*/
Workers’
Compensation Board
OPINION
ENTERED: October 28, 2016
CLAIM NO. 201462004
GEORGE MATTHEWS PETITIONER
VS. APPEAL FROM HON. JEANIE
OWEN MILLER,
ADMINISTRATIVE LAW JUDGE
AMERICAN READY MIX and
HON. JEANIE OWEN MILLER,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
ALVEY,
Chairman. George Matthews (“Matthews”) appeals from
the Opinion and Order rendered May 26, 2016 by Hon. Jeanie Owen Miller,
Administrative Law Judge (“ALJ”) dismissing his claim by finding he untimely provided
notice and failed to prove he sustained a work injury on May 2, 2014. Matthews also appeals from
the June 24, 2016 Order denying his petition for reconsideration.
On
appeal, Matthews argues the ALJ erred in dismissing his claim for failure to
provide timely notice. Matthews additionally
argues it was clearly erroneous to dismiss his claim based on causation. Because substantial evidence supports the
ALJ’s finding regarding causation and failure to provide timely notice, and no
contrary result is compelled, we affirm.
Matthews
filed a Form 101 on October 16, 2015 alleging he injured his back on May 2,
2014 when he straightened up to come out from underneath a truck. Matthews alleged he immediately provided
verbal notification to the owner of American Ready Mix, where he had worked
since 2007 as a diesel mechanic.
Matthews
testified by deposition on January 4, 2015, and at the hearing held March 31,
2016. Matthews resides in Louisville,
Kentucky and is a high school graduate.
Prior to American Ready Mix, Matthews worked for Jeffboat
from 1982 through 2000 as a steel fitter and for Chaz Concrete from 2000 to
2007 as a diesel mechanic. Matthews
described his work for American Ready Mix as physically demanding. He changed heavy tires weighing up to three
hundred and forty five pounds alone or with the assistance of a hoist on a near
daily basis, operated a jackhammer inside drums of the trucks to remove dried
concrete, and performed maintenance and other cleaning tasks.
Matthews
was involved in a previous motor vehicle accident during his employment with Jeffboat resulting in “a little back pain and stuff.” His symptoms resolved after treatment at
Jewish Hospital and a chiropractor.
Approximately six to seven years prior to May 2014, Matthews injured his
back while working for American Ready Mix. He treated at the emergency room and then with
his chiropractor, Dr. Todd Wolter.
Although Matthews missed some work, he stated his injury resolved. Matthew stated he reported the work injury to
his employer, but no accident report was completed and he used his personal
health insurance to pay for his medical treatment. Matthews also stated he occasionally pulled
muscles while working for American Ready Mix, but always felt better the
following day and was able to resume his normal work activities. At the time of the May 2, 2014 work incident,
Matthews was under no restrictions, performed his normal duties, and was taking
no medications.
Matthews
testified that on the date of the accident, he was in the pit on a stepladder
inspecting a truck. He finished near the
end of his shift and attempted to leave the pit. As he rose up from a bended position,
Matthews felt a catch in his low back, and thought he had pulled a muscle. At the time, the owner, Joseph Phillips (“Phillips”)
and the operations manager, Ron Covington (“Covington”) were in their offices. Matthews testified at his deposition that as
he was leaving for the day, he told Phillips and Covington, “Hey, you-all, I
pulled a - - I feel like I might have pulled a muscle. I’m just letting you-all know in case, you
know, whatever, you know like I always do, which I always tell them that stuff,
and nothing ever really happened.”
Likewise at the hearing, Matthews testified, “I went in the hallway and
I said, hey, you all, I pulled a muscle or something, I’m just letting you all
know, like that. I’ll see you all
Monday, like that, and I went on home.”
Matthews also testified he told Phillips on several occasions thereafter
he sustained an injury at work. No injury
or accident report was ever completed.
Matthews’
symptoms worsened over the weekend. On
Monday, he called American Ready Mix and advised he could not come in due to
his pain, and he was going to see a physician. He initially went to his chiropractor, Dr.
