OPINION ENTERED: March 10, 2009
CLAIM NO. 07-87269
MICHAEL GIBSON PETITIONER
VS. APPEAL FROM HON. IRENE STEEN,
ADMINISTRATIVE LAW JUDGE
KROGER
and HON. IRENE STEEN,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION AFFIRMING
* * * * * *
BEFORE: GARDNER, Chairman, COWDEN and STIVERS, Members.
COWDEN, Member. Michael Gibson (“Gibson”) appeals from the opinion of Hon. Irene Steen, Administrative Law Judge(“ALJ”) dismissing his claim and from the ALJ’s order on petition for reconsideration. On appeal, Gibson argues the ALJ erred by failing to properly analyze the injury he sustained and by failing to award appropriate indemnification and medical benefits.
Gibson testified he was injured on April 23, 2007 when he was lifting a box of meat to put it on a high shelf. He stated he felt a pop in his back and experienced pain slightly above the beltline. He left work about 30 minutes later due to the pain. He was not scheduled to work the following day and felt his problem would resolve with rest. He reported the injury and sought medical treatment. He was seen by various physicians over the next several months and was prescribed two courses of physical therapy which he did not complete. Gibson testified he was currently living with his mother in the Prestonsburg area. He stated he was unable to do any chores and had not looked for work. He indicated he had pain in his low back that would occasionally shoot upward in his back. He denied any pain into his leg but stated he had tingling in both feet and had also developed tingling in his right thumb. He indicated he was unable to stand, walk, sit or lift anything for any length of time and spent most of his day in bed watching television. He indicated he could drive a short distance. He acknowledged Dr. Webb had released him to return to work without restrictions.
At the hearing, Gibson indicated he was unable to return to any form of work and stated he had been on restrictions from the first time he was seen at an urgent care treatment center. Gibson stated he still did not perform any chores around the house and his uncle took care of the upkeep of the house. He still did not feel he could return to his work and stated he stayed propped up in bed with many pillows due to his pain.
Gibson submitted the June 1, 2007 report of Dr. K. Michael Webb who saw Gibson at the request of Dr. Uzma Aslam. Dr. Webb noted Gibson’s pain was located mostly in the paraspinal muscle region without radiation down the legs. On examination, there were no paraspinal muscle spasms or midline tenderness to palpation. Range of motion was normal without instability. Straight leg raising was negative bilaterally. Dr. Webb reviewed a plain CT scan of the lumbar spine which showed some degenerative disease at L2-3 and mild disc bulging which was worse at L4-5. There was also some facet arthropathy at L4-5 and L5-S1. Dr. Webb’s impression was muscular strain or sprain. Dr. Webb indicated Gibson was unable to have an MRI scan because of a previous gastric bypass in 1980. Dr. Webb planned to obtain a CT myelogram and gave Gibson a work excuse until his return appointment after the myelogram. He prescribed Lortab with one refill.
Dr. Webb saw Gibson again on August 10, 2007 for re-evaluation after physical therapy. He noted the CT myelogram showed some mild degenerative changes with some mild annular bulge from L1-2 to L5-S1 without significant central or neuroforaminal stenosis. He noted Gibson had not been helped despite physical therapy and other conservative treatments. Gibson did not feel he was able to continue to work at his current position. Dr. Webb found no paraspinal muscle spasms and indicated straight leg raising was negative. His impression was mild diffuse degenerative changes without evidence of radiculopathy. He suspected most of Gibson’s pain was musculoskeletal in origin. Dr. Webb stated, at this point, he did not think there were any other treatment options that had a high likelihood of success for Gibson. He stated Gibson was not a candidate for any sort of surgical intervention. He stated Gibson was at maximum medical improvement and saw no reason why he could not return to work but for his pain.
Gibson submitted the September 6, 2007 report of Dr. Leonard A. Goddy. Dr. Goddy noted a CT of May 11, 2007 revealed mild canal stenosis from L2-3 through L4-5 and a diffused disc bulge with a questionable small central disc protrusion at L4-L5. Dr. Goddy’s diagnoses were 1) probable lumbar spine sprain/strain; 2) degenerative disc disease lumbar spine based on CT scan; and 3) congenital stenosis lumbar spine based on CT scan report. Dr. Goddy did not believe Gibson was at maximum medical improvement. He did not believe Gibson was a candidate for surgical intervention but felt a CT myelogram or myelogram with contrast was reasonable for management. He stated he would defer to a gastroenterologist or nutritionist to determine if some of Gibson’s paresthesias complaints related to any nutritional deficits as a result of the gastric bypass surgery. Dr. Goddy did not believe Gibson was employable at that time. He stated there was an element of depression and overlay precluding his ability to a make a better recovery but some additional low back treatment was indicated. He strongly cautioned against any surgical or injectable intervention.
