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Workers’
Compensation Board
OPINION
ENTERED: July 29, 2016
CLAIM NO. 201100860
CHARLES MULLINS PETITIONER
VS. APPEAL FROM HON. STEVEN
G. BOLTON,
ADMINISTRATIVE LAW JUDGE
MILLSTONE CONSTRUCTION CO. and
HON. STEVEN G. BOLTON,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
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BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
ALVEY,
Chairman. Charles Mullins (“Mullins”) seeks review of the Opinion and Order
rendered March 7, 2016, by Hon. Steven G. Bolton, Administrative Law Judge
(“ALJ”), finding he has not sustained a worsening of his July 26, 2010
work-related injury and therefore dismissing his claim for increased
benefits. Mullins also appeals from the
May 3, 2016 Order denying his petition for reconsideration.
On appeal, Mullins essentially argues a contrary result was compelled,
and the ALJ’s decision “is clearly erroneous on the basis of the reliable,
probative and material evidence contained in the whole record; or the order,
decision, or award is arbitrary or capricious or characterized by abuse of
discretion or clearly unwarranted exercise of discretion.” We disagree and affirm because the ALJ’s
determination is supported by substantial evidence, is not arbitrary and
capricious, and a contrary result is not compelled.
Mullins filed a Form
101 on June 9, 2011 alleging he sustained a low back injury while working for
Millstone Construction Co. (“Millstone”) in Letcher County, Kentucky, while
lifting the end of a drip pipe. Mullins’
Form 104 work history consisted of working as a construction laborer.
In a decision rendered
January 20, 2012, Hon. John B. Coleman, Administrative Law Judge (“ALJ
Coleman”), found Mullins sustained a work-related low back injury on July 26,
2010. ALJ Coleman awarded temporary
total disability benefits, permanent partial disability benefits based upon an
11% impairment rating assessed by Dr. Rick Lyon (enhanced by the
three-multiplier contained in KRS 342.730(1)(c)1), and medical benefits.
Millstone filed a
motion to reopen on April 16, 2015 to assert a medical dispute concerning
monthly drug screens by Millennium Laboratories requested by Kentucky Pain
Physicians. Millstone also moved to join
Millennium Laboratories and Kentucky Pain Physicians as parties to the
claim. The medical dispute was assigned
to Hon. Jane Rice Williams, Administrative Law Judge, for resolution. Millstone subsequently supplemented the
medical dispute to include a determination regarding epidural steroid
injections.
Mullins subsequently
filed a motion to reopen alleging he had sustained a worsening of occupational
disability, and is now totally disabled.
In support of the motion to reopen, Mullins filed the May 28, 2015
affidavit of Dr. Chad Morgan, D.C., who stated as follows:
3) That
after conducting an evaluation of the Plaintiff, Charles Mullins, it is my
medical opinion that Mr. Mullins’ medical condition has deteriorated relative
to his workers’ compensation injury and especially since the Opinion &
Award which was rendered in this case by the Hon. John B. Coleman on January
20, 2012.
4) It is my opinion, consistent with his current
evaluation, that his pain has increased, his restrictions have increased, and
that his medical condition has significantly worsened which results in greater
occupational disability. The Affiant believes that the Plaintiff is now
permanently and totally disabled from any gainful employment.
The motions to reopen
were sustained to the extent the parties were allowed to proceed on their
respective issues. The claim was
reassigned to the ALJ.
Mullins testified by
deposition on October 5, 2015, and again at the hearing held November 16,
2015. He is a resident of Chavies, Kentucky.
Mullins was born on February 4, 1973.
He reported he is six feet, two inches tall and weighs three hundred and
sixty pounds. He is a high school
graduate with no college or vocational training. He testified his work history includes
working as a welder’s helper, machine operator, overhead crane operator,
laborer, fence installer and headstone installer.
Mullins experienced low
back pain while attempting to lift a drip which was welded onto a piece of
pipe. He subsequently underwent a
discectomy at L5-S1. His back condition
initially improved after surgery, but later worsened. He continues to take multiple medications for
his low back condition. He has not
worked at any time since ALJ Coleman’s decision was rendered. He was awarded Social Security disability
benefits in April 2014.
Mullins testified he
has had one epidural steroid injection which provided no relief. He has a TENS unit, which he stopped using
because it likewise provided no relief.
He also had a trial of a spinal stimulator which did not help. He stated he cannot sit or stand as long as
he could in 2012. He also stated the
pain radiating down his right leg is worse now than in 2012.
