacked a sufficient basis to conclude that the claimants
psychological condition was a direct result of her physical injury. The arguments were
rejected by the Workers’ Compensation Board (Board) and the Court of Appeals, and
this appeal by the employer followed.
The claimant was the general manager of one the employer’s stores. She
oversaw all store operations and employees but also helped move stock and unload
trucks of merchandise. On January 16, 1997, while workers were attempting to move
supplies, a box that weighed in the vicinity of 30-50 pounds fell from over her head and
struck her outstretched right arm. The top of her forearm and mid-upper biceps area
became painful, and eventually there was bruising. A subsequent x-ray revealed no
sign of a fracture, and the physician who examined her diagnosed contusions of the
right arm. She later sought treatment from her family doctor and a chiropractor for
continuing problems with her arm.
Nearly a year after the accident, the claimant saw Dr. Singer, an orthopedic
surgeon, giving a history of the incident and of pain from the shoulder to her hand. His
treatment records indicate that he saw her several times and that she was highly
emotional and frequently cried, demonstrating histrionic behavior and reacting as to
pain at the slightest touch. He ordered an EMG of the arm and a full-body bone scan,
both of which were normal, and referred the claimant to Dr. Atasoy. In Dr. Singer’s
opinion, the claimant could return to do what work she was able, without formal
restrictions. In view of her exaggerated pain response, he thought that there was a
psychological component to her symptoms but would defer to a psychiatrist for
confirmation of that opinion.
In April, 1998, the claimant began treatment with Dr. Atasoy. His examination
notes were extensive. They indicated that she exhibited equal skin temperature, no
atrophy, tenderness at the mobile wad, or lateral epicondylar tenderness, and had a
positive middle finger test with some right upper dorsal forearm pain. She was quite
-2-
tender in the right scalene and infraclavicular area, very tender with tapping and
compression with right hand coldness. She was quite tender in the right trapezial,
periscapular trigger points and very tender in the right rotator cuff and anterior shoulder
near the bicipital groove. She exhibited a positive stress test to right shoulder pain with
painful internal rotation, normal right shoulder abduction with pain in the right trapezia1
area. A positive neck tilt indicated neck and shoulder pain with right arm heaviness and
numbness in all fingers. Positive and negative hyperabduction revealed only right
upper arm discomfort, some right hand coolness, and no numbness and tingling.
Positive costoclavicular compression revealed right upper inner arm pain, right arm
heaviness and coolness of the right hand with tingling in all fingers. Her grip strength
was 18 pounds on the right and 60 pounds on the left. Based upon the foregoing, he
diagnosed right upper back myofascitis with right rotator cuff and bicipital tendinitis and
indicated that some symptoms were suggestive for right thoracic outlet compression.
Dr. Atasoy’s notes indicate that a number of these tests and others were performed
during subsequent visits. He assigned a 1518% functional impairment and imposed
restrictions on lifting, repetitive use of the right hand and arm, overhead work, and the
use of pneumatic tools.
In June, 1998, Dr. Atasoy referred the claimant to Dr. Kornfeld, a psychiatrist,
who was deposed on April 1, 1999, and who also submitted his treatment notes from
June 29, 1998, to March 23, 1999. In addition to recording the events and specific
behaviors that the claimant recounted and his conclusions with regard to her emotional
status, they contained some of his own observations. Included, for example, are
notations that she cried when relating certain information to him, that he observed that
she was seriously overweight, that she was withdrawn, and that during particular visits
-3-
she was preoccupied with certain matters.
