Jonathan Sizemore v. Kentucky State Police ( 2022 )

RENDERED: SEPTEMBER 2, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0710-WC
JONATHAN SIZEMORE APPELLANT
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-21-00620
KENTUCKY STATE POLICE;
HONORABLE JOHN HAMPTON
MCCRACKEN, ADMINISTRATIVE
LAW JUDGE; AND WORKERS’
COMPENSATION BOARD APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, CETRULO, AND COMBS, JUDGES.
COMBS, JUDGE: Appellant, Jonathan Sizemore, appeals from an opinion of the
Workers’ Compensation Board affirming the dismissal of his claim by the
Administrative Law Judge (ALJ). After our review, we affirm.
On April 24, 2021, Sizemore filed an Application for Resolution of
Injury Claim (Form 101) alleging that on June 5, 2020, he was injured within the
course and scope of his employment by the Appellee, Kentucky State Police
(KSP). Sizemore alleged post-traumatic stress disorder (PTSD) as well as injuries
to his back and left shoulder. He claimed that the cause of his injuries was
cumulative trauma.
The Board’s May 27, 2022, opinion provides a concise summary of
the relevant underlying facts:
Sizemore began working for the KSP in September
2007, and last worked there as a sergeant. Prior to his
promotion to sergeant, Sizemore served on the Special
Response Team (“SRT”) as a sniper . . . . He worked as
a “road” trooper prior to working for the SRT. Sizemore
last worked with the KSP on June 5, 2020 when he
was taken off work due to a hospitalization for
depression and alcoholism. . . . He receives disability
retirement benefits from the KSP.
....
Sizemore injured his left shoulder in 2015 while
lifting weights as part of a physical conditioning
program for the KSP. He ultimately had surgery for the
left shoulder injury. He was advised the condition is
work-related when he first sought treatment. He testified
the left shoulder was again painful after he fell down an
embankment in 2019. He did not file a Form 101 for
the 2015 shoulder injury.
Sizemore experienced low back pain in 2016
when he was removing something from a shelf, and he
experienced a popping sensation, resulting in pain from
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his low back to his left foot. . . . [H]e was seen by Dr.
James Bean . . . [who] advised him his low back
condition was work-related. He continued experiencing
low back pain . . . and he didn’t file a Form 101 for that
injury. He testified he reinjured his low back in 2019
when he fell down an embankment while pursuing a
suspect. He has had no physical therapy since 2016. . . .
He has had no treatment referral for his low back since
the 2019 incident. He attributes his ongoing low back
pain to wearing body armor while employed with the
KSP. . . .
Sizemore began treating for psychological
problems in 2013 after a shoot-out . . . . He was not
physically harmed in that incident. Since that event
and due to other similar traumatic events, he has had
panic attacks. Sizemore has been diagnosed with
depression, PTSD, and alcoholism stemming from the
mentally traumatic events and images he experienced
while working with the KSP.
(Board Opinion, pp. 2-4) (emphases added).
Sizemore testified by deposition and at the final hearing. He filed
reports and supplemental reports from Dr. William Kennedy, an orthopedic
surgeon, and Jennifer Hale, M.A., a licensed psychological associate. KSP
submitted reports from Dr. Rick Lyon, an orthopedic surgeon, and Dr. Tim Allen,
a psychiatrist, who both evaluated Sizemore at KSP’s request.
By opinion and order rendered on January 13, 2021, the ALJ
dismissed Sizemore’s claim, explaining as follows:
Sizemore testified that he sustained specific injury
to his left shoulder and low back in 2015 and 2016. One
incident involved lifting weights and another involved
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lifting that caused injury to his low back and later
numbness into the foot.
Sizemore testified that in 2019 he fell down an
embankment and reinjured his back and left shoulder.
Again, this is a specific injury, not injury from
cumulative trauma.
....
The ALJ disagrees with Dr. Kennedy that Sizemore’s job
activities were repetitive in nature such that they caused
cumulative trauma injury to the left shoulder and back.
