Opinion
NO. 2019-CA-001206-WC
01-17-2020
BOBBIE JOE BERRY APPELLANT v. AT&T; HON. TANYA PULLIN, ADMINISTRATIVE LAW JUDGE; and WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: James D. Howes Louisville, Kentucky BRIEF FOR APPELLEE AT&T: Allison M. Helsinger Lacey D. Hicks Lexington, Kentucky
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-18-01333 OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, CALDWELL AND KRAMER, JUDGES. KRAMER, JUDGE: In a March 25, 2018 opinion and order, an Administrative Law Judge ("ALJ") dismissed Bobbie Joe Berry's claim for workers' compensation benefits against her employer, AT&T, after determining Berry had failed to prove she sustained an injury that was compensable under Kentucky's Workers' Compensation Act, KRS Chapter 342 et seq. The Workers' Compensation Board thereafter affirmed, and this appeal followed. Upon review, we likewise affirm.
Kentucky Revised Statutes.
Berry was born on November 23, 1976, and she began working for AT&T as a sales consultant in approximately 2012. In that role, she was required to sit at a desk, take telephone calls, and assist with training new employees. She was also required to take a certain number of telephone calls per month, which affected her pay. She filed her claim in this matter on September 13, 2018, alleging in her Form 101 that on October 23, 2017, she had sustained "cardiac and psychological injuries from overwhelming stress placed on her" by the management staff at AT&T. She indicated the cause of her injury was "stress, shock, psychological trauma, etc.," and that her injury had affected her "heart." In sum, she claims she suffered a "nervous breakdown" due to on-the-job harassment.
As discovery progressed, AT&T came to dispute several aspects of Berry's claim, including: (1) whether Berry had asserted an "injury" within the meaning of KRS 342.0011(1); and, if so, (2) whether Berry's evidence in that respect was persuasive.
Berry later provided deposition and formal hearing testimony detailing the specifics of her injury, as well as the treatment she sought for it. In the March 25, 2018 order at issue in this matter, the ALJ summarized her testimony in relevant part as follows:
[Berry] said that on [October 23, 2017], "My heart started feeling dizzy." She testified that she began having chest pains and could not breathe. She said that she ran to her supervisor and notified her that she was in pain. [Berry] was taken to a conference room and she said that her pain escalated. She said that she drove home and then went to the doctor's office. [Berry] testified that stress and anxiety at work caused her initial chest pain and dizziness. She said that it was due to harassment from employees and managers, particularly her manager Jason Irwin [sic] that had gone on for about a year. She said that she was required to do extra work off the clock and during her lunch and breaks and train other employees while still maintaining her quota. She said that she complained to her manager, but was still required to do the work. She said that also on the date of the alleged incident, she found out that her husband, who had been working for [AT&T] as well, had been fired. [Berry] testified that she filed a grievance regarding being harassed by three team leads. She said that prior to this, she had no trouble at work and no issues with management or her co-workers.
. . . .
[Berry] testified that when she first had her "attack" she went to the doctor and was placed on a heart monitor. She said that she was given a stress test, and failed, and underwent a heart catheterization in December 2017. She continued to stay in contact with [AT&T] through management. [Berry] said she returned to work in January 2018 and said she continued to have stress at
work because she was placed on another team. She contacted management about this, but that nothing was done until her Union got involved. She said that due to her stress and anxiety, she sought treatment at a hospital and went back to work "one or two days." She said that she returned to work in May 2018, but her computer was down for two weeks. She said that because she could not meet her quota, her pay was affected, and again she reached out to her Union. She said that she sought treatment again at another hospital.
. . . .
[Berry] testified that she treated with Physician's Primary Care initially for her heart and continued to treat with them for a time and they placed her on anxiety medication and evaluated her heart. She said that she attended counseling through that facility as well. [Berry] treated with a cardiologist, Dr. Chalhoub, who performed the stress test, heart monitor, and sonogram and heart catheterization. Her next treatment was at The Brook Hospital, beginning in February 2018. She received counseling there. She treated at Our Lady of Peace for counseling and returned to The Brook Hospital a second time. She did not currently have a cardiologist because Dr. Chalhoub retired.
