IMPORTANT NOTICE 

NOT TO BE PUBLISHED OPINION 

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED?' 

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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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE 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 

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RENDERED: OCTOBER 29, 2015 

NOT TO BE PUBLISHED 

oSuprrtur Courf uflArttVicite. d 

2015-SC-000012-WC 

■%-vA.-As 

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 

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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). 

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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 AI,J, 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 AL,J 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 

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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 ALj could find that Smith's PTSD stems from the workrelated 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 

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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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