Opinion
NO. 2012-CA-002077-WC
10-25-2013
TAUBENSEE STEEL & WIRE COMPANY APPELLANT v. TIMOTHY SAUM; HON. THOMAS POLITES, ADMINISTRATIVE LAW JUDGE; and WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Donald C. Walton, III Louisville, Kentucky BRIEF FOR APPELLEE, TIMOTHY SAUM: Daniel Caslin M. Michele Cecil Owensboro, Kentucky
NOT TO BE PUBLISHED
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-09-74344
OPINION
REVERSING AND REMANDING
BEFORE: CLAYTON, MOORE, AND NICKELL, JUDGES. MOORE, JUDGE: Taubensee Steel and Wire Company appeals from an order of an Administrative Law Judge (ALJ), as affirmed by the Workers' Compensation Board, determining that Taubensee's former employee, Timothy Saum, suffered a 10% permanent partial impairment as the result of post-traumatic stress from a work-related injury. Finding error, we reverse and remand for proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL HISTORY
On October 27, 2009, Timothy Saum was injured in the course and scope of his employment with Taubensee while he was adding powdered Borax from a 55-gallon cardboard barrel to a large vat of hot water mixed with Borax. The barrel in question was suspended by crane above the vat; Saum had climbed a ladder to the rim of the vat to cut open the barrel; while he was in this position, the barrel fell from the crane and into the vat, splashing Saum; and, as a result, Saum received chemical burns to the left side of his face, the back of his neck, shoulders, and down his left arm.
It is undisputed that Saum sustained compensable physical injuries as a result of this accident. What is disputed is whether Saum also sustained a compensable psychological injury in the form of post-traumatic stress disorder (PTSD). Dr. Andrew T. Cooley was the first of two psychiatrists to evaluate Saum in this respect. Dr. Cooley performed a psychiatric evaluation on June 6, 2011, and his associate, Martine Turns, Psy.D., performed a psychological evaluation on September 6, 2011. Thereafter, Dr. Cooley opined that Saum suffered from PTSD. In his report to that effect, he stated in relevant part:
It should be understood that this report is a preliminary opinion based upon the evidence now available, as listed above in this report. These opinions may be modified as
additional information becomes available from depositions or other records.
In my opinion, within reasonable medical probability, Timothy Saum has a 10% whole body psychiatric impairment as a result of his post-traumatic stress disorder which is a result of the accident in question. This is based on Guides to the Evaluation of Permanent Impairment, American Medical Association, 1984 and 1993, and 2000.
. . .
[Saum] has not reached maximum medical improvement. I do not know any respectable neurosurgeon or orthopedic surgeon that would opine that an individual has reached maximum medical improvement with absolutely no medical intervention. Psychiatry, a specialty medicine, is no different. He has not had any sort of treatment for his PTSD. . . .
The second psychiatrist to evaluate Saum was Dr. Douglas Ruth. Dr. Ruth's report notes that as of the date of this evaluation, January 18, 2012, Saum had not sought treatment for any psychological complaint. This report also reflects Dr. Ruth's belief that Saum was simply lying about being psychologically impaired. The report provides in relevant part:
The findings, then, do not support the account of posttraumatic stress disorder and left upper extremity pain and numbness arising from the work injury. The psychiatric diagnosis most likely is that of malingering, consisting specifically of an effort at falsely attributing symptoms to the work injury. The prognosis insofar as the expectation of Mr. Saum's reporting improvement is poor since examinees engaged in dissimulation are unlikely to report improvement.
The objective findings do not support a conclusion that Mr. Saums [sic] suffers bona fide psychiatric symptoms as the result of the work accident. I do not find in the
available clinical records any observations suggesting a psychiatric condition arising as a result of the incident. The only references to such a complaint are found in the psychiatric IME by Dr. Cooley. But, (1.) Mr. Saums [sic] provided inaccurate history during Dr. Cooley's examination, as described above, (2.) while Mr. Saums [sic] complained of impaired concentration and memory, these were found to be unimpaired during that examination, and (3.) when tested for emotional symptoms Mr. Saums [sic] invalidated the test by the over-reporting of symptoms.
. . .
There are no objective findings to indicate that Mr. Saum suffers a permanent psychiatric impairment. On the one hand, he has not been treated for his psychiatric complaints. Should he suffer any bona fide psychiatric symptoms due to the work injury, they could improve with treatment. Secondly, as described above, the objective findings do not indicate that Mr. Saums suffers from a psychiatric condition causing impairment.
