TRANSPORTATION CABINET, DEPARTMENT OF HIGHWAYS V. BARRY POE, HON. DONALD G. SMITH, ADMINISTRATIVE LAW JUDGE and WORKERS' COMPENSATION BOARD

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AS MODIFIED: MARCH 2’11 2002 RENDERED: SEPTEMBfIR 27, 2001 APPEAL FROM COURT OF APPEALS 2000-CA-0722-WC WORKERS’ COMPENSATION BOARD NO. 97-97691 v. B/-‘\RF:Y POE, HON. DONALD G. SMITH, ADMINISTRATIVE LAW JUDGE and WORKER:; COMPENSATION BOARD OPINION OF THE COURT BY JUSTICE WINTERSHEIMEF: AFFIRMING Thi?, appeal is from an opinion of the Court of Appeals affirming a decision of the L%‘c,iikr:~:,’ Cc~rrqxzrtsat~on Board which affirmed an opinion and award of the ?\!!+liitltstralive L.aw Judge which found Poe to be totally and permanently disabler! Poe atlegedly injured his left hip on January 21( 1997, when he slipped in (.)!I whir! rnopprng a concrete floor while working for the Transportation Cabinet. At tthe tinif! of the accident Poe was 43 years old and had a seventh grade educatlcjn Previous relevant work experience includes employment as a heavy equipment operator, dish washer, general laborer, maintenance worker, and tree trimmer. I his was Poe’s second work-related injury while working for the Cabinet. It) 1993 hc injured his hip, but missed no work for that injury. He settled that claim a;lairlst. the Special Fund for a 15 percent permanent partial disability, but the claim aga~n:.t IlIe Cabinet was dismissed. Thereafter, Poe asserted no trouble working prior to his ittjury that is the subject of this claim. However, in 1995 Poe sought medical treatment ior Icy pain and he was ultimately diagnosed with having Legg-Calve-Perthes diseklse. ( GW r~f hts examining physicians, Dr. Donley, stated at that time that Poe would eventually rcqulre ;I tolal hip arthoroplasty. Poe continued to work full time at full duty without i-tc,c:orilnlodation or restriction until his 1997 injury. Followitlg his 1997 injury, radiographs revealed that Poe was suffering from avascular necrosis in the femoral head of his left hip with osteophytes. He was diagnosed with posttraumatic degenerative joint disease of the left hip. It was aIs0 d&:rrninccJ that the fall specifically produced subchondral fractures in the hip. Moreover, there were findings on the x-ray of Poe’s pelvis of mixed lytic and scIerCGic changes of the left femoral head with collapse and distortion of the head consistelit wilh aseptic necrosis or avascular necrosis, producing marked degenerative disease. Poe also claimed the development of psychological problems secondary to 111s work-rr i;jlr:d injury About a month after his injury, Poe underwent total hip replacement and hts has not returned to work since. -2.. I l - Poe filed a workers’ compensation claim for the 199T injury, and the ALJ awarded hirn permanent and total occupational disability benefits. However, 50 percent of Poe’s disability was determined by the ALJ to have been active and thei-efore norlcclmpetlsable. The ALJ also concluded that Poe was suffering from secondary p?yr:hologi!:ai overlay directly attributable to the effects of his 1997 injury. Both tlIc Board arid the Court of Appeals affirmed the opinion and award of the ALJ. This appeal lollowed. I. 1997 injury The ALJ retied upon substantial evidence in the record to make a finding that tlhi? total disability of Poe arose out of the January 21, 1997 accident. When the party who bears the lx.rt.den of proof is successful before the ALJ, the question on appeal is whether substantial evidence in the record supported the decision. Wolf CUR.& Collieries v. (;rurn, Ky.App., 673 S.W.2d 735 (1984). Substantial e\/iderlcc is evidence _-.-...-.. -i- .._ of relevant consequence having the fitness to induce convlction in the mind:; of reasonable people. Smvzer v. B.F. Goodrich Chemical Ca, Ky., 474 S.W.2d 367 (l971). As fact finder, the ALJ has the sole authority to determine the weight, creciil!iiity, and substance of the evidence and to draw reasonable inferences from the evic:it!~xe, Ki?S 342.285; se2 Paramount Foods. Inc. v. Burkhar-dt, Ky., 695 S.W%d 4’18 ( 1985). The ALJ has the discretion to choose whom and what to believe. Pruilt v. EiuggEj.