NAOMI RAMSEY V. SAYRE CHRISTIAN VILLAGE NURSING HOME, ET AL.
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RENDERED ; November 21, 2007
TO BE PUBLISHED
,*ttPrerae Gaud of
2007-SC-000052-WC
NAOMI RAMSEY
V
ON APPEAL FROM COURT OF APPEALS
2006-CA-000001-WC
WORKERS' COMPENSATION BOARD NO. 98-75635
SAYRE CHRISTIAN VILLAGE NURSING HOME
AND HON. GRANT S . ROARK, ADMINISTRATIVE
LAW JUDGE
APPELLEES
OPINION OF THE COURT
AFFIRMING
KRS 342.185(1) and KRS 342 .270(1) require a claim to be filed within two years
after a work-related accident or the termination of voluntary income benefits, whichever
occurs last, and require all known causes of action to be joined to the claim or be
waived . KRS 342.020(1) entitles a worker to receive reasonable and necessary
medical treatment for the effects of a work-related injury .
An Administrative Law Judge (ALJ) dismissed this post-award claim for medical
benefits for depression under KRS 342.185(1), KRS 342.270(1), and Slone v. Jason
Coal Co., 902 S.W.2d 820 (Ky., 1995), reasoning that the claimant knew of the condition
but failed to raise it in her initial claim for a back injury . A Workers' Compensation
Board majority distinguished Slone on the ground that it concerned income benefits and
relied on KRS 342.020(1) as a basis to vacate the dismissal . It directed the ALJ to
determine on remand whether the back injury caused the depression and whether the
prescribed medications were reasonable and necessary treatment for the effects of the
back injury . The Court of Appeals reversed, reinstating the dismissal . We affirm for the
reasons that follow.
The claimant was born in 1965 . She completed the seventh grade and worked
as a certified nursing assistant at the defendant-employer's nursing home . On June 4,
1998, she injured her back while placing a patient in a shower chair. She never
returned to work.
A subsequent MRI revealed abnormalities at L5-S1 . A CT scan was normal, but
a myelogram revealed abnormalities at L4-5 that were consistent with a bulging
annulus. Dr. Kiefer thought that there was a mild disc bulge at L4-5 but no disc
herniation or nerve root encroachment. He recommended a referral to a pain clinic.
It appears from the record that Dr. Owen began treating the claimant for
persistent hip and back pain in August 1998. He noted on September 24, 1998, that
she was crying, had muscle spasms at L4-5, and continued to experience low back pain
that radiated into her right hip despite pain medication . He gave her Prozac liquid as
well as a muscle injection for pain. In the months that followed, he continued to
prescribe medication for depression and anxiety as well as pain medication .
In November 1998 the claimant filed an application for benefits for the back
injury. When deposed on January 13, 1999, she testified that Dr. Owen had prescribed
antidepressants recently . She stated that a psychiatrist treated her and prescribed
medication for a bout of depression in 1996 but that treatment ceased before her injury.
She acknowledged subsequently that she had discontinued it on her own.
On January 14, 1999, Dr. Owen noted that the claimant had lost four pounds and
had difficulty sleeping due to persistent pain. In April 1999 he referred her to Dr.
Vaughn, who became her treating orthopedic surgeon. Dr. Vaughn diagnosed S1
radiculitis that was secondary to a small disc herniation at L5-S1 . He did not think that
surgery would help but recommended work restrictions that precluded a return to her
previous work. Dr. Owen noted that the claimant's emotional distress was improved on
May 3, 1999, but that she returned in tears on May 28th due to severe lower back pain
that shot down her leg. In August 1999 he assigned a 10% permanent impairment
rating under DIRE category III and various work restrictions. He noted on January 17,
2000, that the claimant had problems with her insurance and that she had run out of
Prozac and Elavil and was depressed .
The claimant testified at the hearing that she continued to experience chronic
pain and depression and that Dr. Owen treated her for both conditions. She testified
that a psychiatrist had treated her previously for depression, during a period when she
was lonely, but that the depression had lifted after she found a new partner . She stated
that she became depressed again after the injury, when she was "off work, had no
money, no income, had a car payment, had a house payment, had kids to feed and I
had nothing and it just drove me crazy." She also stated that she could not work; that
she slept most of the day due to depression ; that she continued to take Prozac and
Elavil ; that Dr. Owen had doubled her dose of Prozac that morning ; and that Dr. Owen
had substituted a cheaper pain medication because she paid for it herself. Asked on
cross-examination whether she had seen a psychiatrist for her current depression, she
stated that she had not.
Although the claimant's evidence indicated that the back injury caused a new
bout of depression and despite the fact that both conditions formed the basis for her
1999 social security disability award, she failed to move to amend her workers'
compensation claim in order to include a claim for depression . On May 19, 2000, an
ALJ awarded income benefits based on a 10% permanent impairment rating to the
back and ordered the employer to pay for medical, surgical, and hospital treatment
required at the time of injury and thereafter during disability . The opinion and order
does not mention the considerable lay and medical evidence regarding depression and
was not appealed.