According to the Fifth Edition of the AMA Guides to the Evaluation of Permanent Impairment, Table 14-1 on Page 363 in Chapter 14, Mr. Saum would have a Class 1 Psychiatric Impairment Rating.[]
According to the Second Edition of the Guides, Table 1 on Page 220 in Chapter 12, he would have a Class 1 or a zero percent (0%) psychiatric impairment rating.
Table 14-1 provides that "Class 1" means "no impairment noted" in any area or aspect of functioning relative to "Activities of daily living," "Social functioning," "Concentration," or "Adaptation."
Table 14-1 provides that "Class 1" means "no impairment noted" in any area or aspect of functioning relative to "Activities of daily living," "Social functioning," "Concentration," or "Adaptation."
On February 27, 2012, Dr. Cooley wrote a follow-up letter in response to Dr. Ruth's report. Dr. Cooley and his staff did not personally re-evaluate Saum, but he disagreed with many of Dr. Ruth's findings, including Dr. Ruth's diagnosis of Saum as a "malingerer." In pertinent part, Dr. Cooley stated:
To Mr. Saum's credit he did not present in my office in a theatrical, dramatic and stilted manner. He did not have grotesque problems on any sort of malingering measure. A 10% psychiatric impairment does not make him a psychiatric cripple. I would refer to his current workplace success.[] Ten percent impairment does not mean that he will never return to employment and he should, likewise, not be punished because he is already working in some capacity. There are many individuals with 10% impairment with anxiety or mood disorders, who do ok. That does not mean that they are psychiatrically whole. Just because this man is rather stoic and does not exaggerate symptoms, this is a positive factor for recovery and not a negative factor.
In summary, I would turn the attention back to the accident in question. While his physical problems as a result of the accident such as upper limb difficulties are in dispute, these will be determined by the tryer [sic] of fact in consideration of a "physical mental/mental mental" type of claim. That will not be the domain of psychiatrists. However, I would refocus on the event in question. If falling fifteen feet from a crane and being splashed with water 212 degrees contaminated with borax would not satisfy the criteria A1 for PTSD, I really don't know what would. The fact that he may have misreported his weight, minimized symptoms with Dr. Ruth and not reported previous upper extremity pain are really, from a psychiatric standpoint, distinctions without difference. He is worthy of a very mild 10% impairment and my conclusions have not changed.
Shortly after the accident, Saum left his employment with Taubensee for higher-paying employment with a coal company.
Shortly after the accident, Saum left his employment with Taubensee for higher-paying employment with a coal company.
When Saum's claim of psychological impairment was eventually submitted for adjudication, the ALJ relied entirely upon Dr. Cooley's report in assessing Saum with a 10% permanent partial disability rating for PTSD. Taubensee filed a petition for reconsideration, arguing in relevant part:
Although objective medical evidence shows that Mr. Saum has reached maximum medical improvement for his physical injuries, the same cannot be said for the psychiatric condition as described by Dr. Cooley. Dr. Cooley assigned Mr. Saum a 10% impairment rating following a diagnosis of post-traumatic stress disorder (PTSD). Dr. Cooley conceded that at the point he saw the Plaintiff, there had been absolutely no psychiatric care since the work incident. Plaintiff acknowledged that in the 26 months since this injury occurred, he had never been to a psychiatrist or sought any treatment for anxiety. (Plaintiff's Depo., 14-15). Therefore, if Dr. Cooley is correct and Plaintiff does have a heretofore unnoticed PTSD two years post-injury, it was an untreated condition when Dr. Cooley saw him in 2011. He had not reached MMI when he saw Dr. Cooley, and the impairment Dr. Cooley opined was not, therefore, a true measure of Plaintiff's permanent condition. Even Dr. Cooley acknowledges this on Page 12 of his report. "He has not reached maximum medical improvement."
Indeed, when Douglas Ruth, M.D. examined the Plaintiff four months later, Dr. Ruth found that health condition to be substantially improved from what Dr. Cooley found, that he had no symptoms of PTSD, and determined that even if there were "any bona fide psychiatric symptoms due to the work injury, they could improve with treatment." (Dr. Ruth Report, 3). This noted improvement and additional finding that further treatment could improve any psychiatric condition further bolsters the conclusion that the Plaintiff was not at MMI when seen and assigned an impairment rating by Dr. Cooley. Therefore, to rely on such a premature rating is patent error of fact which justifies reconsideration.
