Kenton County Sheriff's Department v. Miguel Rodriguez

• Court: Kentucky Supreme Court
• Decided: December 14, 2020
• Docket: 2019 SC 0450
• Status: Unknown

Opinion

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: DECEMBER 17, 2020 NOT TO BE PUBLISHED

Supreme Court of Kentucky 2019-SC-0450-WC

KENTON COUNTY SHERIFF’S APPELLANT DEPARTMENT

ON APPEAL FROM COURT OF APPEALS V. NO. 2018-CA-1324 WORKERS’ COMPENSATION BOARD NO. 16-WC-97605

MIGUEL RODRIGUEZ; TANYA PULLIN, APPELLEES ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD

MEMORANDUM OPINION OF THE COURT

AFFIRMING

The Kenton County Sheriff's Department (KCSD) appeals from an opinion

of the Court of Appeals affirming the Workers' Compensation Board (Board),

which vacated in part and remanded the order of the Administrative Law Judge

(ALJ). The ALJ dismissed the claim of Miguel Rodriguez, a former employee of

KCSD, for post-traumatic stress disorder (PTSD) on the basis that he had not

met his burden of proving an injury as defined by the Workers' Compensation

Act in relation to his psychological condition. The Board found the ALJ failed to

consider the evidence of Rodriguez’s PTSD claim under the cumulative trauma

test set forth in Lexington-Fayette Urban County Government v. West1 and

1 52 S.W.3d 564 (Ky. 2001). remanded to the ALJ for such reconsideration. The Court of Appeals denied

KCSD’s contention that Rodriguez failed to properly plead a psychological

injury in his workers’ compensation claim and affirmed the Board’s remand for

reconsideration under West. KCSD now asks this Court to review the Court of

Appeals’ opinion affirming the Board and to reinstate the ALJ’s original finding

that Rodriguez’s PTSD claim was not adequately proven under the Act and is

not compensable.

I. BACKGROUND

Rodriguez was employed by KCSD as a police officer, initially in

Operations, then as an undercover detective and member of the SWAT team.

Rodriguez’s workers’ compensation claim originated with a work-related

physical injury occurring on January 11, 2016. On that date, he slipped and

fell on ice getting out of his cruiser, sustaining injuries to his back, left foot and

ankle. In the same action, Rodriguez claimed, “PTSD, recently diagnosed with

prior injury precursors.”

The parties stipulated that Rodriguez sustained a work-related injury to

his back, ankle, and foot on January 11, 2016. They also stipulated to the

award of temporary total disability (TTD) benefits from January 12, 2016,

through June 14, 2016, and medical benefits. The parties further stipulated to

Rodriguez’s average weekly wage and that Rodriguez returned to work at a

wage equal to or greater than his average weekly wage but left employment due

to a psychological condition. Finally, they stipulated that Rodriguez is currently

working but earning less than his stipulated average weekly wage.

2 The benefits review conference addressed the contested issues

surrounding Rodriguez’s request for “benefits per KRS2 342.730 – physical and

psychological.” The principal issue was whether Rodriguez’s PTSD met the

standard of “work-relatedness/causation,” and if so, was it an “injury” as

defined by the Act. At the hearing on his claim, Rodriguez testified he began

experiencing PTSD symptoms, including night terrors and insomnia, in 2009.

He testified that during his employment he was involved in three shootings;

punched out a windshield with his hand in an attempt to rescue the driver in a

fatal car accident; entered a home engulfed in flames to rescue the occupants

during which he choked on the smoke and heat and subsequently witnessed

two children who had been trapped burned alive with “their bodies melted

together;” he tore a ligament in his hand when he was “smashed” between two

cars during an undercover drug bust; a perpetrator stabbed his police dog

during a hostage stand-off; and he was exposed to Hepatitis C when a suspect

bled over Rodriguez and other members of the SWAT team.

Rodriguez was first referred for psychological evaluation in 2013 to Dr.

Connor. At that time, Dr. Connor found “no indications of Post-Traumatic

Stress symptoms” that made Rodriguez unsuitable for duty. Again in 2014 and

early 2015, Dr. Connor found he had no psychological symptoms warranting

further consideration or precluding his return to duty at that time. In October

2015, Dr. Connor revised his opinion of Rodriguez’s psychological health and

2 Kentucky Revised Statute.

3 referred Rodriguez for individual psychotherapy to address stress and anxiety.

In January 2016, Dr. Connor found Rodriguez “‘not fit for Duty’ due to his

degree of stress, anxiety, depression, and agitation.” Following this, Rodriguez

began seeing Dr. Peerless and Dr. Platoni for individualized therapy. In

preparation for the Workers’ Compensation hearing, at the behest of KCSD,

Rodriguez saw Dr. Allen for an independent psychological exam.