Wolter. He then went to a family
physician, Dr. Mark Dyer. Matthews
denied he had ever treated with Dr. Dyer prior to May 2, 2014, and indicated
the March 15, 2014 date on a medical record from that facility is a
typographical error, and should instead read May 2015. Matthews then treated with Dr. John Harpring,
who eventually performed surgery on June 6, 2014. He has also attended physical therapy and
pain management. Despite surgery, he
continues to experience low back pain radiating into his buttocks and
legs. Dr. Harpring prescribed a cane,
which Matthews uses occasionally.
Matthews used his personal health insurance to pay for his medical
treatment.
Matthews
was off work until August or September 2014.
He then returned to light duty until he was terminated by American Ready
Mix in February 2015. Matthews did not
receive workers’ compensation benefits during the period he was off work. Instead, he applied for short-term disability
(“STD”) benefits through an Aflac policy, which he subsequently received on a
weekly basis. At his deposition,
Matthews testified he talked to an Aflac representative prior to surgery, and
told him he had a work-related injury.
He testified as following regarding his conversation:
A: . . .
He told me, well - - he gave me an option of - - he said if the job refused - -
say you didn’t do it on there, you have a fight and this and that, it’ll be
comp - - we won’t be able to pay you.
He said that’s - - so he said - - that’s when I - - the doctor told me it was going to be,
like, eight weeks, I would be off eight weeks, six to eight weeks and I’d go
back to work, and that’s what I went off of, what the doctor told me.
Q: And when you - -
A: So Aflac man told me, well, he can’t pay me if the - - they already
let me know they wasn’t going to pay it, the job
did. They already made suggestions that
they - - like I didn’t hurt myself on the job.
And I was - - one of the doctor’s thing,
that’s when I went back to him, said, “I ain’t going
to file no - - a grievance against you-all.
I’m going to just take - - take my Aflac, get the surgery done, get back
to work, try to keep my house.” You
know, I need to keep income coming in.
So that’s what I done. They
didn’t find out that it didn’t go like the surgeon said, and that’s when I
decided to file . . . That’s when I found out that the surgery wasn’t - - it
wasn’t as good as the doctor said I was going to be to go back to work full
term after the surgery.
In
his application for STD benefits, Matthews indicated his injury was not work-related
because the Aflac representative told him he would be denied benefits
if he stated it was. Matthews
testified he told Phillips and Covington he was not going to a file workers’
compensation claim, but was going to apply for STD benefits since, at the time,
his physician told him he would be back to work in six to eight weeks. Matthews stated he first requested workers’
compensation benefits sometime in 2015 when American Ready Mix let him go.
Peggy
Duncan (“Duncan”), Matthew’s fiancée, also testified at the hearing. She confirmed when Matthews returned home on
May 2, 2014 after work, he could hardly get out his truck and told her he had
pulled a muscle. She worked for Primary
Care Physicians, and Matthews began treating with a physician there, Dr. Dyer,
on May 7, 2014.
Phillips,
the owner of American Ready Mix, also testified by deposition on March 11, 2016,
and at the hearing. Phillips indicated
accident report forms are located in several offices throughout the facility,
including the dispatch office where Matthews occasionally worked as a backup
dispatcher. If an employee notifies a
supervisor of a work injury, American Ready Mix provides an accident form to be
completed by the injured worker.
American Ready Mix sends employees for treatment if needed. If not, “then we just kind of leave it at
that until something else develops.” If
the injured worker later seeks treatment, American Ready Mix hires an outside
human resources firm to take over. To
Phillips’ knowledge, Matthews neither requested nor completed an incident
report.
Phillips
disputed Matthews’ testimony regarding reporting the injury to him and
Covington. Rather, Covington told
Phillips that Matthews, “hurt his back and that he was going home.” Covington did not say he had hurt his back
while working at American Ready Mix.
Matthews called into dispatch the following Monday. It was reported to Phillips that Matthews was
going to see a doctor because his back still hurt. Again, Phillips was not told Matthews had hurt
his back at work. Phillips prepared a
September 29, 2014 letter outlining his interactions with Matthews for the
workers’ compensation insurance carrier, which was introduced as an exhibit to
his deposition. In the letter, Phillips
explains Matthews’ treating physician took him off work after seeking treatment
for back pain. He met with Matthews on
May 19, 2014, who informed him surgery was being considered,
he was not filing a workers’ compensation claim, and would be filing a
disability claim with Aflac. Phillips
stated during the meeting, Matthews did not report he injured his back at
work. Following surgery, Matthews
returned to work on light duty. However,
American Ready Mix ultimately let Matthews go in March 2015 since he was unable
to perform the full gamut of his job duties as a diesel mechanic.