. . . .
[Berry] testified that she had no treatment for her heart or mental health prior to October 2017. She said that she will continue to have cardiac treatment once she finds a new cardiologist because of the medication she has been prescribed. She did not take medication for any mental health conditions and had no appointments scheduled for treatment. The treatment she received for her mental health had helped her, but [she was] unsure if the treatment for her heart condition had. She was prescribed nitroglycerin for rapid heart rate and that [sic] she was told it was stress related.
. . . .
[Berry] testified that prior to the deposition she took a nitroglycerin pill because she was having chest pain. She said that she had anxiety because she had to talk about the work environment. She testified that she felt stronger since she learned how to cope with her anxiety and panic attacks. She said that the heart medication caused a significant weight gain. She said that her personality had changed. She said that she felt she was able to work with the exception of her current, un-related broken right leg. She said that she was not under any restrictions other than her leg. She said that she had unpaid medical expenses for treatment of the alleged work injury.
. . . .
[Berry] testified that she currently takes metoprolol and nitroglycerine for her heart condition. She continued to have dizzy spells, palpitations, and loss of breath sporadically. She had a wristlet to monitor her heartrate and pulse and she said she continued to receive treatment for her tachycardia.
. . . .
[Berry] testified that her work performance had changed since the work incident. She said that prior to the incident, she was a top performer for [AT&T] and currently she is last on her team. This affects her pay. She returned to work for [AT&T], but was making less wages than prior to the work incident. She was scheduled to see a cardiologist, Dr. Sardu. She had continued to be treated by a cardiologist, with the exception of the period of time when she had broken her ankle, since the work incident. [Berry] testified that she can now perform all her job duties. She is no longer being treated for psychological problems.
Regarding the medical evidence adduced in relation to Berry's claim, the ALJ summarized it as follows:
Dr. David Changaris - [Berry] filed as evidence the May 1, 2018 independent medical examination report (hereinafter "IME") of Dr. Changaris. He obtained a history from [Berry] and reviewed medical records. Dr. Changaris performed a physical examination of [Berry] and diagnosed, "Cardiovascular disease worsened by the hostile work environment. Depression, and anxiety consequent to the cardiac dysfunction and caused by the work environment." Using the 5th Edition of the AMA Guides to the Evaluation of Permanent Impairment (hereinafter "Guides"), Dr. Changaris assessed a 15% whole body impairment due to cardiac disease. It was his opinion that, "Due to the advent of depression and anxiety concomitant with reported work place harassment, this client is unable to work." It was his opinion that the hostile work environment was a "physical exertion" equivalent. He said that the hostile work environment caused [Berry's] heart to malfunction causing chest pain and tachycardia. It was his opinion that the concomitant loss of capacity caused significant depression and anxiety. He opined that it was likely [Berry] had preexisting dormant cardiac disease aroused into disabling reality by the stressful work environment. He placed [Berry] at maximum medical improvement (hereinafter "MMI") as of May 1, 2018. He recommended restrictions as [Berry] is unable to work with groups of people until her cardiac symptoms, anxiety, and depression are resolved. It was his opinion that [Berry] did not retain the physical capacity to return to the same work activities she was performing at the time of injury. He opined that [Berry] would require continued care by her cardiologist and a psychiatrist "to be defined."
[Berry] filed as evidence Dr. Changaris' January 7, 2019 supplement to his IME report. Dr. Changaris stated that
he had reviewed Dr. Keedy's chart review. It was his opinion that Dr. Keedy and he "are very close to having similar opinions." After reviewing Dr. Keedy's report, Dr. Changaris said that the impairment rating he assigned would be increased to a 30% whole person impairment due to [Berry's] tachycardia due to the hostile work environment. He said, "At this point it is probable that she will always have episodes of tachycardia when faced with job stress. In this setting I would offer the ALJ the choice of 15% whole body impairment if the expectation [is] that this client may return to work if the work environment is perceived as safe."
