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Workers’
Compensation Board
OPINION
ENTERED: October 21, 2016
CLAIM NO. 201361326
PATRICIA HAWKINS PETITIONER
VS. APPEAL FROM HON. JONATHAN
R. WEATHERBY,
ADMINISTRATIVE LAW JUDGE
SIMPSON COUNTY BOARD OF EDUCATION
HON. JONATHAN R. WEATHERBY,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
ALVEY,
Chairman. Patricia Hawkins (“Hawkins”) appeals from
the Opinion and Order rendered May 26, 2016 by Hon. Jonathan R. Weatherby,
Administrative Law Judge (“ALJ”) dismissing her claim against Simpson County
Board of Education (“Simpson County”).
Hawkins also appeals from the July 6, 2016 order overruling her petition
for reconsideration.
On
appeal, Hawkins argues the ALJ’s decision is not supported by substantial
evidence, and there is insufficient evidence of record to support a finding
Hawkins suffered from a pre-existing active condition. Because Dr. Thomas O’Brien’s opinion
constitutes substantial evidence supporting the ALJ’s decision and no contrary
result is compelled, we affirm.
Hawkins
testified by deposition on September 30, 2015, and at the hearing held March
31, 2016. Hawkins alleged she injured
her lumbar spine and right hip on August 1, 2013 when she slipped and fell
while working as a custodian for Simpson County. She began working for Simpson County as a
substitute cafeteria worker in 2007 before being hired as a full-time cafeteria
worker in 2008. Hawkins transferred to
the custodian position in May 2012. As a
custodian, Hawkins cleaned rooms, stocked closets, moved furniture and stripped
floors. Hawkins estimated she lifted
twenty-five pounds regularly, and up to fifty pounds occasionally.
Hawkins
alleged on August 1, 2013 she slipped and fell as she was bending over to plug
in a stripping machine. Two co-workers
and her supervisor witnessed the fall.
Although Hawkins experienced pain in her low back and hips at the time,
she completed her shift. Hawkins
indicated she thought her pain would resolve on its own. However, as she continued working her regular
job her pain worsened. Hawkins took FMLA
leave in September 2013 and again in November 2013, for a total of two to three
weeks. Hawkins quit her job with Simpson
County in January 2014 due to her ongoing symptoms and has not returned to any
employment since.
Hawkins
first sought medical treatment with Dr. Jack Patterson in August 2013. Dr. Patterson obtained an x-ray, prescribed Hydrocodone,
and referred her to Dr. Christian Unick.
Dr. Unick administered two lumbar epidural shots which did not provide
sustained relief. Hawkins then went to
Dr. Robert Wesley, who ordered a CT scan and a MRI. He also prescribed Tramadol and medication
for inflammation. Dr. Wesley referred
Hawkins to Dr. Narenda Nathoo, who in turn referred her to Dr. Ramarao
Puasupuleti. Dr. Puasupuleti administered
a shot into her sacroiliac joint and steroid shots into her hips. Ultimately, Dr. Phillip Singer performed
sacroiliac joint fusion surgery in March 2015.
However, her symptoms subsequently returned. He also prescribed pain medication and a cane
to assist her in walking, which she uses on a daily basis. Hawkins continues to treat with Drs. Singer
and Wesley, and is currently prescribed Ibuprofen, Gabapentin, and
Tramadol.
Except
for the weeks she missed for FMLA leave, Hawkins continued to perform her normal
job as a custodian earning the same wages until she quit in January 2014. Hawkins currently experiences constant low
back, right hip and right leg pain. She
has occasional left hip pain, and experiences swelling in both hips and her low
back. Hawkins states she is restricted
from lifting and jumping. Hawkins does
not believe she can return to her work as a custodian.
Prior
to the work accident, Hawkins was involved in a motor vehicle accident (“MVA”)
in 2011. Diagnostic testing on her left
wrist, left shoulder, and neck was normal.
Hawkins was placed in a neck brace as a precautionary measure for one to
two weeks, and she completed physical therapy.
Hawkins stated she did not injure, or receive treatment to, her back or
hips due to the MVA. Similarly, Hawkins
testified she has never received prior treatment for right hip, leg or low back
with exception of an isolated incident of low back pain due to a kidney or
bladder infection.
Simpson
County filed medical records pre-dating the August 1, 2013 work incident. Hawkins was treated for strep throat at the
Maynard-Davidson Medical Clinic on October 8, 1998, but also reported back pain
after bending down to pick up an item.