In an October 23, 2007 supplemental report, Dr. Goddy stated it was his opinion the April 23, 2007 injury caused Gibson’s present symptoms. He indicated he had no new information and therefore, no indication to change his impressions in the September 6, 2007 IME report. In a January 29, 2008 report, Dr. Goddy indicated he reviewed a CT report from May 11, 2007. He stated the mild canal stenosis was a dormant non-disabling condition. There was a report of an L4-L5 small central disc protrusion that he felt could be related more probably than not to Gibson’s injury. He stated, “Given this, we might describe it as a small protrusion with mild symptoms, which fall into DRE lumbar category II, 5% impairment, according to the 5th Edition of the AMA Guides.”
On March 20, 2008, Dr. Goddy completed a medical questionnaire indicating a diagnosis of lumbar strain, degenerative disc disease of the lumbar spine on the basis of a CT scan and congenital spinal stenosis on the basis of a CT scan. Dr. Goddy stated the April 23, 2007 work injury resulted in an acute lumbar strain, but did not bring about the congenital spinal stenosis or the degenerative disc disease. He indicated Gibson had reached MMI. He placed Gibson in DRE lumbar category II with a 5% impairment. He did not feel Gibson had any impairment attributable to a pre-existing condition. Dr. Goddy did not feel the restrictions would disqualify Gibson from returning to the pre-injury work activities as a meat manager.
Kroger submitted the November 6, 2007 report of Dr. William Ackerman. Gibson admitted being anxious and depressed. On examination, Gibson exhibited some tenderness to pressure over the SI joint, but otherwise, the examination was normal. Straight leg testing was negative bilaterally. Gibson scored a 19 on the Beck Depression Inventory Test. Dr. Ackerman’s assessment was sprain/strain of the lumbar spine and sacroiliitis. Gibson was to use Lidoderm transdermally over his sacroiliac joints. He noted Gibson had been on Flexeril prescribed by Dr. Webb. Dr. Ackerman stated if these medications did not provide Gibson with any significant relief, he had nothing further to offer Gibson. Dr. Ackerman did not feel opioid therapy was medically necessary. He noted Dr. Webb placed Gibson at MMI with a return to gainful employment following his physical therapy. Gibson related that he was unable to work and he had to spend his time lying in bed because of his severe pain. Gibson indicated he was unable to drive to Dr. Ackerman’s office as a result of severe pain.
Kroger submitted reports from Dr. David J. Jenkinson who performed an independent medical examination on September 17, 2007. Gibson complained of constant low back pain, worse on the right side than the left. He indicated the pain would shoot up into his shoulder blades. He complained of occasional tingling in his right thumb and index finger. On examination, Gibson resisted movement of his neck in all directions. He held his neck stiffly and would only allow a few degrees of rotation, flexion and extension. He reacted with tenderness on simply palpating the muscles on each side of his neck down toward his shoulders. There was no visible or palpable muscle spasm. Dr. Jenkinson noted Gibson was able to bend forward to reach his fingertips to just below knee level. He resisted side bending and reacted with tenderness on superficial palpation throughout the length of the lumbar spine. Straight leg raising in the seated position was normal to 90° but in the supine position he held both legs stiffly and resisted straight leg raising at 30°. Dr. Jenkinson reviewed a CT scan of the lumbar spine dated May 1, 2007. He stated the CT scan was pretty normal apart from perhaps minimal disc bulging at the L3-4 level. There was no evidence of significant disc herniation or nerve root compression. A CT report of the same date indicated minor disc bulges at multiple levels with no evidence of significant nerve root compression. A CT scan of the lumbar spine with contrast taken June 25, 2007 indicated minor disc bulges at multiple levels with no evidence of significant disc herniation.