The ALJ issued an opinion, award, and order, awarding Rodriguez TTD

benefits, permanent partial disability (PPD) benefits, and medical benefits for

work-related injuries to his back, left foot and left ankle, all issues largely

stipulated to by the parties. In addressing the contested issue of PTSD, the ALJ

determined Rodriguez suffers from PTSD, which is disabling and work-related,

but concluded Rodriguez failed to prove a psychological injury as defined by

the Act. Specifically, the ALJ relied on the opinion of Dr. Allen that Rodriguez's

PTSD is unrelated to the slip-and-fall work injury of January 11, 2016, and on

the opinion of Dr. Platoni, who stated that the specific cause of the PTSD was

Rodriguez's pervasive and continuous exposure to multiple and horrific

traumatic events in the line of duty.

On appeal, the Board reviewed the case and, in a two-to-one decision,

affirmed the finding regarding Rodriguez’s physical injury, but found the ALJ

applied the wrong legal standard to the PTSD claim. The Board found the ALJ

erred by assuming that in order to be compensable, the PTSD had to be the

result of the January 11, 2016 slip-and-fall and by failing to address the other

physical incidents as testified to by Rodriguez. Accordingly, the Board vacated

4 the ALJ's finding that Rodriguez failed to prove an injury as defined by the Act

as it relates to his PTSD. The Board remanded to the ALJ for additional

findings consistent with West.

KCSD appealed the Board’s remand for a West analysis, arguing that the

only injury properly before the ALJ was the January 11, 2016 injury. KCSD

argued that the Board misrepresented the claim by considering prior traumatic

events as the origin of Rodriguez’s PTSD. KCSD argued the earlier events were

not adequately pleaded by Rodriguez, and KCSD formulated no defenses to

those claims. Furthermore, KCSD argued it did not waive or consent to

expanding the scope of the ALJ’s hearing.

The Court of Appeals held that the Board acted within its authority when

it vacated and remanded the issue of psychological impairment and

compensability back to the ALJ for a West analysis. It held the record

supported the Board’s finding that the psychological injury was adequately

pled and that on remand, the ALJ must consider events other than the

January 11, 2016 injury as predicates for Rodriguez’s PTSD and whether those

events were traumatic physical events representing a “physical injury” for

purposes of KRS 342.0011. The Court of Appeals, in its remand order, directed

that “the ALJ must consider whether the first in the series of traumatic events

involved physical trauma, and whether that event is a direct and proximate

cause of harmful change in the human organism, in this case PTSD. If so, that

harmful change (PTSD) may be compensable.” This appeal followed.

5 II. STANDARD OF REVIEW

Review by this Court of workers’ compensation cases is limited “to

address[ing] new or novel questions of statutory construction, or to

reconsider[ing] precedent when such appears necessary, or to review[ing] a

question of constitutional magnitude.”3 The ALJ as fact-finder has the sole

authority to judge the weight, credibility, substance, and inferences drawn

from such evidence.4 In reaching her decision, the ALJ is free to choose to

believe or disbelieve parts of the evidence from the total proof, no matter which

party offered it.5 However, the ALJ’s discretion is not limitless, and we will

reverse the ALJ if her opinion “is so unreasonable under the evidence that it

must be viewed as erroneous as a matter of law.”6 Litigants are entitled to

know the evidentiary basis for an ALJ’s findings of fact and conclusions of law,

and an ALJ’s opinion must summarize the conflicting evidence concerning

disputed facts, weigh the evidence to make findings of fact, and determine the

legal significance of those findings.7 “Only when an opinion summarizes the

conflicting evidence accurately and states the evidentiary basis for the ALJ’s

finding does it enable the Board and reviewing courts to determine in the

3 W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 688 (Ky. 1992). 4 Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985). 5 Caudill v. Maloney's Disc. Stores, 560 S.W.2d 15, 16 (Ky. 1977). 6 Ira A. Watson Dep’t Store v. Hamilton, 34 S.W.3d 48, 52 (Ky. 2000). 7 Arnold v. Toyota Motor Mfg., 375 S.W.3d 56, 61-62 (Ky. 2012).