The ALJ relies on Dr. Lyon to find that Sizemore
has not met his burden to prove that he sustained work-
related cumulative trauma injury to his left shoulder or
back. The ALJ relies on Sizemore and Dr. Lyon to find
that his medical conditions relating to the left shoulder
and back were caused by specific acute incidents in
2015/2016 and 2019. He did not file a claim within two
years of the occurrence of those incidents and therefore
his statute of limitations has expired on those claims.
KRS[1] 342.185. The ALJ dismisses Sizemore’s claims
for physical injury based upon cumulative trauma.
(ALJ Opinion and Order, pp. 11-12.)
The ALJ also dismissed Sizemore’s claim for a psychological injury
and explained that:
A psychiatric condition may be found
compensable where it is the direct result of a work-
related event involving physical trauma, regardless of
whether the trauma produces a harmful physical change
to the human organism. Lexington Fayette Urban
County Government v. West, 52 S.W.3d 564 (Ky. 2001)
1
Kentucky Revised Statutes.
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and McGowan v. Matsushita Appliance Company, 95
S.W.3d 30 (Ky. 2003); KRS 342.0011(1).
. . . Sizemore did not sustain work-related cumulative
trauma injuries to his left shoulder or back as a result of
his work with KSP. . . . [H]is medical issues related
specifically to the acute injuries he sustained in
2015/2016 and 2019 to the left shoulder and back. Any
of those events could have supported a claim for
psychiatric injury. However, . . . the statute of limitations
ran as to those events as no claims were filed within two
years of their accrual. Therefore, the ALJ has no choice
but to dismiss his claims for psychological injury as a
result of any physical injury occurring while employed
with KSP.
(Id. at 12.)
Sizemore filed a petition for reconsideration, which the ALJ denied by
order entered on February 10, 2022, reasoning as follows:
Plaintiff states that the language contained in the
Opinion and Order that the specific injury events in
2015/2016 or 2019 could have supported a claim for
psychiatric injury [sic]. However, no claim for a specific
acute injury was filed, only claims for cumulative
trauma. The ALJ dismissed the cumulative trauma
claims. The ALJ noted in the Opinion and Order that
Jennifer Hale, M.A. did not associated Sizmore’s [sic]
PTSD or alcohol abuse with any physical injury. The
ALJ did not find any mention of the acute injury in 2019
either as a basis for his PTSD, or that he even mentioned
it to her when providing her a history. Even if Sizemore
had filed a claim for specific injury from the 2019
incident, Hale did not relate his PTSD to that event.
Sizemore appealed to the Board, which affirmed by opinion entered
on May 27, 2022, as follows:
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On appeal, Sizemore argues the ALJ erred in
finding the statute of limitations had expired for his 2015,
2016, and 2019 left shoulder and low back injuries. He
additionally argues the ALJ erred in finding Ms. Hale
failed to associate his PTSD or alcohol abuse with any
physical injury.
Sizemore, as the claimant . . . had the burden of
proving each of the essential elements of his cause of
action. Snawder v. Stice, 576 S.W.2d 276 (Ky. App.
1979). Since he was unsuccessful before the ALJ, 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). . . .
....
We first determine the ALJ did not err in finding
Sizemore did not sustain injuries caused by
cumulative or repetitive trauma. The testimony and
medical evidence support the finding that Sizemore
sustained acute injuries to the left shoulder in 2015
and the low back in 2016, but he did not timely file a
claim for either injury. KRS 342.185(1) bars a claim
for an acute injury if it is not filed within two years of the
date of accident, or within two years after the last
payment of temporary total disability benefits, whichever
is later. Since Sizemore’s claim was not timely filed
for either of those incidents, and because the ALJ
determined he did not have injuries caused by
cumulative trauma, we affirm.
(Board Opinion, pp. 13-14) (emphases added).
The Board further explained that although Sizemore could have
timely filed a claim for the 2019 incident, he never amended his Form 101 to do
so. Moreover, the Board stated:
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Even if Sizemore had amended his claim to include the
2019 incident, the ALJ was not compelled to determine
he sustained a compensable injury due to that event.
Sizemore returned to work and continued performing his
duties as a sergeant for the KSP until he left work in June
2020 due to problems with alcoholism and PTSD.
(Id. at 15.)