Phillips
testified Matthews at no time after May 2, 2014 notified him he had injured his
back at work until, “in September I think it was, I got a letter from his
attorney saying that they were representing him on workers’ comp. At that point [Matthews] hadn’t filed no papers with us or anything. That - - my first inclination about a
workers’ comp was when I got the letter from his attorney.” At the hearing, Phillips testified as
follows:
Q: In any of your conversations with Mr. Matthews after May 2nd,
2014, did he ever tell you about hurting himself at work?
A: No. Again, after that, there
wasn’t so much a discussion about how he hurt his back, other than his back was
hurt. We didn’t get in any in-depth
conversations about how it was done.
Q: When was the first time you heard about the description of him raising up and feeling a pop or a catch in his back when he
was coming out from under the pit?
A: After he filed his Workers’ Comp, that’s when I hear about that’s
how he actually hurt his back on May 2nd, or how he said he hurt his
back.
Q: So over a year after May 2nd, 2014?
A: Well, I don’t know, it was whenever I got the letter from his
attorney. I don’t remember the dates,
whenever - - because that’s when we found out he was filing Workers’ Comp, when
we got the letter from his attorney. So
I don’t know if that was a year or when it was.
In support of his claim, Matthews, as well as American Ready Mix,
filed records from Physician Primary Care, Wolter Chiropractic and Wellness,
and Norton Physician Services.
The records from Physician Primary Care are handwritten and largely
illegible. However, it appears Matthews
reported to the facility on May 7, 2014 complaining of back pain going into his
left hip. A May 14, 2014 MRI
demonstrated a L2-3 left paracentral disc herniation with large free fragment
migrated inferiorly and left L3 nerve root compression, as well as foraminal stenosis at L3-4 and L5-S1. On May 16, 2014, Dr. Dyer prescribed
medication and referred Matthews to another facility. On June 30, 2014, Matthews returned to complete
disability forms for insurance. Matthews
returned on August 13, 2014 complaining of back pain radiating down his left
leg and hip.
Matthews
sought chiropractic care with Dr. Wolter on May 5, 6, and 7, 2014, and was
diagnosed with cervical, thoracic and lumbosacral segmental dysfunction, lumbalgia, and sciatica.
On June 6, 2014, Matthews underwent a lumbar discectomy performed by Dr.
Harpring. During his post-operative
visits, Matthews began to complain of left sided low back pain radiating into
his left buttocks and leg.
American
Ready Mix filed records from Jewish Hospital and Physician Primary Care. On October 11, 2005, Matthews went to the
Emergency Room at Jewish Hospital complaining of low back pain and swelling
after lifting at work. Matthews was
diagnosed with an acute lumbar strain and prescribed Ibuprofen, Skelaxin, and Vicodin.
Matthews returned to the emergency room on September 21, 2009
complaining of right hip pain and right low back pain. X-rays of the hips showed mild degenerative changes. Matthews was diagnosed with right hip
osteoarthritis and low back pain. He was
prescribed medication and referred to Dr. Eugene Giles.
American
Ready Mix also filed a record dated March 15, 2014 from Physician Primary Care,
approximately two months prior to the May 2, 2014 work incident. Matthews reported for a risk assessment, and
was diagnosed with low back pain with left hip radiculopathy.
Matthews
filed the January 14, 2016 report of Dr. Jeffrey Fadel. He diagnosed Matthews with status post
herniated disc at L2-3 with post-laminectomy syndrome and radiculopathy of the
L2 nerve root left lower extremity. Dr.
Fadel noted Matthews may need further surgical intervention. He additionally stated if further surgical
treatment is not contemplated, Matthews attained maximum medical improvement
(“MMI”) in June 2015. Dr. Fadel assessed
a 13% impairment rating pursuant to the 5th Edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment. Dr. Fadel opined the May 2, 2014 work event
is the sole cause of the herniated disc.
