CORRECTED : August 29, 2005 BRIAN LANTER V KENTUCKY STATE POLICE ; HON . J . KEVIN KING, ADMINISTRATIVE LAW JUDGE ; AND WORKERS' COMPENSATION BOARD
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CORRECTED : August 29, 2005
RENDERED : August 25, 2005
TO BE PUBLISHED
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2004-SC-0872-WC
BRIAN LANTER
V
APPEAL FROM COURT OF APPEALS
2004-CA-0459-WC
WORKERS' COMPENSATION BOARD NO. 02-72304
KENTUCKY STATE POLICE ; HON . J . KEVIN KING,
ADMINISTRATIVE LAW JUDGE ; AND WORKERS'
COMPENSATION BOARD
APPELLEES
OPINION OF THE COURT
AFFIRMING
Chapter 13 of the AMA Guides to the Evaluation of Permanent Impairment
(Guides ) addresses disorders of the central and peripheral nervous system ; Chapter 14
addresses mental and behavioral disorders . The claimant alleged that work-related
head trauma caused impairments under both chapters that, together, rendered him
totally disabled . Nonetheless, an Administrative Law Judge (ALJ) awarded income
benefits for only partial disability and determined that an impairment that was assigned
under Chapter 13 most nearly measured the claimant's ability to perform activities of
daily living with the need for some direction . Rejecting the claimant's assertion that
uncontroverted evidence of a psychiatric impairment compelled a Chapter 14
impairment to be included in his disability rating, the Workers' Compensation Board
(Board) and the Court of Appeals affirmed . We affirm.
On April 5, 2002, the claimant was struck in the head while participating in a
training class in defensive tactics at the Kentucky State Police Academy. He later
testified that he had six years of martial arts training that involved physical contact and
that he had used that training previously to defend himself from an assault . He stated
that he had been mentally prepared for the training exercise and had not been afraid .
As he recalled the incident, he was struck in the head and became dazed . He was then
hit several more times and became unconscious . Upon regaining consciousness, he
was kicked while struggling to his feet. When he attempted to leave the room, he had
his head slammed into the wall. He was told to return to class after the incident but
refused, became dizzy, and fell down again. He was then interviewed in the captain's
office, resigned from the academy, and drove home, almost wrecking several times .
Ten days later, after experiencing neck pain, memory loss, and clumsiness, as
well as difficulty walking, speaking and driving, the claimant first sought treatment from
his family physician, Dr. Shearer. In addition to a neck injury that is no longer at issue,
his application for workers' compensation benefits alleged a severe brain contusion and
concussion as well as post-traumatic stress disorder, severe generalized anxiety
disorder, and psychosis due to the head injury . At issue presently is whether the
medical evidence compelled a finding that harmful changes resulting from the head
trauma warranted a disability rating based upon impairments under both Chapter 13
and 14 of the Guides .
A December, 2002, report from Dr. Shearer stated that he began treating the
claimant on April 15, 2002, for neck pain and for memory loss and other cognitive
complaints after he was struck in the head several times by an instructor . Dr. Shearer
diagnosed cognitive brain dysfunction and cervical stenosis . Using the Fifth Edition of
the Guides , he assigned a 30% impairment based on Chapter 13, Table 13-3
(Impairment Due to Episodic Loss of Consciousness or Awareness).
A November, 2002, report from Dr . D'Souza, the claimant's treating psychiatrist,
noted that the claimant was frightened, confused, and experienced severe headaches
after the head trauma and period of unconsciousness. Since then, he had also been
experiencing nightmares, difficulty sleeping, and severe depressive symptoms as well
as anxiety, panic attacks, paranoid thoughts, and active flashbacks . He was currently
engaged in extensive psychotherapy and receiving pharmacotherapy. Dr. D'Souza
diagnosed post-traumatic stress disorder, major depressive episodes with psychotic
features, post-concussion syndrome, and psychosis due to head trauma . He attributed
the conditions to a focal brain lesion that was caused by the head injury . In his opinion,
the claimant did not retain the physical capacity to return to the type of work performed
at the time of the injury. Such work would exacerbate his symptoms and make him
more disabled . He should avoid stressful situations in any kind of work.
