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Transportation Cabinet9/27/2001
). it is not enough for the Cabinet to show that there is merely some evidence that would support a contrary conclusion. McCloud v. Beth-Elkhorn Corp., Ky., 514 S.W.2d 46 (1974).
Here, the ALJ relied on the testimony of Poe's treating surgeon, Dr. Mosley, who indicated that Poe's current hip condition was a combination of the Legg-Calve-Perthes disease and the 1997 work injury that Poe related to him. According to Dr. Mosley, x-rays reviewed by him taken in 1995 did not reveal evidence of subchondral fractures or flattening of the femoral head. However, x-rays taken only a few days after the 1997 accident demonstrated multiple fractures and a flattening of Poe's femoral head of his left femur. Dr. Mosley indicated that these fractures were acute in nature and left Poe with no alternative but to undergo total hip replacement.
This evidence constitutes objective medical findings that the ALJ could rely on to conclude that Poe's 1997 injury was the proximate cause of a harmful change to his left hip. Although Poe's hip condition might have eventually deteriorated in the future and require surgery it does not preclude his current claim because it was the accident which activated the pre-existing condition into a disabling reality.
II. Depression
In addition, we find no error in the determination by the ALJ that Poe currently suffers from depression that is secondary to the effects of his 1997 injury. These findings were based upon the conclusions of Dr. Weiss, a professor of psychology at the University of Evansville and a clinical psychologist who examined Poe at the request of the Division of Disability Determination for the purposes of conducting a social security disability evaluation, Dr. Weiss indicated that Poe's depression was a direct result of the injury because there was no evidence of previous depression or previous treatment for depression, and it was following the injury that there was an onset of depression.
The failure of Dr. Weiss to assign a specific impairment rating attributable solely to Poe's secondary psychological overlay does not defeat the psychological aspect of the claim. Pursuant to KRS 342.0011 (11)(c) a claimant may be found permanently disabled only upon a showing that due to an injury the employee has a permanent disability rating. KRS 342.0011 (36) defines permanent disability rating as the permanent impairment rating determined by the latest edition of the AMA Guides times the appropriate factor under KRS 342.730 (1)(b). The problem is Chapter 14 of the most applicable edition of the AMA Guides dealing with mental and behavioral disorders deliberately makes no provision for numerical impairment ratings for any type of psychological or psychiatric impairment or disability.
Thus, if we accepted the Cabinet's position, it would be impossible for Poe to demonstrate a permanent impairment rating for the psychological aspect of his claim because no provision for it exists in the AMA Guides. Such a result is not only unreasonable, it is contrary to KRS 342.0011 (1), which clearly indicates that, a psychological change in the human organism comes within the definition of a compensable injury if it is the "direct result of a physical injury." Consequently, we must conclude that the Legislature did not intend to require a specific numerical impairment rating for a work-related psychological injury. We agree with the Court of Appeals and Board that so long as a psychological condition produces medical restrictions. is work-related, and is a direct result of the same traumatic event for which an impairment rating has been assigned, an ALJ has the discretion to deem said condition contributory and compensable when making a f
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