MYERS (RONALD) VS. COMPENSATION PRIVATE INVESTIGATIONS AND COUNTER INTELLIGENCE, INC. , ET AL.Annotate this Case
RENDERED: OCTOBER 10, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-04-79799
PRIVATE INVESTIGATIONS AND
COUNTER INTELLIGENCE, INC.;
HON. SHEILA C. LOWTHER,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION
** ** ** ** **
BEFORE: CLAYTON, NICKELL, AND TAYLOR, JUDGES.
CLAYTON, JUDGE: Ronald Myers petitions for a review of a decision of the
Workers’ Compensation Board (Board) which affirmed the administrative law
judge’s (ALJ) order dismissing his claim for income and medical benefits against
Private Investigations & Counter Intelligence, Inc. (Private Investigations). Myers
argues that the ALJ erred in rejecting the opinion of the university evaluator, Dr.
Michelle Mattingly, who attributed causation of Myers’ psychological impairment
to the work-related injury. Finding that there was substantial evidence supporting
the ALJ’s findings and conclusions, we affirm.
FACTS AND PROCEDURAL BACKGROUND
Myers was employed by Private Investigations as a scoop operator
and worked as a leased employee at the Blue Diamond Mine #75. His employment
at Private Investigations was from April through August 2004. On August 2, 2004,
Myers sustained a work-related injury when he was struck on the head by the
canopy on the scoop, which was not properly secured. Following the injury,
Myers briefly lost consciousness and was taken to the Hazard Area Regional
Hospital (Hazard ARH) emergency room and treated for a head injury. Since his
release from the hospital, Myers has never returned to any form of gainful
employment. Myers testified that he experiences daily, debilitating headaches and
psychiatric symptoms caused by the injury. His claim for benefits was twopronged, alleging permanent impairment as a result of traumatic brain injury and
The ALJ’s opinion was entered on April 9, 2007. Following the
ALJ’s denial of Myers’ petition for reconsideration, the Board’s decision,
affirming the ALJ, was entered on November 2, 2007. This petition for review
followed. As noted above, the primary issue on appeal concerns ALJ’s rejection of
the opinion of the university evaluator, Dr. Michelle Mattingly. Dr. Mattingly is a
psychologist who is board certified in Clinical Neuropsychology. Dr. Mattingly’s
evaluation of Myers, pursuant to Kentucky Revised Statutes (KRS) 342.315,
attributed the causation of Myers’ psychological impairment to the work-related
injury. Yet, after the testimony of other medical experts, the ALJ dismissed
Myers’ claim for benefits in its entirety, and the Board upheld her decision.
First, before turning to the psychological impairment, the Court notes
that with regards to the physical injury resulting from this work accident, although
the evidence was mixed, the ALJ was more persuaded by the opinions of Dr.
Travez Tucker, a neurologist and director of the University of Kentucky Headache
and Pain Clinic (the KRS 342.315 evaluator); Dr. Kenneth Graulich, an examining
neurologist, and Dr. Robert Granacher, a board certified psychiatrist and
neurologist. The ALJ concluded, based on the aforementioned medical reports,
that there was no evidence of traumatic brain injury. This portion of her decision
has not been challenged on appeal.
With regard to both the physical and the psychological injury, we are
attentive to the entry of the Hazard ARH treatment records, covering an extended
period of time prior to the August 2004 work-related injury. Notably, the records
show that Myers was seen there in 1994 after he was involved in a head-on motor
vehicle accident and again in 1997 following another motor vehicle accident.
After the 1997 incident, Myers complained of pain in the left temporal area of his
head as well as headaches. He believed his injuries were the result of a fight
between himself and the other driver following the accident.
Myers, on appeal, is contesting the ALJ’s decision with regards to the
nexus between his head injury and his emotional, psychological, and psychiatric
condition. The Board found that the medical evidence regarding this issue was
accurately summarized by the ALJ. We will not repeat the ALJ’s thorough and
accurate summary in its entirety but note that the ALJ discussed at length the
evaluation of three physicians: Dr. Mattingly, Dr. Granacher, and Dr. David
Shraberg. At the request of Private Investigations, Dr. Shraberg performed a
psychiatric evaluation of Myers on August 15, 2005. Dr. Shraberg’s diagnosis was
major depression with a recent overdose, a personality disorder with paranoid and
narcissistic features, an intermittent explosive disorder, and apparent cervical
sprain or strain with possible concussion or occipital neuralgia. Furthermore, he
concluded that Myers was at maximum medical improvement physically and that
the current psychiatric dysfunction was based on an underlying disorder.