Cardiovascular Medical Specialists LLC/Dr. Anis Chalhoub - [Berry] filed these treatment records covering from November 10, 2017 through December 13, 2017 as evidence. These showed [Berry's] treatment for chest pain. The treatment records included a left heart catheterization which showed no blockage, an ultrasound, a chest x-ray which showed no acute cardiopulmonary disease, and an EKG and stress test. [Berry] was prescribed metoprolol, Imdur, Lopressor and nitroglycerin. She was advised to take a baby aspirin daily. After the heart catheterization and stress test, Dr. Chalhoub diagnosed Prinzmetal's angina.
The Brook Hospital - [Berry] filed as evidence the June 27, 2018 Discharge Summary regarding [her] treatment at this facility. The summary showed [Berry's] admission diagnosis on June 8, 2018 was, "Major depression, recurrent. Panic disorder. Posttraumatic stress disorder. Personality: Deferred." The summary noted that [Berry] had hypertension and irregular heartbeat. The psychosocial and contextual factor were noted to be fairly severe and included work problems, and recent surfacing abuse memories from childhood. The summary reported that [Berry] presented with a 2 year history of depression, panic attacks, and PTSD and had begun treatment in February 2018. [Berry] had been prescribed Effexor, Seroquel, and possibly Celexa. The
summary showed [Berry] had improved in treatment, but deteriorated again when she returned to work "secondary to harassment after the patient reported her employer to EEOC." It showed that [Berry] had been admitted to Our Lady of Peace in May 2018, after a suicide attempt. [Berry's] medications were changed to Prozac, Elavil, and Vistaril. Following that admittance, [Berry] returned to work and her anxiety returned. [Berry] continued to have symptoms of PTSD and depression. [Berry] reported a previous suicide attempt at age 12. [Berry] denied having problems with anxiety until the stressors from work surfaced. [Berry's] condition at discharge was partially improved. She continued with depression, but was not suicidal. The prognosis was "guarded as she has been involved in hospital-based outpatient programs, but was noncompliant with attendance here and has a tendency to not follow up with office-based treatment." [Berry's] discharge medications were Inderal, Prozac, Elavil, and Abilify. Her discharge diagnoses were, "Major depression, recurrent. Panic disorder. PTSD. Personality: Deferred." The psychological and contextual factor were work problems and recent surfacing of memories of childhood abuse.
Dr. David Keedy - [AT&T] filed the December 8, 2018 records review report of Dr. Keedy. It was his opinion that [Berry] did not sustain any cardiovascular injuries secondary to her work injury of October 23, 2017. He said that she did demonstrate multiple episodes of chest pain, shortness of breath, and tachycardia, "which were in turn most likely secondary to a hostile work environment." It was his opinion that Imdur and Lopressor were reasonable and standard anti-anginal agents and the stress test was reasonable and necessary. It was his opinion that the heart catheterization was necessary and consistent with ACC/AMA guidelines, based on [Berry's] history, to rule out coronary artery disease. He said that the left heart catheterization was prompted by [Berry's] continued chest pain despite two antianginal agents and "was required for a definite
diagnosis as well as treatment." Dr. Keedy did not agree with Dr. Changaris' assessment that [Berry] had a whole person impairment secondary to a cardiovascular condition. He did agree that [Berry] had PTSD, panic attacks, anxiety and depression caused by a hostile work environment "which may be manifested by chest pain, hypertension, palpitations, and sinus tachycardia." Dr. Keedy said that if [Berry's] hostile work environment was completely resolved, [Berry] would most likely reach MMI at that time. He recommended reducing [Berry's] future cardiovascular risk with a daily exercise program and cessation of smoking. He referred [Berry's] mental healthcare to her psychiatrist. It was his opinion that there was not any cardiovascular permanent impairment and deferred rating of her mental health to her psychiatrist. He said that he did not examine [Berry] and using only the information he was presented, he believed that [Berry] was not suffering from any relevant pre-existing active condition at the time of her alleged work injury. It was Dr. Keedy's opinion that [Berry] retained the physical capacity to return to her former job, but her anxiety, depression, panic attacks and PTSD would have to be addressed prior to her return to employment. He recommended no physical restriction of any type.