The issues regarding
monthly drug screens and epidural steroid injections are not subject to this
appeal. Therefore, the evidence
concerning those issues will not be discussed further.
In addition to Dr.
Morgan’s affidavit, Mullins filed the November 17, 2015 report of Dr. Arthur
Hughes. Dr. Hughes examined Mullins at
the request of his attorney. Dr. Hughes
diagnosed Mullins as having low back pain and radiculopathy on the right. He noted Mullins was status post lumbar discectomy. He assessed a 13% impairment rating pursuant
to the American Medical Association, Guides to the Evaluation of Permanent
Impairment, 5th Edition (“AMA Guides”). He stated Mullins has ongoing low back pain
and symptoms, and has not reached maximum medical improvement (“MMI”).
Millstone filed the
September 28, 2015 report of Dr. Mark O. Gladstein who evaluated Mullins at its
request. Dr. Gladstein noted at the time
of the evaluation, Mullins was a “42 year-old obese Caucasian male”. He diagnosed chronic low back pain without
evidence of true radiculopathy, morbid obesity, some evidence of symptom
magnification, possible type II diabetes mellitus, hypertension and
degenerative disk disease of the lumbar spine at L5-S1. He noted Mullins exhibited some evidence of
symptom magnification. He disagreed with
Dr. Morgan’s opinion that Mullins could not be gainfully employed. He saw little difference when comparing objective
testing.
Millstone also filed
Dr. Gladstein’s December 11, 2015 report. He agreed with the 11% impairment rating
previously relied upon by ALJ Coleman.
He additionally stated Mullins needs active rehabilitation, weight loss
and exercise. He opined Mullins can
return to work to a job where he can stand or sit.
Dr. Ralph Crystal
performed a vocational evaluation at Millstone’s request on December 8,
2015. He determined Mullins does not
have a complete and permanent inability to work due to his work-related injury.
Millstone designated
some of the evidence from the original claim before ALJ Coleman. Specifically, it designated the treatment
records of Dr. Gregory Corradino, Mullins’ treating neurosurgeon, for treatment
from September 21, 2010 through February 10, 2011. Dr. Corradino diagnosed a disk bulge at
L5-S1, status post laminectomy/discectomy at L5-S1 at the right on October 8,
2010 and low back and right leg pain.
Millstone designated
additional records from the original claim. The Functional Capacity Evaluation (“FCE”)
report from the Holston Medical Group performed March 15, 2011 indicated
Mullins could return to most of his regular work duties except for frequent
standing. In his report dated July 8,
2011, Dr. Jared Madden indicated Mullins had low back pain, and a lumbar disk
disorder with myelopathy, for which he assessed a 27% impairment rating
pursuant to the AMA Guides. The
report from Mr. Rick Pounds stated Mullins could return to medium duty work
with no standing or walking restrictions.
Finally, Millstone
designated the October 27, 2011 report of Dr. Lyon from the record of the
original claim. Dr. Lyon diagnosed an
acute herniated disk at L5-S1, status post laminectomy and discectomy. He stated Mullins was at MMI as of March 22,
2011, and could return to work in accordance with the restrictions contained in
the FCE. Dr. Lyon determined Mullins
needed no additional treatment. He
assessed an 11% impairment rating pursuant to the AMA Guides. Dr. Lyon specifically stated he disagreed
with the impairment rating assessed by Dr. Madden.
A Benefit Review Conference
was held prior to the hearing on November 16, 2015. The issues preserved for determination
included physical capacity to perform regular work; permanent total disability;
liability for medical benefits; and, worsening of condition.
In his decision
rendered March 7, 2016, the ALJ determined the contested monthly drug screens
and requested epidural steroid injections were not reasonable and necessary. He also determined Mullins did not
sufficiently demonstrate he had sustained a worsening of condition due to his
work injury, and the request for increased benefits was denied. Specifically, the ALJ found as follows:
7. The Plaintiff has failed to carry his burden
of proof on re-opening that the Plaintiff has “suffered a change of disability
as shown by objective medical evidence of worsening … of impairment due to a
condition caused by the injury since the date of the award or order.” KRS 342.125 (1) (d).
8. In making that finding I rely on the medical
opinion of Dr. Mark O. Gladstein, M.D., which I find to be persuasive for
reasons set out in the foregoing “Analysis”.
9. Because I believe that the evidence compels
the foregoing finding, I find the issues of (1) Benefits per KRS 342.730 and
(2) Worsening condition to be moot.