Significantly, Dr. Shraberg found no measurable psychiatric impairment
attributable to the work-related injury.
On January 18, 2006, Dr. Mattingly evaluated Myers. In her report,
Dr. Mattingly stated that Myers demonstrated extreme emotions during the
evaluation ranging from uncontrollable crying to explosive anger. Based on this
factor, she was unable to accurately determine his cognitive function.
Furthermore, her report indicated that Myers denied any history of anxiety,
depression or violence. Thereafter, Dr. Mattingly attributed his current
psychological symptoms to the work-related injury. Her diagnosis was major
depression, single episode, severe.
On March 6, 2006, Dr. Granacher evaluated Myers at the request of
Private Investigations. His conclusion was that there was no evidence of brain
injury or neuropsychiatric disturbance resulting from the 2004 accident.
Moreover, he found no impairment that would prevent Myers from returning to
Ultimately, the ALJ found the opinions of Drs. Shraberg and
Granacher more persuasive and rejected Dr. Mattingly’s opinion. Her reasons are
explained in her decision:
Mr. Myers is also asserting that he has a
psychiatric impairment. Dr. Shraberg and Dr. Granacher
concluded that there was no such impairment as the result
of the 2004 accident. However, Dr. Mattingly testified
that this accident represented a “life changing” event,
which gave rise to a serious and disabling psychiatric
condition. The ALJ has reviewed her report and
deposition. She is clearly well-qualified. However, the
undersigned feels compelled to reject her findings and
any presumptive weight to which they might otherwise
be entitled. Dr. Mattingly received a history from the
plaintiff and his girl friend of a marked change in his
behavior following the accident, and essentially
concluded that there was no explanation for this change
other than the 2004 event. In contrast, Dr. Shraberg
concluded that the plaintiff’s behavior arises from a fairly
severe personality disorder of a lifetime nature. Like Dr.
Mattingly, Dr. Granacher was unable to obtain reliable
cognitive test results. The VSVT suggested that the
plaintiff deliberately chose incorrect responses. The
MMPI-2 suggested exaggeration of his problems. In
light of this evidence from Dr. Shraberg and Dr.
Granacher, the undersigned rejects Dr. Mattingly’s
conclusions and finds that Mr. Myers has failed to prove
the existence of a psychiatric impairment attributable to
the work-related accident.
Opinion at p. 16.
Based on her analysis, the ALJ dismissed Myers’ claim for income and medical
benefits. We now examine the legal issues surrounding this dispute.
STANDARD OF REVIEW
When reviewing Board decisions, this Court will only reverse the
Board when it has overlooked or misconstrued controlling law or so flagrantly
erred in evaluating the evidence that it has caused gross injustice. Western Baptist
Hospital v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992). To review the Board’s
decision, we must first study the ALJ’s decision because the ALJ, as the fact
finder, has the sole authority to judge the weight, credibility, substance, and
inferences to be drawn from the evidence. Paramount Foods, Inc., v. Burkhardt,
695 S.W.2d 418-19 (Ky. 1985). Additionally, it is important to be aware that
Myers bears the burden of proof with respect to every element of the case. See
Caudill v. Maloney’s Discount Stores, 560 S.W.2d 15 (Ky. 1977).
KRS 342.315(2) provides in relevant part:
[T]he clinical findings and opinions of the designated
evaluator shall be afforded presumptive weight by
administrative law judges and the burden to overcome
such findings and opinions shall fall on the opponent of
that evidence. When administrative law judges reject the
clinical findings and opinions of the designated
evaluator, they shall specifically state in the order the
reasons for rejecting that evidence.
Myers relies heavily on Magic Coal Co. v. Fox, 19 S.W.3d 88 (Ky.