Dr. Mohamed Khodein - [AT&T] filed as evidence [the] August 21, 2018 Psychiatric Consultation report of Dr. Khodein. Dr. Khodein evaluated [Berry] on referral from her surgeon prior to lap-band surgery. [Berry] reported having been overweight for years and as a result, had started to develop some medical issues. She reported a history of diagnosis and treatment of depression in the past, and that her sensory depression was currently in remission. She denied active suicidal or homicidal thoughts and denied any prior suicide attempts. [Berry] reported a history of anxiety, but denied any current symptomatology. [Berry] denied any history of abuse or psychosis. [Berry] denied any history of inpatient psychiatric treatment, but reported a history
of outpatient treatment for depression. She reported a history of tachycardia. Dr. Khodein recorded that [Berry] did not smoke cigarettes. [Berry's] current medications were reported as Cartia, metoprolol, amitriptyline, and nitroglycerin as needed for chest pain. Dr. Khodein diagnosed: "1. Adjustment disorder with depressed mood secondary to medical condition which is obesity without any suicidal or homicidal psychosis. 2. Major depression disorder, in for remission, without any suicidal or homicidal psychosis. Moderate-to-morbid obesity, hypertension, arthritis of the joints, lower back pain, and history of tachycardia." Dr. Khodein recommended the lap band surgery for [Berry].
As indicated, much of the litigation below focused upon whether Berry had asserted an "injury" within the meaning of KRS 342.0011(1); and, if so, (2) whether Berry's evidence in that respect was adequate.
And, as indicated, the ALJ ultimately dismissed Berry's claim after concluding Berry's evidence was inadequate. The ALJ arrived at that conclusion after determining Dr. Changaris' report--the primary source of Berry's medical evidence favoring her injury claim--was unsupported by objective medical findings, undermined by the records it was purportedly based upon, and tainted by Berry's lack of credibility. In relevant part, the ALJ held:
In this particular case, the medical opinions vary on whether [Berry] suffers from a work-related injury to her heart and psychological injuries. When the medical evidence is conflicting, the question of which evidence to believe is the exclusive province of the ALJ. Kingery v. Sumitomo Electric Wiring, 481 S.W.3d 492 (Ky. 2015).
Dr. Changaris diagnosed [Berry] with "cardiovascular disease worsened by the hostile work environment and depression and anxiety consequent to the cardiac dysfunction caused by the work environment." Dr. Changaris opined on causation saying, "Based upon client history, medical records, and physical examination, the above impairment(s) is solely due to the hostile work environment, which brought into disabling reality underlying cardiovascular disease and subsequent underlying anxiety-depression." Dr. Keedy opined [Berry] "did not sustain any cardiovascular injury secondary to her work injury of October 23, 2017." Dr. Keedy noted that [Berry's] catheterization and echocardiogram "were completely normal."
In this particular case, the medical opinion of Dr. Keedy is more persuasive to the ALJ. Even though Dr. Keedy did not examine [Berry], his opinion is more persuasive to the ALJ because his opinion is consistent with the medical records of Dr. Chalhoub, [Berry's] treating cardiologist. Dr. Changaris' opinion lacks the weight to persuade the ALJ because he seemed to identify tachycardia as the impairment/injury and pointed to table 3-8 (page 42) of the Guides which is the section of the Guides that relates to "congenital heart disease." Then in his supplemental report, Dr. Changaris referenced table 3-11 (page 56) of the Guides in which every class of impairment in that table requires "arrhythmia documented by ECG." Dr. Changaris reviewed only records from The Brook Hospital and Cardiovascular Specialists. Further, Dr. Changaris said, "The client reported no prior history of depression before the accident of record." The medical treatment records do not substantiate that report by [Berry]. The June 8, 2018 treatment record from The Brook Hospital-KMI includes "two-year history of depression, panic attacks and PTSD." The records from The Brook Hospital also noted that from age 12 to present, [Berry] had issues with bulimia. Dr. Changaris reported "no history of smoking" whereas Dr. Chalhoub, [Berry's] treating cardiologist,
reported "history of tobacco abuse" and "smoking status current every day smoker, smoker (1PPW)."
