Gibbs v. Premier Scale Company/Indiana, 2000-SC-0205-WC.

• Decision Date: 22 March 2001
• Docket Number: No. 2000-SC-0205-WC.,2000-SC-0205-WC.
• Citation: 50 S.W.3d 754
• Parties: Kelly D. GIBBS, Appellant, v. PREMIER SCALE COMPANY/INDIANA SCALE COMPANY; Donald G. Smith, Administrative Law Judge; and Workers' Compensation Board, Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 754

50 S.W.3d 754

Kelly D. GIBBS, Appellant, v. PREMIER SCALE COMPANY/INDIANA SCALE COMPANY; Donald G. Smith, Administrative Law Judge; and Workers' Compensation Board, Appellees.

No. 2000-SC-0205-WC.

Supreme Court of Kentucky.

March 22, 2001.

As Modified on Denial of Rehearing August 23, 2001.

Eric R. Collis, Lynch, Cox, Gilman, & Mahan, P.S.C., Louisville, for Appellant.

Thomas L. Ferreri, Hon. Brian Gannon, Kamp T. Purdy, Ferreri & Fogle, Louisville, for Appellee Premier Scale Co.

Appellee, Indiana Scale Co.: Not Represented By Counsel.

OPINION OF THE COURT

This workers' compensation appeal concerns whether the claimant demonstrated that he sustained a harmful change in the human organism which was evidenced by objective medical findings. KRS 342.0011(1). The meaning of the term "objective medical findings," as it is defined by KRS 342.0011(33), is a matter of first impression.

The claimant was born in 1939 and had an extensive employment history when he began working for the defendant-employer in 1984, inspecting, repairing, and installing all types of scales. Over the years, he had sustained work-related injuries and had undergone cervical, kneecap, and shoulder surgery. Those claims were settled for permanent, partial disabilities totaling 53.75%. He had a medical history of noninsulin-dependent diabetes and of taking Lorazipam, a nerve medication.

On December 23, 1996, while the claimant was driving to a work assignment, his vehicle was struck by another vehicle in the driver's door. The claimant testified that he recalled the collision, itself, but that he did not remember getting out of the truck. He testified, "When I come to, I was laying on the sidewalk." He was taken by air ambulance to the University of Louisville Hospital. Emergency room records indicated that he complained of head and upper back pain. The clinical impression was of a closed head injury post motor vehicle accident. The claimant testified that he was kept in the hospital for several hours for observation, during which time he passed in and out of consciousness.

On December 26, 1996, the claimant presented at the emergency room of the Caritas Medical Center. He complained of dizziness and headache since the accident and of pain in the neck, right shoulder, and lower back. A neurological examination indicated that he was slightly ataxic but revealed no other deficit.¹ A CT scan of the head was interpreted as being normal, although it did show some evidence of chronic sinusitis. X-rays of the cervical spine showed some degenerative changes, and x-rays of the lumbar spine and of the right shoulder were normal.

The claimant was seen by Dr. Seifer, a neurologist, on January 8, 1997, at which time he complained of pain in his head, neck, back, and legs. He also complained of difficulty sleeping, slurred speech, blurred vision, and unsteadiness. Dr. Seifer examined the claimant, took a medical history, and performed an EEG which was normal. He concluded that the claimant's history and symptoms were compatible with a post-concussive syndrome as a result of the December 23, 1996, accident. Several months later, the claimant complained of nightmares and occasional hallucinations for which Dr. Seifer recommended a psychiatric evaluation. After following the claimant for nearly a year, Dr. Seifer remained of the opinion that he suffered from post-concussive syndrome.

In explaining the diagnosis, Dr. Seifer testified that postconcussive syndrome is well documented in the medical literature and refers to a group of symptoms which are common in patients who have suffered head trauma. The most common symptoms include headaches, visual disturbances, hearing disturbances, sleep problems, memory problems, personality changes, and various physiological changes. Symptoms may wax and wane over time, with some individuals recovering very quickly and others never recovering. A period of unconsciousness is not imperative for the diagnosis but is considered to be significant.

Dr. Seifer testified that although the claimant had the requisite symptoms, there was a lack of any definitive, observable physical finding of the condition. The diagnostic testing which had been performed was essentially normal. However, Dr. Seifer did not find that to be surprising. He, also indicated that the degree and duration of symptoms does not necessarily reflect the severity of the underlying physical injury. Dr. Seifer testified that, in practice, the diagnosis is made on the basis of a history of head trauma and reported symptoms.

