Opinion
NO. 2012-CA-000684-WC
02-08-2013
VICTOR G. MORRIS APPELLANT v. NORTHPOINT TRAINING CENTER; HON. CAROLINE PITT CLARK, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Victor G. Morris, Pro se Danville, Kentucky BRIEF FOR APPELLEE, NORTHPOINT TRAINING CENTER: K. Lance Lucas Florence, Kentucky
NOT TO BE PUBLISHED
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-09-77026
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; MOORE AND THOMPSON, JUDGES. ACREE, CHIEF JUDGE: Victor Morris, pro se, seeks review of an opinion of the Workers' Compensation Board (Board) entered April 5, 2012. The Board affirmed the decision of the Administrative Law Judge (ALJ) dismissing Morris's claims for temporary and permanent total disability benefits, as well as future medical expenses. The issue before us is whether the ALJ's findings that Morris's psychological condition was pre-existing and unrelated to a work incident are supported by substantial evidence. Finding substantial evidence, we affirm.
I. Facts and Procedure
On August 5, 2010, Morris filed a workers' compensation claim alleging he suffered back and psychological injuries when he was assaulted by a co-worker on September 23, 2009, while working for Northpoint Training Center. The ALJ conducted a formal hearing on March 22, 2011. At the hearing, Morris testified he began working for Northpoint Training Center on November 1, 2006, as a correctional officer; he was subsequently promoted to recreation leader on September 16, 2007. As a recreation leader, Morris's job duties included administering sports and leisure activities for inmates, organizing gym programs, and supervising inmates engaged in gym activities.
Robbie Canterberry, the human resources manager at Northpoint, testified Morris was a "disgruntled" employee who filed numerous personnel complaints during his tenure at Northpoint. Most of Morris's complaints concerned another recreation leader, Kevin Shane Smith. Morris and Smith had a strained working relationship. Specifically, Morris claimed Smith frequently harassed and bullied him. Then, on September 23, 2009, while Morris was patrolling the gym and supervising inmates, Morris testified Smith approached him from behind and punched him in his back near his rib cage, causing extensive bruising and pain.
Morris was treated for a contusion at Ephraim McDowell Hospital and promptly released. Morris did not return to Northpoint following the incident, and his employment was ultimately terminated.
Morris testified he now suffers from a psychosocial condition along with nightmares, panic attacks, and anxiety as a result of the September 23, 2009 incident. However, prior to the 2009 incident, Morris admitted he suffered from depression and bouts of stress, and was prescribed related medication. Morris also admitted he was suspended by a prior employer in 2006 and was required to undergo psychological evaluation. Dr. Thomas Shurling, a licensed psychologist, evaluated Morris. Dr. Shurling diagnosed Morris with persistent "major depression" that had been "present for many years." He opined the cause of Morris's psychological problems was rooted in his early childhood spent with a violent, alcoholic father.
Further, Morris testified that in 2007 he was treated by Dr. Stuart Palmer. Dr. Palmer referred Morris to Dr. Robert J. Bunge for another psychological evaluation. Dr. Bunge evaluated Morris on November 7, 2007, and diagnosed Morris with major depression, a dysthymic disorder, some ADD symptoms, a history of panic attacks, and a possible personality disorder.
Likewise, since the 2009 incident at Northpoint, several physicians have treated and evaluated Morris.
Dr. Charles Shelton, Morris's treating psychiatric counselor, opined that Morris suffers from post-traumatic stress disorder (PTSD) as a result of the September 23, 2009 incident with Smith. Dr. Shelton reported Morris's current PTSD diagnosis was unrelated and distinguishable from his preceding issues with depression and anxiety.
Dr. Christopher Allen, a licensed clinical psychologist, evaluated Morris on June 23, 2010. Dr. Allen disagreed with Dr. Shelton's PTSD diagnosis, but concluded Morris "manifests significant depression, anxiety, and interpersonal sensitivity and self-consciousness due to the attack which he endured in 2009." Dr. Allen opined Morris's current emotional distress was "almost certainly directly related to the" 2009 assault incident as his current episode of depression was "far greater" in intensity and duration than prior episodes. To that end, Dr. Allen did not believe Morris suffered from a pre-existing, active psychological condition and assessed a 15% whole person psychiatric impairment rating.
In Dr. Allen's opinion, the September 23, 2009 assault was "not sufficient to lead [Morris] immediately to suspect that he had been seriously harmed or that he had sustained a life-threatening injury."