In an October 8, 2010 progress note from Adams Medical Clinic, it was noted
Hawkins was treating for a bladder infection, but also complained of back
pain. A June 6, 2011 cervical MRI
demonstrated mild, mid cervical disc disease.
On June 10, 2011, Hawkins reported to physical therapy at Total Fitness
Connection following a May 31, 2011 MVA resulting in neck, left shoulder and
left forearm pain.
Hawkins
treated with Dr. Patterson both prior to and after the August 1, 2013 work
incident. On February 6, 2012, Hawkins
complained of low and mid back pain which she felt could be related to a kidney
or bladder infection. Hawkins was
diagnosed with acute pain for which she was prescribed Etodolac. On August 23, 2012, Hawkins was treated for
headaches as well as left foot pain. On June 7, 2013, Hawkins complained of
swelling in her hands, as well as tingling and burning in her lower legs. Dr. Patterson ordered labs and prescribed
medication. Following the August 1, 2013
work incident, Hawkins returned on October 16, 2013 complaining of low back and
bilateral leg pain with numbness and tingling which she reported began the
night before. She did not report the
August 1, 2013 fall. Hawkins was
diagnosed with lumbago and sciatica for which she was prescribed
medication.
Both
parties filed the records from Wesley Family Medical which establish Hawkins
has treated with either Dr. Wesley or his nurse practitioner, Ms. Darby Carter
(“Ms. Carter”), since August 27, 2013.
On that day, nearly one month following the work incident, Hawkins
complained of “right hip pain that have been present for several years. . . The
patient states that her symptoms were of gradual onset over a period of
years. There is no previous history of
hip injury or problems. . . .” Hawkins
was diagnosed with bursitis. On October
23, 2013, the following was noted under history of present illness by Ms. Carter:
The patient . . . presents for a history of lumbar region pain
which began 2 years ago after MVA. Pt.
reports she has had intermittent pain since the MVA. The pain typically depends on activity level
as pt. works as custodian and reports the pain seems to get worse after working
all day. She describes the pain as
moderate to severe in severity, and radiating into the legs and but [sic] pain
is worse right leg . . . She also complains of bilateral leg weakness . . .
.
***AMENDMENT*** Pt. presents on 10/23 stating that her back pain
began after a fall at work while mopping the floor. Pt states she slipped and fell on her right
side approximately 1.5 months ago. Her
MRI of her Lumbar spine reports an annular tear. This type of injury could have caused from
the fall.
Hawkins
was diagnosed with low back pain with radiation. Ms. Carter ordered an MRI, restricted Hawkins
from heavy lifting, and prescribed Gabapentin and Etodolac. Ms. Carter electronically signed the medical
record on February 25, 2014. An October
24, 2013 lumbar MRI demonstrated a minimal broad-based disc bulge at L5-S1 with
associated annular tear. Hawkins was
referred to pain management. Hawkins
continued to treat with Dr. Wesley or Ms. Carter for complaints of low back,
right hip and bilateral leg pain and was primarily prescribed medication. An x-ray of Hawkins’ hip was negative. Hawkins was also referred to a rheumatologist
and to a neurosurgeon. In the last
medical note of record dated January 5, 2015, Dr. Wesley diagnosed Hawkins with
radiating low back pain and bursitis.
Simpson
County filed the records of Dr. Unick.
After performing an examination, Dr. Unick diagnosed lumbar/thoracic
radiculopathy and lumbar degenerative disc disease. He administered two lumbar epidural steroid
injections, the first in November 2013 and the second in December 2013.
Hawkins
filed the records of Dr. Nathoo, Dr. Puasupuleti, and Dr. Singer. Dr. Nathoo diagnosed lumbar/ lumbosacral disc
degeneration, sacroiliac joint inflammation and trochanteric bursitis of the
right hip. He referred Hawkins to the
pain clinic for steroid injections, provided a TENS unit, and advised she lose
weight. On May 13, 2014, Dr. Puasupuleti
diagnosed bilateral trochanteric bursitis, sacroiliitis with joint pain, lumbar
degenerative disc disease with annular tear at L5-S1, lumbar radiculopathy, and
secondary muscular pain and spasm. He
prescribed Gabapentin and Tramadol, administered trigger point injections into
the bilateral trochanteric bursae in June 2014, and the bilateral sacroiliac
joint in August 2014.