Dr. Pagani, who is board-certified in neurology and emergency medicine, treated
the claimant several times between April 18 and October 17, 2002. His December,
2002, report noted the history of injury followed by symptoms that included headache,
confusion, disorientation, loss of memory, hypersomnia, and psychomotor retardation .
He noted that the medications Dr. D'Souza prescribed had helped . After performing
various diagnostic tests, including a brain MRI, EEG, and brain SPECT, Dr. Pagani
diagnosed a cerebral contusion with post-concussioe syndrome . He attributed the
claimant's present condition to the head trauma and assigned a 14% impairment to the
central nervous system, using Table 13-6 (Impairment Related to Mental Status) from
Chapter 13 of the Guides . He stated that the claimant did not have an active
impairment before the injury or a pre-existing dormant condition that was aroused by the
injury . In his opinion, the claimant lacked the physical capacity to return to the type of
work he performed at the time of the injury . Furthermore, he should avoid stressful
situations and independent or unsupervised work.
The employer submitted a report based on a June 11-12, 2003, neuropsychiatric
evaluation by Dr. Granacher, who is board-certified in both neurology and psychiatry.
Dr. Granacher obtained a detailed history and performed both physical and mental
status examinations . He ordered extensive neuropsychological, intellectual,
achievement, and personality testing. He also ordered a SPELT scan, which revealed
functional defects in the right parietal and left occipital lobes of the claimant's brain .
Noting that Dr. D'Souza thought the claimant was psychotic but that the claimant
denied ever hearing voices, seeing things, or being delusional, Dr. Granacher stated
that he could not determine the basis for the diagnosis . He noted that Dr. D'Souza had
prescribed Seroquel and Trileptal for a while but that the claimant had not been on them
for some time and was taking no "psychiatric or brain medications" presently .
Summarizing the mental status examination, he noted that the claimant was pleasant
and cooperative ; that he independently completed a complex 23-page medical
questionnaire ; that he was oriented to person, place, and time ; and that he was a
capable historian . His affective range was moderately constricted, but he made good
eye contact, had no delusions or hallucinations, and had no loose associations or
circumstantial thinking . He denied suicidal ideas or plans and never appeared tearful or
anxious .
Dr. Granacher noted that there was no sign of "faking bad" on the cognitive
portions of the testing and concluded that it was valid . He stated, however, that when
taking the MMPI-2, which measures psychological adjustment, the claimant may have
attempted "to create a highly virtuous self-portrait, in conjunction with elevated clinical
scales that indicate a claim of serious physical and emotional disability." Therefore, Dr.
Granacher thought that the claimant's MMPI-2 profile "may not accurately represent
existing psychopathology." Later in the report, he explained that the test was
administered "to provide hypotheses" regarding the claimant's psychological functioning
but that its validity in individuals with traumatic brain injury had not been verified .
Therefore, the standard interpretations may not apply to such individuals, and "[t]he
interpretations presented in this report need to be verified by other sources of clinical
information ."
Dr. Granacher determined that the claimant's cognitive functioning was average
before the injury but that it had declined in several areas due to the head trauma and
that the brain lesions that were noted on the SPECT scan appeared to be permanent .
Using the DSM-IV-TR classification system for mental disorders, he diagnosed a
cognitive disorder due to head trauma (Axis I), no personality or developmental disorder
(Axis II), a cognitive disorder (Axis III), no psychosocial stressors (Axis IV), and a
current GAF of 65 (Axis V). He concluded that the claimant had a 14% neuropsychiatric
impairment due to head trauma, relying on Tables 13-5 (Clinical Dementia Rating) and
13-6 (Impairment Related to Mental Status) from page 320 of the Fifth Edition of the
Guides .