Dr. Kornfeld indicated that he followed the method set forth in the American
Psychiatric Association’s Diaanostic and Statistical Manual d Mental Disorders, third
edition, otherwise known as the DSM Ill, in arriving at his diagnosis. His Axis I
diagnosis was major depression, post-traumatic stress disorder, and generalized
anxiety disorder. He found no evidence of a preexisting personality disorder and,
therefore, no basis to make an Axis II diagnosis. With regard to Axis Ill, he noted the
work-related injury and various prior, unrelated surgeries. He rated the Axis IV
psychosocial stressors as being severe, including the loss of her job, income, function,
and self-respect as examples. At a number of visits he rated the claimant’s level of
functioning under the loo-point scale that is used for Axis V. He explained that an Axis
V rating of 70 indicated normal functioning, that the claimant’s rating was 30 when he
first saw her, at which point she was “in terrible shape,” and that her rating later
improved to as high as 40. He testified that he had not performed an MMPI, WHAT or
other such standardized test on the claimant, that psychiatrists generally use such tests
only when a case is “absolutely bewildering,” and that it was not difficult to diagnose the
claimant’s problem or its source. In his opinion, the psychological conditions were
caused by the work-related injury and its financial consequences, and they left the
claimant with little, if any, ability to deal with the public, workplace stress, or with
supervisory personnel. Her ability to concentrate was impaired, and she was irritable
and preoccupied with her physical condition. Furthermore, her mental condition was
unlikely to improve until her physical condition improved to the point that she could work
again.
On cross-examination, Dr. Kornfeld testified that he had received a history of her
4
physical and psychological problems from the claimant. He had also received
information concerning the claimants history and the results of the diagnostic studies
from Dr. Atasoy, and his file contained both the letter of referral and a copy of
Dr. Atasoy’s treatment notes. He indicated that he had not personally verified whether
the claimant “truly has a medical condition . . in her upper extremity,” explaining that
matters concerning the physical effects of the trauma were outside his area of
expertise.
Dr. Weiss, a neurosurgeon, examined the claimant in December, 1997. His
report of the physical examination included observations that her gait and station were
normal, that there was no evidence of myelopathy (including specific observations that
led to this conclusion), that the claimant’s reflexes were hypoactive yet symmetric, that
muscle bulk and tone revealed no evidence of distal atrophy or fasciculations, that
foraminal opening and closure maneuvers and Spurling’s sign were negative, that the
range of motion in the neck was unimpaired, that there was no paraspinous muscle
spasm, and that there was no external sign of trauma on the right arm. He concluded
that there was no evidence of a neurologic disease or neurosurgical problem, and he
was unable to diagnose anything other than a year-old localized soft tissue contusion.
After reviewing the evidence, the ALJ noted that the claimant’s description of her
pre- and post-injury condition was supported in large part by that of two co-workers.
They described the claimant as being emotionally stable, hard-working, and energetic
before the injury. After the injury, they observed her being reduced to tears by pain in
her right arm, becoming irritable and difficult to please, dropping items such as a coffee
cup from her right hand, and crying when she could not keep up with the physical
demands of the job and the pressure of complying with the District Manager’s standards
-5
for her store. The ALJ noted that the claimant sustained a contusion in the incident at
work, determined that she had clearly sustained an injury as defined by the
December 12, 1996, version of KRS 342.0011 (I), determined that both Drs. Singer and
Atasoy thought she had developed a psychological condition as a result of the injury to
her right am, and concluded that the combination of the two problems resulted in a
total occupational disability. Based upon Dr. Kornfeld’s testimony, the ALJ concluded
that the psychological condition was a direct result of the physical injury and, therefore,
was compensable.
The employer asserts that the determinations that the thoracic outlet syndrome
and psychological conditions were compensable injuries, as defined by
KRS 342.0011 (l), were not supported by objective medical findings, pointing out that
only a contusion was evident immediately after the work-related incident. It also
complains that Dr. Kornfeld did not perform an MMPI, Beck Depression Inventory, any
neuropsychological testing, “or even a Rorschach Ink Blot test.”
The December 12, 1996, version of KRS 342.001 l(1) defines an “injury” in terms
of a work-related event that proximately causes a harmful change in the human
organism rather than in terms of the harmful change, itself. KRS 342.001 l(1) also
requires that the harmful change be evidenced by objective medical findings and that a
psychological, psychiatric, or stress-related injury must be the direct result of a physical
injury. Questions have arisen concerning whether a diagnosis may be considered to be
an objective medical finding. as that term is defined by KRS 342.001 l(33).
In Gibbs v.