Morris was also evaluated by Dr. David Shraberg, a forensic psychiatrist, at Northpoint's request. Dr. Shraberg observed Morris had been traumatized since childhood and suffered significant physical trauma as a child at the hands of an abusive, alcoholic father. Dr. Shraberg also found Morris had a "long history of difficulties dealing with authority figures and being engaged in situations where he feels either victimized or in an unfair and untenable relationship with a supervisor in his employment." Dr. Shraberg concluded Morris suffers from chronic symptoms of depression and PTSD from childhood; he found no evidence of a new psychological injury or an exacerbation of his pre-existing PTSD relating to the September 23, 2009 incident. Dr. Shraberg adamantly disagreed with Dr. Shelton's opinions concerning Morris's PTSD diagnosis and the related cause thereof, opining that Dr. Shelton's conclusions significantly downplayed Morris's considerable history of psychological tribulations. Dr. Shraberg ultimately assigned Morris a 0% permanent psychiatric impairment rating.
On May 23, 2011, the ALJ issued an order dismissing Morris's workers' compensation claim. The ALJ acknowledged that conflicting medical testimony concerning the root of Morris's psychological condition permeated the record. However, the ALJ ultimately concluded Dr. Shraberg "rendered the most accurate and authoritative analysis concerning the causation of [Morris's] current psychological condition . . . because Dr. Shraberg's discussions and opinion" best reflected Morris's "significant history of physical abuse and pre-existing psychological problems." ALJ Opinion and Award at 13-14. Based on this, the ALJ found Morris had a noncompensable, pre-existing psychological impairment that was not related to a work injury, and rejected Morris's claim that he was temporarily and permanently totally disabled.
The ALJ did find Morris was entitled to recover from Northpoint medical benefits for the emergency room treatment that he received for his temporary physical injuries immediately following the altercation with Smith, but declined to award Morris future medical benefits.
Morris filed a petition for reconsideration; the ALJ denied Morris's request. Dissatisfied with the ALJ's decision, Morris appealed to the Workers' Compensation Board. By opinion entered April 5, 2012, the Board affirmed the ALJ's decision. This appeal followed.
II. Standard of Review
This Court's role in reviewing a decision of the Board "is to correct the Board only where the 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." Western Baptist Hospital v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992). To reverse the Board's findings, the appellant must establish that the evidence "is so overwhelming as to compel a finding in his favor." Doctors' Associates, Inc. v. Uninsured Employers' Fund, 364 S.W.3d 88 (Ky. 2011) (footnote omitted).
When the ALJ's decision is based on substantial evidence of probative value, we may not disturb it on appeal. Abel Verdon Const. v. Riveria, 348 S.W.3d 749, 753 (Ky. 2011); Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986). "Substantial evidence has been defined as some evidence of substance and relevant consequence, having fitness to induce conviction in the minds of reasonable people." Riveria, 348 S.W.3d at 753.
With this standard as our guide, we turn to Morris's claims of error.
III. Analysis
Morris first contends the ALJ's determination that he is not temporarily and permanently totally disabled is wholly arbitrary and not supported by any, much less substantial, evidence. In support, Morris advocates the ALJ erroneously relied, to Morris's detriment, on the report of Dr. Shraberg.
KRS 342.285(1) designates the ALJ as the finder of fact in workers' compensation claims. In that role, the ALJ has "the sole discretion to determine the quality, character, and substance of the evidence." Riveria, 348 S.W.3d at 753. KRS 342.285(1) also permits an ALJ to interpret and draw reasonable inferences from the evidence; to choose which evidence to rely upon; and to reject any testimony. Caudill v. Maloney's Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977). Consequently, other evidence that "would have supported a contrary conclusion is not an adequate basis for reversal on appeal." Ira A. Watson Dept. Store v. Hamilton, 34 S.W.3d 48, 52 (Ky. 2000).
Morris characterizes Dr. Shraberg's medical assessment as "patently false and misleading," and claims it precluded the ALJ from reaching a reasonable and objectively-informed conclusion. In Morris's estimate, Dr. Shelton and Dr. Allen's medical testimony should have controlled, and the ALJ erred in concluding otherwise. We find no merit in Morris's argument.
