TROVER CLINIC v. ANNIE J. MOORE; ROBERT L. WHITTAKER, Director of SPECIAL FUND; RONALD W. MAY, Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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RENDERED: December 23, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1998-CA-000794-WC
TROVER CLINIC
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION OF
THE WORKERS' COMPENSATION BOARD
ACTION NO. 94-044877
ANNIE J. MOORE;
ROBERT L. WHITTAKER, Director of
SPECIAL FUND; RONALD W. MAY,
Administrative Law Judge; and
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** ** ** **
BEFORE:
HUDDLESTON, KNOX and MILLER, Judges.
HUDDLESTON, Judge.
Trover Clinic seeks review of a March 2, 1998,
opinion of the Workers’ Compensation Board affirming the decision
of an Administrative Law Judge that Trover Clinic is responsible
for Annie J. Moore's psychological condition as the result of a
physical injury she sustained while in its employment.
We have
reviewed the arguments advanced on appeal in accordance with the
standard established in Western Baptist Hospital v. Kelly, Ky., 827
S.W.2d 735 (1992).
Since the Board has adequately set forth the
salient facts and correctly applied pertinent law, we adopt the
Board's opinion as our own.
The
Trover
Clinic
("Trover")
appeals
from
the
decisions of Hon. Ronald W. May, Administrative Law Judge
("ALJ"), rendered September 29, 1997 and from his order
dated
October
29,
reconsideration.
bility
of
Annie
1997
overruling
its
petition
for
The issues on appeal are the compensaJ.
Moore's
("Moore")
psychological
condition and whether the ALJ abused his discretion at
the hearing when he reached a diagnosis of a psychological condition and reopened discovery.
Moore is 42 years of age with an 11th grade education and has obtained a GED.
vocational training.
She has no specialized or
Her work history includes employ-
ment as an x-ray assistant and as a machine operator in
sewing factories.
Since 1976, Moore has worked for
Trover as a surgical assistant scheduling patients for xrays and surgery, supply clerk, and physician’s assistant
assisting in examinations and carrying supplies to and
from patient rooms.
On September 2, 1994, Moore experienced a pain in
her low back and into her left hip while assisting in
lifting
a
patient.
She
later
began
numbness and pain into her right leg.
to
experience
She continued
working and, on October 2, 1994, she was lifting another
patient and experienced a worsening of her pain. She saw
a physician and was taken off work and was referred to
Dr. Dominguez, who performed back surgery on December 14,
1994.
Moore returned to work as a central supply clerk
from June 19, 1995 through July 7, 1995 and as an
2
appointment clerk on July 10, 1995 for 2 ½ days.
She
again worked from October 27, 1995 through November 3,
1995 as a clerk scheduling surgeries and organizing
files.
She has not worked since November 3, 1995.
In
April 1996, Moore was hospitalized for psychological
problems.
This
claim
originally
came
on
for
Madisonville, Kentucky on May 1, 1996.
hearing
at
Based upon the
ALJ's observations of Moore at the hearing and the fact
that
she
had
been
hospitalized
in
the
month
prior
thereto, the ALJ permitted Moore to amend her application
to
allege
psychological
injuries
and
evidence
was
reopened on that issue as well as causation and workrelatedness of any psychological problems.
A supple-
mental
telephone
pre-hearing
conference
was
held
by
following which the parties were given to and including
May 26, 1997 in which to file concurrent briefs with the
case standing submitted effective May 30, 1997.
Medical records of Trover were filed dating back to
December 28, 1972 when Moore was seen for evaluation
concerning anxiety with depression and hyperventilation
syndrome when she was 17 years of age.
The examining
physician thought her problem was one of inadequate
personality development.
Moore was seen in 1984 for
multiple complaints and anxiety was noted.
She was seen
on August 24, 1994 for stomach and abdominal pain and her
3
diagnoses included probable anxiety/depressive disorder
which
was
clinically
improved.
Notes
from
Trover
following the injuries included a May 3, 1995 treatment
note stating anxiety improving, a December 15, 1995 note
listing chronic back pain resulting in depression, a
January 15, 1996 note indicating improving depression,
and a February 13, 1996 note including the diagnoses of
back pain with a chronic nature and gastritis and those
same diagnoses were repeated in a visit of March 11,
1996.
On April 23, 1996, the assessment was (1) history
of depression with anxiety; (2) chronic back pain; and
(3) esophagitis with gastritis.
Dr. Lawrence Katz, a psychiatrist, first saw Moore
in the hospital on April 11, 1996 when she was admitted
because of anxiety and depression.
Moore was hospital-
ized from April 11 to April 13, 1996.