Dr.
Singer began treating Hawkins in February 2015 and noted the August 1, 2013
fall at work, as well as the prior MVA.
He opined Hawkins’ spine is not the source of her pain and diagnosed
sacroiliac joint dysfunction. On March
9, 2015, Dr. Singer performed a “right sacroiliac joint fusion using minimally
invasive approach.” Dr. Singer
prescribed Hawkins a cane in February 2015.
Dr.
Singer prepared two letters addressed to Hawkins’ counsel. In the first dated April 22, 2015, Dr. Singer
outlined the treatment he had provided to Hawkins since February 2015 for pain
and dysfunction following a slip and fall at work. Dr. Singer noted Hawkins also reported the
2011 MVA for which she wore a cervical collar for a short time. Dr. Singer stated Hawkins did not have
residual or chronic issues associated with the MVA. Dr. Singer diagnosed a sacroiliac joint
sprain which failed to heal due to the slip and fall. Dr. Singer opined the prior MVA was unrelated
and not causative of Hawkins’ current symptomology. In the second letter dated January 17, 2016,
Dr. Singer diagnosed Hawkins with a dysfunctional sacroiliac joint which
remains symptomatic despite surgery. He
believes Hawkins has an irreversible gait disturbance and associated pain,
requiring use of an assistive device on a daily basis. He stated Hawkins’ condition is permanent and
not likely to change. Dr. Singer
assessed a 30% impairment rating based on gait derangement pursuant to the 5th
Edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (“AMA Guides”).
He also agreed with the impairment rating assessed by Dr. Joseph Zehner.
Hawkins
filed the June 24, 2015 report of Dr. James Farrage, who noted the August 1,
2013 slip and fall at work and the subsequent treatment rendered. He noted Hawkins had no previous low back
injuries or surgery, but was involved in a prior MVA primarily involving the
cervical spine. After performing an
examination, Dr. Farrage diagnosed Hawkins with right sacroiliac dysfunction
with SI joint fusion. He noted Hawkins
has ongoing issues with pain, restricted range of motion, decreased strength,
gait abnormality, and impaired functional capacity. He also found an element of mild low lumbar
degenerative disc disease without focal neural impingement. Dr. Farrage opined Hawkins’ clinical
presentation and historical account are consistent with the mechanism of
injury, and she has undergone appropriate medical treatment. Dr. Farrage opined Hawkins has attained
maximum medical improvement and recommended home exercise. Dr. Farrage assessed a 3% impairment rating
wholly attributable to the August 1, 2013 work slip and fall. Dr. Farrage assigned permanent restrictions
and opined Hawkins does not retain the physical capacity to return to her prior
job.
Hawkins
also filed Dr. Zehner’s July 30, 2015 report which notes the prior MVA and the
August 2013 slip and fall at work. Dr.
Zehner diagnosed lumbar degenerative disc disease, annular tear of lumbar
spine, and sacroiliac instability. He
assessed a 38% impairment rating using the AMA Guides. Dr. Zehner did not discuss causation,
restrictions, or Hawkins’ ability to return to work.
Simpson
County filed Dr. O’Brien’s September 25, 2015 report. Hawkins reported her August 1, 2013 slip and
fall, as well as the prior MVA in which her symptoms subsequently
resolved. Dr. O’Brien reviewed the
medical records and imaging studies, and performed an examination. He diagnosed chronic low back pain and hip
symptoms secondary to lumbar degenerative disc disease. He found Hawkins did not sustain an injury to
her sacroiliac joint resulting from the minor alleged August 1, 2013
incident. Regarding causation, Dr.
O’Brien stated as follows:
Hawkins . . . has a diagnosis of multilevel degenerative disc
disease. Ms. Hawkins’ back symptoms in
August of 2014 represent a manifestation of a longstanding, progressive,
degenerative, personal health condition.
Ms. Hawkins did not sustain a work related injury on or about August 1,
2013. Ms. Hawkins did not sustain
aggravation, acceleration or precipitation of this progressive, preexisting,
degenerative condition. Ms. Hawkins’
back condition is due to a combination of her age and morbid obesity. Ms. Hawkins had an active, progressive,
degenerative lumbar condition prior to the work activities of August 1,
2013. There are multiple inconsistencies
in the medical records as to the nature of the “injury” and the medical records
clearly indicate that she had symptoms for years prior to August 1, 2013 which
would be consistent with her age, morbid obesity as well as the progressive,
degenerative changes depicted on the October 24, 2013 MRI scan.
