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Workers’
Compensation Board
OPINION ENTERED: November 4, 2016
CLAIM NO. 200898957
CRYSTAL LYNN PETITIONER
VS. APPEAL FROM HON. DOUGLAS W. GOTT,
ADMINISTRATIVE LAW JUDGE
G UB MK CONSTRUCTORS
HON. DOUGLAS W. GOTT,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
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BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. Crystal Lynn (“Lynn”)
appeals from the May 6, 2016 Opinion, Award and Order and the June 6, 2016
Order rendered by Hon. Douglas W. Gott, Administrative Law Judge (“ALJ”)
awarding benefits for neck and low back injuries. On appeal, Lynn argues the ALJ erred in
failing to award benefits for her psychological and ankle conditions. We affirm.
Lynn testified by deposition on February 24, 2010 and
October 31, 2015 and at the hearing held March 9, 2016. She was employed as a boilermaker by G UB MK Constructors
(“GUBMK”). She was injured on December
6, 2007 when she lost her footing while coming down a ladder and fell
approximately twenty-three feet, injuring her left leg, left ankle, neck and
back. In her 2015 deposition, Lynn
testified it took four years for her left ankle to quit swelling and turning
black. She indicated her ankle still
swells and bruises with activity, and it was swollen again at the time of the
hearing.
Lynn submitted the records of Dr. Robert Sivley, a
psychologist who performed an evaluation on April 7, 2015. Dr. Sivley diagnosed adjustment disorder with
mixed anxiety and depressed mood, moderate; post-traumatic stress disorder
(“PTSD”), chronic; and rule out panic disorder.
Dr. Sivley assigned a 20% impairment rating for the psychological
condition pursuant to the American Medical Association, Guides to the
Evaluation of Permanent Impairment, 5th Edition (“AMA Guides”)
and 2nd Edition. Dr. Sivley
recommended psychiatric treatment, likely including psychotropic medication and
psychotherapy. He opined the impairment
was related to the December 2007 injury and indicated Lynn did not have a
pre-existing condition.
GUBMK submitted the report of Dr.
Timothy Allen, a psychiatrist, who performed an evaluation on August 18,
2015. Dr. Allen diagnosed somatic
symptom disorder with predominant pain, persistent, moderate. He stated Lynn did not develop PTSD from the
2007 work injury. Rather, he opined
that, during the eight years following the injury, she developed a somatic
symptom disorder which manifests as diffuse pain complaints, occasional
dizziness, and seizure-like episodes which have no neurological cause. Dr. Allen further believed she exaggerated
her psychological tests to a greater degree than she had with Dr. Sivley in
April, 2015. Dr. Allen stated it did not
make sense that the cause is a fall eight years ago from which she totally
physically recovered and returned to the same work for six years. Rather, he believes stress is a major contributor
to her current symptoms, and she has no current psychiatric work restrictions. Dr. Allen disagreed with Dr. Sivley’s
diagnosis of PTSD because of her continued work after the accident for six
years as a boilermaker, which also contradicts any claim of avoidance. Dr. Allen noted PTSD symptoms are at their worst
soon after the trauma and improve over time.
Lynn’s development of PTSD symptoms six to eight years after the trauma
is contrary to the normal course of the illness. Using the 5th and 2nd
editions of the AMA Guides, Dr. Allen assigned a 10% impairment rating
for a Class II mental disorder due to non-work-related psychosocial
stressors.
GUBMK submitted the report of Dr.
Timothy Kriss who performed independent medical evaluations on September 26,
2011 and August 19, 2015. At the second
evaluation, Lynn complained of low back pain, neck pain, migraine headaches,
long term memory loss, and stomach issues.
She also complained of blackout spells beginning two years earlier, and
episodes of ear pressure, facial droop/numbness, and difficulty talking over
the past year.
Dr. Kriss opined Lynn sustained a
concussion in December 2007 that resulted in a mild post-concussive
syndrome. However, the concussion never
caused any cognitive, emotional, or psychological symptoms or deficits, and her
physical and neurological examinations were normal. All of her post-concussive symptoms resolved
completely within twelve days, except for some mild dizziness which eventually
dissipated. Any markedly delayed or
completely new symptoms cannot be from her concussion. Nor does Lynn suffer from PTSD, in Dr. Kriss’
opinion. Instead, he diagnosed
somatization and panic attacks which are intrinsic to her personality and not
related to the December, 2007 work accident.
As to Lynn’s ankle injury, Dr. Kriss indicated she had a badly contused
talus and severely sprained left ankle joint in December 2007.
The ALJ awarded permanent partial disability and medical
benefits for Lynn’s neck and low back injuries, but made no specific findings
regarding the ankle condition. Regarding
the psychological condition, the ALJ found as follows:
The
ALJ declines to adopt Dr. Sivley’s evidence because it unconvincingly includes
a diagnosis of post-traumatic stress disorder.
(Dr. Sivley, Dr. Allen, and Dr. Kriss all agreed Lynn did not suffer a
traumatic brain injury.) Her immediate
response to the injury; her ability to return to work for some six years; and
the lack of other indicators consistent with PTSD weigh against that diagnosis,
as explained by Dr. Allen and Dr. Kriss.
The ALJ believes Lynn has developed a somatic symptom disorder, as
opined by Dr. Allen and Dr. Kriss. Dr.