Dr. Katz stated
Moore’s earlier records indicated some previous problems
with depression and anxiety but there was nothing in
those records to indicate she was suffering from any
major depression prior to her work-related injury.
It
was his opinion that at that time Moore was suffering
from major depression being between moderate to severe
and was unable to perform her activities of daily living.
He felt Moore’s work-related injury and resulting pain
and inability to work exacerbated her mental state to the
point of major depression which was disabling.
4
He noted
during her hospitalization she was in denial of having
anything psychologically wrong with her.
He indicated
with proper treatment Moore's psychological symptoms
should get better but it was difficult to say when.
The
usual course of a major depression is about six months
but it may go into years and it can become recurrent.
Dr. Robert Granacher, a psychiatrist, examined Moore
on June 12, 1996.
MMPI testing revealed a classic
chronic pain pattern and no evidence of mental illness.
He noted Moore did seem to have painful condition [sic]
but
it
was
problem.
not
presently
translated
into
a
mental
Dr. Granacher stated he found no evidence of
mental disorders as a result of the alleged work-related
injury
and
disorder.
was
unable
to
identify
any
personality
He did not believe Moore's mental condition
would prevent her from working in any way.
He stated
Moore’s records document at least one and one-half years
of mental illness prior to her work-related injury.
He
thought Moore was suffering from mental disorder earlier
but had no significant mental disorder at the time of his
examination. He thought a more proper description of her
condition would be a somatization disorder rather than
major depression. Moore's tests on MMPI produced a valid
result and the pattern was consistent with chronic pain
syndrome.
5
Wayne Fuller, a psychologist, reviewed the report of
Dr. Granacher and his test results and conducted a
clinical interview with Moore on October 3, 1996. It was
his impression that Moore suffered from a dysthymic
disorder for quite some time and had periods in which she
had
an
possibly
adjustment
and
[sic]
disorder
with
adjustment
depressed
disorder
mood
with
and
mixed
emotional features as an overlay to her dysthymia.
It
was his opinion that Moore’s depression was related to
her injury.
He felt her prior condition was dysthymia
because she had been able to work with that condition.
It was his opinion that Moore was not able to function
occupationally
due
to
the
combination
of
her
pain
disorder and her major depression.
After summarizing the evidence, the ALJ entered the
following finding relevant to this appeal:
16. The ALJ is persuaded that prior to the injuries of September 2, 1994 and October 2, 1994,
plaintiff was suffering from a pre-existing dysthymic disorder and/or somatization disorder that was
episodic in nature but was not vocationally disabling. The ALJ is further persuaded that the work
related injuries, surgery and resulting pain exacerbated the pre-existing disorder resulting in a
major depression that complicated and interfered
with plaintiff's ability to cope with the physical
effects of her injuries and contributed to and
prolonged the course of her recovery and her period
of temporary total disability.
The evidence is
further persuasive that plaintiff has responded
favorably to treatment and while continuing further
treatment may be necessary to prevent a recurrence
of her depression, that her depression was no
longer contributing to her vocational disability as
of June 12, 1996 being the date she was examined by
Dr. Granacher.
Accordingly, the ALJ finds that
6
plaintiff was temporarily totally disabled from
October 5, 1994 to June 8, 1995 (being the date Dr.
Dominguez reported plaintiff was at maximum medical
recovery from the physical effects of her injury)
and again from November 3, 1995 to June 12, 1996.
In response to Trover's petition for reconsideration, the ALJ entered the following:
A person may suffer from anxiety and mild depression that can be considered medically active but
not vocationally disabling. Indeed, psychiatrists
often tell us that a person may have a psychiatric
impairment of up to 10% whole body but still be
considered normal within the context that there is
no vocational disability. Such a person may suffer
from some unusual or greater stress which aggravates the pre-existing “medically active” but nondisabling condition into a major depression until
appropriately treated.
The ALJ believes this is
what occurred to plaintiff as indicated in paragraph 16 of the decision dated September 29, 1997.
On appeal, Trover argues the ALJ did not use the
proper standard in determining whether the psychological
condition was compensable.
Trover argues the ALJ found
Moore's psychological condition pre-existed her alleged
physical injury and was either exacerbated or aggravated
by that injury and, therefore, the ALJ implicitly found
the psychological condition was not compensable.
Trover
argues Moore must prove that the alleged psychological
condition was the direct result of her alleged injury and
not
merely
existing
indicated
an
exacerbation
condition.
the
or
Trover
psychological
aggravation
contends
condition
the
was
[sic]
an
evidence
not
work-
related and therefore even the award of medical benefits
was improper.
