Kenton County Sheriff's Department v. Miguel Rodriguez ( 2020 )

IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
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RENDERED: DECEMBER 17, 2020
NOT TO BE PUBLISHED
Supreme Court of Kentucky
2019-SC-0450-WC
KENTON COUNTY SHERIFF’S APPELLANT
DEPARTMENT
ON APPEAL FROM COURT OF APPEALS
V. NO. 2018-CA-1324
WORKERS’ COMPENSATION BOARD NO. 16-WC-97605
MIGUEL RODRIGUEZ; TANYA PULLIN, APPELLEES
ADMINISTRATIVE LAW JUDGE; AND
WORKERS’ COMPENSATION BOARD
MEMORANDUM OPINION OF THE COURT
AFFIRMING
The Kenton County Sheriff's Department (KCSD) appeals from an opinion
of the Court of Appeals affirming the Workers' Compensation Board (Board),
which vacated in part and remanded the order of the Administrative Law Judge
(ALJ). The ALJ dismissed the claim of Miguel Rodriguez, a former employee of
KCSD, for post-traumatic stress disorder (PTSD) on the basis that he had not
met his burden of proving an injury as defined by the Workers' Compensation
Act in relation to his psychological condition. The Board found the ALJ failed to
consider the evidence of Rodriguez’s PTSD claim under the cumulative trauma
test set forth in Lexington-Fayette Urban County Government v. West1 and
1 52 S.W.3d 564 (Ky. 2001).
remanded to the ALJ for such reconsideration. The Court of Appeals denied
KCSD’s contention that Rodriguez failed to properly plead a psychological
injury in his workers’ compensation claim and affirmed the Board’s remand for
reconsideration under West. KCSD now asks this Court to review the Court of
Appeals’ opinion affirming the Board and to reinstate the ALJ’s original finding
that Rodriguez’s PTSD claim was not adequately proven under the Act and is
not compensable.
I. BACKGROUND
Rodriguez was employed by KCSD as a police officer, initially in
Operations, then as an undercover detective and member of the SWAT team.
Rodriguez’s workers’ compensation claim originated with a work-related
physical injury occurring on January 11, 2016. On that date, he slipped and
fell on ice getting out of his cruiser, sustaining injuries to his back, left foot and
ankle. In the same action, Rodriguez claimed, “PTSD, recently diagnosed with
prior injury precursors.”
The parties stipulated that Rodriguez sustained a work-related injury to
his back, ankle, and foot on January 11, 2016. They also stipulated to the
award of temporary total disability (TTD) benefits from January 12, 2016,
through June 14, 2016, and medical benefits. The parties further stipulated to
Rodriguez’s average weekly wage and that Rodriguez returned to work at a
wage equal to or greater than his average weekly wage but left employment due
to a psychological condition. Finally, they stipulated that Rodriguez is currently
working but earning less than his stipulated average weekly wage.
2
The benefits review conference addressed the contested issues
surrounding Rodriguez’s request for “benefits per KRS2 342.730 – physical and
psychological.” The principal issue was whether Rodriguez’s PTSD met the
standard of “work-relatedness/causation,” and if so, was it an “injury” as
defined by the Act. At the hearing on his claim, Rodriguez testified he began
experiencing PTSD symptoms, including night terrors and insomnia, in 2009.
He testified that during his employment he was involved in three shootings;
punched out a windshield with his hand in an attempt to rescue the driver in a
fatal car accident; entered a home engulfed in flames to rescue the occupants
during which he choked on the smoke and heat and subsequently witnessed
two children who had been trapped burned alive with “their bodies melted
together;” he tore a ligament in his hand when he was “smashed” between two
cars during an undercover drug bust; a perpetrator stabbed his police dog
during a hostage stand-off; and he was exposed to Hepatitis C when a suspect
bled over Rodriguez and other members of the SWAT team.
Rodriguez was first referred for psychological evaluation in 2013 to Dr.
Connor. At that time, Dr. Connor found “no indications of Post-Traumatic
Stress symptoms” that made Rodriguez unsuitable for duty. Again in 2014 and
early 2015, Dr. Connor found he had no psychological symptoms warranting
further consideration or precluding his return to duty at that time. In October
2015, Dr. Connor revised his opinion of Rodriguez’s psychological health and
2 Kentucky Revised Statute.
3
referred Rodriguez for individual psychotherapy to address stress and anxiety.
In January 2016, Dr. Connor found Rodriguez “‘not fit for Duty’ due to his
degree of stress, anxiety, depression, and agitation.” Following this, Rodriguez
began seeing Dr. Peerless and Dr. Platoni for individualized therapy. In
preparation for the Workers’ Compensation hearing, at the behest of KCSD,
Rodriguez saw Dr. Allen for an independent psychological exam.