Michael Borack, a Doctor of Psychology and practicing clinical psychologist,
evaluated the claimant on May 6, 2003 . His July 3, 2003, report indicated that he
reviewed the other medical reports and diagnostic test results, including the
neuropsychological, academic/achievement, intellectual capacity, personality, and brain
imaging tests. He disagreed with Dr. Granacher's conclusion regarding the validity of
the MMPI-2 personality assessment. Dr. Borack acknowledged that there were no
norms specific to individuals who have sustained a head injury . Nonetheless, he
thought that the claimant's effort to "fake good" and, thereby, to minimize any
psychological disturbances suggested that the clinical scale findings were highly
meaningful . They revealed "significant sadness and depressed mood, suspiciousness
and hostile sensitivity, anxiety and agitation, interpersonal alienation, and difficulties in
logic and concentration." Dr. Borack diagnosed posttraumatic stress disorder and
dementia due to head trauma with a clinically significant behavioral disturbance . Taking
into account the degree of impairment in the claimant's ability to perform activities of
daily living and in his social functioning, concentration, and adaptation, Dr. Borack
concluded that he came within the criteria for a Class 3 (moderate) impairment of
47.5%.
When deposed in May, 2003, the claimant stated that he was living with his
parents and attending college . He explained that he decided to become a fitness trainer
after his injury and began taking three classes but later dropped two of them due to
post-traumatic stress, panic attacks, and seizures . He stated that he had not attempted
to find work and had not been released to do so by his doctor . He stated that he
continued to experience memory loss, clumsiness, difficulty walking, difficulty speaking,
and forgetfulness . In July, 2003, at the hearing, he testified that he was on summer
break but was scheduled to return to school in the fall. He stated that he had
experienced difficulty with the physical activities in his previous classes and sometimes
passed out. He had problems with long term and short term memory, became
physically and mentally exhausted, and had difficulty understanding the material . He
testified that he no longer took medication for the effects of his injury and noticed no
change in his condition. He had not seen Drs. Pagani or D'Souza for a few months and
had no scheduled medical appointments . On a typical day, he did physical therapy and
researched his brain injury on the internet .
After summarizing the lay and medical evidence, the ALJ stated as follows:
From a psychological perspective, four physicians have
rendered opinions regarding Lanter's impairment . Dr. Shearer
assigned Lanter a 30% impairment, Dr. Granacher and Dr. Pagani
assigned Lanter a 14% impairment, and Dr. Borack assigned
Lanter a 47 .5% impairment.
Having reviewed the evidence and the appropriate portions of
the AMA Guides , the [ALJ] notes that Dr. Shearer's impairment
would require Lanter to suffer from severe episodic loss of
consciousness or awareness to the point that Lanter's activities
would need to be supervised, protected, or restricted. While it is
clear that Lanter does have some occasional loss of awareness, it
is not to the extent necessary to support Dr. Shearer's impairment
rating . Dr. Borack's impairment is based on mental and behavioral
disorders . To qualify for the high-end of a Class 3 impairment,
Lanter must have impairment levels compatible with some but not
all useful functioning rising nearly to the level of significant
difficulties with useful functioning . Furthermore, the Guides state
on page 364 that, "a moderate impairment does not imply a 50%
limitation in useful functioning, and an estimate of moderate
impairment in all four categories does not imply a 50% impairment
of the whole person." On the other hand, the impairment ratings of
Dr. Pagani and Dr. Granacher more nearly indicate Lanter's ability
to perform activities of daily living and the need for some direction .
Therefore, the [ALJ] finds that Lanter has a 14% impairment from a
psychological standpoint .
Taking into account the claimant's difficulty performing classwork due to his mental and
physical restrictions but also his age (25), education (two years of college), history of
sedentary to medium work, and his ability to drive, to research his condition on the
internet, and to perform the majority of his activities of daily living, the ALJ determined
that he was capable of some type of work.
The claimant maintains that his head injury caused both brain damage and a
psychological condition. Pointing to the ALJ's references to a psychological injury while
relying on a neurological impairment, he maintains that the AU "overlapped and
misinterpreted" Chapters 13 and 14 of the Guides , considered only the first condition,
and disregarded the second . He asserts that only Drs. Borack and D'Souza testified
regarding a psychological condition and that only Dr. Borack analyzed the impairment
the condition caused. Therefore, the AU was required to accept Dr. Borack's
uncontradicted testimony that the condition caused a 47.5% impairment . We disagree .
Chapter 13 of the Guides provides criteria for evaluating brain dysfunction,
emphasizing the deficits or impairments that may be identified during a neurologic
evaluation . Id . at 305. It acknowledges, however, that "[b]ecause neurologic
impairments are intimately related to mental and emotional processes and their
functioning, the examiner should also understand Chapters 14, Mental and Behavioral
Disorders, and 18, Pain" and that "[a]dditional impairments based on those chapters
may need to be considered ." (emphasis added). Id . at 306; see also Id . at 321-22 .