In weighing the evidence presented, the ALJ was undoubtedly free to "reject any testimony and believe or disbelieve various parts of the evidence[.]" Magic Coal Co. v. Fox, 19 S.W.3d 88, 96 (Ky. 2000). Accordingly, the ALJ chose to assign greater weight to Dr. Shraberg's medical opinion to the exclusion of Drs. Shelton and Allen. It was well within the ALJ's discretion to do so, and does not constitute reversible error. Id. While Morris may disagree with Dr. Shraberg's medical opinion, it nonetheless constitutes substantial evidence in support of the ALJ's finding that Morris's current psychological condition was pre-existing and unrelated to the September 23, 2009 incident. Morris has simply failed to demonstrate the ALJ's decision was "so unreasonable under the evidence that it must be viewed as erroneous as a matter of law." Hamilton, 34 S.W.3d at 52. Because Morris has presented no basis meriting reversal, we affirm.
Morris also takes issue with the Board's procedural posture. On January 3, 2012, Morris filed a document titled "Plaintiff's Pro Se Motion . . . i.e. Pro Se Appeal Brief." Northpoint responded on January 11, 2012. Two days later, on January 13, 2012, Morris filed a second brief and attached to it supplementary evidence not previously included in the record; Morris asserted these documents corroborated his claim that Dr. Shraberg and Northpoint's counsel "irrecognizably [sic] twisted and ignored and lied about the facts."
On January 19, 2012, the Board, sua sponte, ordered Morris's January 13, 2012 brief and ancillary evidence struck and afforded Morris thirty days to file a compliant brief. Thereafter, on January 24, 2012, Northpoint moved to strike Morris's January 13, 2012 brief; Morris immediately responded to Northpoint's motion and requested that it be overruled. On January 26, 2012, the Board entered a second order again striking Morris's January 13, 2012 brief and affording Morris thirty days to file a compliant brief. On January 21, 2012, Morris filed a "motion to reinstate stricken brief" and on February 9, 2012 a "motion to re-present".
In its order, the Board inadvertently identified Morris's second brief as filed on January 3, 2012, as opposed to the correct filing date of January 13, 2012. The Board subsequently corrected its error.
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Confusion undoubtedly plagued all involved in this matter. In order to clarify the current state of events, the Board entered a third order on February 13, 2012 accepting Morris's January 3, 2012 brief as his petitioner's brief, and striking as noncompliant all of Morris's other briefs, pleadings, and supplementary evidence.
Before this Court, Morris contends, rather unartfully, that he filed his January 13, 2012 brief to assert a fraud claim against Dr. Shraberg, as permitted by KRS 342.285(2). Morris further asserts the Board capriciously ignored his fraud claim, and erroneously struck the supplementary evidence attached to his January 13, 2012 brief. We find Morris's position untenable for two reasons.
First, KRS 342.285(2) provides, in pertinent part:
No new or additional evidence may be introduced before the board except as to the fraud or misconduct of some person engaged in the administration of this chapter and affecting the order, ruling, or award, but the board shall otherwise hear the appeal upon the record as certified by the administrative law judge and shall dispose of the appeal in summary manner.Likewise, 803 KAR 25:010 sets forth the procedure for practicing before the Board. Neither KRS 342.285(2) nor 803 KAR 25:010, however, authorize an appellant to file consecutive briefs, without leave, with the Board.
Here, Morris filed his brief with the Board on January 3, 2012. The Board did not afford Morris leave to file any other briefs. Accordingly, it was well within the Board's discretion to strike any and all supplemental briefs and pleadings so filed. All that remains, then, is Morris's January 3, 2012 brief. In that brief, Morris did not claim "any person engaged in the administration of this chapter" engaged in fraud and did not request to supplement the record with evidence of fraud. In fact, the word "fraud" does not even appear in Morris's January 3, 2012 brief. This was Morris's one and only occasion to present this argument to the Board; Morris squandered that opportunity.
Second, even if we liberally interpret Morris's January 3, 2012 brief as asserting a fraud claim concerning Dr. Shraberg, we do not perceive Dr. Shraberg to be a "person engaged in the administration of this chapter." See Calloway v. Octavia J. Coal Mining Co., 271 Ky. 8, 111 S.W.2d 395, 398 (1937) (concluding evidence that an employer's physician acted fraudulently "would not have presented a case of fraud on the part of some person engaged in the administration of the act"); Crummies Creek Coal Co. v. Taylor, 283 Ky. 364, 141 S.W.2d 287, 288 (1940). In sum, Morris's claim that the Board erroneously denied his request to supplement the record as to fraud lacks merit.
IV. Conclusion
The Board's April 5, 2012 opinion affirming the ALJ's opinion and award is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Victor G. Morris, Pro se
Danville, Kentucky
BRIEF FOR APPELLEE,
NORTHPOINT TRAINING
CENTER:
K. Lance Lucas
Florence, Kentucky