PREFERRED INDUSTRIES, INC. v. ROGER MCDONALD; HON. W. BRUCE COWDEN, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
NOVEMBER 17, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2006-CA-000590-WC
PREFERRED INDUSTRIES, INC.
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-04-98145
ROGER MCDONALD; HON. W. BRUCE
COWDEN, ADMINISTRATIVE LAW JUDGE;
AND WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; GUIDUGLI AND JOHNSON, JUDGES.
GUIDUGLI, JUDGE:
Preferred Industries, Inc., has petitioned for
review of the February 17, 2006, opinion of the Workers’
Compensation Board, which affirmed in part, vacated in part, and
remanded the matter to the Administrative Law Judge for further
proceedings in accordance with its opinion.
The Board vacated
the portion of the ALJ’s opinion, order and award granting Roger
McDonald an award of future medical benefits for his
psychiatric/psychological impairment.
In that we believe the
Board’s opinion vacating and remanding on this issue was
necessary to permit the ALJ to either correct his findings of
fact or to deny the award of future medical benefits, we affirm.
McDonald injured his back on December 20, 2003, while
he was lifting a fourteen-foot pipe weighing between 200 and 300
pounds.
When the initial medical treatment of chiropractic care
and physical therapy provided little relief, McDonald underwent
back surgery on May 26, 2004.
He subsequently returned to work
for a new employer, worked seven days, and then quit, claiming
he could no longer perform the job.
that time.
He has not worked since
According to the ALJ’s opinion, since then he has
been referred to pain management and been seen for psychological
issues, including depression, because he cannot work.
The medical evidence was summarized by the ALJ as
follows:
4. Medical evidence consists of the
following: The Administrative Law Judge
recognizes a report from Sharon Inman from
Four Rivers Behavioral Health in which the
Plaintiff was seen on January 14, 2005 for
symptoms of depression which are the result
of the Plaintiff’s inability to work and the
Plaintiff’s chronic pain. The
Administrative Law Judge also recognizes a
disability status report from Dr. Theodore
Davies dated July 28, 2004 in which Dr.
Davies diagnosed lumbago and degeneration of
the lumbar intervertebral disc and that the
Plaintiff would be off work until the next
visit on August 25, 2004.
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5. The Administrative Law Judge also
recognizes the medical report from Dr.
Theodore Davies dated March 23, 2005. Dr.
Davies noted that an MRI scan showed disc
protrusion at the L4-L5 level which was to
the left. Because the Plaintiff had failed
conservative treatment the Plaintiff was
given a choice of surgical intervention
which was carried [out] on May 26, 2004
which consisted of a lumber hemilaminectomy
and discectomy at L4-L5 on the left side.
In surgery it was revealed that the
Plaintiff had a displaced disc with a
rupture fragment which was found and removed
at that time. Dr. Davies diagnosed lumbar
disc displacement and lumber radiculopathy.
He further opined that the injury was the
cause of the Plaintiff’s symptoms and that
the Plaintiff’s work which required bending
and lifting aggravated the lumbar disc
degeneration and specifically this event.
He put the Plaintiff’s whole body impairment
at 10% and opined that the Plaintiff did not
have an active impairment prior to the
injury. Dr. Davies further noted that the
Plaintiff described his work activities and
opined that the Plaintiff is presently not
able to perform the activities of his job
and that he should avoid any heavy lifting,
repetitive bending, lifting or twisting
motions with regard to his lower back or
operate heavy vibratory equipment or work in
extremes of cold and cold and dampness. He
furthermore opined that the Plaintiff does
not retain the physical capacity to return
to the type of work that he did before. He
put the Plaintiff’s lifting restrictions up
to 20 pounds on an occasional basis and
frequent lifting of less than 10 pounds with
occasionally less than 10 pounds. He
further opined that the Plaintiff could
stand and walk a total of 4-6 hours a day
and sit a total of 2-4 hours a day. He
further stressed that pushing and pulling
would be limited though they are not tested
and that the Plaintiff should avoid
continuous or repetitive use of foot pedals.
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With regards to specific work limitations,
the Plaintiff should also avoid heavy
lifting, repetitive bending, lifting and
twisting activities of the lower back.
