HENDERSON COUNTY SHERIFF'S DEPARTMENT COMPENSATION VS. EVANS (SHERRY), ET AL.
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RENDERED: JULY 11, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-000107-WC
HENDERSON COUNTY SHERIFF'S DEPARTMENT
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-05-98272
SHERRY EVANS; HONORABLE JAMES L. KERR,
ADMINISTRATIVE LAW JUDGE; AND WORKERS'
COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: LAMBERT, MOORE, AND WINE, JUDGES.
LAMBERT, JUDGE: The Henderson County Sheriff’s Office (Sheriff’s Office)
appeals from an order and award entered in favor of Sherry Evans (Sherry) by the
Administrative Law Judge (ALJ) and upheld by the Workers’ Compensation Board
(Board). After careful review, we affirm.
On August 31, 2004, Sherry was employed by the Sheriff’s Office as
a civil process server. She reported to work at the Henderson County Courthouse
early that morning, but she does not recall what happened after she put her papers
in order for delivery.
It is undisputed that Sherry was a victim of an assault by an unknown
assailant. She suffered cracked bones on the left side of her face, a laceration on
her upper lip, a black eye, and injuries to her neck and the back of her head. She
was rendered unconscious, robbed, sexually assaulted, and believed to have been
raped. She continues to have numbness in her gums and teeth on the upper left
side, knots and lumps under the skin on her face and lip, and the left side of the
back of her head constantly hurts. Sherry has been unable to return to work.
Sherry has been treated primarily by Dr. Lawrence Suess and
counselors Charlene Greer, Suzanne Craig, and Juliette Jones. From March 9,
2005, to date, Sherry has met approximately fifty-seven times for counseling with
either Ms. Craig or Ms. Jones. She has been diagnosed with post-traumatic stress
disorder and dysthymia.
Sherry testified on her own behalf that she had no psychiatric
symptoms prior to the attack but now lacks concentration, is restless, and has
safety concerns. She suffers from frequent nightmares, heart palpitations, crying
episodes, feelings of helplessness, depression, fright, sadness, lack of sexual
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intimacy, feelings of powerlessness, and memory lapses. She stated that although
she could physically do her old job, her psychological issues make it impossible.
She testified that she always has her stun gun or other weapons nearby.
Dr. Suess testified that Sherry has a category IV impairment rating
using the 5th Edition of the AMA Guides to permanent impairment. He also stated
that she suffered an 85% permanent functional impairment to her whole body as
defined by AMA Guidelines. Moreover, he opined that she cannot ever return to
her former employment as a process server nor perform any employment that
would require her to interact consistently with the public due to the
unpredictability of her panic attacks. Dr. Suess stated that Sherry’s future medical
treatment costs, not including in-patient hospitalization, are predictably in a range
of $145,545 to $181,932.
Sherry was also examined by independent medical evaluation (IME)
physician Dr. David Shraberg. Dr. Shraberg rated her at 10% permanent
functional impairment based on his finding that she had a Class II mild impairment
as defined by the 2nd Edition of the AMA Guides. He examined her twice, once in
June 2005 and once in September 2005, and she failed to attend a third exam. He
opined that if Sherry could conquer her unresolved fears, perhaps she might be
employable in alternate work. He declined, however, to make any statement as to
Sherry’s future psychiatric treatment needs.
Also admitted into evidence, over the Sheriff’s Office’s objection,
was the vocational report of Dr. Edward Berla. In a May 26, 2006, vocational
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economic assessment, Dr. Berla opined that Sherry had a loss of earning capacity
of $145,010.00 stated in terms of present value. Dr. Berla stated in the report that,
based on the information he reviewed, it was his opinion that Sherry was 100%
occupationally disabled.
On July 6, 2007, the ALJ rendered an opinion and award, ordering the
Sheriff’s Office to pay Sherry the sum of $236.21 per week beginning November
12, 2004, and continuing thereafter for so long as she is disabled, together with
interest at the rate of 12% per annum on all due and unpaid installments of such
compensation. The ALJ found that Dr. Suess’ determination of 85% impairment
was incorrect but that Sherry was in fact totally occupationally disabled. The ALJ
opined that Sherry’s past employment history was all service related and her
psychiatric issues make interaction with people too difficult for her to return to that
type of work. He based his findings more on Sherry’s own assessment of her
abilities than on the medical evaluations offered. He further awarded her
continuing medical expenses based mostly on her own testimony and partly on the
testimony of Dr. Suess. The Sheriff’s Office filed a petition for reconsideration,
which was subsequently overruled. They then appealed to the Workers’
Compensation Board. The Board affirmed the order and award of the ALJ, and
this appeal followed.
The burden of proof before the ALJ rested on Sherry. Since she was
successful, the issue before us on appeal is whether there was substantial evidence
of probative value to support the ALJ’s conclusion. Wolf Creek Collieries v.