10. As to Plaintiff’s claim that he no longer
retains the physical capacity to perform regular work, thus entitling him to an
award of permanent total disability benefits, as previously noted he has failed
to introduce compelling evidence of a change of condition, so I am therefore
bound by Judge Coleman’s previous Opinion, Award and Order, which did not find
him to be permanently, totally disabled from all employment.
11. I
find the treatment regimen of Kentucky Pain Physicians that requires a drug screen
for the Plaintiff at each office visit to be medically unreasonable and
unnecessary for the cure and relief of the Plaintiff’s work-related injuries,
and clearly not required by law except under certain stringent circumstances
that are not present in this case.
12. In
making this finding, I rely on the opinion of Dr. Paul Loubser
to be persuasive and base my judgment in reliance on that opinion as supported
by the plain language of 201 KAR 9:260, which I find to be the most persuasive
evidence in the record and upon which I rely in rendering this opinion.
13. As to the issue of
proposed ESI’s, given the lack of information regarding Mullins’ completion of
any formal therapeutic interventions, as well as the imaging studies lacking
any significant findings confirming any neurocompressive
findings, accompanied by Mr. Mullins’ testimony as to the ineffectiveness of
previous ESI’s, I can only conclude that the request for lumbar ESI’s is not
medically reasonable and necessary.
14. Given Mr. Mullins’
history and the overall body of evidence concerning this issue, I do not find
the request for lumbar ESI’s for
him to be medically reasonable or necessary. KRS 342.020.
Mullins filed a
petition for reconsideration essentially re-arguing the merits of the case, and
requesting the ALJ to reverse his determination regarding the alleged worsening
of condition. The ALJ denied this
petition in an order dated May 3, 2016, specifically finding as follows:
Plaintiff’s
Petition for Reconsideration of this Administrative Law Judge's (ALJ') Opinion
and Order dated March 7, 2016 simply reargues the merits in this matter and
fails to identify any errors patently appearing on the face of the Opinion. The
Plaintiff reargues that the undersigned should reconsider his decision due to
the fact Dr. Madden stated that the Plaintiff’s potential for additional
rehabilitation and vocational retraining was severely limited, a proposition
that had already been rejected by the Honorable ALJ John B. Coleman in the
original Opinion, Award and Order in this matter and was therefore res adjudicata.
Furthermore,
the Plaintiff reargues the merits by stating that Dr. Arthur Hughes assessed
some restrictions. The Plaintiff correctly points out that Dr. Hughes, Plaintiff’s
own paid IME expert, concluded that the Plaintiff can return to work.
As
such, the Plaintiff’s Petition for Reconsideration fails to state a basis upon
which relief can be granted. The
Plaintiff’s Petition for Reconsideration is essentially a request for the ALJ
to provide a different ruling, more in his favor. Reconsideration requests of
this type are specifically prohibited by KRS 342.281. Wells v. Fargo,
714 S.W.2d 481 (Ky. 1986); Eaton-Axle Corp. v. Nalley,
688 S.W.2d 233 (Ky. 1985).
The
Plaintiff argues that the ALJ should reconsider the restrictions placed upon
the Plaintiff. The record contains numerous medical reports and vocational
reports concluding that the Plaintiff can return to some type of work. As the
overwhelming weight of the medical evidence consisting of the medical treatment
records, medical opinions, and vocational opinions clearly establishing that
the Plaintiff can return to work, my ruling as to that issue was supported by
substantial evidence and the Plaintiff has failed to show error patently
appearing on the face of the Opinion and Order of March 7, 2016 that would
support his request.
I
further note the limited scope of review provided by KRS 342.281. This ALJ is
the exclusive finder of fact pursuant to KRS 341.285(1). Accordingly, the ALJ
"has the sole discretion to determine the quality, character, weight,
credibility, and substance of the evidence, and to draw reasonable inferences
from the evidence.” Bellarmine[sic]
v. Black Equipment Co., 297 S.W.3d 858, 866 (Ky., App. 2009). This
discretion includes "deciding who and what to believe and gives the ALJ
the freedom to "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 parties" total proof." As noted above, the
Plaintiff attempts to reargue the medical merits, which is not permitted in
Kentucky at this stage.
The
medical opinion evidence from Dr. Gladstein, Dr. Hughes, Mr. Rick Pounds, Mr.
Ernie Dickerson, Dr. Ralph Crystal, Dr. Rick Lyon, etc. establish
that the Plaintiff is not permanently and totally disabled. Defendant
Employer’s allegation of error patently appearing on the face of the Opinion,
Award & Order is a disagreement with my interpretation of the medical
evidence in the record, which is not within the scope of my review under the
provisions of KRS 342.281. Francis v. Glenmore Distilleries, 718 S.W.2d 953 (Ky. App. 1986).
