Opinion
NO. 2012-CA-000198-WC
07-20-2012
AVERITT EXPRESS. APPELLANT v. JOHNNY CARTY; DR. NORMAN MAYER; DR. KEITH HALL; HON. JOHN B. COLEMAN, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Scott M. Brown Lexington, Kentucky BRIEF FOR APPELLEES: John Earl Hunt Stanville, Kentucky
NOT TO BE PUBLISHED
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-09-93536
OPINION
AFFIRMING
BEFORE: COMBS AND THOMPSON, JUDGES; LAMBERT, SENIOR JUDGE. COMBS, JUDGE: Averitt Express, Inc., petitions for review of an opinion of the Workers' Compensation Board which had affirmed the decision of the Administrative Law Judge to award medical benefits to Johnny Carty for a work-related psychiatric condition. Relying on the holding of Cepero v. Fabricated Metals Corp., 132 S.W.3d 839 (Ky.2004), Averitt Express contends that the ALJ's findings were not supported by substantial evidence. The employer contends that the medical evidence was unreliable since the medical opinions underlying Carty's claim were based upon an incomplete and inaccurate medical history. We disagree. Therefore, we affirm.
Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
In a deposition given March 8, 2011, Johnny Carty testified that he was working as a truck driver for Averitt Express on March 11, 2009, when he slipped from an icy step as he exited his freight truck. Carty alleged that he injured his back and both shoulders. He underwent surgery to repair his right rotator cuff on April 17, 2009. Following a particularly painful session of physical therapy, Carty underwent surgery on his left shoulder on November 3, 2009.
On October 1, 2010, Carty filed an Application for Resolution of Injury Claim. In addition to the work-related shoulder injuries, he also alleged a compensable psychological condition, which was evidenced by the medical reports of Dr. Robert Granacher and Dr. Eric Johnson. Both doctors diagnosed him with Major Depression. Dr. Johnson also diagnosed him with Anxiety Disorder. The doctors attributed the conditions to the workplace injury of March 11, 2009.
In his deposition, Carty indicated that he had become depressed after he sustained the physical injuries and was prescribed Wellbutrin (the trademark name of an anti-depressant developed by GlaxoSmithKline) by Dr. Jason Rice, his family physician. Carty stated that he had been taking Wellbutrin for approximately eighteen (18) months. On cross-examination, Carty denied ever having been prescribed Wellbutrin or having received any treatment whatsoever for anxiety or depression before his injury in 2009. On re-direct examination, he acknowledged that he had taken Bupropion, the generic version of Wellbutrin. He did not explain why he had been prescribed Bupropion by Dr. Rice prior to 2009, but he denied having experienced anxiety or depression before he sustained the work-related physical injuries in 2009.
Included in the record are multiple, comprehensive, written progress notes prepared by Dr. Rice. Notes dating from April 2005 through mid-2007 indicate that Carty's chief complaint over the years was fatigue associated with his morbid obesity. There was also concern about diabetes. The notes indicate that Carty was encouraged to watch his diet, to exercise, and to lose weight. The doctor's notes also specifically indicate that Carty reported "[n]o recent history of recent or recurrent depression, persistent or frequently recurrent anxieties . . . or panic attacks." At some points, the notes indicate that Carty was losing weight. The notes predating the injury at issue confirm that Carty was prescribed Wellbutrin.
In a further series of progress notes dating from November 2009 through August 2010 (following Carty's work injury on March 11, 2009), Dr. Rice's notes indicate that Carty began to have "complaints of depression, irritability, and insomnia." The first mention of depression in his overall medical history was contained in Dr. Rice's notes covering an office visit by Carty on November 16, 2009. Dr. Rice prescribed Wellbutrin.
On August 4, 2010, Dr. Robert Granacher performed a psychiatric evaluation of Carty. He diagnosed Carty with Major Depression attributable to his work-related injury. Granacher was unaware that Carty had been prescribed Wellbutrin. However, in his deposition, Dr. Granacher agreed that if he were to review records indicating that Carty had been previously prescribed anti-depressants, he might re-consider his position that Carty did not suffer any mental disorder pre-existing his work-related physical injuries.
On December 29, 2009, Dr. Eric Johnson saw Carty at his attorney's request. Johnson was likewise unaware that Carty had been prescribed Wellbutrin. Dr. Johnson diagnosed Carty with major Depression and Anxiety Disorder.
On January 15, 2011, Dr. Douglas Ruth performed another psychiatric evaluation of Carty. Dr. Ruth was not convinced that Carty's self-reporting about his mental health symptoms could be accepted as valid. He diagnosed Carty with Depressive Disorder but noted that Carty had been prescribed Wellbutrin in the same dosage since 2005. Dr. Ruth conceded that the reasons for the prescription had not been documented and that there had been no reports or findings that Carty suffered with a psychiatric condition prior to mid-2009. Following his evaluation, Dr. Ruth was not persuaded that Carty required psychiatric treatment of any sort.
On March 2, 2011, counsel for Averitt Express corresponded with Dr. Rice about Carty's prescription for Wellbutrin. Dr. Rice's office manager answered the correspondence and indicated that Carty had been prescribed Wellbutrin for anxiety -- but not for depression.
After analyzing the evidence, the Administrative Law Judge rejected the contention of Averitt Express that Carty's mental health condition was unrelated to his work-injury. The ALJ noted that it was clear that Carty "had an onset of depression symptoms following his work injury and inability to continue working." Opinion and Order at 13. The ALJ was "convinced by the opinions of Dr. Granacher and Dr. Johnson that [Carty] does have a major depression related to the injury of March 11, 2009 and its consequences" and ordered that the employer would be responsible for the payment of medical expenses associated with Carty's mental health condition.