. . . .
. . . Ms. Hawkins did not sustain a work related “injury” on or about
August 1, 2013. Her symptoms of back
pain represent a manifestation of longstanding, active, progressive,
degenerative condition and are in keeping with the known natural history of
progression of this lumbar degenerative disc disease involving multiple levels
in a morbidly obese deconditioned female.
Her work activities did not cause a temporary or permanent aggravation,
acceleration or precipitation of this progressive condition above and beyond
this natural history of progression.
This opinion is supported by both the contemporaneous medical records
which indicate that she had the same symptoms of chronic back and “hip” pain
for years prior to the August 1, 2013 work activities as well as the objective
findings on the MRI scan.
Dr.
O’Brien noted the MRI findings are consistent with degeneration. He stated frequent symptomatic flare-ups or
exacerbations occur as patients with degenerative disc disease age. However, these exacerbations do not
constitute an injury. Dr. O’Brien stated
Hawkins experienced a manifestation of this condition in early August 2013.
Regardless
of causation, Dr. O’Brien assessed a 0% impairment rating pursuant to the AMA Guides
and recommended no further diagnostic evaluation or treatment, other than home
based exercise program. He opined
Hawkins is able to return to her former employment as a custodian without
restrictions. Dr. O’Brien opined Hawkins’
clinical symptoms and physical findings both before and after August 1, 2013
are the same and would warrant a 0% impairment rating.
After
summarizing the evidence in the May 26, 2016 opinion, the ALJ stated as follows
in dismissing Hawkins’ claim:
Injury as defined by the Act/Pre-existing
Active Disability or Impairment
17. When
reviewing the various medical evidence an[sic] assessments of the IME
physicians, it becomes clear that only one physician was aware of any prior
history of back issues that the Plaintiff suffered. It as [sic] also clear that this is because
of the history related by the Plaintiff which consistently omitted the prior
back pain issues that are otherwise documented in the her medical records.
18. The
ALJ therefore finds that the opinion of Dr. O’Brien is the only one that is
based upon a complete and accurate history of the Plaintiff because he
performed both an IME and a records review.
19. The ALJ therefore finds that the opinion of Dr. O’Brien is the most
credible and convincing in this matter and consequently finds based thereupon
that the Plaintiff’s back complaints are a manifestation of a longstanding,
progressive, degenerative condition, that the Plaintiff did not sustain a
work-related injury on August 1, 2013, and that the Plaintiff did not sustain an
aggravation, acceleration, or precipitation of her progressive, pre-existing,
degenerative condition. The ALJ further
finds that the Plaintiff’s back condition is due to age and morbid obesity and
that the Plaintiff had an active lumbar condition prior to her injury.
20. The ALJ therefore concludes, based upon the most credible evidence
available, that the Plaintiff did not suffer an injury as defined by the Act.
Hawkins
filed a petition for reconsideration arguing substantial evidence does support
the ALJ’s finding of a pre-existing, active condition. She also argued the ALJ mischaracterized her
perceived omissions of prior back pain to her treating physicians. Hawkins requested the ALJ reconsider his
opinion. The ALJ summarily denied
Hawkins’ petition in an order dated July 6, 2016.
On
appeal, Hawkins argues the record is void of any evidence indicating she had
any conditions pre-existing the August 1, 2013 slip and fall, or that she was
actively treating for these conditions on the date of her work injury. Hawkins states the ALJ mischaracterized her
perceived omissions of prior back pain to her treating physicians. Hawkins argues four treating physicians and
two independent medical examiners attributed her injuries to the August 1, 2013
work event while only Dr. O’Brien found her conditions unrelated. Hawkins states the medical records show she
suffered a distinct injury to her sacroiliac joint as a result of the August 1,
2013 slip and fall. Hawkins states Dr.
O’Brien’s medical records review failed to show any repetitive or continuous
conditions, but merely a very limited treatment for undiagnosed back pain in
1998 and in February 2012.
As the claimant in a workers’
compensation proceeding, Hawkins had the burden of proving each of the
essential elements of her cause of action.
Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979). Since Hawkins was unsuccessful in that
burden, the question on appeal is whether the evidence compels a different
result. 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).