In Osborne v. Pepsi, 816 S.W.2d 643 (Ky. 1991), the Supreme Court of Kentucky said that physicians' conclusions may be based on firsthand knowledge, such as his own examination or tests of the patient, or upon secondhand knowledge such as patient's statements or reports performed by others. The Osborne Court said, "When a medical opinion is based solely upon history, the trier of fact is not constricted to a myopic view focusing only on the physician's testimony. Other testimony bearing on the accuracy of the history may be considered. After all, funneling a statement through a second party provides no additional credibility enhancement. The recitation of a history by a physician does not render it unassailable. If the history is sufficiently impeached, the trier of fact may disregard the opinion based on it." In this case the treatment records of The Brook Hospital and Dr. Chalhoub impeach [Berry's] history to Dr. Changaris.
Dr. Changaris said he based his causation opinion on client history, medical records and physical examination. Since his physical examination revealed regular rate and rhythm of [Berry's] heart and the medical records of Dr. Chalhoub are not consistent with Dr. Changaris' conclusions, then the information given by [Berry] to Dr. Changaris becomes even more important.
In general, the ALJ found [Berry] to be an unreliable historian and witness. For example, in addition to those inconsistencies noted above, Dr. Chalhoub reported in [Berry's] history "preeclampsia" contrary to [Berry's] assertion at the Formal Hearing that she had never had high blood pressure prior to the incident of October 23, 2017.
. . . .
Although related to coal workers' pneumoconiosis and coal dust, the Supreme Court of Kentucky wrote in Durham v. Peabody Coal, [272 S.W.3d 192, 197 (Ky. 2008)], that a worker's statements concerning the nature of exposure to coal dust may assist a physician, but such statements are not "objective medical findings" and "Nor are a worker's statements describing symptoms such as breathing difficulties." The reports by [Berry] are insufficient to establish an injury as defined by the Act.
Both Dr. Keedy and Dr. Changaris used imprecise language in their causation opinions. While Dr. Keedy's vagueness in his report, specifically the reference to tachycardia being secondary to work stress, reduces the weight the ALJ gives his medical testimony, the ALJ still finds his medical testimony more persuasive than that of Dr. Changaris because it is buttressed by the medical records in evidence, in particular Dr. Chalhoub's records and the records of The Brook Hospital. In his treatment record of November 30, 2017, Dr. Chalhoub charted, "Heart: rhythm is regular. First sound is normal. Second heart sound is present. No S3 or S4. No murmur." In that same treatment record, Dr. Chalhoub reported a "12-lead EKG reveals normal sinus rhythm with poor R-wave progression, otherwise, unremarkable." After a heart catheterization and stress test, Dr. Chalhoub concluded, "1) normal left ventricular wall motion and ejection fraction and 2) no significant obstructive coronary artery disease" and Prinzmetal's angina.
[Berry] relies upon McCowan v. Matsushita Appliance Co., 95 S.W.3d 30 (Ky. 2002). In that case, Plaintiff suffered a heart attack which is a harmful change to the human organism. In this case at hand, [Berry] did not present objective medical findings to evidence a harmful change to the human organism. The only diagnosis, Prinzmetal's angina, is based only on Plaintiff's report of
symptoms. The reasons given above, the ALJ does not find Plaintiff's report of symptoms persuasive.
Therefore, based on the medical opinion of Dr. Keedy, and the treatment records in evidence, the ALJ finds that [Berry] has not met her burden of proving a work-related physical injury to her heart. Stress alone is not an injury as defined by the Act.