The ALJ issued an opinion, award, and order, awarding Rodriguez TTD
benefits, permanent partial disability (PPD) benefits, and medical benefits for
work-related injuries to his back, left foot and left ankle, all issues largely
stipulated to by the parties. In addressing the contested issue of PTSD, the ALJ
determined Rodriguez suffers from PTSD, which is disabling and work-related,
but concluded Rodriguez failed to prove a psychological injury as defined by
the Act. Specifically, the ALJ relied on the opinion of Dr. Allen that Rodriguez's
PTSD is unrelated to the slip-and-fall work injury of January 11, 2016, and on
the opinion of Dr. Platoni, who stated that the specific cause of the PTSD was
Rodriguez's pervasive and continuous exposure to multiple and horrific
traumatic events in the line of duty.
On appeal, the Board reviewed the case and, in a two-to-one decision,
affirmed the finding regarding Rodriguez’s physical injury, but found the ALJ
applied the wrong legal standard to the PTSD claim. The Board found the ALJ
erred by assuming that in order to be compensable, the PTSD had to be the
result of the January 11, 2016 slip-and-fall and by failing to address the other
physical incidents as testified to by Rodriguez. Accordingly, the Board vacated
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the ALJ's finding that Rodriguez failed to prove an injury as defined by the Act
as it relates to his PTSD. The Board remanded to the ALJ for additional
findings consistent with West.
KCSD appealed the Board’s remand for a West analysis, arguing that the
only injury properly before the ALJ was the January 11, 2016 injury. KCSD
argued that the Board misrepresented the claim by considering prior traumatic
events as the origin of Rodriguez’s PTSD. KCSD argued the earlier events were
not adequately pleaded by Rodriguez, and KCSD formulated no defenses to
those claims. Furthermore, KCSD argued it did not waive or consent to
expanding the scope of the ALJ’s hearing.
The Court of Appeals held that the Board acted within its authority when
it vacated and remanded the issue of psychological impairment and
compensability back to the ALJ for a West analysis. It held the record
supported the Board’s finding that the psychological injury was adequately
pled and that on remand, the ALJ must consider events other than the
January 11, 2016 injury as predicates for Rodriguez’s PTSD and whether those
events were traumatic physical events representing a “physical injury” for
purposes of KRS 342.0011. The Court of Appeals, in its remand order, directed
that “the ALJ must consider whether the first in the series of traumatic events
involved physical trauma, and whether that event is a direct and proximate
cause of harmful change in the human organism, in this case PTSD. If so, that
harmful change (PTSD) may be compensable.” This appeal followed.
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II. STANDARD OF REVIEW
Review by this Court of workers’ compensation cases is limited “to
address[ing] new or novel questions of statutory construction, or to
reconsider[ing] precedent when such appears necessary, or to review[ing] a
question of constitutional magnitude.”3 The ALJ as fact-finder has the sole
authority to judge the weight, credibility, substance, and inferences drawn
from such evidence.4 In reaching her decision, the ALJ is free to choose to
believe or disbelieve parts of the evidence from the total proof, no matter which
party offered it.5 However, the ALJ’s discretion is not limitless, and we will
reverse the ALJ if her opinion “is so unreasonable under the evidence that it
must be viewed as erroneous as a matter of law.”6 Litigants are entitled to
know the evidentiary basis for an ALJ’s findings of fact and conclusions of law,
and an ALJ’s opinion must summarize the conflicting evidence concerning
disputed facts, weigh the evidence to make findings of fact, and determine the
legal significance of those findings.7 “Only when an opinion summarizes the
conflicting evidence accurately and states the evidentiary basis for the ALJ’s
finding does it enable the Board and reviewing courts to determine in the
3 W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 688 (Ky. 1992).
4 Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985).
5 Caudill v. Maloney's Disc. Stores, 560 S.W.2d 15, 16 (Ky. 1977).
6 Ira A. Watson Dep’t Store v. Hamilton, 34 S.W.3d 48, 52 (Ky. 2000).
7 Arnold v. Toyota Motor Mfg., 375 S.W.3d 56, 61-62 (Ky. 2012).
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summary manner contemplated by KRS 342.285(2) whether the finding is
supported by substantial evidence and reasonable.”8
III. ANALYSIS
It is undisputed the ALJ found that Rodriguez suffered from PTSD, that
the PTSD prevented Rodriguez’s continued employment with the Kenton
County Sheriff’s Department, and that the condition was work-related. The
compensability of Rodriguez’s PTSD then turns on the question of whether the
condition meets the Act’s definition of a psychological injury. When addressing
psychological injuries in workers’ compensation, KRS 342.0011(1) states 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[.]”9
In West, we explained that for a harmful change that is psychological,
psychiatric, or stress-related to be compensable, it must directly result from a
physically traumatic event.10 The employee in West suffered psychological
effects that originated in a “‘full-fledged fight’ in which [the] police officer and