The function of the Board in reviewing the ALJ’s decision is limited to
a determination of whether the findings made by the ALJ are so unreasonable
under the evidence that they must be reversed as a matter of law. Ira A. Watson Department Store v. Hamilton,
34 S.W.3d 48 (Ky. 2000).
As fact-finder, the ALJ has the sole
authority to determine the weight, credibility and substance of the
evidence. Square
D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993). Similarly, the ALJ
has the discretion to determine all reasonable inferences to be drawn from the
evidence. Miller v. East Kentucky Beverage/Pepsico, Inc., 951 S.W.2d 329
(Ky. 1997); Jackson v. General Refractories Co., 581 S.W.2d 10 (Ky.
1979). The ALJ 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). Although a party
may note evidence that would have supported a different outcome than that
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 Board, as an appellate tribunal, may not
usurp the ALJ's role as fact-finder by superimposing its own appraisals as to
the weight and credibility to be afforded the evidence or by noting reasonable inferences that otherwise
could have been drawn from the record. Whittaker v. Rowland, 998
S.W.2d 479, 481 (Ky. 1999). So long as
the ALJ’s ruling with regard to an issue is supported by substantial evidence,
it may not be disturbed on appeal. Special
Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986).
It is clear from the May 26, 2016, opinion the ALJ
relied upon Dr. O’Brien’s opinion in its entirety. In his report, Dr. O’Brien outlined the
history of the August 1, 2013 work injury reported by Hawkins. He performed a records review, identifying
and summarizing each medical record, and reviewed imaging studies. After performing the examination, Dr. O’Brien
diagnosed multilevel degenerative disc disease, and specifically found Hawkins
did not sustain an injury to her sacroiliac joint or any other work-related
injury on August 1, 2013. He noted an
injury to the sacroiliac joint requires great force and results in severe
trauma and pain, compelling a patient to seek immediate medical care which, he
observed, did not happen in this case.
He also noted objective imaging studies of the sacroiliac joint are
completely normal. Rather, Dr. O’Brien
stated Hawkins’ back symptoms in August of 2014 represent a manifestation of a
longstanding, progressive, degenerative, personal health condition. He determined Hawkins did not sustain an aggravation,
acceleration or precipitation of this progressive, pre-existing, degenerative
condition. He found Hawkins’ back
condition is due to her age and morbid obesity.
He stated Hawkins had an active, progressive, degenerative lumbar condition
prior to August 1, 2013 warranting a 0% impairment rating. He also noted there are multiple
inconsistencies in the medical records regarding the nature of Hawkins’ injury,
and they also indicate she had symptoms for years prior to August 1, 2013 which
would be consistent with her age and morbid obesity, as well as the
progressive, degenerative changes depicted on the October 24, 2013 MRI scan.
Dr.
O’Brien’s opinion constitutes substantial evidence supporting the ALJ’s
determination and dismissal of Hawkins’ claim, and no contrary result is
compelled. The ALJ specifically found
Dr. O’Brien more persuasive since his opinion is the only one based upon a complete and accurate history of
Hawkins since he performed both an independent medical evaluation and a records
review. We note Dr. Zehner’s and Dr.
Farrage’s reports are silent as to which records, if any, they reviewed in
forming their opinion. In contrast, Dr.
O’Brien specifically identified and summarized the medical records he
reviewed. The ALJ acted well within his
discretion in finding Dr. O’Brien’s opinion most persuasive, particularly in
light of the conflicting records from Wesley Family Medical wherein it was
noted Hawkins initially attributed her symptoms to the prior MVA but which were
later amended to reflect she attributed them to her slip and fall. Although conflicting evidence in the record
exists supporting Hawkins’ position, such is not enough to require reversal on
appeal.
Accordingly,
the May 26, 2016 Opinion and Order and the July 6, 2016 Order on petition for
reconsideration rendered by Hon. Jonathan R. Weatherby, Administrative Law
Judge are hereby AFFIRMED.
ALL
CONCUR.
COUNSEL
FOR PETITIONER:
HON MICHAEL A STEIDL
PO BOX 1072
BOWLING GREEN, KY 42102
COUNSEL
FOR RESPONDENT:
HON JAMES G FOGLE
610 SOUTH FOURTH ST, STE 701
LOUISVILLE, KY 40202
ADMINISTRATIVE
LAW JUDGE:
HON JONATHAN R WEATHERBY
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601