"Preeclampsia" is a condition of hypertension occurring during or immediately following pregnancy. See THE AMERICAN HERITAGE STEDMAN'S MEDICAL DICTIONARY 667 (2001).
In sum, the ALJ dismissed Berry's claim after finding: (1) Berry had failed to produce any objective medical evidence proving she had sustained a physical injury or objective condition due to the alleged October 23, 2017 work incident; and (2) Berry's subjective evidence in that regard (i.e., what she related about her medical condition through her testimony and the history she provided Dr. Changaris) was unreliable.
Berry thereafter filed a petition for reconsideration, which was denied; and appealed to the Board, which affirmed. She now appeals to this Court, asserting the same arguments she asserted in her petition and administrative appeal. Berry contends the ALJ's decision to dismiss her claim was erroneous "because there is no evidence of substantial probative value, when properly construed, that supports the decision." She adds:
In short, there is no medical opinion in the record that Berry did not suffer a harmful change; there is no medical opinion in the record that Berry did not have any objective findings supporting a harmful change; there is no medical opinion in the record that Berry did not develop tachycardia, and; there is no medical opinion in the record that Berry's physical condition did not support
the need for cardiovascular medication, cardiovascular testing and continued cardiovascular monitoring. It's simply incomprehensible that the ALJ has been allowed to determine that the objective medical findings are insufficient to support a harmful change.(Emphasis added.)
In making this argument, Berry labors under two misapprehensions. First, she misapprehends the nature of workers' compensation proceedings. The claimant bears the burden of proving entitlement to a benefit by a preponderance of the evidence, and the claimant likewise carries the risk of non-persuasion. See Wolf Creek Collieries v. Crum, 673 S.W.2d 735, 736 (Ky. App. 1984). Because Berry sought benefits under KRS Chapter 342, Berry (the claimant) had the burden of proving--and persuading the ALJ (the fact-finder)--that she sustained a work-related injury on October 23, 2017. See KRS 342.285; Morrison v. Home Depot, 279 S.W.3d 172, 175 (Ky. App. 2009) (citation omitted) ("the ALJ, as the fact finder, has sole authority to judge the weight, credibility, substance, and inferences to be drawn from the evidence.") And, where the fact-finder's decision is to deny relief to the party with the burden of proof or persuasion--as it was here--the issue on appeal is not whether the fact-finder's denial is supported by substantial evidence. Rather, our standard of review is whether the evidence is so compelling as to require a finding in the claimant's favor. Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986).
Second, Berry misapprehends why the ALJ dismissed her claim. It was not simply because she failed to demonstrate she sustained "a harmful change." The ALJ also determined she failed to persuasively demonstrate when and why she sustained a harmful change to her cardiovascular system. As the ALJ explained, Berry "ha[d] not met her burden of proving a work-related physical injury to her heart." (Emphasis added.)
We agree with the ALJ that Berry failed to produce any persuasive, objective medical evidence in support of her claim that she sustained a physical injury or any other objectively verifiable condition due to the alleged October 23, 2017 work incident. True, as Berry emphasizes throughout her appellate brief, AT&T's expert, Dr. Keedy, made the following statement in his December 8, 2018 report:
I do agree with Dr. Changaris that Ms. Berry has posttraumatic stress disorder, panic attacks, anxiety and depression caused by a hostile work environment which may be manifested by chest pain, hypertension, palpitations, and sinus tachycardia.(Emphasis added.)
However, purely psychological disabilities such as PTSD, panic attacks, anxiety, and depression are only compensable if they arise from a physically traumatic, work-related incident. See Kentucky State Police v. McCray, 415 S.W.3d 103, 107-08 (Ky. App. 2013) (explaining "KRS 342.0011(1) clearly limits compensability to those occurrences of PTSD arising from physical injury to the claimant" and that "resultant physical manifestations of the stressful event such as high blood pressure or a racing heartbeat do not constitute a causal, physically traumatic event sufficient to support a claim for benefits based on PTSD"). Here, no evidence of record demonstrates Berry's alleged injury stemmed from a physically traumatic event.