6. The Administrative Law Judge also
recognizes the medical report of Dr. Ellen
Ballard introduced by the Defendant/Employer
dated May 31, 2005. Dr. Ballard believed
that the Plaintiff’s complaints of pain in
the Plaintiff’s back and pain in the left
leg may be related to the reported work
injury of December 20, 2003 but the
Plaintiff was not consistent with his
history. Dr. Ballard indicated that the
Plaintiff returned to work and was doing
some other labor and the Plaintiff indicated
that he was never able to return to work and
his present symptoms of complaints were out
of proportion to the findings on examination
and a review of testing. In Dr. Ballard’s
opinion, the Plaintiff’s restrictions would
be no constant, repetitive bending and
stooping and a 50 pound weight limit. She
furthermore noted that the Plaintiff could
return to the type of work that he performed
at the time of the alleged injury provided
that he is able to accommodate the
restrictions as indicated. She did not
believe that the Plaintiff required any
additional medical treatment and believed
that the Plaintiff demonstrated multiple
Waddell’s signs. These included pain with
axial loading, pain with leg rolling and
decreased sensation over the entire left leg
in a non-dermatomal fashion and
inconsistency with straight leg raising.
Based upon these medical reports in the record, the
ALJ accepted Dr. Davies’ 10% impairment rating as to the back
injury, found that McDonald did not retain the physical capacity
to return to the type of work that he had performed at the time
of the injury, and imposed the 3 times multiplier pursuant to
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KRS 342.730(1)(c)(1).
As to McDonald’s psychological injury
claim, the ALJ found:
10. In addition, the Plaintiff alleges in
his Form 101 that the Plaintiff is in need
of counseling as a result of the injury in
question. The Plaintiff testified that he
has suffered from depression as a result of
the work injury and has been referred to
pain management although the Plaintiff is
not interested in pursuing pain management.
In addition, the Administrative Law Judge
cites to the medical report of Sharon Inman
dated January 14, 2005 in which the
Plaintiff was seen for symptoms of
depression that are a direct result of the
Plaintiff[’s] inability to work and his
chronic pain. The Defendant/Employer argues
that since there is no permanent impairment
rating assessed for this psychiatric
condition that the Plaintiff is not entitled
to medicals to treat same.
11. From this medical report it
appears that the Plaintiff’s depression can
be indirectly related to the Plaintiff’s
chronic pain emanating from the work injury
and therefore the Plaintiff has sustained
his burden of so showing. Although there
has been no permanent rating that has been
rendered in this case as a result of the
Plaintiff’s depression and no income
benefits can be derived from this condition,
the Administrative Law Judge will find that
inasmuch as the Plaintiff has sustained his
burden of so showing that the depression can
be related to the Plaintiff’s chronic pain
which therefore indirectly related to the
injury that medical expenses to treat the
Plaintiff shall be the responsibility of the
Defendant/Employer and/or its insurance
carrier in this case. (Emphasis added.)
Based upon these findings, the ALJ awarded McDonald
compensation for his back injury and ordered Preferred or its
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insurance carrier to pay for the “cure and/or relief from the
effects of the work injury such surgical, medical and hospital
treatment . . . as may reasonably be needed to treat
[McDonald’s] injury and thereafter during disability.”
Preferred filed a petition for reconsideration, arguing that the
ALJ erroneously awarded medical benefits for McDonald’s “alleged
psychological condition” since the ALJ had found that the
psychological condition was only an “indirect” result of his
physical injury.
Preferred’s motion was denied, and it appealed
to the Board.
On appeal, the Board stated that the “issue on appeal
involves the ALJ’s award of medical benefits pursuant to KRS
342.020 for secondary psychological overlay despite the fact
that no psychiatric/psychological impairment rating was
submitted by [McDonald] as evidence.”
As an alternative theory
of error, Preferred argued that KRS 342.020 and Coleman v. Emily
Enterprises, Inc., 58 S.W.3d 459 (Ky. 2001), clearly mandate
that to be compensable, a psychological, psychiatric or stressrelated injury must be a direct result of a physically traumatic
event.
Upon reviewing the arguments raised in light of the
record and applicable law, the Board held that the ALJ’s
decision to award future medical was not in line with his
specific finding that the depression was indirectly related to
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his injury.
Therefore, the Board vacated the ALJ’s decision on
that issue and remanded for further findings.
In effect, the
Board said that if the ALJ’s findings were correct, then the
psychological injury was a direct result of the back injury and
future medical expenses should be paid.
Specifically, the Board
stated:
Despite the malapropos use of the term
“indirectly,” the ALJ appears to otherwise
describe a line of causation – from original
injury to chronic pain and loss of
employment to depression – that is unbroken.