@hers, Ky., 547 S.W.2d 123 (1977). it is not enough for the Cabinet to show that tilere is merely some evidence that would support a contrary conclusion. r\/lc$!~.u!f QMh-Elkhorn Cot-p,, Ky., 514 S.W.2d 46 (1974). -3- Here, the ALJ relied on the testimony of Poe’s treating surgeon, Dr. Mosley, who indic;rled that Poe’s current hip condition was a combination of the Legg-Calve-Perthes tlisea:;e and the 1997 work injury that Poe related to him. According to Dr. Moslems;, x-rays reviewed by him taken in 1995 did not reveal evidence of subchondral fractures or flattening of the femoral head. However, x-rays taken only a few days after the IX17 accident demonstrated multiple fractures and a flattening of Poe’s femoral head of his left feinur. Dr. Mosley indicated that these fractures were acute in natute z~nd left I+x with no alternative but to undergo total hip replacement. This evidence constitutes objective medical findings that the ALJ could rely on to conclude that Poe’s 1997 injury was the proximate cause of a harmful change to tlis left hip Although Poe’s hip condition might have eventually deteriorated in the future and reqtrit-e surgery it does not preclude his current claim because it was the accident which activaled the preexisting condition into a disabling reality. II. Depression In addition, we find no error in the determination by the ALJ that Poe curretjtly suffers from depression that is secondary to the effects of his 1997 injury. These findings were based upon the conclusions of Dr. Weiss, a professor of psychology at the University of Evansville and a clinical psychologist who examined Poe at the request of the Division of Disability Deter-mination for the purposes of conducting a social security disability evaluation, Dr. Weiss indicated that Poe’s depression was a direct result of the injury because there was no evidence of previous depression or -4 previous treatment for depression, and it was following the injury that there was at> onset of depression. The failure of Dr. Weiss to assign a specific impairment rating attributable solely to f’oc’s secondary psychological overlay does not defeat the psychological aspect of the clnim. Pursuant to KRS 342.001 I(1 l)(c) a claimant may be found permanently disabled only upon a showing that due to an injury the employee has a permanent dis:at?ility rating. KRS 342.001 l(36) defines permanent disability rating as the porm~meni itnpairrnent rating determined by the latest edition of the AMA Guides times the appropriate factor under KRS 342,730(1)(b). The probletn is Chapter 14 of thct most applicable edition of the AMA Guides dealing with mental and behavioral disorders deliberately makes no provision for numerical impairment ratings for any type of psychologlcal or psychiatric impairment or disability. Thus, if we accepted the Cabinet’s position, it would be impossible for Poe to demonstrate a permanent impairment rating for the psychological aspect of his clr-tlrn because no provision for it exists in the AMA Guides. Such a result is not only unreasonable, it is contrary to KRS 342.001 l(l), which clearly indicates that, a psychological change in the human organism comes within the definition of a compensable injury if it is the “direct result of a physical injury.” Consequently, we must conclude that the Legislature did not intend to require a specific numerical impair met0 rating for a work-related psychological injury. We agree with the Coutt of Appeals and Board that so long as a psychological condition produces medical restrictions. is work-related, and is a direct result of the same traumatic event for which -5- an in\Dairment rating has been assigned, an ALJ has the discretion to deem said condition contributory and compensable when making a finding of total disability. III. Permanent Total Disability There was substantial evidence in the record to support the finding by the ALJ that F’oe is totally disabled. We recognize that KRS 342.001 I(1 l)(c) requires a cialmnnt to show both a permanent disability rating and a complete and permanent inaMy to perform any type of work as a result of his injury in order to receive a total disability award. However, “work” is defined