Opinion
NO. 2019-CA-001417-WC NO. 2019-CA-001527-WC
03-13-2020
GREENUP COUNTY FISCAL COURT APPELLANT v. RYAN HOUSTON; DR. DANESH MAZLOOMDOOST; DAWN JONES; TREVOR MCHARVY; DR. BRETT A. SCOTT; BAPTIST HEALTH LEXINGTON; AND WORKERS' COMPENSATION BOARD APPELLEES AND RYAN HOUSTON CROSS-APPELLANT v. GREENUP COUNTY FISCAL COURT; HON. JONATHAN WETHERBY, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD CROSS-APPELLEES
BRIEF FOR APPELLANT / CROSS-APPELLEE GREENUP COUNTY FISCAL COURT: Marcel Smith Lexington, Kentucky BRIEF FOR APPELLEE / CROSS-APPELLANT RYAN HOUSTON: Stuart Alexander Louisville, Kentucky
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-12-63966 CROSS-PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-12-63966 OPINION
AFFIRMING
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BEFORE: ACREE AND DIXON, JUDGES; BUCKINGHAM, SPECIAL JUDGE. BUCKINGHAM, SPECIAL JUDGE: Greenup County Fiscal Court appeals and Ryan Houston cross-appeals from an opinion affirming in part, vacating in part, and remanding rendered by the Workers' Compensation Board (Board). We affirm.
Retired Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution.
BACKGROUND
On October 31, 2012, Houston was employed as a deputy sheriff for Greenup County when he was injured after being assaulted by a motorist driving a vehicle he had pulled over. He settled his claim in late 2014 for workers' compensation benefits for injuries including a right ankle sprain, a left foot fracture, and a left knee muscle tear.
On May 18, 2016, Houston moved to reopen his claim, alleging in a supporting affidavit that he had suffered injuries to his knees and low back, as well as psychological injury. He also alleged that, since his settlement, his condition had worsened, he had undergone additional surgeries, and he had been declared totally disabled by his treating psychiatrist. Houston alleged he was "100% disabled as a law enforcement officer" due to a worsening of his physical and psychological injuries arising since the 2014 settlement. He later moved to amend his motion to reopen to include dental issues he alleged were related to his injuries.
In an opinion and order on August 7, 2017, an administrative law judge (ALJ) dismissed the reopened claim, concluding Houston failed to give due and timely notice of the alleged "new issues" in his motion to reopen, including his alleged work-related psychological injury. In an opinion on November 22, 2017, the Board reversed, vacated, and remanded for further findings as to whether Houston had a known psychological claim when he entered into the settlement agreement.
In the February 7, 2018, opinion on remand, the ALJ again dismissed the claim for psychological injury on the ground Houston had acknowledged those complaints prior to the settlement agreement and the claim was thus barred. In an opinion on May 25, 2018, the Board vacated in part and remanded again for a determination as to whether Houston had been diagnosed with the psychological condition prior to the date of the settlement agreement.
In an opinion on remand on September 13, 2018, the ALJ again dismissed Houston's claim for psychological injury. The ALJ found Houston had sought medical treatment for the psychological injury he attributed to the work injury prior to the settlement agreement. In its opinion on March 1, 2019, the Board reversed the ALJ's findings, holding the evidence compelled a finding that Houston's psychological complaints were not known to him at the time of the settlement agreement, and remanded the case to the ALJ for consideration of the psychological injury on its merits.
On the third remand, in an opinion on remand on April 30, 2019, the ALJ found Houston had demonstrated a lack of credibility as a witness and a surveillance video showed he had fabricated the extent of his psychological symptoms. The ALJ found the evaluation provided by Dr. Tim Allen was the most probative. Dr. Allen diagnosed malingering and found severe over-reporting of all symptom domains. Based on Dr. Allen's conclusions, the ALJ found there was no reliable evidence of any psychological impairment. Therefore, the ALJ dismissed Houston's claim for psychological injury as a result of the 2012 incident.
Houston did not file a petition for reconsideration, and in his appeal to the Board, he did not raise an issue regarding the dismissal of his claim of psychological injury or impairment. Rather, he argued the evidence compelled a finding he was totally disabled and asked the Board to reverse the ALJ and enter a finding of total disability. He also asserted the ALJ erred in not admitting into evidence an opinion and order of the Franklin Circuit Court addressing his disability.
