Opinion
NO. 2012-CA-000844-WC
03-01-2013
MARTIN COUNTY COAL CO./PILGRIM MINING CO. APPELLANT v. WILLIAM GOBLE; HON. DOUGALS GOTT, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEFS FOR APPELLANT: Thomas C. Donkin 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NOT TO BE PUBLISHED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-10-01405
OPINION
AFFIRMING
BEFORE: MAZE, MOORE AND TAYLOR, JUDGES. MAZE, JUDGE: Martin County Coal Company/Pilgrim Mining Company (Martin) petitions for review of an opinion and order by the Workers' Compensation Board (Board) affirming the Administrative Law Judge's (ALJ) award of income benefits to William Goble for permanent partial disability (PPD) arising from a work-related physical and psychological impairment. Martin argues that benefits for the psychological impairment were inappropriate because there was no evidence that this condition was at maximum medical improvement (MMI). We conclude that there was substantial evidence to support an inference that Goble's depression was at MMI, and that the ALJ did not err by awarding PPD benefits for this impairment. Hence, we affirm.
The underlying facts of this matter are not in dispute. On August 3, 2009, William Goble sustained a low-back injury during the course of his employment with Martin. He immediately reported the injury and was transported to the hospital. His course of treatment has consisted of medication, injections, and physical therapy. He has not returned to work.
Goble filed a claim alleging that he has a permanent injury to his low back as a result of the work-related incident. He also claimed a psychological impairment arising from the back injury. Regarding the low-back injury, the ALJ ultimately determined that Goble's physical impairment was proximately caused by the 2009 work injury. Consequently, the ALJ awarded Goble PPD benefits based upon a 7% impairment. Martin does not contest the evidence supporting this award.
The ALJ also awarded medical benefits for Goble's separate hearing-loss claim. Again, Martin does not contest the evidence supporting this award.
With regard to his claim for psychological impairment, Goble testified that he has suffered from depression as a result of the pain from his back injury. In support of this claim, Goble filed the report of Dr. Eric Johnson, Ph.D., a psychologist who evaluated him on November 9, 2010. Dr. Johnson noted Goble had complaints of lumbar pain radiating into the right leg and foot, as well as depressed mood. He noted Goble's affect was subdued, but appropriate for depressed mood. Dr. Johnson diagnosed pain disorder associated with psychological factors and back pain. Dr. Johnson noted the symptoms were mild to moderate, and were a direct result of the work-related injury. However, since Goble had not had any prior psychiatric treatment, Dr. Johnson could not make an assessment of permanent impairment and indicated that Goble may benefit from psychiatric consultation and treatment. Nevertheless, Dr. Johnson assessed a 5% impairment rating pursuant to the American Medical Association Guides to the Evaluation of Permanent Impairment, 2nd Edition ("AMA Guides").
Dr. Douglas Ruth, a psychiatrist, evaluated Goble on March 2, 2011. He prepared a report dated March 7, 2011 which was submitted into evidence by Martin. Dr. Ruth diagnosed a depressive disorder, not otherwise specified, and indicated mood disorder due to obstructive sleep apnea and hypothyroidism should be explored and ruled out. Dr. Ruth stated, "[f]or that reason, a more specific diagnosis than 'depressive disorder, NOS' is not possible until that is accomplished." Dr. Ruth stated if sleep apnea and thyroid dysfunction were ruled out, the depressive disorder would be due to the work-related injury. Dr. Ruth indicated Goble had not reached MMI because he has not had treatment for his psychiatric complaints.
The ALJ awarded benefits based upon the low back injury, along with the psychological component to the claim. In awarding psychological benefits based upon a 5% impairment rating, the ALJ stated the following:
The ALJ deliberated at length over Goble's claim of a companion psychological injury. Goble did not offer strong testimony in support of it. Perhaps that was because the condition is mild, as noted by his evaluator, Dr. Johnson, whose opinion on impairment was found to be stated with sufficient foundation although the rating of 5% was less than enthusiastically assigned. However, the report of the Defendant's psychiatric evaluator, Dr. Ruth, was so flimsy that the ALJ took very little away from it. The ALJ does not find Dr. Ruth's opinion on a lack of maximum medical improvement to credibly support Goble's argument that an interlocutory award of TTD should be entered. The ALJ relies on Dr. Johnson to find that Goble has additional impairment of 5% for his work related depression.