Dr. Fadel stated Matthews had no ratable back injury prior to May 2,
2014. Dr. Fadel assigned permanent
restrictions and opined Matthews will not be able to return to his former
employment. He also recommended
Matthews, at a minimum, be re-evaluated by his operative neurosurgeon. In a February 8, 2016 rebuttal report, Dr.
Fadel opined Matthews had a pre-existing dormant lumbar degenerative disc
disease. After the May 2, 2014 incident,
Matthews developed a L2-3 herniation requiring surgical treatment. Dr. Fadel attributed the entirety of the 13%
impairment rating to the May 2, 2014 work incident.
American
Ready Mix filed the December 29, 2015 report of Dr. Thomas Loeb, who reviewed various
medical records. He also noted Matthews
admitted to having prior back strains off and on over the years, which always
improved. After performing an
examination, Dr. Loeb diagnosed an L2-3 severe herniated disc on the left side
with free fragment and nerve root compression at L3 resulting in a laminectomy
and discectomy in June 2014. Dr. Loeb
stated as follows regarding causation:
In my opinion, according to the MRI findings of May of 2014, he
has multilevel degenerative disc disease, longstanding in nature, and his
specific disc herniation, in my opinion, was neither caused nor aggravated by
his alleged work injury of 5/2/2014. . .
. At the very most, he would have had a
transient strain of the soft tissue, but not causing herniated disc. It would have lasted no longer than two to
four weeks maximum.
Dr. Loeb opined Matthews reached
MMI from his surgery on December 1, 2015.
Like Dr. Fadel, Dr. Loeb assessed a 13% impairment rating, which he
attributed in its entirety to his active, longstanding, pre-existing
condition.
American
Ready Mix also filed the January 12, 2016 vocational report of Dr. Ralph
Crystal who ultimately concluded Matthews does not have a complete and
permanent inability to perform any type of work due to his injury.
In
the May 26, 2016 opinion and order, the ALJ first thoroughly summarized the lay
and medical evidence. In dismissing
Matthews claim, the ALJ stated as follows under “Notice and work-relatedness:”
It is rare that the issue of notice becomes significant in a workers’
compensation claim. But here, Plaintiff admits he told Mr. Phillips he was
going to apply for short term disability when he informed him of his need for
surgery. The Plaintiff essentially confirms Mr. Phillips’ testimony that the
only discussion between Mr. Phillips and himself about his back (and need for
surgery) was around May 19, 2014, when Plaintiff informed Mr. Phillips he was
going to apply for short term disability while he recovered from surgery. Workers’ compensation was not mentioned by either
of the two men during that conversation.
Mr. Phillips testified he was not told of Plaintiff’s claim of a work
injury until Plaintiff filed his workers’ compensation claim. That claim was filed with the Department of
Workers’ Claims on October 16, 2015.
Plaintiff avers an injury date of May 2, 2014.
The Kentucky Supreme Court in Granger vs. Louis Trauth Dairy, 329 SW3d 296 (Ky. 2010) noted that
the claimant failed to give notice of his accident and injury. The court
concluded that plaintiff did not act reasonably by claiming he did not know
about the seriousness of his injury and did not act reasonably by failing to
report the accident and injury until sometime thereafter.
Here, we have a Plaintiff with long-standing back problems. He had been to the chiropractor many times
for his back pain. Indeed he had seen
Dr. Dyer just a few months before this averred injury. However, his only reason
for not reporting and claiming a work injury after the averred May 2, 2014
incident was that he thought he would have surgery and be back to work within a
few weeks. Plaintiff indicated that the
AFLAC representative “talked him out” of seeking workers’ compensation
benefits. Plaintiff understood that it would be easier to obtain the AFLAC
short term disability coverage than “fighting for workers comp”. It seems rather unusual that a representative
of one insurance company (here the AFLAC representative) would try to persuade
a claimant to file for payment of a claim under that representative’s policy
rather than a different one. It is unclear to the undersigned what reasoning
lead the Plaintiff to decide not to file a workers’ compensation claim but
rather to file a short term disability claim. But the Plaintiff admitted he
told Mr. Phillips he was going to file for short term disability. This
coincides with Mr. Phillips’ testimony. This was apparently an overt
decision/choice Plaintiff made. Not only was there no notice of a work-related
injury – an affirmative statement was made that he was claiming short term
disability. There is no evidence of pressure on Plaintiff from the
Defendant/employer not to file a workers’ compensation claim. This evidence,
along with the medical records, confirms Plaintiff had on-going back problems
for which he was actively treating before May 2, 2014. All of this evidence leads the undersigned to
find Plaintiff did not prove he suffered a work injury on May 2, 2014. Additionally, notice of the alleged injury
was certainly not timely.