The employer's petition for reconsideration focused on the opinions of Drs. Granacher and Johnson. Averitt Express argued that the opinions of these doctors were the product of an incomplete and inaccurate medical history and that they were, therefore, unreliable. The employer contended that if Drs. Granacher and Johnson had been provided with the 2005 through 2006 progress notes of Dr. Rice, or if Carty had provided an accurate picture of his own medical history, the doctors' opinions with respect to causation would have been different. Averitt Express argued that based upon the opinions of Dr. Granacher and Johnson, it was patent error to conclude that Carty suffered with Major Depression related to the work injury of March 11, 2009. The ALJ denied the petition.
The ALJ has the sole discretion to determine the quality, character, and substance of the evidence and may reject any testimony and believe or disbelieve various parts of the evidence regardless of whether it comes from the same witness or the same party's proof. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky.1985). If the party with the burden of proof is successful before the ALJ, the question on appeal is whether the ALJ's opinion was supported by substantial evidence. Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky.App.1984). The Board is charged with deciding whether the ALJ's finding "is so unreasonable under the evidence that it must be viewed as erroneous as a matter of law." KRS 342.285; Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky.2000). When reviewing its decision, we may reverse only where the Board has overlooked or misconstrued controlling law or so flagrantly erred in evaluating the evidence that it has caused gross injustice. Western Baptist Hosp. v. Kelly, 827 S.W.2d 685 (Ky.1992).
As it did below, Averitt Express relies on Cepero v. Fabricated Metal Corp, 132 S.W.3d 839 (Ky.2004), to support its contention that the opinions of Drs. Granacher and Johnson cannot constitute substantial evidence as to the issue of causation. Averitt Express argues that the opinions of Dr. Granacher and Johnson are fatally flawed since they were built upon an inaccurate or incomplete medical history. It argues that Carty "undermined [the discretion of the ALJ] when he lied under oath and lied to his evaluating psychiatrists concerning his prior psychiatric history." Brief at 11. Additionally, Averitt Express contends that the Board erred by mischaracterizing Dr. Ruth's report as supporting an award of benefits.
We are not persuaded that the Cepero decision controls the outcome of this appeal. In Cepero, the claimant alleged that he suffered a work-related knee injury. The ALJ awarded Cepero benefits based upon evidence from two physicians that indicated that his knee condition was related to a work injury. However, neither doctor was aware that Cepero had suffered a severe injury to his knee several years earlier. The Board reversed the finding of the ALJ that the doctors' opinions were sufficient evidence upon which to base an award of benefits. The Supreme Court of Kentucky affirmed, quoting the Board's holding as follows:
[I]n cases such as this, where it is irrefutable that a physician's history regarding work-related causation is corrupt due to it [sic] being substantially inaccurate or largely incomplete, any opinion generated by that physician on the issue of causation cannot constitute substantial evidence. Medical opinion predicated upon such erroneous or deficient information that is completely unsupported by any other credible evidence can never, in our view, be reasonably probative.Cepero, 132 S.W.3d at 842. (Emphasis added.)
The facts in Cepero are readily distinguishable from the facts of the case before us. In Cepero, there was a complete omission of a significant and clearly relevant past injury, leading the medical expert to find the claimant's injury to be entirely work-related. In Cepero, the medical expert testified that, if she had known of the past injury, her opinion would have been different.
In this case, there is nothing to indicate that Carty knowingly or deliberately attempted to conceal his prescription for Wellbutrin. At his deposition, Carty readily admitted that he had a prescription for Bupropion and acknowledged that he was confused about the generic form of the prescription. However, he categorically denied having experienced depression before he sustained the work-related physical injuries in 2009.
The parties admit that the medical records provided by Carty's family physician confirm that Carty was prescribed Wellbutrin as early as 2005. While the records do not indicate the purpose of the Wellbutrin prescription, they do recite that Carty was not suffering with "recent or recurrent depression, persistent or frequently recurrent anxieties. . . or panic attacks" before he sustained the work-related physical injuries. Additionally, Wellbutrin has several well-recognized, off-label uses. For instance, it is used to treat Attention Deficit Hyperactivity Disorder, to help smoking cessation efforts, and to aid weight loss.
Despite the opinion of Dr. Ruth, the ALJ found Carty's testimony credible. Additionally, the ALJ's findings are supported by other evidence of record. For example, the first contemporaneous documentation of depression, irritability, and insomnia was made following Carty's work injuries. This notation directly harmonizes with and indeed confirms the diagnoses of Drs. Granacher and Johnson. Consequently, the opinions of Drs. Granacher and Johnson indicating that Carty suffered with impairing depression are not "completely unsupported" or without substance. The ALJ had the opportunity to assess any contradictions in the overall evidence, and his reliance upon the opinions of Drs. Granacher and Johnson is not reversible error.
Finally, we conclude that the Board did not overlook or misconstrue controlling law or that it so flagrantly erred in evaluating the evidence that it has committed gross injustice.
We affirm the opinion of the Workers' Compensation Board.
ALL CONCUR. BRIEF FOR APPELLANT: Scott M. Brown
Lexington, Kentucky
BRIEF FOR APPELLEES: John Earl Hunt
Stanville, Kentucky