2000) to support his argument that the ALJ erred and did not give presumptive
weight, as required under KRS 342.315(2), to the reports prepared by the
university evaluator, Dr. Mattingly. But we believe he misconstrues the statutory
requirements. In essence, he argues that the ALJ is precluded from rejecting Dr.
Mattingly’s report that he sustained significant work-related psychological
impairment unless overcome by “clear and convincing” evidence.
Myers’ discussion of the “clear and convincing” evidentiary standard
observes that this standard is required in termination of parental rights and right to
die cases, but he never provides statutory or case law mandating the “clear and
convincing” standard application to a decision by an ALJ who rejects the
recommendation of a university evaluator. Moreover, an examination of Magic
Coal specifically rejects the “clear and convincing” evidence standard in such
The clear and convincing evidence standard is not found
in Chapter 342, and we have been directed to no judicial
decision which has employed that standard with regard to
the essential facts of a workers' compensation claim. In
view of the foregoing, we are persuaded that had the
legislature intended for the presumption created by KRS
342.315(2) to be overcome only by clear and convincing
evidence, it would have so declared.
Id. at 95.
At this point, Myers reiterates the evidence, and claims that Dr.
Mattingly’s statements are not rebutted by the testimony of the other physicians.
Additionally, the other physicians’ opinions, according to Myers, sharply differ.
He asserts that the ALJ’s opinion is deficient because she did not resolve their
differences. In addition, Myers broadly claims that Dr. Mattingly’s testimony
withstood cross-examination and no other evidence on the record rises to the level
of “clear and convincing.” Therefore, Myers believes the evidence supports a
finding of psychiatric impairment and an award of medical and income benefits.
Having now addressed his incorrect assertion that the “clear and
convincing” standard applies in such cases, we return to Magic Coal for the
Court’s explanation of the evidentiary requirements of KRS 342.315(2). Under the
requisites of the statute, the Court concludes that the procedural effect of the
presumption created by the statute is governed by Kentucky Rules of Evidence
(KRE) 301, and further. does not shift the burden of persuasion. Id.
Furthermore, the Court instructs to overcome the presumptive weight
afforded the university evaluator’s opinion, the ALJ must provide a reasonable
basis for doing so. Id. at 97. As later explained by the Kentucky Supreme Court,
this provision does not restrict the ALJ's authority to weigh conflicting medical
evidence and to choose which evidence to believe. Indeed, an ALJ may choose to
disregard the clinical findings and opinions of the university evaluator if a
reasonable basis for doing so is provided. Bright v. American Greetings Corp., 62
S.W.3d 381, 383 (Ky. 2001) citing Magic Coal, 19 S.W.3d at 88. In fact, contrary
to the opinion’s language cited above explaining the ALJ’s reasons for rejecting
the university evaluator’s opinion, Myers still opines in his brief that the ALJ
failed to set forth specific reasons for rejecting Dr. Mattingly’s evaluation.
The Board noted in its opinion that, while Dr. Mattingly steadfastly
maintained that the work-related injury caused the psychiatric impairment, she also
conceded that Myers presentation was consistent with malingering and that his
daily use of marijuana could also affect him. And as noted by the ALJ in the
opinion, Dr. Shraberg recognized Myers’ psychological impairment but believed it
was unconnected to physical injury and related to emergent personality
dysfunction. Dr. Granacher, like Dr. Mattingly, identified marijuana and alcohol
abuse in his diagnosis but found no neuropsychiatric disturbance as result of the
work-related accident. And he pointed out test results that were consistent with
intentional choice of incorrect responses.
Therefore, in her evaluation of the conflicting testimony, the ALJ
determined that Myers’ condition was not caused by the work-related accident.
The rationale provide in her decision is reasonable, specific, and comports with the
dictates of KRS 342.315(2) as interpreted in Magic Coal.
We are persuaded that the ALJ stated a reasonable basis for choosing
to rely on Drs. Shraberg and Granacher’s medical conclusions. It is axiomatic that
an award of income or medical benefits is not compelled for a non-work-related
condition. The decision of the Workers’ Compensation Board is affirmed.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Thomas W. Moak
W. Barry Lewis