Section 13 .3f (Emotional and Behavioral Impairments) of Chapter 13 contains Table 138, which sets forth the criteria for rating such impairment .' Furthermore, Section 13.3f
states that "[e]motional, mood, and behavioral disturbances illustrate the relationship
between neurology and psychiatry . Emotional disturbances originating in verifiable
neurologic impairments (e .q ., stroke, head injury) are assessed using the criteria in this
chapter." (emphasis added). Id. at 325. Some of the psychiatric features listed as
'The criteria are as follows: Class 1 (0-14%), Mild limitation of activities of daily living
and daily social and interpersonal functioning ; Class 2 (15-29%), Moderate limitation of
some activities of daily living and some daily social and interpersonal functioning;"
Class 3 (30-69%), Severe limitation in performing most activities of daily living, impeding
useful action in most daily social and interpersonal functioning; and Class 4 (70-90%),
Severe limitation of all daily activities, requiring total dependence on another person.
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examples include irritability, outbursts of rage or panic, aggression, withdrawal,
depression, mania, and emotional fluctuations . Section 13 .3f also states that
"[n]eurologic impairments producing psychiatric conditions are assessed using the
neurologic examination, with an expanded neuropsychiatric history and the necessary
ancillary tests ." Id .
The introduction to Chapter 14 of the Guides , states, in part, as follows :
This chapter discusses impairments due to mental disorders and
considers behavioral impairment of function that may complicate
any condition. As did Chapter 13 (The Central and Peripheral
Nervous System), this chapter assesses the brain; however, here
the emphasis is on evaluating brain function and its effect on
behavior for mental disorders . Unlike the other chapters in the
Guides, this chapter focuses more on the process of performing
mental and behavioral impairment assessment. Numerical
impairment ratings are not included ; however, instructions are given
for how to assess an individual's abilities to perform activities of
daily living . (emphasis original) .
Id . at 357-58 . The introduction also notes that the Fifth Edition stresses the importance
of the DSM-IV criteria for determining a mental impairment and includes more case
examples to exemplify the relationship between diagnosis, symptoms ; and impact on
the ability to perform activities of daily living. Current research finds little relationship
between psychiatric signs and symptoms and the ability to perform competitive work .
Id . at 361-62 . Evaluating impairment is based on the extent of function in four main
categories : 1 .) ability to perform activities of daily living ; 2 .) social functioning ; 3.)
concentration, persistence, and pace, which relate to the ability to sustain focused
attention long enough to permit the timely completion of necessary tasks; and 4.) ability
to adapt to stressful circumstances without deterioration or decompensation . Chapter
14 describes a Class 2 impairment as being mild, which "implies that any discerned
impairment is compatible with most useful social functioning ." Id . at 363. It describes a
Class 3 impairment as being moderate, which "means that the identified impairments
are compatible with some, but not all useful functioning ." Id . Chapter 14 does not
assign percentages to impairments, but as the AU noted when analyzing the evidence,
it does state that "a moderate impairment does not imply a 50% limitation in useful
functioning, and an estimate of moderate impairment in all four categories does not
imply a 50% impairment of the whole person." Id . at 364.
Workers' compensation law is fundamentally for the benefit of the injured worker.
See Messer v. Drees, 382 S.W.2d 209 (Ky. 1964). Nonetheless, an injured worker has
the burden to prove every element of a claim for benefits, one of which is the amount of
AMA impairment that it caused. See KRS 342.0011(11) ; KRS 342 .730(1)(b) ; Roark v.
Alva Coal Corporation , 371 S.W .2d 856 (Ky. 1963) ; Wolf Creek Collieries v. Crum , 673
S.W.2d 735 (Ky. App. 1984) ; Snawder v. Stice , 576 S .W .2d 276 (Ky. App. 1979) .
KRS 342.285 designates the AU as the finder of fact; therefore, the courts have
determined that the ALJ, rather than the Board or a reviewing court, has the sole
discretion to determine the quality, character, and substance of evidence . See
Paramount Foods, Inc. v. Burkhardt , 695 S .W.2d 418 (Ky. 1985) . When the party with
the burden of proof does not succeed before the ALJ, that party's burden on appeal is to
show that the favorable evidence was so compelling that the decision to the contrary
was unreasonable. Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986) .