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Crum, 673 S.W.2d 735, 736 (Ky.App. 1984). Substantial evidence is defined as
“evidence of substance and relevant consequence having the fitness to induce
conviction in the minds of reasonable people.” Smyzer v. B.F. Goodrich Chemical
Co., 474 S.W.2d 367, 369 (Ky. 1971). As fact finder, the ALJ has sole authority to
judge the weight, credibility, and substance of the evidence as well as to determine
the inferences to be drawn from the evidence. Square D Company v. Tipton, 862
S.W.2d 308 (Ky. 1993); Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418,
419 (Ky. 1985). Where the evidence is conflicting, the ALJ alone determines what
to believe or disbelieve, whether it comes from the same witness or the same
adversary party's total proof. Caudill v. Maloney's Discount Stores, 560 S.W.2d
15, 16 (Ky. 1977). So long as the ALJ's opinion is supported by any evidence of
substance it cannot be said a different result is compelled. Special Fund v.
Francis, 708 S.W.2d 641 (Ky. 1986). Our role, as an appellate court, “is to correct
the Board only where [we perceive] 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).
The Sheriff’s Office argues that the ALJ abused his discretion in
finding that Sherry was totally occupationally disabled because of the lack of
credible evidence to support that finding. More specifically, the Sheriff’s Office
contends that there were no “objective medical findings,” as defined in Kentucky
Revised Statutes (KRS) 342.0011(33), to support the finding of total disability and
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that the ALJ should have confirmed that Dr. Suess’ opinion was reliable under the
test set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113
S.Ct. 2768, 125 L.Ed.2d 469 (1983), because he had specifically found Dr. Seuss’
impairment rating lacked credibility. We disagree.
We find that the Board effectively addressed the evidence regarding
this argument in its opinion issued December 21, 2007. It stated that:
[a]s it applies to the Daubert argument . . .it should be
pointed out that at no time did [the Sheriff’s Office]
object to the introduction of Dr. Suess’ testimony and
medical report on this ground, nor was it raised as a
contested issue at the benefit review conference or its
petition for reconsideration. To this extent, this issue is
not preserved for review. Assuming arguendo that the
issue was preserved, a review of Dr. Suess’ medical
report and testimony reflect that Dr. Suess is a Board
Certified adult, child, and adolescent psychiatrist. The
record further reflects that he obtained a complete history
and he gave opinions based upon a reasonable degree of
medical probability. Dr. Suess’ medical report further
reflects that he measured [Sherry’s] credibility by having
her complete an APGAR measurement of sincerity of
effort. He moreover assessed [Sherry’s] impairment by
measuring: 1) the Veterans’ Administration PTSD
Disability Work Capacity Evaluation; 2) Social Security
Disability Area of Functioning; and 3) American Medical
Association Evaluation of Impairment Due to Mental and
Behavioral Disorders.
“The subject of an expert's testimony must be ‘scientific . . .
knowledge.’ The adjective ‘scientific’ implies a grounding in the methods and
procedures of science. Similarly, the word ‘knowledge’ connotes more than
subjective belief or unsupported speculation.” See Daubert, 506 U.S. at 589-590,
113 S.Ct. at 2795. As the Board clearly outlined, Dr. Suess’ opinion was
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“grounded in the methods and procedures of science” and was supported by “more
than subjective belief.” As both gatekeeper and fact finder, it was within the ALJ’s
discretion to question Dr. Suess’ specific impairment rating but to simultaneous
accept other aspects of his medical opinion.
Dr. Shraberg’s own opinion stated that in the best circumstances, if
Sherry could overcome her anger, she would be re-employable in an office setting
where she would feel safe. However, he simultaneously opined that he doubted
that Sherry would ever improve much and that her anger appeared so strong that he
doubted this could be overcome. Dr. Suess’ opinion in turn specifically stated
Sherry could never return to a job that required her to interact consistently with the
public in an official way. Sherry herself additionally testified that she does not
think she could return to work. “A claimant, like any lay witness, may not
undertake to make a prognosis, but he may state facts concerning his condition and
these facts may be of such a nature as to enable the Board to determine the extent
and duration of the disability even in the absence of medical testimony.” See
Johnson v. Skilton Const. Corp., 467 S.W.2d 785, 788 (Ky. 1971), quoting Yocum
Creek Coal Co. v. Jones, 214 S.W.2d 410, 412 (Ky. 1948)(emphasis added).
Therefore, it is clear that substantial evidence exists to support the ALJ’s finding
that Sherry is 100% occupationally disabled. Accordingly, this finding cannot be
disturbed on appeal. KRS 342.285(3); see also Francis, at 644 (“The appellate
courts cannot substitute their judgment for that of the Board as to the weight of the
evidence on questions of fact.”).
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The Sheriff’s Office also argues that it was a gross deviation from
Workers’ Compensation regulations to admit the vocational report of Dr. Berla.
We disagree. The ALJ has broad discretion in what evidence he accepts. The
record reflects that the report was submitted four days prior to the hearing, and at
no time did the Sheriff’s Office request leave to reopen proof time to either crossexamine Dr. Berla or take vocational testimony of its own. Therefore, we do not
find that the ALJ abused his discretion. In the alternative, however, the opinions of
Dr. Suess and Dr. Shraberg along with the testimony of Sherry were sufficient to
support the ALJ’s order and award. Therefore, in light of the totality of the
circumstances, we find that any error that may have resulted from the acceptance
of Dr. Berla’s report into evidence was harmless.
Accordingly, we affirm the award and order of the ALJ and the
subsequent opinion of the Board.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
J. Christopher Hopgood
Henderson, Kentucky
David L. Yewell
Owensboro, Kentucky
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