             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        NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,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 BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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: OCTOBER 29, 2015
                                                     NOT TO BE PUBLISHED

               eSuprpntr         Court of Ifittifuritv
                              2015-SC-000012-WC


SMITHKLINE BEECHAM                                                   APPELLANT



                   ON APPEAL FROM COURT OF APPEALS
V.                    CASE NO. 2014-CA-000465-WC
                  WORKERS' COMPENSATION NO. 98-96409



MICHAEL SMITH;
HONORABLE THOMAS G. POLITES,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD                                          APPELLEES



                  MEMORANDUM OPINION OF THE COURT

                                  AFFIRMING

      Appellant, SmithKline Beecham, appeals a Court of Appeals decision

arguing that the Administrative Law Judge ("ALJ") erred by finding in favor of

Michael Smith in a medical fee dispute. The ALJ denied SmithKline's motion to

reopen because he found that Smith's Post Traumatic Stress Disorder ("PTSD")

was causally related to his work-related injury and that his treatment was

reasonable and necessary. For the below stated reasons, we affirm the Court of

Appeals.

      On June 16, 1997, Smith was injured in a motor vehicle accident while

working for SmithKline. As a result, Smith suffered a significant injury to his

spine which required multiple spinal fusions. He has ongoing physical pain to
this day. Smith filed a workers' compensation claim for the injuries sustained

in the accident. SmithKline and Smith reached a settlement which was

approved by an ALJ on October 27, 2003. As a part of the settlement, Smith

retained all rights regarding future medical care for the lumbar and cervical

spine injuries and psychological problems.

      On December 23, 2009, SmithKline filed a motion to reopen contesting

payments for Smith's treatment for PTSD. SmithKline argued that Smith's

PTSD was caused by childhood abuse and trauma and was not work-related.

When Smith has a PTSD episode he relives abuse he suffered as a child. Thus,

SmithKline argued that it was not responsible to pay for the medical care and

treatment related to the PTSD per KRS 342.020(1). SmithKline also

alternatively argued that Smith's treatment was not reasonable and necessary.

At the time the motion was filed, Smith was being treated with multiple

medications, including narcotics, and was attending weekly therapy sessions.

Along with its motion to reopen, SmithKline presented the medical opinions of

Dr. Timothy Kriss and Dr. Timothy Allen, both of which believed Smith's

treatments were excessive. Dr. Allen specifically believed that Smith's PTSD

was not caused by the motor vehicle accident. Smith filed reports by his

treating physicians: Dr. Denise Winland; Dr. Brian Monsma; and Dr. Kelly

Frogge to rebut SmithKline's experts.

      The ALJ, after a review of the evidence, resolved the medical fee dispute

in Smith's favor. The ALJ made the following findings:

      Having reviewed and considered the entirety of the medical
      testimony on this issue, the ALJ is persuaded by the testimony of

                                        2
      Dr. Winland and Dr. Monsma that [Smith's] PTSD is causally
      related to his work injury and the employer shall be responsible for
      payment for treatment of this condition. The ALJ is persuaded by
      the testimony of Dr. Monsma that [Smith] successfully repressed
      and suppressed his PTSD symptoms prior to his work injury but
      that his experience of chronic, uncontrolled pain and the loss of
      productive life activity due to the work injury have brought his
      PTSD symptoms into clinical reality. Further, the ALJ is
      persuaded by the testimony of Dr. Winland that the PTSD was
      activated at the time of the work injury and [Smith's] experience of
      chronic pain thereafter due to his inability to compensate using his
      normal coping skills which had been sufficient to that point but
      that the pain from the work injury acted as a trigger to reactivate
      traumatic memories. Even Dr. Allen acknowledged there may be
      an indirect relationship between the work injury and the PTSD
      although he felt the accident was not directly causative of the
      PTSD. In sum, the ALJ believes Dr. Winland and Dr. Monsma are
      more credible on this issue and [Smith's] PTSD is hereby
      determined to be causally related to his work injury.