Sivley’s own objective testing is more in line with a somatic disorder than
work related PTSD or adjustment disorder.
He said the MMPI “produced elevations on all five somatic/cognitive
scales,” which is an “over reporting of symptoms.” He said Lynn “endorsed an extremely large
number of atypical somatic complaints, and this is rarely described by
individuals with genuine medical problems.”
It is difficult to reconcile that statement from Dr. Sivley with his
opinion that Lynn has work related impairment at the top end of Class 2
impairment (20%). (As for symptoms
allegedly associated with head injury – dizziness, facial spasms, slurred
speech, etc. – Dr. Milligan-Dick noted a normal EEG and the unlikeness [sic]
that Lynn suffered seizures; and Dr. Vanderkolk said such were of “unknown
etiology.”)
Lynn filed a petition for reconsideration, noting the ALJ
failed to address the question of medical benefits for the ankle injury and
arguing she should be awarded income and medical benefits for her psychological
condition.
In his order on reconsideration, the ALJ noted that, while
Lynn testified to ongoing ankle symptoms, her evaluator, Dr. Frederick Huffnagle,
did not diagnose a left ankle condition or recommend future medical
treatment. No treating doctor testified
to the need for future treatment of the ankle.
Though Dr. Kriss diagnosed an ankle condition, it is not one for which
future medical benefits are appropriate.
Therefore, the ALJ determined the award of medical benefits properly
excluded the ankle. Regarding the
psychological condition, the ALJ provided the following findings:
The
Defendant is correct that the ALJ found the somatic disorder of which Plaintiff
suffers unrelated to her work injury.
The award of future medical benefits properly excluded the psychological
claim. The ALJ disagrees with
Plaintiff’s contention that Dr. Sivley’s impairment rating was based on a
condition other than the PTSD diagnosis the ALJ rejected.
On appeal, Lynn first argues she should have been awarded
income and medical benefits for her psychological condition. Lynn notes she has no prior history of
psychological problems and the ALJ acknowledged she has a somatic
disorder. Dr. Sivley opined this
psychological condition is work related, and both he and Dr. Kriss recommend
psychological treatment. Lynn suggests
the ALJ may have misinterpreted Dr. Sivley’s impairment assessment, which she
argues was not based on the PTSD diagnosis.
As the claimant in a workers’ compensation proceeding, Lynn bore the burden of proving each of the essential elements
of her cause of action. Snawder v. Stice, 576 S.W.2d 276 (Ky. App.
1979). Because she was unsuccessful in that burden concerning her
psychological and ankle conditions, the question on appeal is whether the
evidence compels a different result. Wolf Creek Collieries v. Crum,
673 S.W.2d 735 (Ky. App. 1984). “Compelling evidence” is defined as evidence that is so
overwhelming, no reasonable person could reach the same
conclusion as the ALJ. REO Mechanical v. Barnes, 691 S.W.2d 224
(Ky. App. 1985) superseded by statute on other grounds as stated in Haddock
v. Hopkinsville Coating Corp., 62 S.W.3d 387 (Ky. 2001).
The record contained substantial evidence supporting the
ALJ’s determination that the psychological condition is not compensable. Dr. Kriss indicated the somatic disorder was
a product of ongoing psychological stress unrelated to the work injury. Dr. Allen diagnosed a somatic symptom
disorder arising many years after the work injury and based upon non-work-related
psychosocial stressors. He expressly
noted an absence of any work-related psychiatric impairment or work
restrictions. Relying on these opinions
in his order on reconsideration, the ALJ concluded the somatic disorder is
unrelated to the work injury. The
evidence falls far short of compelling a finding the work injury caused any
psychological injury.
Lynn also argues she is entitled to medical benefits for
her ankle. She argues the uncontradicted
evidence indicates she continues to have problems with her ankle. Thus, even though she does not have a
permanent impairment rating, she is entitled to an award of medical benefits
for her ankle.
The record contains substantial evidence supporting the
ALJ’s determination Lynn is not entitled to future medical benefits for her
left ankle. Dr. Kriss concluded Lynn
sustained only a temporary injury to the ankle.
The ALJ acknowledged that the law permits an
award of future medical benefits for a work-related injury in the absence of a
permanent impairment rating resulting from the injury. FEI Installation,
Inc. v. Williams, 214 S.W.3d 313 (Ky. 2007). However, as noted by the ALJ, Lynn offered no
medical opinion that she required ongoing medical treatment for her ankle
related to the work injury. The evidence
does not compel a finding in her favor.
While Lynn has
identified evidence that could support a different conclusion, there was
substantial evidence presented to the contrary.
As such, the ALJ acted within his discretion to determine which evidence
to rely upon, and it cannot be said the ALJ’s conclusions are so unreasonable
as to compel a different result. Ira
A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000).
Accordingly, the May 6, 2016 Opinion, Award and Order and the June 6, 2016 Order rendered by Hon. Douglas W. Gott, Administrative Law Judge, are hereby AFFIRMED.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON JOHN H MCCRACKEN
PO BOX 27
BOWLING GREEN, KY 42102
COUNSEL
FOR RESPONDENT:
HON PATRICK MURPHY II
3151 BEAUMONT CENTER CIRCLE
LEXINGTON, KY 40513
ADMINISTRATIVE
LAW JUDGE:
HON DOUGLAS W. GOTT
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601