The claimant's back condition deteriorated after the award. Dr. Vaughn
recommended a lumbar discogram to determine whether to recommend fusion surgery,
and the test became the subject of a medical fee dispute . On July 19, 2002, the
claimant filed a motion to reopen for an increase in disability, which was granted . She
also sought payment of her psychotropic medications . In an interlocutory order, an ALJ
found the discogram to be reasonable and necessary and found that chronic pain and
an inability to work had compounded any depression that the claimant might have had
previously. The ALJ ordered the employer to pay for the discogram and any other
reasonable and necessary medical treatment, including medication for depression, and
placed the reopening in abeyance. The employer's petition for reconsideration argued
that KRS 342.270 barred the present claim for psychotropic medication . It was
overruled .
Based on the results of the discogram, Dr. Vaughn recommended and
performed fusion surgery. After the claimant reached maximum medical improvement,
the AU considered the merits of the reopening and found that her permanent
impairment rating from the back injury had increased . Addressing the compensability of
her psychological condition, the AU noted that she received social security benefits at
the time of the initial award and that they were based, in part, on the depression that
resulted from the injury. Because she failed to allege depression in her workers'
compensation claim, the AU concluded that KRS 342.185(1), KRS 342.270(1), and
Slone v. Jason Coal Co., supra, barred her prese nt claim for psychological symptoms .
The claimant argues that KRS 342.020(1) entitles her to reasonable and
necessary medical treatment for the effects of her injury, among which was depression ;
therefore, KRS 342 .185(1), KRS 342.270(1), and Slone v. Jason Coal Co ., supra , are
inapplicable . We disagree under the present circumstances .
As the claimant emphasizes, KRS 342.020(1) entitles a worker to reasonable
and necessary medical treatment for the effects of a work-related injury . In the initial
proceeding, she testified to experiencing a new bout of depression due to the back
injury, and medical reports indicated that Dr. Owen treated her for depression as well as
for pain from the back injury. Yet, although she raised depression due to the injury as a
basis for her social security disability claim, she failed to do so in her workers'
compensation claim . The opinion and award referred only to the back injury and
chronic pain . It made no reference whatsoever to the lay and medical evidence of
depression or to treatment for depression due to chronic pain . Thus, this is not a case
in which it could reasonably be inferred that the AU intended for the award of medical
benefits to include treatment for depression .
KRS 342 .270(1) codifies the decision in Slone v. Jason Coal Co. , supra. It
requires a claim to be filed within two years of the date of accident and requires all
known causes of action to be joined to the claim or waived . It is obvious that the
claimant knew of her depression during the initial proceeding . Because she failed to
assert that she was entitled to medical benefits for the condition until more than two
years after the award, the ALJ did not err in dismissing that portion of her claim at
reopening .
The decision of the Court of Appeals is affirmed .
Abramson, Cunningham, Minton, Noble, Schroder and Scott, JJ ., concur.
Lambert, CJ, dissents by separate opinion .
COUNSEL FOR APPELLANT,
NAOMI RAMSEY :
THERESA GILBERT
ANN FORREST BATTERTON
DENNY, MORGAN, RATHER & GILBERT
156 MARKET STREET
LEXINGTON, KY 40507
COUNSEL FOR APPELLEE,
SAYRE CHRISTIAN VILLAGE NURSING HOME :
DEREK PATRICK O'BRYAN
SHEFFER LAW FIRM, LLC
1600 NATIONAL CITY TOWER
1011S .5 T" STREET
LOUISVILLE, KY 40202
RENDERED : NOVEMBER 21, 2007
TO BE PUBLISHED
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2007-SC-000052-WC
NAOMI RAMSEY
V.
APPELLANT
ON APPEAL FROM COURT OF APPEALS
2006-CA-000001-W C
WORKERS' COMPENSATION BOARD NO. 98-75635
SAYRE CHRISTIAN VILLAGE NURSING HOME
AND HON . GRANT S . ROARK, ADMINISTRATIVE
LAW JUDGE
APPELLEES
DISSENTING OPINION BY CHIEF JUSTICE LAMBERT
Like the Workers' Compensation Board's majority, I am convinced that Slone v.
Jason Coal Co., 902 S.W.2d 820 (Ky. 1995), has no application when the initial decision
provides an award of medical benefits and only medical benefits are sought at
reopening. Therefore, I would reverse .
Depression from chronic pain is a frequent and foreseeable consequence of a
back injury . The claimant was awarded medical benefits for a work-related back injury
and sought compensation for medication for depression at reopening. The record
contained substantial evidence to permit findings that her depression resulted from
chronic pain due to her back injury and that reasonable and necessary treatment for the
effects of her injury included medication for depression . Therefore, I would remand the
claim to the ALJ to determine from the conflicting evidence whether the depression the
claimant experienced at reopening was an effect of her back injury and whether the
prescribed medications were reasonable and necessary treatment for the condition .
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