Premier - A, Ky., - S.W.3d - (2001), we determined that a diagnosis may
Scale Co
comply with the requirements of KRS 342.001 l(1) and (33) if it is based upon
symptoms of a harmful change that are confirmed by means of direct observation
-6-
and/or testing applying objective or standardized methods. We explained that the term
“testing” does not require the use of sophisticated diagnostic tools and that both testing
and observation are not required. Although KRS 342.001 l(1) clearly requires that there
be objective medical findings of a harmful change in the human organism in order for
that change to be compensable, we are not persuaded that KRS 342.001 l(1) requires
causation to be proved by objective medical findings. In the instant case, the ALJ was
persuaded by the claimant’s experts, both with regard to the existence of the harmful
changes that she alleged and to the cause of those harmful changes. Where the ALJ
finds in favor of the party with the burden of proof, the standard for review of the finding
is whether it is supported in the record by any evidence of substance and, therefore, is
reasonable. Special Fund v. Francis, KY., 708 S.W.2d 641, 643 (1986).
The medical records that were in evidence in this case contained information
concerning the claimants complaints of symptoms, but they also contained information
concerning the direct observations of the physicians and the results of tests they
performed. Dr. Singer recorded a number of direct observations. Dr. Atasoy also
recorded a number of direct observations of the claimant and performed a number of
tests of her physical function before arriving at his diagnosis and determining that the
accident at work was the cause of the problems with her right arm. Dr. Weiss also
made a number of direct observations and performed some tests before concluding
that she suffered no more than a contusion. In instances where the medical evidence
is conflicting, the sole authority to determine which witness to believe resides with the
ALJ. Pruitt v. Bugg Brothers, KY., 547 S.W.2d 123 (1977).
Although the evidence concerning the severity and permanency of the harmful
change to the claimant’s arm was conflicting, it is apparent that substantial evidence in
-7-
the record supported the finding that the claimant suffered a disabling physical injury to
her right upper arm, and the employer has pointed to no evidence that compelled a
contrary finding. With regard to Dr. Kornfeld’s failure to perform certain standardized
tests to confirm his diagnosis, we refer the employer to the testimony that his diagnosis
was consistent with the standard set forth in the DSM Ill and note the dearth of expert
testimony that it was not. Dr. Kornfeld made direct observations of the claimant that
supported his diagnosis, and both Drs. Singer and Atasoy concluded from their
observations and testing that there was a psychological component to the claimant’s
physical problems. Finally, in view of the fact that the existence of the claimants
physical injury was outside Dr. Kornfeld’s area of expertise, but was within Dr. Atasoy’s
area of expertise, it was appropriate for him to rely upon Dr. Atasoy’s opinion with
regard to that fact. This reliance in no way weakened the evidentiary value of his
opinion that the claimant’s psychological problems were a direct result of her physical
injury and, in fact, could be viewed as strengthening it. The ALJ’s finding that the
claimant sustained a disabling psychological injury as a direct result of her physical
injury was supported by substantial evidence in the record and, therefore, it should not
be disturbed on appeal.
The decision of the Court of Appeals is affirmed.
All concur.
-8-
COUNSEL FOR APPELLANT:
Hon. C. Patrick Fulton
FULTON & DEVLIN
2000 Warrington Way, Ste. 165
Louisville, KY 40222
COUNSEL FOR APPELLEE
KONVELSKI:
Hon. Kenneth F. Smart
62 public Square
Leitchfield, KY 42754
-9-
2000-SC-01050-WC
APPELLANT
STAPLES, INC.
APPEAL FROM COURT OF APPEALS
WORKERS’ COMPENSATION BOARD
98-O 1707
V.
DIANNE C. KONVELSKI;
HON. DONNA H. TERRY, ALJ, AND
WORKERS’ COMPENSATION BOARD
APPELLEES
ORDER DENYING PETITION FOR REHEARING
The Petition for Rehearing of this Court’s opinion rendered August 23, 2001, filed
by appellant is denied.
The motion for limited remand and objection to motion for protective order filed by
appellant on August 13, 2001, is denied as moot.
All concur.
ENTERED: October 252001
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.