suspect [were] scuffling and rolling on the ground.”11 We viewed this event as a
physically traumatic event, amplified by subsequent on-the-job traumas giving
rise to a cumulative psychological injury.12
8 Id. at 62 (footnote omitted).
9 Emphasis added.
10 West, 52 S.W.3d at 566-67.
11 Id. at 567.
12 Id.
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 In Kubajak v. Lexington-Fayette Urban County Government, we reinforced
West’s limited application to physically traumatic events and denied recovery to
an employee whose condition was the result of purely “observing gruesome
crime scenes.”13 Kubajak failed to adequately convince the ALJ that his
psychological condition had a genesis in a physically traumatic event.14 The
ALJ has the duty to determine the credibility of witnesses and conflicting
evidence, and only if the evidence is so overwhelming will we disturb the ALJ’s
causation finding.15 Kubajak’s medical experts did not make a definitive
statement connecting the psychological issues with a physically traumatic
event or series of events. Rather, the ALJ found Kubajak’s PTSD was brought
on by “after-the-fact exposure to scenes of physical trauma to others and that
any physically traumatic events were insignificant.”16 We affirmed the Court of
Appeals holding that unlike the plaintiff in West, Kubajak failed to meet his
burden of proof that he, in fact, sustained an “injury” as defined by KRS
342.0011, and that this injury was the proximate cause of his psychological
harm.17
In the case before us, the Board and Court of Appeals found not that the
ALJ erred in deciding that Rodriguez’s psychological harm was not related to a
physical injury, but rather erred in limiting her review to the physical injury of
13 180 S.W.3d 454, 455 (Ky. 2005).
14 Id.
15 Id. at 459.
16 Id.
17 Id. at 459-60.
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January 11, 2016. In doing so, the ALJ failed to fully address whether prior
physically traumatic events may have caused Rodriguez’s PTSD. KCSD argues
the cumulative psychological trauma was not sufficiently pled and therefore
not properly before the ALJ. However, after reviewing the Form 101, we hold
that Rodriguez sufficiently pled the cumulative nature of his psychological
injury. Specifically, in describing how the accident or injury occurred,
Rodriguez’s narrative includes the statement, “[p]laintiff also claims PTSD,
recently diagnosed with prior physical injury precursors.” The use of the plural
“precursors” in the phrase “prior physical injury precursors[,]” was sufficient to
put KCSD on notice that Rodriguez was alleging multiple physically traumatic
events as possible causes of his psychological injury. These physically
traumatic events predated the January 11, 2016 slip-and-fall.
In support of his psychological injury claim, Rodriguez submitted
treatment records from Dr. Platoni. Dr. Platoni’s summary of her treatment
records indicated Rodriguez’s PTSD was the result of exposure to multiple and
horrific traumatic events but did not tie the PTSD to any single physically
traumatic event. Her statement was, instead, a general statement of causation.
In his deposition and hearing testimony, Rodriguez testified to a series of
events, some with a physical injury that predated his PTSD diagnosis. Many of
these same events are catalogued in Dr. Platoni’s actual treatment notes from
her interviews with Rodriguez. Dr. Allen’s report from his independent
psychological exam notes that Rodriguez reported PTSD as a result of multiple
traumatic events he experienced in his service as a deputy sheriff. Dr. Allen
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definitively stated Rodriguez’s PTSD was not the result of the January 2016
injury but failed to address whether the earlier events precipitated the onset of
the PTSD. In her report, Dr. Platoni attributed a fifty-two percent disability
rating to Rodriguez’s PTSD, while Dr. Allen found Rodriguez’s PTSD to be mild
and attributed a five percent disability rating. Based on the conflicting record,
the Board and Court of Appeals correctly remanded to the ALJ for specific
findings as to whether Rodriguez met his burden of tying his PTSD to these
earlier events under West and if Rodriguez’s PTSD is compensable, the correct
disability rating to apply.
IV. CONCLUSION
For the above stated reasons, we affirm the Court of Appeals and remand
this case to the ALJ for further proceedings consistent with this opinion.
All sitting. All concur.
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COUNSEL FOR APPELLANT, KENTON COUNTY SHERIFF’S DEPARTMENT:
Thomas L. Ferreri
Taylor Alexander Mayer
Ferreri Partners, PLLC
COUNSEL FOR APPELLEE, MIGUEL RODRIGUEZ:
Peter Anthony Tripp
Lawrence & Associates, LLC
ADMINISTRATIVE LAW JUDGE:
Tanya Gaye Pullin
WORKERS’ COMPENSATION BOARD:
Michael W. Alvey, Chairman
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