On August 23, 2019, in a 2-1 opinion, the Board entered its opinion affirming in part, vacating in part, and remanding. The Board first held the ALJ did not err in striking from the record an opinion and order of the Franklin Circuit Court concerning the extent of Houston's disability. The Board also vacated the ALJ's dismissal of Houston's claim for psychological injury and remanded to the ALJ for additional findings. The Board held that, although Dr. Allen had diagnosed Houston with malingering, he had also diagnosed him with PTSD and assessed 5% impairment from the injuries. Specifically, the Board stated:
While it is true Dr. Allen diagnosed Houston with malingering, Dr. Allen undeniably diagnosed Houston with PTSD and assessed a 5% impairment rating stemming from the October 31, 2012, injury. Consequently, the ALJ cannot rely upon Dr. Allen's medical opinions in dismissing Houston's claim for a work-related psychological injury. Dr. Allen's opinions firmly support an award of permanent income benefits, either partial or total, and medical benefits for work-related PTSD.
The Board also stated that, as the ALJ had failed to resolve Houston's alleged work-related psychological injury claim on its merits as instructed in the March 1, 2019, opinion, no petition for reconsideration was necessary. The majority of the Board held:
We also disagree with the assertion Houston did not challenge the dismissal of his psychological injury claim in the appeal to the Board. In his brief, Houston clearly asserts the evidence compels a finding of total disability. Obviously, this is an attack upon the ALJ's dismissal of his psychological injury claim, particularly in light of the fact that, the Franklin Circuit Court's opinion Houston asserts the ALJ erroneously struck, found Houston is disabled from engaging in any kind of work due to the combination of his physical and psychiatric conditions.
The Board's dissenting opinion contended the claim should not be remanded to the ALJ for further consideration of Houston's psychological injury claim. The dissent noted Houston did not file a petition for reconsideration and did not challenge the dismissal of his psychological injury claim in his appeal to the Board. The dissent also rejected the idea that Houston's claim was encompassed by his broader assertion that he is totally disabled. The dissent stated Houston was required to assert issues on appeal with specificity, particularly when he appealed the exact issue in a prior appeal to the Board. The dissent concluded Houston had waived his argument on appeal and that sua sponte review was unwarranted.
This appeal by Greenup County and cross-appeal by Houston followed.
APPEAL TO BOARD OF PSYCHOLOGICAL INJURY CLAIM
Greenup County first argues the Board erred by considering an issue sua sponte that was not preserved for appeal. Greenup County contends Houston did not challenge the dismissal of his psychological injury claim in his appeal to the Board and that he only argued the evidence compelled a finding he is totally disabled. Greenup County supports its argument by citing the dissenting opinion in the Board's decision. The majority of the Board, however, found Houston's argument asserting that the evidence compelled a finding of total disability was, in essence, an attack upon the ALJ's dismissal of this psychological injury claim.
The Board did not cite legal authority for its determination in this regard, and neither did Houston in his brief in this appeal. Greenup County cites Whittaker v. Reeder, 30 S.W.3d 138 (Ky. 2000), as designating the only specific instances where sua sponte review of an issue by the Board is appropriate. We agree with the Board, however, that Houston's appeal to the Board effectively challenged the dismissal of his psychological injury claim.
FRANKLIN CIRCUIT COURT OPINION
Houston argues in his cross-appeal that the Board erred in affirming the ALJ's striking of the opinion of the Franklin Circuit Court from the record. That opinion contained conclusions concerning Houston's disability in connection with a separate claim. Houston contends that while the Franklin Circuit Court's opinion was not conclusive, it should have been considered as evidence by the ALJ.
Citing Groce v. VanMeter Contracting, Inc., 539 S.W.3d 677 (Ky. 2018), the Board affirmed the ALJ. In Groce, our Supreme Court stated: "The ALJ '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 adversary party's total proof.'" Id. at 682 (quoting Magic Coal v. Fox, 19 S.W.3d 88, 96 (Ky. 2000)). We agree with the Board that the ALJ had the discretion to reject the evidence.
TOTAL DISABILITY
Finally, Houston argues the Board erred in not directing the ALJ on remand to find total disability. He asserts the evidence, primarily the testimony of Dr. Zerga and Dr. Allen, compels a finding of total disability. We agree with Greenup County that the evidence does not compel such a finding.
CONCLUSION
The Board's opinion is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT /
CROSS-APPELLEE GREENUP
COUNTY FISCAL COURT: Marcel Smith
Lexington, Kentucky BRIEF FOR APPELLEE /
CROSS-APPELLANT RYAN
HOUSTON: Stuart Alexander
Louisville, Kentucky