Matthews
filed a petition for reconsideration requesting additional findings of fact regarding
how American Ready Mix was harmed by the notice he provided based upon the
evidence of record. Matthews requested
additional findings addressing whether Phillips had notice of the work accident
on May 2, 2014 since he was at work on the day of the accident, and Covington
had advised Matthews had hurt his back and was going home. Matthews requested additional findings of
fact or a reasonable inference, “that if he was not filing for workers’
compensation then the assertion supports a finding a work accident occurred
because the distinction between a work accident and AFLAC could not be made
without a work accident in the first place.”
Matthews requested additional findings regarding the impact of Duncan’s
hearing testimony on the ALJ’s decision.
Finally, Matthews requested additional findings of fact based upon the
reports of Drs. Fadel and Loeb regarding the occurrence of a work injury.
In
the June 24, 2016 order denying Matthews petition, the ALJ found Duncan’s
testimony was not probative regarding the issue of causation. The ALJ again provided thorough summaries of
Drs. Fadel’s and Loeb’s opinions. The
ALJ found Dr. Fadel’s language regarding causation a “blanket statement” which
is not persuasive medical evidence. The
ALJ also stated Dr. Fadel did not discuss Matthews’s ongoing and longstanding
chiropractic treatment for his back and failed to recognize he had any
impairment prior to the alleged work incident.
The ALJ reiterated her reliance upon Dr. Loeb’s opinion regarding the
causation noting his “attention to past medical history and his opinion based
on a combination of his exam, review of diagnostic studies and his review of
past medical records.” Regarding
Matthews’ assertions and requests on notice, the ALJ stated as follows:
The undersigned finds no error in determining that the notice to
the employer of a May 2, 2014 injury in October of 2015 (after his Form 101 was
filed) is unreasonable. A year and a
half later, the Plaintiff decided to claim a work injury. A year and six months after the fact not only
puts the Defendant at a great disadvantage regarding investigation (medical or
factual) but begs the question why the Plaintiff would wait that length of time
when he clearly knew the severity of the situation. The undersigned’s reliance of the Kentucky
Supreme Court in Granger vs. Louis Trauth Dairy, 329 SW3d 296 (Ky. 2010) remains supportive of the undersigned’s
finding that reasonable and timely notice was not given in this claim.
On
appeal, Matthews argues the ALJ erred in dismissing his claim based on untimely
notice. Matthews asserts the plain
meaning of KRS 342.185 requires nothing more than the injured worker telling
the proper employer representative of the accident as quickly as possible. He asserts both Phillip and Covington knew a
work accident occurred based upon Phillips’ testimony that Covington told him
Matthews had hurt his back and was going home.
Matthews asserts American Ready Mix failed to meet its duties required by
KRS 342.038 once it was notified of the accident. He also points to his testimony he had on
several occasions experienced low back pain at work for which no accident
report was completed. Likewise, he
received no direction from his employer concerning how to do so, but had always
recovered and returned to work without difficulty. Matthews asserts he expected the same to
happen after the May 2014 incident.
Assuming arguendo Phillips did not receive notice until the completion of
the Form 101, Matthews argues his lateness was excusable.
Matthews
also argues the ALJ erred in dismissing his claim based on causation since she
had an incorrect understanding of the essential facts of the claim. He asserts the ALJ’s statement he had seen
Dr. Dyer just a few months before May 2014 is erroneous. Matthews states he did not visit Dr. Dyer on
March 15, 2014, but the record was actually for May 15, 2014- after the work
accident and was incorrectly dated. He
also asserts the treatment in 2005 and 2009 cannot amount to “longstanding”
back problems as found by the ALJ.