Dr. Jenkinson observed examinations and investigations in the months following the April 23, 2007 incident at no time demonstrated any significant objective abnormality in Gibson’s spine. Dr. Jenkinson stated Gibson had minor degenerative changes apparent on CT scan with no evidence of nerve root compression or significant disc herniation. Dr. Jenkinson stated Gibson exhibited multiple signs of gross symptom exaggeration in the present evaluation. He noted Gibson gave a history of a back strain. However, during the examination he attempted to demonstrate almost complete inability to move his neck. He also complained of pain in both shoulders. Dr. Jenkinson noted there was no record of Gibson suffering any injury to his neck or shoulders at the time of the alleged back strain.
It was Dr. Jenkinson’s opinion that Gibson may have suffered a minor low back strain. He was now exhibiting clear signs of symptom exaggeration. Dr. Jenkinson agreed with Dr. Webb that there were no other treatment options that had a high likelihood of success. Dr. Jenkinson stated, in his experience, individuals who have subjective symptoms and exhibit clear signs of symptom exaggeration will not respond positively to any treatment modality. Dr. Jenkinson did not feel the work incident of April 23, 2007 caused a permanent injury. He stated Gibson may have suffered a low back strain which would have resolved within a few weeks. He stated Gibson presently exhibited clear signs for symptom exaggeration and there was no objective evidence of any significant abnormality in Gibson’s spine which could be attributed to the back strain of April 2007. He stated Gibson had no permanent impairment as a result of the April 2007 incident. Dr. Jenkinson believed Gibson’s continued complaints were completely fictitious and Gibson exhibited clear signs of symptom exaggeration. Therefore, he did not believe ongoing complaints could be related to a minor back strain in April 2007. Dr. Jenkinson recommended no further treatment for Gibson as a result of the minor back strain. He stated it was quite apparent Gibson was exaggerating his symptoms and did not demonstrate any objective abnormality which would prohibit him from returning to his former occupation without restrictions.
In an October 18, 2007 report, Dr. Jenkinson indicated he reviewed additional information including the IME report of Dr. Goddy. He found nothing in the report to change his opinions in the prior report. He stated he felt any further attempts at investigation or treatment would be completely futile. He stated Gibson should be released to return to work on full duty with no restriction.
After reviewing the evidence, the ALJ rendered the following findings of fact and conclusions of law:
Based upon the record herein and after having had the opportunity to observe and speak with the Plaintiff herein, it is the opinion of this ALJ that Plaintiff’s claim must fail in its entirety. Plaintiff has had extensive treatment, all to no avail. The so called “gold standard”, the myelogram and CT scan, showed no pathology that could be the cause of Plaintiff’s ongoing complaints and alleged inability to return to work. He only showed mild degenerative changes and some congenital stenosis, if even that, in spite of the fact that the record indicated that Plaintiff had previously been extremely heavy, 500 lbs., before he had undergone a gastric by-pass to get rid of this excessive weight. There is ample evidence that suggests that this man engaged in gross symptom magnification. There was absolutely no injury to this man’s neck and shoulders; yet, he feigned inability to even move his neck and shoulders, when he was examined by Dr. Jenkinson. Plaintiff has now been seen by a Dr. Triplett, who prescribes Plaintiff some medications, however, as the Defendant pointed out, those records were never introduced and there is no confirmed evidence that these medications are for the incident herein.
The evidence reflected that Plaintiff has been involved in a separation and divorce proceeding since this incident and has now moved from Lexington to Floyd County, where he now lives with his 70 year old mother, who had a back injury many years ago. As stated, the evidence in the case indicates that there are no real objective findings of pathology that can be related to the incident herein, but for whatever reason, Plaintiff has an ongoing desire to portray himself as a very disabled person complaining of extreme pain claiming he is incapable of returning to any form of work. He spends his day watching TV from the couch with many pillows, while his uncle performs the work around the house. The persuasive evidence showed that Plaintiff is very capable of returning to work, without restrictions and that no further medical treatment is even necessary. Even Plaintiff’s own physician returns Plaintiff to work. The recent cases dealing with entitlement to future medical treatment in cases where there has been finding of no permanent impairment, dictate that each claim is looked at independently, as each fact situation is obviously different. In FEI Installation, Inc. v. Williams, Ky., 214 S.W.3d 313 (2007), the facts were very different from this case, as the Plaintiff had undergone surgery and was continuing physical therapy. However, in Mullins v. Mike Catron Construction Ky. App., 237 S.W.3d 561 (2007), there was no compelling evidence of the need for future medical treatment. Likewise, in this case, there is ample evidence that Plaintiff does not require further treatment, due to lack of objective findings and Plaintiff’s gross symptom magnification. This case shall therefore be dismissed in its entirety and Plaintiff shall not be entitled to any further medical treatment.