The record contains no evidence that
McDonald suffers from physical pain as a
result of any source other than the December
23, 2003, injury. Under such circumstances,
the general rule is that all of the
injurious consequences that flow from a
work-related physical injury and that are
not attributable to an unrelated cause are
compensable. Beech Creek Coal Co. v. Cox,
314 Ky. 743, 237 S.W.2d 56 (1951). Hence,
when reviewed in context, we believe the
ALJ’s ruling more than likely establishes a
finding of proximate causation as opposed to
remote causation.
That having been said, authority
requires an ALJ in rendering a decision to
make sufficient findings of fact and rulings
of law to adequately apprise the parties and
this Board of the basis of his decision in
order to permit meaningful appellate
[review]. Kentland Elkhorn Coal Corp. v.
Yates, 743 S.W.2d 47 (Ky.App. 1988); Shields
v. Pittsburg & Midway Coal Mining Co., 634
S.W.2d 440 (Ky.App. 1982). Preferred
Industries is correct that from the actual
language used in the opinion and award
concerning the cause of the respondent’s
depression, we cannot be certain the ALJ
applied the correct standard. In instances
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where the harmful change is psychological,
psychiatric, or stress-related, it must
“directly” result from a physically
traumatic event. Lexington-Fayette Urban
County Government v. West, 52 S.W.3d 564
(Ky. 2001). Therefore, we vacate the ALJ’s
award of psychiatric/psychological medical
benefits and remand this mater for further
findings and analysis with regard to
application of the proximate causation
standard. All other aspects of the ALJ’s
decision are affirmed.
The Board then went on to discuss that future medical expenses
are compensable based upon Coleman v. Emily Enterprises, Inc.,
supra, and then added the following paragraph, which Preferred
now argues is a mandate for the ALJ to award future medical
expenses to McDonald:
In the case at bar, depending on the
ALJ’s ruling on remand with regard to
direct/proximate causation, we find
sufficient evidence of substantial probative
value to support an award of
psychiatric/psychological medical benefits.
As already pointed out by the ALJ below, the
medical report of Sharon Inman and
[McDonald’s] own testimony are adequate to
sustain such an award. The fact that there
is no corresponding impairment rating
directly attributable to McDonald’s
depression contained in the record is not
controlling.
This petition for review followed.
On petition for review, Preferred argues that the
ALJ’s finding that the psychological overlay was not directly
related to the back injury is controlling and that the Board
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substituted its judgment for that of the ALJ.1
While it is clear
that the ALJ did state that there was only an indirect
relationship between the physical injury and the resulting
psychological condition, as pointed out by the Board, his other
findings clearly show a direct causal path from the injury to
his psychological problems.
The reports of Dr. Davies and
Sharon Inman are sufficient evidence of the direct connection.
If the ALJ relied upon these reports, which it appears he did,
then his finding of only an indirect relationship is clearly
erroneous.
However, if the ALJ’s determination that the
relationship was only indirectly shown is correct, then to grant
future medicals is legally incorrect.
Since the ALJ’s opinion
is either factually incorrect or legally incorrect, the Board
had no alternative but to vacate it and remand for further
findings and analysis, as it did.
It is well established that
the function of this Court in reviewing the Board “is to correct
the Board only where the [] Court perceives the Board has
overlooked or misconstrued controlling statutes or precedent, or
committed an error in assessing the evidence so flagrant as to
cause gross injustice.”
Western Baptist Hospital v. Kelly, 827
S.W.2d 685, 687-88 (Ky. 1992).
In that the Board correctly
determined that the ALJ made errors in assessing the evidence or
1
McDonald did not file an appellate brief in the matter. That may be because
he had stated previously that he would not seek psychological treatment.
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misconstrued controlling statutes, it was bound to vacate and
remand so that the ALJ could correct his error and issue a new
opinion which, if appealed, could be properly reviewed.
As
such, we find no error in the Board’s opinion.
As to Preferred’s argument that this case should be
held in abeyance pending the Supreme Court of Kentucky’s
decision in United Parcel Service v. Montgomery, et al., appeal
No. 2005-SC-000791, we agree with the Board that the cases are
distinguishable and therefore there is no basis to hold this
case in abeyance.
For the foregoing reasons, we affirm the opinion of
the Board entered February 17, 2006.
ALL CONCUR.
BRIEF FOR APPELLANT:
No brief for appellees.
Samuel J. Bach
Henderson, Kentucky
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