The Board also concluded that the ALJ did not err in dismissing
Sizemore’s claims for a psychological injury:
KRS 342.0011(1) defines injury as follows:
“Injury” means any work-related traumatic
event or series of traumatic events, including
cumulative trauma, arising out of and in the course
of employment which is the proximate cause
producing a harmful change in the human
organism evidenced by objective medical findings.
. . . but shall not include a psychological,
psychiatric, or stress-related change in the
human organism, unless it is a direct result of a
physical injury; . . . .
[W]hile Sizemore clearly has psychological issues with
PTSD and alcohol addiction, the evidence only supports
a finding that those conditions were caused by emotional
trauma associated with his work, and do not result from
the physical trauma. There is no evidence supporting a
connection between the psychological condition or
treatment and a physical injury he may have sustained
while working for the KSP.
We find the ALJ did not err in determining Ms.
Hale did not link Sizemore’s psychological problems to
any physical injury. Although her report and
supplemental note reference work-related trauma, a
complete review of those documents only establishes she
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was indicating emotional trauma, not associated with any
physical injury Sizemore may have sustained while
working. We therefore determine the ALJ did not err in
dismissing Sizemore’s psychological claim . . . .
(Id. at 15-16) (emphasis original).
Sizemore appeals. In essence, he reargues his case. Thirty years ago,
our Supreme Court explained in West Baptist Hospital v. Kelly, 827 S.W.2d 685,
687-88 (Ky. 1992), that “[t]he function of further review of the [Board] in the
Court of Appeals is to correct the Board only where [this] 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.”
We perceive no such error in the case before us. Sizemore bore the
burden of proof, and he was unsuccessful before the ALJ. Thus, “the question
before the court is whether the evidence was so overwhelming, upon consideration
of the entire record, as to have compelled a finding in his favor.” Wolf Creek,
supra, at 736. After our review of the record, we are satisfied that the evidence
does not compel a different result.
In dismissing Sizemore’s claims for physical injury based upon
cumulative trauma, the ALJ relied upon Dr. Lyon. Dr. Lyon opined that
Sizemore’s “left shoulder symptoms/pathology are a result of a specific work event
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in January 2015 and not a result of work-related cumulative trauma.” Dr. Lyon
also evaluated Sizemore’s lumbar spine complaints and explained that:
Sizemore and the medical records confirm the injury in
February 2016 after which he has continued to
experience back pain and radicular symptoms, it is my
opinion the back and radicular symptoms are a result of
the specific work event and not a result of work-related
cumulative trauma.
Dr. Lyon further opined that Sizemore did not demonstrate any objective evidence
of a permanent harmful change as a result of work-related cumulative trauma.
Sizemore alleged only cumulative trauma on the Form 101. He never
amended his claim to include a specific injury on November 24, 2019, and -- as the
Board observed -- even had he done so, the evidence would not have compelled a
finding in his favor.
No evidence linked Sizemore’s psychological problems to any
physical injury. Although Ms. Hale may have checked the box “Yes” on the Form
107 report in response to the question, “is plaintiff/employee’s psychological
condition the direct result of the physical work-related injury[,]” the Form 107
report does not describe a specific injury occurring on November 24, 2019, or
otherwise. Nor does Ms. Hale’s accompanying narrative report. Instead, the Form
107 only reflects that the history related was that Sizemore “presents with a history
of PTSD and severe alcohol abuse as a result of traumatic events that occurred
while employed with the KY State Police.”
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Sizemore argues that the claim should not have been dismissed based
on the statute of limitations because it was filed within a year of his “last injurious
exposure[.]” However, that argument is unpersuasive. The statutory language
which Sizemore quotes at page 13 of his petition for review is taken from KRS
342.185(3) which provides as follows:
The right to compensation under this chapter resulting
from work-related exposure to cumulative trauma injury
shall be barred unless notice of the cumulative trauma
injury is given within two (2) years from the date the
employee is told by a physician that the cumulative
trauma injury is work-related.
That statute specifically governing cumulative trauma claims is
inapplicable due to the Board’s determination that cumulative trauma did not occur
in this case.
We affirm the opinion of the Workers’ Compensation Board.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE
KENTUCKY STATE POLICE:
Daniel F. Dotson
Whitesburg, Kentucky Lee Jones
Pikeville, Kentucky
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