in KRS 342.001 l(34) as “providing services to another in return for remuneration on a regular and sustained basis in :j competitive economy.” Although the ALJ has very limited discretion when determining the extent of a worker’s permanent partial disability, total disability assessmcnls aie not so stnctiy limited. ira A. Watson Deoartment Store v. Hamilton, Ky., 34 S.W.3d 46 (2001). As we noted in Hamilton, supra, at page 51 1the factors in this type of case incl(Ide the worker’s post-injury physical, emotional, intellectual, and vocational status and how those factors interact. it also includes a consideration of the likelihood that the particular worker would be able to find work consistently under normal employment condi*ions. A worker’s ability to do so is affected by factors such as whether the individual wilt be able to work dependably and whether the worker’s physical restrlctrorls wilt Interfere with vocational capabilities. The definition of “work” clearly contemplates that a worker is not required to be homebound in order to be found to be totally occupationally disabled. -6 Even under the 1996 amendments, the assessment of whether a claimant is totally disabled remains with the fact-finder. It is among the functions of the ALJ to trarrsl& the lay and medical evidence into a finding of occupational disability. Although the ALJ is required to consider the medical condition of the worker when determining the extent of his occupational disability at a particular point in time, tht? AL-J is not required to rely upon the vocational opinions of either the medical experts or the vocational experts. The testimony of the worker is competent evidence of his physical condition and of his ability to perform various activities both before and after being injrrred &3miIton, at page 52. Mindful of our standard of review, we believe that in this case, based on the testirnony and AMA impairment assessments of numerous physicians, Poe has established a permanent disability rating. In addition, there is sufficient evidence III the-: record to support the finding by the ALJ that Poe is unable to engage in substantial gainful activity. Poe testified that physically and emotionally he has been unable to enyage in any work since January 21, 1997. Both Dr. Weiss and Dr. Granacher, a forensic psychiatrist who performed an independent psychiatric evaluation of Poe. determined that Poe’s level of intellectual functioning to be borderline. Objective psychological and scholastic testing conducted by Dr. Weiss further established that Poe is functionally illiterate and learning disabled. Dr. Weiss also stated that Poe’s depression interferes with his ability to concentrate. Consequently, after considering these factors along with the restrictions imposed on Poe’s physical activity by Dr. -7- Moslcy and contrasted with Poe’s relevant past work experience, we must conclude that the ALJ did not err in finding Poe to be permanently and totally disabled The decision of the Court of Appeals is affirmed. All concur COlJNSEL FOR APPELLANT: W. D:lvid Shearer, Jr. W. David Shearer. Jr., P.S.C. 33:: !?I Ithrie Green Suit? 312 - The Speed Building Louisville, KY 40202 COUNSEL FOR APPELLEES: Thomas M. Rhoads Rhoads & Rhoads, P.S.C. 9 East Center Street P.O. fjox 1705 Madisonville. KY 42431 Ched Jennings Workctrs’ Compensation Board Perimeter Park West, Bldg. C 1270 Louisville Road Frankfort. KY 40601-9979 Donald G. Smith Administrative Law Judge 301 E. Main Street Suite 95.0 L.exin!~ton. KY 40507-I 585 -8- I fiANSPORTATION CABINET, l:ii!.k~‘/\RTMENT OF HIGHWAYS v. APPEAL FROM COURT OF APPEALS 2000-CA-0722-WC WORKERS’ COMPENSATION BOARD NO. 97-97691 BARFlY POE; HON. DONALD G. SMITH, ADMINISTRATIVE LAW JUDGE AND WORKERS’ COMPENSATION BOAKD ORDER DENYING PETITION FOR REHEARING AND MODIFYING OPlNlON -T ht! lietition for rehearing is hereby denied. The Opinion of the Court, renckrecl St q)Let t Iber 27 , 2001, is substituted with the corrected opinion attached hereto. Satd tr~c.)~ltflcaf.ton does not affect the holding of the opinion as or-iginally rendered. All concur. ENTERED: March 21, 2002.

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