After considering Taubensee's petition, the ALJ annotated his findings relative to Saum's alleged PTSD condition as follows:
The defendant employer has requested reconsideration on the grounds that the ALJ's reliance on the 10% impairment rating of Dr. Andrew Cooley was inappropriate due to the fact that Dr. Cooley also found
that Plaintiff was not at MMI on the date of his examination and on the date he assessed the rating. However, the ALJ has the authority to pick and choose which evidence is more credible. Magic Coal Co. v. Fox, 19 S.W.3d 88 (Ky. 2000); Whitaker v. Rowland, 998 S.W.2d 479 (Ky. 1999). This authority allows the ALJ to choose to rely on Dr. Cooley's impairment rating yet disregard his opinion on MMI, and rely on the opinion of Dr. Ruth as to MMI yet disregard his opinion on impairment. The Worker's Compensation Board has specifically authorized such an approach in Nurse Staffing vs. Roberta Rogers, Claim No. 09-94579, and Tokico (USA), Inc. vs. Jerry Poynter, Claim No. 06-88984. In addition, Dr. Cooley's subsequent report dated February 27, 2012, could reasonably be interpreted as a reaffirmation of his 10% rating after taking into consideration the entirety of the findings of Dr. Ruth, including his opinion on MMI, whose report he reviewed. Based on the above, the ALJ believes his reliance on Dr. Cooley's impairment rating was appropriate and hereby overrules the Petition for Reconsideration filed by the Defendant Employer in all respects.
The Workers' Compensation Board subsequently affirmed the ALJ's holding in this regard. This appeal followed.
ANALYSIS
Taubensee argues that the ALJ's finding of Saum's 10% emotional impairment relating to PTSD was at best only based upon evidence of a temporary emotional disability, and that this finding must be reversed and this case remanded for Saum to achieve MMI. We agree.
As a general matter, ALJs do have broad authority as fact-finders to determine the quality, character, and substance of the evidence. Abel Verdon Const. v. Riveria, 348 S.W. 3d 749, 753 (Ky. 2011). ALJs also have broad authority to 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 total proof. Caudill v. Maloney's Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977). Nevertheless, the ALJ's findings of fact must also be directly supported by substantial evidence, or by reasonable inferences drawn from substantial evidence. See Bowerman v. Black Equipment Co., 297 S.W.3d 858, 866 (Ky. App. 2009). In this respect, the ALJ's findings fall short.
The issue presented in this appeal is whether the evidence of record is sufficient to support the ALJ's finding that Saum sustained a 10% permanent partial impairment as a result of PTSD. "Impairment is considered to be permanent 'when it has reached maxim[al] medical improvement (MMI), meaning it is well stabilized and unlikely to change substantially in the next year with or without medical treatment.'" Colwell v. Dresser Instrument Div., 217 S.W.3d 213, 217 (Ky. 2006) (quoting page 2 of the 5th Edition American Medical Association (AMA) "Guides to the Evaluation of Permanent Impairment" ("Guides")); see also Tokico (USA), Inc. v. Kelly, 281 S.W.3d 771, 775-776 (Ky. 2009). In other words, two forms of evidence were required to support a finding of permanent partial disability relating to Saum's alleged PTSD: 1) evidence supporting that Saum suffered an impairment resulting from PTSD; and 2) evidence supporting that Saum's impairment resulting from PTSD is well stabilized and unlikely to change substantially in the next year with or without medical treatment and that it is, thus, "permanent" within the meaning of the Act.
Here, the ALJ indicated that the only evidence he relied upon to support that Saum's alleged PTSD constituted a permanent impairment was the opinion of Dr. Ruth. There are two reasons why the opinion of Dr. Ruth does not support that Saum's alleged PTSD is permanent. First, it is illogical to infer such a conclusion from Dr. Ruth's opinion because Dr. Ruth did not believe that Saum even had PTSD. Second, Dr. Ruth's opinion states that any bona fide psychiatric symptoms Saum might have suffered due to the work injury could improve with treatment, and it notes that Saum has not been treated for any psychiatric complaint.