Depending on the evidence, a claim of psychological harm from a traumatic brain
injury could be raised under either of two theories : 1 .) that the emotional effects of
having sustained such an injury resulted in behavioral symptoms ; or 2 .) that the brain
damage caused by the injury resulted in both neurological and behavioral symptoms .
No medical expert attributed the claimant's behavioral symptoms to the emotional
10
effects of the training incident or of living with the harm that it caused . At issue,
therefore, is whether the evidence compelled the AU to award benefits for the effects of
the claimant's brain damage based not only on his impairment under Chapter 13 but
also on an impairment under Chapter 14.
The proper interpretation of the Guides and the proper assessment of impairment
are medical questions . See Kentucky River Enterprises, Inc. v. Elkins , Ky. 107 S .W.3d
206, 210 (Ky. 2003). In the present case, no physician testified regarding the proper
application of the Guides when evaluating impairment from a traumatic brain injury that
causes both neurological and behavioral symptoms . Faced with impairment ratings that
were assigned under Chapters 13 and 14 and the task of selecting an impairment rating
that was a reasonable estimation of the claimant's condition, the ALJ appropriately
consulted the Guides when considering the medical evidence and deciding upon which
experts to rely. Chapter 13 clearly indicates that an additional impairment may be
warranted in certain instances based on behavioral factors that originate in the brain
due to organic damage from a head injury, but it does not indicate that behavioral
symptoms always warrant an additional impairment . Furthermore, it appears to indicate
that any additional impairment for emotional or behavioral disorders is to be determined
under the criteria found in Section 13 .3f of Chapter 13 rather than under Chapter 14 . Id .
at 325.
We find nothing in the ALJ's reference to the impairment "from a psychological
standpoint" or "psychological perspective" together with a discussion of impairments
that were assigned under Chapters 13 and 14 of the Guides that evinces a
misunderstanding of the medical evidence or a confusion regarding Chapters 13 and
14. In summarizing the evidence, the ALJ specifically noted that the claimant was no
longer taking any medication for the neurological or behavioral effects of his injury and
had no scheduled medical appointments . It is apparent from the analysis that followed
that the ALJ found the impairments assigned by Drs. Shearer and Borack to be
excessive in light of the claimant's restrictions and found the impairments assigned by
Drs . Pagani and Granacher to "more nearly indicate [the claimant's] ability to perform
activities of daily living and the need for some direction ." The decision was reasonable
under the evidence that was available and was properly affirmed on appeal . Special
Fund v. Francis , supra .
Lambert, C.J ., and Cooper, Johnstone, Roach, Scott, and Wintersheimer, JJ .,
concur. Graves, J ., dissents and states that when the ALJ "noted in particular Lanter's
young age", he gave undue weight to youth and erroneously assumed Lanter would
outgrow his disability .
COUNSEL FOR APPELLANT :
Gregory N . Schabell
Busald, Funk & Zevely, PSC
226 Main Street
Florence, KY 41042
COUNSEL FOR APPELLEE :
Kenneth Lance Lucas
130 Dudley Road
Edgewood, KY 41017
12
,*ixyrrmr ~vurf of ~rufurhV
2004-SC-0872-WC
BRIAN LANTER
V
APPELLANT
APPEAL FROM COURT OF APPEALS
2004-CA-0459-WC
WORKERS' COMPENSATION BOARD NO. 02-72304
KENTUCKY STATE POLICE ; HON . J. KEVIN KING,
ADMINISTRATIVE LAW JUDGE ; AND WORKERS'
COMPENSATION BOARD
APPELLEES
ORDER CORRECTING OPINION
On the Court's own motion, the Opinion of the Court rendered in the above-styled
matter on August 25, 2005, is hereby corrected by the substitution of a new page eight,
hereto attached, in lieu of page eight of the Opinion as originally rendered .
Said
correction does not affect the holding of the Opinion, but is made only to correct a
typographical error on page eight ("Section 131 to "Section 13 .3f') .
ENTERED : August 29, 2005 .
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