      [A]s to the weekly counseling sessions of Dr. Monsma, the ALJ is
      persuaded by his testimony that the sessions are providing a
      significant benefit to [Smith] and therefore they are found to be
      reasonable and necessary as well. The ALJ is not persuaded by
      the testimony of Dr. Allen that psychological counseling should be
      ended after an additional 20 visits with only semiannual sessions
      to follow. Given the severity of [Smith's] psychiatric condition the
      ALJ believes Dr. Monsma's regular counseling and psychotherapy
      sessions are reasonable and if Dr. Monsma believes it is
      appropriate, reasonable and safe to reduce the frequency of the
      sessions he can do so, but such a change will not be mandated in
      this proceeding.

SmithKline appealed to the Workers' Compensation Board ("Board") which

affirmed the ALJ's opinion and order because substantial evidence supported

his findings and conclusions. The Court of Appeals also affirmed, and this

appeal followed.

      The Board's review in this matter was limited to determining whether the

evidence is sufficient to support the ALJ's findings, or if the evidence compels a

different result. W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687 (Ky. 1992).

                                         3
Further, the function of the Court of Appeals 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." Id. at 687-88. Finally, review

by this Court "is to address new or novel questions of statutory construction,

or to reconsider precedent when such appears necessary, or to review a

question of constitutional magnitude." Id. The ALJ, as fact-finder, has the sole

discretion to judge the credibility of testimony and weight of evidence.

Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985). For the below

stated reasons, we affirm the Court of Appeals.

      SmithKline first argues that Smith's PTSD is not related to the motor

vehicle accident he was involved in while in their employ. SmithKline notes

that KRS 342.0011(1) provides 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." SmithKline argues that since

Smith's symptoms are not related to the motor vehicle accident but stem from

his childhood abuse, his PTSD is not a direct result of his physical injury.

SmithKline cites to Kubajak v. Lexington-Fayette County Government,        180

S.W.3d 454 (Ky. 2005), as support that PTSD is only compensable when

caused by a physical injury.

      However, the ALJ found that the medical opinions from Smith's treating

physicians, Drs. Winland and Monsma, were more persuasive than

SmithKline's experts. Drs. Winland and Monsma believed that the pain Smith



                                         4
experiences due to his spinal injuries caused by the motor vehicle accident

bring his latent PTSD into clinical reality. The ALJ did not abuse his discretion

by finding the opinions of Smith's treating physicians to be more persuasive

than the evidence presented by SmithKline. Substantial evidence supports the

ALJ's opinion and order.

      In finding that the ALJ's opinion and order is supported by substantial

evidence, we distinguish this matter from Kubajak. In that case, a police

officer who was experiencing PTSD due to the repeated viewing of gruesome

crime scene photos had his application for workers' compensation denied

because he did not suffer any actual physical injury.   Id. at 460. Unlike that

case, in this matter, Smith suffered severe spinal injuries which still cause him

pain and trigger his PTSD episodes. Smith suffered an actual physical injury

and therefore the ALT could find that Smith's PTSD stems from the work-

related incident.

      SmithKline also argues that if Smith's PTSD is found to be caused by the

motor vehicle accident, then his treatment is not reasonable and necessary.

SmithKline contends that the weekly counseling sessions Smith attends are

not reasonable and necessary because he has become dependent on them and

has not developed the coping skills to deal with his PTSD. SmithKline believes

that Smith should be weaned off of therapy and medications with the goal of

increasing his independence.

      Again, the ALJ found that the opinions of Smith's treating physicians

were more persuasive than the experts presented by SmithKline regarding the



                                        5
treatments. Smith's physicians believe that his current treatments are effective

and that it would be detrimental to change them at this time. The ALJ was

within his discretion in so finding. The ALJ's findings are supported by

substantial evidence and shall not be disturbed on appeal.

      For the above stated reasons, we affirm the decision of the Court of

Appeals.

      All sitting. Minton, C.J.; Abramson, Barber, Cunningham, Noble, and

Venters, JJ., concur. Keller, J., concurs with the majority opinion but writes

separately to acknowledge that we are recognizing with this opinion the

compensability of a pre-existing dormant psychological condition that has been

aroused into disabling reality by a physical injury.




COUNSEL FOR APPELLANT,
SMITHKLINE BEECHAM:

Jo Alice Van Nagell
Lori Vanhoose Daniel


COUNSEL FOR APPELLEE,
MICHAEL SMITH:

Ben Thomas Haydon, Jr.




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