The ALJ’s award provided Gibson was entitled to keep the TTD payments he had received.
Gibson filed a petition for reconsideration raising essentially the same arguments he now raises on appeal to the Board. By order dated June 26, 2007, the ALJ overruled the petition. The ALJ noted that in the earlier opinion and dismissal, Gibson was granted the right to keep such TTD benefits as he had received and noted the cessation of those benefits had been based upon the medical report of Dr. Webb who saw no reason Gibson could not return to work except for his subjective complaints of pain. The ALJ noted Gibson had been declared to be at MMI at that time. The ALJ stated her belief the TTD benefits plaintiff was awarded was supported by this evidence.
With regard to future medical treatment, the ALJ noted Dr. Webb felt none was needed and Dr. Jenkinson found Gibson was clearly exaggerating his complaints, had no objective abnormalities requiring treatment and Gibson could return to work without restrictions. Dr. Jenkinson noted any further attempts at investigation or treatment would be completely futile. The ALJ further noted Dr. Goddy, Gibson’s IME physician, commented he would strongly caution against any form of surgery or injection therapy and Gibson could return to his former work. The ALJ opined Dr. Goddy’s assessment of a 5% impairment was speculative. The ALJ stated it was clear Gibson’s complaints far outweighed any need for treatment based upon the reliable medical evidence and it appeared to the ALJ any form of treatment would only “add fuel to the fire” and Gibson would be in constant search of doctors in order to perpetuate his attempts to be seen as an invalid. The ALJ found Gibson had a mere strain/sprain which was now resolved. She stated the holding F.E.I. Installation, Inc. vs. Williams, 214 S.W.3d 313 (Ky. 2007) could be easily distinguished from Gibson’s case. She noted in Williams, the plaintiff had evidence that the entirety of his problems were due to a work-related event, that he had indeed undergone surgery, that he continued to receive physical therapy and that the medical evidence did not indicate future medical benefits were not necessary. The ALJ observed the record in Gibson’s case showed he had mild degenerative changes. The ALJ stated:
I am of the opinion that this case falls squarely within the holding of the Mullins v. Mike Catron Construction case, where the court held that there was evidence in the record that supported that plaintiff was not in need of any future medical treatment. Just as the Mullins case, is the case at bar.
On appeal Gibson argues the ALJ committed reversible error by failing to properly analyze the work injury. He notes the actual occurrence of the work incident was not controverted and, prior to April 23, 2007, he had no previous lower back injury or symptoms requiring medical treatment. Following the injury, however, he required medical treatment and continues to experience symptoms which prevent his return to gainful employment. Gibson takes issue with the ALJ’s global dismissal of the case without providing appropriate analysis of the work injury or the extent of the injury sustained. If he sustained only a temporary injury, he argues he would be entitled to temporary indemnification and medical benefits. If he sustained a permanent injury, he argues he would be entitled to indemnification and medical benefits. Gibson argues that, against the overwhelming weight of the lay and medical evidence presented, the ALJ misinterpreted the lay and medical evidence and erroneously relied upon the factors of symptom magnification, weight and divorce in determining that there was no injury. He observes the ALJ noted diagnostic studies confirmed mild degenerative changes with congenital stenosis. He contends there was lay and medical evidence of a work injury which brought a pre-existing condition into a disabling reality.
Gibson further argues the ALJ committed reversible error by failing to award appropriate indemnification and medical benefits. Gibson notes the ALJ, while dismissing his claim, permitted him to retain the TTD benefits already paid. He argues the ALJ committed reversible error by failing to award appropriate TTD and medical benefits. Since he sustained an actual incident at work on April 23, 2007, he contends he is entitled to either temporary or permanent indemnification and medical benefits under the provisions of the Workers’ Compensation Act. Gibson requests the case be remanded to the ALJ with directions to provide additional findings concerning the injury, the type of injury and the extent of the work injury.
Gibson had the burden of proving each of the essential elements of his claim. Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979). Since he was unsuccessful before the ALJ, the question on appeal is whether the evidence compels a finding in his favor. Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky.App. 1984). Compelling evidence is defined as evidence that is so overwhelming, no reasonable person could reach the same conclusion as the ALJ. REO Mechanical v. Barnes, 691 S.W.2d 224 (Ky.App. 1985).