7
Moore had the burden of proving each of the essential elements of her claim. Snawder vs. Stice, Ky. App.,
576 S.W.2d 276 (1979). Where the party who does not bear
the burden of proof is unsuccessful before the ALJ, the
question on appeal is whether the ALJ's decision is
supported by substantial evidence. Wolf Creek Collieries
vs. Crum, Ky. App., 673 S.W.2d 735 (1984).
Substantial
evidence is defined as evidence of relevant consequence
having the fitness to induce conviction in the minds of
reasonable persons.
Smyzer vs. B. F. Goodrich Chemical
Co., Ky., 474 S.W.2d 367 (1971).
It is not enough for
Trover to show that there is some evidence that would
support a contrary conclusion.
McCloud vs. Beth-Elkhorn
Corp., Ky., 514 S.W.2d 46 (1974).
As long as the ALJ's
decision is supported by substantial evidence, we may not
reverse.
Special Fund vs. Francis, Ky., 708 S.W.2d 641
(1986).
The ALJ, as fact finder, has the sole authority to
determine the weight, credibility, substance and inferences to be drawn from the evidence.
Paramount Foods,
Inc., vs. Burkhardt, Ky., 695 S.W.2d 418 (1985).
Where
the evidence is conflicting, the ALJ may choose whom and
what to believe.
S.W.2d 123 (1977).
Pruitt vs. Bugg Brothers, Ky., 547
The ALJ may choose to believe parts
of the evidence and disbelieve other parts, even when it
comes from the same witness or the same party's total
8
proof.
Caudill vs. Maloney’s Discount Stores, Ky., 560
S.W.2d 15 (1977).
Furthermore, this Board may not
substitute its judgment for that of the ALJ in questions
of fact.
KRS 342.285(2).
The definition of injury in KRS 342.0011(1) which
applies to this claim excludes psychological, psychiatric, or stress-related changes in the human organism
unless they are the direct result of a physical injury.
The
question
here
is
whether
there
is
substantial
evidence of record to find Moore's major depression was
a direct result of the work injury and/or its residuals.
Dr. Katz found no evidence of major depression prior to
her work-related injury. Wayne Fuller, the psychologist,
indicated Moore’s prior condition was dysthymic disorder,
which is a different diagnosis from major depression.
Fuller
indicated
Moore
has
been
able
to
work
with
dysthymia but was unableto function occupationally due to
the combination of her pain disorder and her major
depression.
Katz
is
We believe the evidence from Fuller and Dr.
substantial
evidence
which
would
support
a
finding that the major depression was the result of the
work injury and its residuals.
Although the ALJ did not
use the words “direct result,” it is sufficiently clear
from his Opinion and from the order concerning the
petition for reconsideration that he considered the major
9
depression to be the direct result of the physical injury
and its residuals.
We therefore affirm.
Trover also argues the ALJ abused his discretion at
the hearing when he reached a diagnosis of a psychological condition in the absence of any evidence to support
that
finding.
Following
Moore's
testimony
at
the
hearing, the ALJ conferred with the attorneys.
The ALJ
indicated
had
it
was
obvious
to
him
that
Moore
an
emotional condition and was totally disabled on that day
but he was unable to determine how much of it was the
result of physical causes and how much was the result of
emotional causes.
The ALJ indicated he did not wish to
require Trover to pay any amount of disability that
Moore's physical disabilities would be enhanced by the
psychological condition if it was not work-related nor
did he wish to grant Moore an award of benefits less than
she might be entitled to if the condition were workrelated.
taking
The ALJ has wide discretion in controlling the
of
proof
and
the
flow
of
cases
before
him.
Cornett vs. Corbin Materials Inc., Ky. 807 S.W.2d 56
(1991).
Abuse
of
discretion
has
been
defined,
in
relation to the exercise of judicial power, as that which
"implies arbitrary action or capricious disposition under
the circumstances, at least in unreasonable and unfair
decisions."
See Kentucky National Park Commission vs.
Russell, 301 Ky. 187, 191 S.W.2d 214 (1945).
10
Clearly,
the ALJ did not wish either party to be prejudiced with
relation to the psychological claim.
The ALJ crafted
what he believed to be the most expeditious means of
handling the psychological claim by reopening discovery.
We find no abuse of discretion by the ALJ in this claim.
Accordingly, the decision of Hon. Ronald W. May,
Administrative Law Judge, is hereby AFFIRMED and this
appeal is DISMISSED.
The
decision
of
the
Workers'
Compensation
Board
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE
ANNIE MOORE:
John C. Morton
Samuel J. Bach
MORTON & BACH
Henderson, Kentucky
Thresa N. Taylor
VAUGHN & HINTON
Madisonville, Kentucky
BRIEF FOR APPELLEE
SPECIAL FUND:
Joel D. Zakem
LABOR CABINET
Louisville, Kentucky
11
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