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RENDERED: DECEMBER 12, 2014; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
SMITHKLINE BEECHAM APPELLANT
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-98-96409
MICHAEL SMITH;
HON. THOMAS G. POLITES,
ADMINISTRATIVE LAW
JUDGE; AND WORKERS’
COMPENSATION BOARD APPELLEES
OPINION
AFFIRMING
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BEFORE: CLAYTON, MAZE, AND TAYLOR, JUDGES.
TAYLOR, JUDGE: Smithkline Beecham petitions this Court to review a February 17, 2014, Opinion of the Workers’ Compensation Board affirming an Opinion and Order of the Administrative Law Judge. We affirm.
Michael Smith was employed by Smithkline as a courier. While working as a courier, Smith was involved in a motor vehicle accident on June 16, 1997. He was rear-ended by another automobile traveling at a high speed. Smith suffered significant injury to his spine requiring multiple spinal fusions and suffers ongoing pain.
Smith filed a claim for workers’ compensation benefits due to injuries he sustained in the automobile accident. Smith and Smithkline reached a settlement agreement that was approved by the ALJ on October 27, 2003. Thereunder, Smith received a lump sum payment of $80,000 and additionally $210.14 per month until the age of 65, plus $550 per month for fifteen years. Smith also retained all rights regarding future medical care for the lumbar and cervical spine injury and psychological problems.
On December 23, 2009, Smithkline filed a motion to reopen contesting medical payments for Smith’s psychological/psychiatric condition. Smithkline argued that Smith was diagnosed with Post Traumatic Stress Disorder (PTSD) that was caused by childhood trauma and abuse. As Smith’s psychological condition (PTSD) was not caused by the work-related injury, Smithkline maintains that it was not obligated to pay for the medical care and treatment related to PTSD per Kentucky Revised Statutes (KRS) 342.020(1). Moreover, Smithkline introduced expert opinion that Smith’s psychotherapy sessions and medications were both unreasonable and unnecessary.
The ALJ considered the evidence and expert opinions presented by both parties. By Opinion and Order rendered August 19, 2013, the ALJ found the medical opinions of Smith’s treating physicians (Dr. Denise Winland and Dr. Brian Monsma) to be credible. The ALJ found that the PTSD was work related and that the psychotherapy sessions and medication regime were medically necessary:
Having reviewed and considered the entirety of the medical testimony on this issue, the ALJ is persuaded by the testimony of Dr. [Denise] Winland and Dr. [Brian] Monsma that [Smith’s] PTSD is causally related to his work injury and the employer shall be responsible for payment for treatment of this condition. The ALJ is persuaded by the testimony of Dr. Monsma that [Smith] successfully repressed and suppressed his PTSD symptoms prior to his work injury but that his experience of chronic, uncontrolled pain and the loss of productive life activity due to the work injury have brought his PTSD symptoms into clinical reality. Further, the ALJ is persuaded by the testimony of Dr. Winland that the PTSD was activated at the time of the work injury and [Smith’s] experience of chronic pain thereunder due to his inability to compensate using his normal coping skills which had been sufficient to that point but that the pain from the work injury acted as a trigger to reactivate traumatic memories. Even Dr. Allen acknowledged there may be an indirect relationship between the work injury and the PTSD although he felt the accident was not directly causative of the PTSD. In sum, the ALJ believes Dr. Winland and Dr. Monsma are more credible on this issue and [Smith’s] PTSD is hereby determined to be causally related to his work injury.
. . . .
[A]s to the weekly counseling sessions of Dr. Monsma, the ALJ is persuaded by his testimony that the sessions are providing a significant benefit to [Smith] and therefore they are found to be reasonable and necessary as well. The ALJ is not persuaded by the testimony of Dr. Allen that psychological counseling should be ended after an additional 20 visits with only semiannual sessions to follow. Given the severity of [Smith’s] psychiatric condition the ALJ believes Dr. Monsma’s regular counseling and psychotherapy sessions are reasonable and if Dr. Monsma believes it is appropriate, reasonable and safe to reduce the frequency of the sessions he can do so, but such a change will not be mandated in this proceeding.
Being dissatisfied with the ALJ’s determination, Smithkline sought review with the Board. By Opinion entered February 17, 2014, the Board affirmed the ALJ’s Opinion and Order. This review follows.
To begin, our review of a workers’ compensation board’s opinion is limited. We only reverse the Board’s opinion where “the Board has overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause a gross injustice.” W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992). In reviewing the Board’s opinion, we necessarily look to the ALJ’s opinion. Relevant to this appeal, the ALJ’s findings of fact may only be disturbed if not supported by substantial evidence. And, the ALJ, as fact-finder, possesses the sole discretion to judge the credibility of testimony and weight of evidence. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985).
Smithkline contends that Smith’s PTSD was not caused by the work-related injury and is noncompensable. Smithkline also believes that the ALJ erred by finding Smithkline financially responsible for medical treatment costs related to the PTSD. Smithkline points out that Smith’s PTSD was not caused by the work-related injury but rather by Smith’s childhood trauma. Smithkline cites to his medical expert, Dr. Timothy Allen, who opined that Smith’s PTSD was due to childhood abuse and that continuation of Smith’s psychotherapy sessions were medically unnecessary. Smithkline also maintains that Smith’s current medication regime is medically unnecessary.
In this case, the record contains substantial evidence to support the ALJ’s finding that Smith’s PTSD was work related and that the psychotherapy sessions, as well as medications, were medically necessary. As set forth by the Board, the ALJ simply found Smith’s medical experts more credible and based its findings of fact upon their expert opinions:
Ultimately, the ALJ was more persuaded by Drs. Winland and Monsma, primarily due to their status as Smith’s treating clinicians for over ten years. Their opinions constitute the requisite substantial evidence upon which the ALJ concluded Smith’s PTSD is work[ ] related, and that his current talk therapy sessions and prescription medications are reasonable and necessary. . . .
[Smithkline’s] argument on appeal seems to attack the notion Smith’s treatment for PTSD is noncompensable because the condition does not relate directly to the work accident, but to his childhood trauma. Drs. Winland and Monsma offered their expert opinion to the contrary and explained how the pain resulting from the work injury has brought otherwise latent PTSD into clinical reality. The ALJ acted well within his discretion to accept these expert opinions. Furthermore, their opinions establish that Smith’s psychological condition is a direct result of the physical pain brought on by his work-related injury. . . . (Citation omitted.)
Upon the whole, we conclude that the ALJ properly exercised its discretion and found Smith’s medical experts credible. The ALJ’s findings of fact concerning work relatedness of the PTSD and the appropriateness of the current treatment regime for PTSD are supported by substantial evidence of a probative value.
In sum, we cannot say the Board erred by affirming the ALJ’s opinion and order.
For the foregoing reasons, the opinion of the Workers’ Compensation Board is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT: Jo Alice van Nagell Lori V. Daniel Lexington, Kentucky |
BRIEF FOR APPELLEE MICHAEL SMITH: Ben T. Haydon, Jr. Bardstown, Kentucky |