Matthews states the evidence shows he was working without restriction or
treatment at the time of the May 2, 2014 work accident. Finally, Matthews argues the ALJ’s opinion
regarding causation and her reliance of Dr. Loeb’s report should be vacated
with instructions to re-weigh the evidence based upon a correct understanding/ listing
of the evidence in this claim.
As
the claimant in a workers’ compensation proceeding, Matthews
had the burden of proving each of the essential elements of his cause of
action, including timely notice and injury as defined by the Workers'
Compensation Act. Snawder v. Stice, 576 S.W.2d
276 (Ky. App. 1979). Because Matthews was unsuccessful in his 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 that which 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 based
on the evidence 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 sole authority to judge 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); Whittaker v. Rowland,
998 S.W.2d 479 (Ky. 1999).
Mere evidence contrary to the ALJ’s decision is inadequate to require
reversal on appeal. Id. In order to reverse
the decision of the ALJ, it must be shown there was no substantial evidence of
probative value to support his decision.
Special Fund v. Francis, 708 S.W.2d 641 (Ky.
1986).
KRS 342.185 requires notice of a
work-related accident be given
to the employer, “as soon as practicable after the happening thereof.” While notice is mandatory,
the Court of Appeals has indicated, "The statute should be liberally
construed in favor of the employee to effectuate the beneficent purposes of the
Compensation Act." Marc Blackburn Brick Co. v. Yates, 424 S.W.2d 814, 816 (Ky.
1968). Whether notice has been given as “soon as practicable”
depends upon the circumstances of the particular case. Id.
Notice to an employer of a physical injury carries with it notice
of all conditions that may reasonably be anticipated to
result from that injury. See Dawkins Lumbar Co. v. Hale,
299 S.W. 991 (Ky. 1927). See
also Reliance Die Casting v.
Freeman, 471 S.W.2d 311 (Ky. 1971).
Additionally, the statute does not necessarily require an injured worker
to be aware of, and report each injury resulting from an accident, but must
report the accident itself. Reliance
Die Casting v. Freeman, supra.
The
Kentucky Supreme Court held in Granger v. Louis Trauth Dairy, 329 S.W.3d 296 (Ky. 2010), the ALJ was
correct in dismissing a claim based upon inadequate notice,
and affirmed the ALJ’s refusal to find an excusable delay in reporting the
injury pursuant to KRS 342.200. The Court noted the
purpose of the notice requirement is threefold: to enable
an employer to provide prompt medical treatment in an attempt to minimize the
worker's ultimate disability and the employer's liability; to enable the
employer to investigate the circumstances of the accident promptly; and to
prevent the filing of fictitious claims. The Court additionally noted that although a lack of
prejudice to the employer excuses an inaccuracy
in complying with KRS 342.190[1],
it does not excuse a delay in
giving notice.
Having failed to convince the ALJ
that he gave notice of the accident and resulting injury
“as soon as practicable”, his burden on appeal was to show the decision to be
unreasonable under the circumstances because overwhelming evidence compelled a
favorable finding.
While Matthews has identified evidence supporting a different
conclusion, primarily his own testimony, substantial evidence was presented to
the contrary. Testimony was conflicting
as to whether Matthews informed American Ready Mix he sustained a work-related back injury. While Matthews insisted he told Phillips
and/or Covington he hurt his back at work, Phillips testified had only been
told Matthews hurt his back. Phillips
insisted at no time after May 2, 2014 did Matthews tell him his injury occurred
at work when he was leaving the pit.
Phillips testified it was only after Matthews filed his workers’
compensation claim that he learned of the work accident. The ALJ heavily relied on Matthews’ and
Phillips’ testimony regarding their conversation on May 19, 2014. In essence, both testified Matthews stated he
was not going to
file a workers’ compensation claim, but was going to apply for STD
benefits. The ALJ acted within her discretion to
determine which evidence to rely upon, and it cannot be said her conclusions
are so unreasonable as to compel a different result. Ira A. Watson Department Store v. Hamilton,
supra.