As fact finder, the ALJ has the sole authority to determine the quality, character, and substance of the evidence. Square D Company v. Tipton, 862 S.W.2d 308 (Ky. 1993); Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985). Similarly, the ALJ has the sole authority to determine the weight and inferences to be drawn from the evidence. Miller v. East Kentucky Beverage/Pepsico, Inc., 951 S.W.2d 329 (Ky. 1997). The ALJ, as fact finder, may reject any testimony and believe or disbelieve various parts of the evidence, regardless of whether it comes from the same witness or the same adversary party’s total proof. Magic Coal Co. v. Fox, 19 S.W.3d 88 (Ky. 2000); Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999). Mere evidence contrary to the ALJ’s decision is not adequate to require reversal on appeal. In order to reverse the decision of the ALJ, it must be shown there was no evidence of substantial probative value to support the decision. Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986).
The evidence in this case falls far short of compelling a finding in Gibson’s favor, and the ALJ’s decision is supported by substantial evidence. We therefore affirm. Gibson’s arguments on appeal are essentially an attempt to reargue the merits of the claim. The ALJ was faced with conflicting medical opinions. Unfortunately for Gibson, the ALJ found the opinions of Dr. Jenkinson more persuasive.
The ALJ was not persuaded Gibson sustained any permanent injury as a result of the work-related incident. Dr. Jenkinson opined that, at most, Gibson may have suffered a low back strain which would have resolved within a few weeks. Gibson’s treating physician, Dr. Webb, returned Gibson to work without restrictions on August 10, 2007. Dr. Jenkinson noted there was no objective abnormality in Gibson’s spine and assigned a 0% permanent impairment. He stated Gibson’s continued complaints were completely fictitious and he exhibited clear signs of symptom exaggeration. It was his opinion Gibson had no ongoing complaints related to the work injury. Clearly, the ALJ could conclude Gibson had no permanent injury. Through the ALJ’s discussion of case law in the opinion and in the order ruling on the petition for reconsideration, it is readily apparent the ALJ understood that, in the absence of an impairment rating, future medical benefits may be awarded if the injury necessitates ongoing medical treatment. The ALJ also understood she was not required to award future medical benefits where there is no permanent injury and no further medical treatment is necessary. The ALJ specifically indicated her belief the evidence established no need for continued medical treatment and this claim was governed by the holding in Mullins v. Mike Catron Construction, supra.
Gibson was paid TTD from June 1, 2007 through August 9, 2007. While the ALJ’s opinion stated only that Gibson was entitled to keep the TTD payments he had received, the order ruling on the petition for reconsideration clearly indicates the ALJ intended that language as an award of TTD benefits for the period the benefits had been paid. That period corresponds to the date Dr. Webb took Gibson off work until he placed Gibson at maximum medical improvement and stated he could return to work without restrictions. The ALJ noted an award for the period TTD was paid was supported by substantial evidence.
Since Gibson’s complaints were subjective, any determination rests largely on his credibility concerning his complaints. The ALJ was well within her role as fact finder in considering evidence of symptom exaggeration. Dr. Jenkinson found Gibson was clearly exaggerating his complaints and stated Gibson had no objective abnormalities requiring treatment. The ALJ did not find Gibson credible regarding his complaints.
Although Gibson seeks additional findings, we believe the ALJ adequately set forth her analysis and the evidence supporting her conclusions. We see no evidence the ALJ misinterpreted the lay and medical evidence and there was no error in considering symptom magnification in reaching her determination. The ALJ’s opinion and the order on reconsideration adequately established the period of temporary total disability. Gibson fails to establish the evidence compelled a finding of any greater period of TTD. Likewise, Gibson fails to show the evidence compelled a finding of compensability of any medical benefits in addition to those already paid by the defendant/employer.
Accordingly, the decision of Hon. Irene Steen, Administrative Law Judge, is hereby AFFIRMED.
ALL CONCUR.
COUNSEL FOR PETITIONER
HON CHED JENNINGS
239 S FIFTH STREET
412 KY HOME LIFE BUILDING
LOUISVILLE KY 40202
COUNSEL FOR RESPONDENT
HON WILLIAM E BROWN II
167 W MAIN ST STE 100
LEXINGTON KY 40507
ADMINISTRATIVE LAW JUDGE
HON IRENE STEEN
135 WEST IRVINE ST STE 301
RICHMOND KY 40475