Moreover, even if Dr. Keedy's above-quoted statement could be considered a diagnosis, it could not be considered objective medical evidence because it is not "supported by objective medical findings in order to establish the presence of a compensable injury." Gibbs v. Premier Scale Company/Indiana Scale Co., 50 S.W.3d 754, 761 (Ky. 2001). Here, the only medical documentation Dr. Keedy referenced in his December 8, 2018 report was (1) Dr. Changaris' IME, which listed Berry's subjective complaints but included no objective findings supportive of Berry's injury claim; and (2) the appointment notes of Dr. Chalhoub, who never opined Berry suffered from any condition attributable to an October 23, 2017 work incident, much less any acute cardiopulmonary disease.
Indeed, Dr. Chalhoub merely noted that at some point prior to seeing Berry on November 10, 2017, Berry had undergone a "metabolic stress test recently, which was abnormal"; and that on January 19, 2018--three months after the alleged work incident--Berry's standing heart rate was measured at 106 beats per minute. Apart from that, Dr. Chalhoub indicated in each of Berry's appointment notes adduced in this matter that, objectively, Berry's cardiovascular system and processes were normal and unremarkable.
Consistent with the theme of her appeal--that the ALJ failed to prove she did not sustain a harmful change--Berry asserts in her brief: "Berry's heart rate has been shown to range from 74 bpm to 106 bpm with no appreciable change in her blood pressure (and this is not to say that her bpm could not be even higher on days she was not examined). The ALJ is not qualified to determine that these measurements do not indicate a harmful change." (Emphasis added.)
With that said, Berry's assertion not only misunderstands the burden of proof; it is also disingenuous. Her expert, Dr. Changaris, relied upon Example 3-47 of the 5th Edition of the AMA Guides, specifically p. 58, Example 3-47, in determining Berry was entitled to a 30% whole person impairment rating due to "tachycardia." That example provides that a heart rate of "86 BPM" is "regular," and assesses a 30% whole person impairment rating to an individual who experienced rapid heart rates of "155 BPM." Indeed, "tachycardia" is commonly defined as "[a] rapid heart rate, especially one above 100 beats per minute in an adult." THE AMERICAN HERITAGE STEDMAN'S MEDICAL DICTIONARY 815 (2001). Here, Dr. Chalhoub's record of her January 19, 2018 appointment is the only record Berry produced indicating that her heart rate ever exceeded a rate of 86 beats per minute.
That, in turn, leads to the other crux of why the ALJ dismissed Berry's claim: Berry's subjective evidence. Berry's assertions and complaints are the only evidence linking the onset of her anxiety, depression, panic attacks, tachycardia, and chest pains to an October 23, 2017 work incident. Evident from her brief, Berry's apparent contention is that the ALJ erred in dismissing her claim because, in her view, her subjective evidence demonstrating that she sustained a work-related injury on October 23, 2017 was uncontradicted.
But, in determining whether the evidence adduced is substantial, the fact-finder must consider whatever in the record fairly detracts from its weight. Kentucky Bd. of Nursing v. Ward, 890 S.W.2d 641, 643 (Ky. App. 1994). The ALJ is not denied the discretion to determine the credibility of witnesses and weigh the evidence merely because the evidence is uncontradicted. In the event the ALJ chooses to reject uncontradicted evidence, all that is required is a reasonable explanation. Commonwealth v. Workers' Compensation Board, 697 S.W.2d 540, 541 (Ky. App. 1985). And with that in mind, the ALJ provided a reasonable explanation: Berry's credibility.
As an aside, Berry faults the ALJ for disregarding that Dr. Chalhoub diagnosed her with Prinzmetal's angina. As indicated, though, even assuming Berry has Prinzmetal's angina, Dr. Chalhoub never expressed any opinion about what he believed caused it, or when Berry's symptoms may have arisen. The only medical expert who described the nature of Prinzmetal's angina was Dr. Keedy, who stated in his report that while he did not believe Berry was afflicted by that disease at all, it was a disease "very commonly found in female smokers."