Moreover,
I have no authority to reverse myself on the merits of the claim. Beth-Elkhorn Corp. v. Nash, 470 S.W.2d 329 (Ky., 1971).
As the claimant in a workers’
compensation proceeding, Mullins had the burden of proving each of the
essential elements of his cause of action.
In this instance, his burden was to prove his condition had worsened
since the original decision rendered by ALJ Coleman on January 20, 2012. Snawder v. Stice, 576
S.W.2d 276 (Ky. App. 1979). Burton v. Foster
Wheeler Corp., 72 S.W.3d 925 (Ky. 2002). Since Mullins was unsuccessful before the ALJ
regarding this issue, 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 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).
In rendering a decision, KRS 342.285
grants the ALJ as fact-finder the sole discretion to determine the quality,
character, and substance of evidence.
AK Steel Corp. v. Adkins, 253 S.W.3d 59 (Ky. 2008). The ALJ may
draw reasonable inferences from the
evidence, 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. Jackson v. General
Refractories Co., 581 S.W.2d 10 (Ky. 1979); Caudill v. Maloney’s Discount Stores,
560 S.W.2d 15 (Ky. 1977).
Although a party may note evidence supporting a different outcome than
reached by an ALJ, such proof is not an adequate basis to reverse on appeal. McCloud v. Beth-Elkhorn
Corp., 514 S.W.2d 46 (Ky. 1974).
The function of the Board in reviewing
an ALJ’s decision is limited to a determination of whether the findings are so
unreasonable they must be reversed as a matter of law. Ira
A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000). The Board, as an appellate tribunal, may not
usurp the ALJ’s role as fact-finder by superimposing its own appraisals as to
weight and credibility or by noting reasonable inferences that otherwise could
have been drawn from the evidence. Whittaker v. Rowland, 998 S.W.2d 79 (Ky. 1999).
Here, the ALJ set forth a clear review and
understanding of the evidence. Mullins
complains the ALJ’s decision is not in
conformity with the Kentucky Workers’ Compensation Act, is arbitrary or
capricious, and is an abuse and unwarranted exercise of discretion. Contrary to the assertions set
forth in Mullin’s brief, the ALJ clearly reviewed and summarized the evidence
of record. While Mullins did in fact
file the affidavit of Dr. Morgan, this does not compel a finding in his favor. It is noted Dr. Hughes did not establish
Mullins sustained a worsening of condition since the date of the original
decision. Dr. Gladstein found the
condition had not worsened, and in fact determined he could return to gainful
employment. This supports the ALJ’s
decision, and a contrary result is not compelled.
Mullins essentially requests this
Board to re-weigh the evidence, and substitute its opinion for that of the ALJ
which we cannot do. Whittaker v. Rowland, supra. It was the ALJ’s prerogative to rely upon
those portions of the evidence outlined in his decision. Mullins merely points to conflicting evidence
supporting a more favorable outcome, which is not an adequate basis to reverse
on appeal. McCloud v. Beth-Elkhorn Corp.,
supra.
Mullins’ assertion the ALJ’s decision
is arbitrary, capricious and not in compliance with the Kentucky Workers’
Compensation Act is simply not borne out by the evidence. We note an ALJ is not required to provide a
detailed summary of the evidence, nor include the minute
detail of his reasoning in reaching his determination. Big
Sandy Community Action Program v. Chaffins, 502 S.W.2d 526 (Ky. 1973). In this instance, the ALJ demonstrated his
awareness of the entirety of the evidence of record, and we believe he made it
sufficiently clear to the parties the evidence he found to be most probative
and upon which his determinations rested.
Again, we find the ALJ committed no error, and his decision shall remain
undisturbed.
Accordingly, the decision rendered March
7, 2016, and the order on reconsideration issued May 3, 2016, by Hon. Steven G.
Bolton, Administrative Law Judge, are hereby AFFIRMED.
ALL
CONCUR.
COUNSEL
FOR PETITIONER:
HON MCKINNLEY MORGAN
921 SOUTH MAIN STREET
LONDON, KY 40741
COUNSEL
FOR RESPONDENT:
HON NATALIE LASZKOWSKI
1315 HERR LN, STE 210
LOUISVILLE, KY 40222
CHIEF
ADMINISTRATIVE LAW JUDGE:
HON ROBERT L SWISHER
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601