6 summary manner contemplated by KRS 342.285(2) whether the finding is

supported by substantial evidence and reasonable.”8

III. ANALYSIS

It is undisputed the ALJ found that Rodriguez suffered from PTSD, that

the PTSD prevented Rodriguez’s continued employment with the Kenton

County Sheriff’s Department, and that the condition was work-related. The

compensability of Rodriguez’s PTSD then turns on the question of whether the

condition meets the Act’s definition of a psychological injury. When addressing

psychological injuries in workers’ compensation, KRS 342.0011(1) states that

an injury “shall not include a psychological, psychiatric, or stress-related

change in the human organism, unless it is a direct result of a physical

injury[.]”9

In West, we explained that for a harmful change that is psychological,

psychiatric, or stress-related to be compensable, it must directly result from a

physically traumatic event.10 The employee in West suffered psychological

effects that originated in a “‘full-fledged fight’ in which [the] police officer and

suspect [were] scuffling and rolling on the ground.”11 We viewed this event as a

physically traumatic event, amplified by subsequent on-the-job traumas giving

rise to a cumulative psychological injury.12

8 Id. at 62 (footnote omitted). 9 Emphasis added. 10 West, 52 S.W.3d at 566-67. 11 Id. at 567. 12 Id.

7 In Kubajak v. Lexington-Fayette Urban County Government, we reinforced

West’s limited application to physically traumatic events and denied recovery to

an employee whose condition was the result of purely “observing gruesome

crime scenes.”13 Kubajak failed to adequately convince the ALJ that his

psychological condition had a genesis in a physically traumatic event.14 The

ALJ has the duty to determine the credibility of witnesses and conflicting

evidence, and only if the evidence is so overwhelming will we disturb the ALJ’s

causation finding.15 Kubajak’s medical experts did not make a definitive

statement connecting the psychological issues with a physically traumatic

event or series of events. Rather, the ALJ found Kubajak’s PTSD was brought

on by “after-the-fact exposure to scenes of physical trauma to others and that

any physically traumatic events were insignificant.”16 We affirmed the Court of

Appeals holding that unlike the plaintiff in West, Kubajak failed to meet his

burden of proof that he, in fact, sustained an “injury” as defined by KRS

342.0011, and that this injury was the proximate cause of his psychological

harm.17

In the case before us, the Board and Court of Appeals found not that the

ALJ erred in deciding that Rodriguez’s psychological harm was not related to a

physical injury, but rather erred in limiting her review to the physical injury of

13 180 S.W.3d 454, 455 (Ky. 2005). 14 Id. 15 Id. at 459. 16 Id. 17 Id. at 459-60.

8 January 11, 2016. In doing so, the ALJ failed to fully address whether prior

physically traumatic events may have caused Rodriguez’s PTSD. KCSD argues

the cumulative psychological trauma was not sufficiently pled and therefore

not properly before the ALJ. However, after reviewing the Form 101, we hold

that Rodriguez sufficiently pled the cumulative nature of his psychological

injury. Specifically, in describing how the accident or injury occurred,

Rodriguez’s narrative includes the statement, “[p]laintiff also claims PTSD,

recently diagnosed with prior physical injury precursors.” The use of the plural

“precursors” in the phrase “prior physical injury precursors[,]” was sufficient to

put KCSD on notice that Rodriguez was alleging multiple physically traumatic

events as possible causes of his psychological injury. These physically

traumatic events predated the January 11, 2016 slip-and-fall.

In support of his psychological injury claim, Rodriguez submitted

treatment records from Dr. Platoni. Dr. Platoni’s summary of her treatment

records indicated Rodriguez’s PTSD was the result of exposure to multiple and

horrific traumatic events but did not tie the PTSD to any single physically

traumatic event. Her statement was, instead, a general statement of causation.

In his deposition and hearing testimony, Rodriguez testified to a series of

events, some with a physical injury that predated his PTSD diagnosis. Many of

these same events are catalogued in Dr. Platoni’s actual treatment notes from

her interviews with Rodriguez. Dr. Allen’s report from his independent

psychological exam notes that Rodriguez reported PTSD as a result of multiple

traumatic events he experienced in his service as a deputy sheriff. Dr. Allen

9 definitively stated Rodriguez’s PTSD was not the result of the January 2016

injury but failed to address whether the earlier events precipitated the onset of

the PTSD. In her report, Dr. Platoni attributed a fifty-two percent disability

rating to Rodriguez’s PTSD, while Dr. Allen found Rodriguez’s PTSD to be mild

and attributed a five percent disability rating. Based on the conflicting record,

the Board and Court of Appeals correctly remanded to the ALJ for specific

findings as to whether Rodriguez met his burden of tying his PTSD to these

earlier events under West and if Rodriguez’s PTSD is compensable, the correct

disability rating to apply.

IV. CONCLUSION

For the above stated reasons, we affirm the Court of Appeals and remand

this case to the ALJ for further proceedings consistent with this opinion.

All sitting. All concur.

10 COUNSEL FOR APPELLANT, KENTON COUNTY SHERIFF’S DEPARTMENT:

Thomas L. Ferreri Taylor Alexander Mayer Ferreri Partners, PLLC

COUNSEL FOR APPELLEE, MIGUEL RODRIGUEZ:

Peter Anthony Tripp Lawrence & Associates, LLC

ADMINISTRATIVE LAW JUDGE:

Tanya Gaye Pullin

WORKERS’ COMPENSATION BOARD:

Michael W. Alvey, Chairman