And that, as the ALJ noted, leads to the first of several contradictions affecting Berry's credibility as an historian and witness: Berry informed Dr. Changaris--the neurologist who rendered an opinion about her alleged cardiac injury--that she had no history of being a smoker. Conversely, she reported to Dr. Chalhoub--whose records Dr. Changaris purportedly reviewed--that she had been a one-pack-per-week smoker for twenty years.
And, there were more contradictions. To review, Berry stated in her Form 101, her testimony, and in what she related to Dr. Changaris that she developed anxiety, depression, panic attacks, rapid heartbeat (i.e., tachycardia), chest pains, and hypertension due solely to an alleged work incident of October 23, 2017. Underscoring that date, Dr. Changaris noted in his May 1, 2018 IME that October 23, 2017 was the "onset" of her anxiety, depression, panic attacks, tachycardia, chest pains, and hypertension; and that "[t]he client reported no prior history" of those symptoms "before the accident of record." Dr. Changaris concluded in his IME that "the hostile work environment caused [Berry's] heart to malfunction causing chest pain and tachycardia," and "the concomitant loss of capacity" caused Berry "PTSD, panic attacks, anxiety and depression." Berry has characterized her alleged October 23, 2017 work injury consistently with Dr. Changaris' conclusion.
But, Berry's statements in her Form 101, her testimony, and what she related to Dr. Changaris are the only evidence of record linking the "onset" of her alleged anxiety, depression, panic attacks, tachycardia, chest pains, and hypertension to an October 23, 2017 work incident. And, those statements conflict with other statements she provided. For example, as to the onset date of her symptoms, the ALJ noted that Berry's June 8, 2018 treatment record from The Brook Hospital indicated Berry had a "two-year history of depression, panic attacks and PTSD." The ALJ also noted Dr. Chalhoub's November 10, 2017 treatment note reported Berry had a history of "preeclampsia," contrary to Berry's assertion at the formal hearing that she had never had high blood pressure prior to October 23, 2017.
Berry's statements also varied regarding the cause of her symptoms. For instance, she informed Dr. Changaris that the only cause of her anxiety, depression, panic attacks, tachycardia, chest pains, and hypertension was her work incident of October 23, 2017. But, when she was admitted to The Brook Hospital on June 8, 2018, she reported "symptoms of PTSD including hyperarousal, flashbacks, nightmares, and hypervigilance stemming from childhood sexual abuse." Later, according to the record of her August 21, 2018 consultation with Dr. Khodein to receive lap-band surgery, Berry denied any history of abuse. Berry also discussed her symptoms of depression and hypertension with Dr. Khodein, but she did not mention or attribute them to any work-related incident; instead, she attributed her symptoms of depression and hypertension to her inability to lose weight.
In relevant part, Dr. Khodein's August 21, 2018 report states:
[Berry] reports that her current weight is 243 pounds and her height is 5-foot 5 inches. [Berry] reports that she has been overweight for years and she has tried very hard to lose weight before without any success. The patient reports as a result of this weight, she has started to develop some medical issues. She has been diagnosed with hypertension.
. . . .
DIAGNOSES: . . . 1. Adjustment disorder with depressed mood secondary to medical condition, which is obesity[;] . . . Moderate-to-morbid obesity, hypertension, arthritis of the joints, lower back pain, and history of tachycardia.
We will not labor the point further. Suffice it to say that appellate review of any workers' compensation decision is limited to correction of the ALJ when the ALJ has overlooked or misconstrued controlling statutes or precedent or committed an error in assessing the evidence so flagrant as to cause gross injustice. Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992). In this matter, that standard is not met. Accordingly, we AFFIRM.
ALL CONCUR. BRIEF FOR APPELLANT: James D. Howes
Louisville, Kentucky BRIEF FOR APPELLEE AT&T: Allison M. Helsinger
Lacey D. Hicks
Lexington, Kentucky