On reconsideration, Martin argued that the ALJ erred by awarding PPD benefits for a psychiatric injury without sufficient evidence that this condition was at MMI. The ALJ denied the petition. On further review, the Board affirmed, concluding that there was substantial evidence to support the ALJ's determination Goble sustained a psychological component to his claim for which he was entitled to benefits. The Board noted that Goble has not been afforded any psychological treatment, without which both experts conclude his condition will not improve. The Board concluded that there was sufficient evidence to conclude that Gobel was at MMI and that PPD benefits were appropriate. This petition for review followed.
Martin again argues that an award of PPD benefits must be based on a permanent impairment rating by a medical expert, and that such rating must include a finding that the condition is at MMI. Martin contends that there was no evidence that Goble's psychological condition was stabilized and unlikely to change, with or without medical treatment, and consequently the ALJ could not reasonably infer that his condition was at MMI. As a result, Martin maintains that Goble did not meet his burden of proving that he was entitled to PPD benefits for a psychiatric impairment rating and that the ALJ's award of benefits was improper.
It is well-established that a claimant in a workers' compensation claim bears the burden of proving each of the essential elements of his cause of action. Burton v. Foster Wheeler Corp., 72 S.W.3d 925 (Ky. 2002). Since Goble was successful in persuading the ALJ that he sustained a 5% psychological impairment as a result of his work-related injury, the question on appeal is whether there was substantial evidence of probative value to support the ALJ's conclusion. Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984). Substantial evidence is defined as evidence of relevant consequence, having the fitness to induce conviction in the minds of reasonable people. Smyzer v. B.F. Goodrich Chemical Co., 474 S.W.2d 367 (Ky. 1971). As fact-finder, the ALJ has the sole authority to determine the quality, character, and substance of the evidence. Square D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993); Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985). In order to reverse the decision of the ALJ, it must be shown there was no substantial evidence of probative value to support his decision. Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986).
Dr. Johnson testified that Goble suffered a psychological impairment which was causally related to his back injury. Dr. Ruth agreed that Goble exhibits signs of "mild" depression, but he was not convinced that the condition was disabling or that other causes could be ruled out. However, the ALJ expressly rejected Dr. Ruth's conclusions and accepted Dr. Johnson's diagnosis. Martin does not challenge this conclusion. However, Martin points out that Dr. Johnson's report specifically states that Goble has not had any treatment for his psychological since the work-injury occurred. In the absence of any prior treatment, Martin contends, Dr. Johnson could not conclude that Goble's psychological condition was at MMI.
MMI refers to the time at which a worker's condition stabilizes so that any impairment may reasonably be viewed as being permanent. Tokico (USA), Inc. v. Kelly, 281 S.W.3d 771, 775-76 (Ky. 2009). The need for additional treatment does not preclude a finding that a worker is at MMI. Id. at 776, citing W.L. Harper Constr. Co., Inc. v. Baker, 858 S.W.2d 202, 204 (Ky. App. 1993). Given the relative mildness of Goble's depression along with its close causal relation to his back injury, the ALJ could reasonably infer that the psychological condition was as stable as the underlying physical impairment. Indeed, Dr. Johnson stated that any improvement in Goble's psychological condition would depend on the success of the medical treatment in reducing his pain. The Board also pointed out that Goble has not been afforded any treatment for his psychological condition and concluded that took Martin to task for its apparent belief that "care can be withheld without ramification." Under the circumstances presented in this case, the ALJ's conclusion that Goble's psychological condition was at MMI on this matter was supported by substantial evidence and will not be disturbed.
Accordingly, the April 9, 2012, opinion and order of the Workers' Compensation Board is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Thomas C. Donkin
Lexington, Kentucky
BRIEF FOR APPELLEES: John Earl Hunt
Stanville, Kentucky