Addressing the lack of purely objective evidence of the underlying injury, Dr. Seifer testified that certain changes in the brain which occur with trauma are discernable only by means of a different level of analysis than is currently used in medical practice. He explained that studies have demonstrated that head trauma causes micro-shearing of brain tissue, with tearing of certain brain cells and connective tissue within the brain. Autopsies of the brains of patients who sustained head injuries but died of another cause revealed clear pathological changes in the brain on a cellular level. There was clear evidence that head trauma caused biochemical changes within the brain, that it caused changes in the brain chemistries of sodium, potassium, magnesium, and calcium, and that it affected neurotransmission. A recent study detected changes in regional blood flow following head trauma. More specifically, it detected reduced cerebral blood flow and regional and hemispheric asymmetries which supported an organic basis for chronic posttraumatic headache. However, Dr. Seifer indicated that although MRI, EEG, CT scan and similar presently-used diagnostic tools can detect some types of brain damage, they are incapable of detecting these types of changes.

Dr. Seifer testified that he had prescribed Elavil, a drug which affects serotonin pathways in the brain and which is used to treat pain, particularly headache. However, in his opinion, the claimant needed more aggressive psychological and/or psychiatric treatment; therefore, he had made a psychiatric referral. He had referred the claimant to an opthamology practice for further evaluation of his vision problems and had recommended additional treatment for the neck problem which was exacerbated by the accident. When he last saw the claimant, he thought that the claimant would eventually be able perform some type of desk job but could not return to work which required driving, loading, and unloading a truck. Due to the claimant's persistent and disabling symptoms, Dr. Seifer had not yet released him to return to work.

On referral from Dr. Seifer, the claimant was seen by various members of an opthamology practice. Dr. Mahl, a specialist in vitreo-retinal diseases and surgery, testified that the claimant had diabetic retinopathy, secondary to his diabetes. The condition was not related to the work accident and was treated with laser therapy. Dr. Berman, a specialist in neuro-opthamology, examined the claimant and performed a number of tests in May, 1997, subsequent to the laser therapy. Dr. Berman and Dr. Lowenthal, a specialist in vitreo-retinal diseases, concluded that the blurred vision, which occurred when the claimant tilted or turned his head in a certain position, was secondary to post-concussive syndrome rather than the diabetic condition. In October, 1997, Dr. Murphy reevaluated the claimant with regard to the diabetic retinopathy and noted that the claimant also suffered from a subjective visual disturbance consistent with post-concussive syndrome. Dr. Berman saw the claimant again in February, 1998. He emphasized that the claimant suffered from two separate visual problems, one of which was attributable to post-concussive syndrome. In his opinion, any estimate of the extent to which each problem contributed to the claimant's overall visual condition would be speculative.

Dr. Banerjee, a neurosurgeon, evaluated the claimant in March and December, 1997. In his opinion, the residuals of the accident were "very little." It caused a neck strain, at most, and no permanent impairment. He attributed most of the claimant's symptoms, including diminished reflexes in the upper and lower extremities, to diabetic neuropathy, noting that the condition can result in problems with infection, visual disturbances, and depression. He listed other possible causes of the blurred vision, headache, and neck pain as being the Elavil, a flexion/extension injury of the neck, prior neck surgery, and arthritis or age-related changes in the neck. On March 5, 1997, he expected the claimant to reach maximum medical improvement (MMI) in about one month.

When deposed, Dr. Banerjee testified that he had treated patients with postconcussive syndrome. He agreed that no objective medical findings were necessary for a diagnosis and that the severity of the head injury was not a factor. He testified that symptoms normally resolved within three to six months, but sometimes they persisted for more than a year. Although he agreed that the claimant's complaints were compatible with post-concussive syndrome, he remained unconvinced that the claimant suffered from the condition. He assigned a 13% impairment rating to the effects of the prior neck surgery.

The claimant testified that he continued to experience problems with headaches, blurred vision, balance, memory, hallucinations, irritability, and avoiding other people. His employer had terminated him, and he did not think he could perform his former work. The claimant's wife testified that since the accident he cries, has a bad temper and mood problems, and has trouble sleeping.

The Administrative Law Judge (ALJ) concluded from the evidence that the claimant had failed to prove that he suffered from a permanent occupational disability due to the neck injury but that he was entitled to medical benefits for the condition. The ALJ determined that the claimant...