Smithkline Beecham v. Michael Smith ( 2015 )

IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
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ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
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RENDERED: OCTOBER 29, 2015
NOT TO BE PUBLISHED
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SMITHKLINE BEECHAM APPELLANT
ON APPEAL FROM COURT OF APPEALS
V. CASE NO. 2014-CA-000465-WC
WORKERS' .COMPENSATION NO. 98-96409
MICHAEL SMITH;
HONORABLE THOMAS G. POLITES,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, SmithKline Beecham, appeals a Court of Appeals decision
arguing that the Administrative Law Judge ("ALj") erred by finding in favor of
Michael Smith in a medical fee dispute. The ALJ denied SmithKline's motion to
reopen because he found that Smith's Post Traumatic Stress Disorder ("PTSD")
was causally related to his work-related injury and that his treatment was
reasonable and necessary. For the below stated reasons, we affirm the Court of
Appeals.
On June 16, 1997, Smith was injured in a motor vehicle accident while
working for SmithKline. As a result, Smith suffered a significant injury to his
spine which required multiple spinal fusions. He has ongoing physical pain to
this day. Smith filed a workers' compensation claim for the injuries sustained
in the accident. SmithKline and Smith reached a settlement which was
approved by an ALJ on October 27, 2003. As a part of the settlement, Smith
retained all rights regarding future medical care for the lumbar and cervical
spine injuries and psychological problems.
On December 23, 2009, SmithKline filed a motion to reopen contesting
payments for Smith's treatment for PTSD. SmithKline argued that Smith's
PTSD was caused by childhood abuse and trauma and was not work-related.
When Smith has a PTSD episode he relives abuse he suffered as a child. Thus,
SmithKline argued that it was not responsible to pay for the medical care and
treatment related to the PTSD per KRS 342.020(1). SmithKline also
alternatively argued that Smith's treatment was not reasonable and necessary.
At the time the motion was filed, Smith was being treated with multiple
medications, including narcotics, and was attending weekly therapy sessions.
Along with its motion to reopen, SmithKline presented the medical opinions of
Dr. Timothy Kriss and Dr. Timothy Allen, both of which believed Smith's
treatments were excessive. Dr. Allen specifically believed that Smith's PTSD
was not caused by the motor vehicle accident. Smith filed reports by his
treating physicians: Dr. Denise Winland; Dr. Brian Monsma; and Dr. Kelly
Frogge to rebut SmithKline's experts.
The ALJ, after a review of the evidence, resolved the medical fee dispute
in Smith's favor. The ALJ made the following findings:
Having reviewed and considered the entirety of the medical
testimony on this issue, the ALJ is persuaded by the testimony of
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Dr. Winland and Dr. 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 thereafter 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.
SmithKline appealed to the Workers' Compensation Board ("Board") which
affirmed the ALJ's opinion and order because substantial evidence supported
his findings and conclusions. The Court of Appeals also affirmed, and this
appeal followed.
The Board's review in this matter was limited to determining whether the
evidence is sufficient to support the ALJ's findings, or if the evidence compels a
different result. W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687 (Ky. 1992).
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Further, the function of the Court of Appeals is to "correct the Board only
where the Court perceives 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." Id. at 687-88. Finally, review
by this Court "is to address new or novel questions of statutory construction,
or to reconsider precedent when such appears necessary, or to review a
question of constitutional magnitude." Id. The AI,J, as fact-finder, has 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). For the below
stated reasons, we affirm the Court of Appeals.
SmithKline first argues that Smith's PTSD is not related to the motor
vehicle accident he was involved in while in their employ. SmithKline notes
that KRS 342.0011(1) provides that an injury "shall not include a
psychological, psychiatric, or stress-related change in the human organism,
unless it is a direct result of a physical injury." SmithKline argues that since
Smith's symptoms are not related to the motor vehicle accident but stem from
his childhood abuse, his PTSD is not a direct result of his physical injury.
SmithKline cites to Kubajak v. Lexington-Fayette County Government, 180
S.W.3d 454 (Ky. 2005), as support that PTSD is only compensable when
caused by a physical injury.
However, the AL,J found that the medical opinions from Smith's treating
physicians, Drs. Winland and Monsma, were more persuasive than
SmithKline's experts. Drs. Winland and Monsma believed that the pain Smith
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experiences due to his spinal injuries caused by the motor vehicle accident
bring his latent PTSD into clinical reality. The ALJ did not abuse his discretion
by finding the opinions of Smith's treating physicians to be more persuasive
than the evidence presented by SmithKline. Substantial evidence supports the
ALJ's opinion and order.
In finding that the ALJ's opinion and order is supported by substantial
evidence, we distinguish this matter from Kubajak. In that case, a police
officer who was experiencing PTSD due to the repeated viewing of gruesome
crime scene photos had his application for workers' compensation denied
because he did not suffer any actual physical injury. Id. at 460. Unlike that
case, in this matter, Smith suffered severe spinal injuries which still cause him
pain and trigger his PTSD episodes. Smith suffered an actual physical injury
and therefore the ALj could find that Smith's PTSD stems from the work-
related incident.
SmithKline also argues that if Smith's PTSD is found to be caused by the
motor vehicle accident, then his treatment is not reasonable and necessary.
SmithKline contends that the weekly counseling sessions Smith attends are
not reasonable and necessary because he has become dependent on them and
has not developed the coping skills to deal with his PTSD. SmithKline believes
that Smith should be weaned off of therapy and medications with the goal of
increasing his independence.
Again, the ALJ found that the opinions of Smith's treating physicians
were more persuasive than the experts presented by SmithKline regarding the
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treatments. Smith's physicians believe that his current treatments are effective
and that it would be detrimental to change them at this time. The ALJ was
within his discretion in so finding. The ALJ's findings are supported by
substantial evidence and shall not be disturbed on appeal.
For the above stated reasons, we affirm the decision of the Court of
Appeals.
All sitting. Minton, C.J.; Abramson, Barber, Cunningham, Noble, and
Venters, JJ., concur. Keller, J., concurs with the majority opinion but writes
separately to acknowledge that we are recognizing with this opinion the
compensability of a pre-existing dormant psychological condition that has been
aroused into disabling reality by a physical injury.
COUNSEL FOR APPELLANT,
SMITHKLINE BEECHAM:
Jo Alice Van Nagell
Lori Vanhoose Daniel
COUNSEL FOR APPELLEE,
MICHAEL SMITH:
Ben Thomas Haydon, Jr.
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