The ALJ determined American Ready Mix was not provided notice of
the work-related accident until the filing of the Form 101 on October 16, 2015, over one year
after the alleged May 2, 2014 event. The
ALJ determined this was not “as
soon as practicable.” Substantial
evidence supports the finding that Matthews’ notice was not reasonable or
timely, and no contrary result is compelled.
Regarding causation of
Matthews’ low back symptoms, we acknowledge the May 26, 2016 opinion and order
was somewhat unclear on this issue. However, the ALJ clarified her determination
in the order on petition for reconsideration.
The ALJ reviewed the opinion of Dr. Fadel, who diagnosed Matthews as status post herniated disc at L2-3
with post-laminectomy syndrome and radiculopathy of the L2 nerve root left
lower extremity. He found Matthews had
no previous ratable back injury prior to May 2, 2014. Dr. Fadel assessed a 13% impairment rating
and opined the May 2, 2014 work event is the sole cause of the herniated
disc. The ALJ specifically found this
blanket statement was not persuasive particularly in light of the fact Dr.
Fadel did not discuss Matthews’ previous chiropractic treatment.
The
ALJ then discussed Dr. Loeb’s opinion, who noted the May 2, 2014 work event as
well as Matthew’s admission of off and on back strains over the years. Dr. Loeb diagnosed the development of the
L2-3 severe herniated disc on the left side with free fragment and nerve root
compression at L3 resulting in a laminectomy and discectomy in June of
2014. The ALJ emphasized Dr. Loeb’s
statement Matthews, “has multilevel degenerative disc disease, longstanding in
nature, and his specific disc herniation, in my opinion, was neither caused nor
aggravated by his alleged work injury of 5/2/2014.” At the very most, he had a transient strain
of the soft tissue, which did not cause a herniated disc, and would have lasted
no longer than two to four weeks. Dr.
Loeb assessed a 13% impairment rating, which he attributed entirely to his
active, longstanding, pre-existing condition.
The ALJ stated Dr. Loeb’s attention to the past medical history and his
opinion based on a combination of his exam, review of diagnostic studies and
his review of past medical records, convinced her his opinion, “as to the
casual relationship of Plaintiff’s averred May 2, 2014 work event and the
condition of his low back, was the most persuasive.”
Dr.
Loeb’s opinion Matthews’ disc herniation was not caused or aggravated by the
May 2, 2014 work accident constitutes substantial evidence supporting the ALJ’s
determination, and no contrary result is compelled. Matthews additionally admitted he had
experienced pulled muscles on and off over the years, for which he had received
prior chiropractic treatment. The
records indicate he sought treatment for low back pain in 2005 and 2009. In rendering a decision, KRS 342.285 grants
an ALJ as fact-finder the sole discretion to determine the quality, character,
and substance of evidence. Square
D Co. v. Tipton, supra. An 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.,
supra; Caudill v. Maloney’s Discount Stores,
560 S.W.2d 15 (Ky. 1977). In that
regard, an ALJ is vested with broad authority to decide questions involving
causation. Dravo
Lime Co. v. Eakins, 156 S.W.3d 283 (Ky. 2003). Although Matthews is able to point to
conflicting evidence, this is not an adequate basis to reverse on appeal. McCloud v. Beth-Elkhorn Corp., supra.
Accordingly,
the May 26, 2016 Opinion and Order and the June 24, 2016 Order on petition for
reconsideration rendered by Hon. Jeanie Owen Miller, Administrative Law Judge,
are hereby AFFIRMED.
ALL
CONCUR.
COUNSEL
FOR PETITIONER:
HON JOHN W SPIES
420 WEST LIBERTY ST, STE 260
LOUISVILLE, KY 40202
COUNSEL
FOR RESPONDENT:
HON RODNEY J MAYER
600 EAST MAIN ST, STE 100
LOUISVILLE, KY 40202
ADMINISTRATIVE
LAW JUDGE:
HON JEANIE OWEN MILLER
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601
[1] KRS 342.190 requires notice to be provided
in writing, and must include the mane and address of the employee, the time,
place of occurrence, nature and cause of the accident, as well as the nature
and extent of injury.