To be sure, "[t]he need for additional treatment does not preclude a finding that a worker is at MMI." Kelly, 281 S.W.3d at 776. However, an ALJ's finding of MMI must still be supported by substantial evidence. And, by its own terms, Dr. Ruth's opinion cannot be considered substantial evidence in this regard.
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In short, we REVERSE the ALJ's decision to grant Saum permanent partial disability benefits as premature. Even if some evidence of record does support that Saum suffers from PTSD, no evidence of record, much less that cited by the ALJ, demonstrates that Saum has achieved MMI, which is a prerequisite to assessing any kind of permanent impairment rating. We therefore REMAND this matter for the ALJ to reconsider the issue of Saum's permanent partial disability, if any, relating to PTSD after Saum has achieved MMI.
CLAYTON, JUDGE, CONCURS.
NICKELL, JUDGE, DISSENTS BY SEPARATE OPINION.
NICKELL, JUDGE, DISSENTING. Respectfully, I dissent from the majority opinion. Here, confronted with competing medical reports, the ALJ chose to believe: (1) Dr. Cooley's medical opinion that Saum suffered from post traumatic stress as a result of the work-related incident; (2) Dr. Ruth's medical opinion that Saum had reached maximum medical improvement ("MMI"); and (3) Dr. Cooley's medical opinion that Saum's work-related psychological condition comported with a 10% permanent whole body impairment. In doing so, the ALJ acted within his broad authority as fact-finder to pick and choose which evidence was most credible, to believe or disbelieve various parts of the evidence, and to draw any reasonable inferences therefrom. Magic Coal, 19 S.W.3d at 96; Caudill, 560 S.W.2d at 16; and Square D Company v. Tipton, 862 S.W.2d 308, 309 (Ky. 1993).
The threshold issue presented is whether Saum had reached MMI regarding any work-related psychological condition, thereby allowing determination by the ALJ of any attendant permanent partial or total whole body impairment. Dr. Cooley's original medical report opined Saum had not reached MMI regarding his diagnosed work-related psychological condition because he required treatment. However, as referenced by the Board in its opinion affirming the ALJ's decision, Dr. Ruth's contradictory report opined "[t]he findings do not indicate that Mr. Saum requires psychiatric treatment for any complaint attributable to the 10/27/09 work incident." The Board further correctly noted our Court has previously defined MMI within the context of temporary total disability ("TTD"), as follows:
TTD is payable: until the medical evidence establishes the recovery process, including any treatment reasonably rendered in an effort to improve the claimant's condition, is over, or the underlying condition has stabilized such that the claimant is capable of returning to his job, or some other employment, of which he is capable, which is available in the local labor market.
Halls Hardwood Floor Co. v. Stapleton, 16 S.W.3d 327, 329 (Ky. App. 2000). Thus, I agree with the Board's determination that Dr. Ruth's medical opinion that Saum required no treatment for any work-related psychological injury was sufficient substantial evidence of a probative nature to support the ALJ's inference that Saum had reached MMI. Transportation Cabinet v. Poe, 69 S.W.3d 60, 63 (Ky. 2001).
Having determined Saum had, in fact, reached MMI, the ALJ correctly exercised his broad discretion in addressing the issue of whether Saum suffered from any permanent total or partial whole body impairment as a result of his work-related psychological condition. Again, the ALJ was authorized to believe one part of an expert's opinion while disbelieving other parts. George Humfleet Mobile Homes v. Christman, 125 S.W.3d 288, 294 (Ky. 2004); Eaton Axle Corp. v. Nally, 688 S.W.2d 334, 337 (Ky. 1985). After weighing the conflicting medical opinions, the ALJ chose Dr. Cooley's assessment of a 10% permanent partial whole body impairment as most credible. And, again, the ALJ's finding was thereby sufficiently supported by substantial evidence of probative value. Poe, 69 S.W.3d at 63.
For the foregoing reasons, I am convinced the majority opinion usurps the ALJ's role as fact-finder regarding both the facts and inferences to be drawn from the conflicting medical evidence, and I would affirm the ALJ's order, as affirmed by the Workers' Compensation Board. BRIEF FOR APPELLANT: Donald C. Walton, III
Louisville, Kentucky
BRIEF FOR APPELLEE, TIMOTHY
SAUM:
Daniel Caslin
M. Michele Cecil
Owensboro, Kentucky