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October 27, 2016 201301217

Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED:  October 27, 2016

 

 

CLAIM NO. 201301217

 

 

GREGORY WINFIELD                               PETITIONER

 

 

 

VS.         APPEAL FROM HON. STEVEN G. BOLTON,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

DENYO

and HON. STEVEN G. BOLTON,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

AFFIRMING IN PART, VACATING IN PART,

AND REMANDING

                       * * * * * *

 

 

BEFORE:  ALVEY, Chairman, STIVERS and RECHTER, Members.  

 

STIVERS, Member. Gregory Winfield (“Winfield”) seeks review of the March 7, 2014, interlocutory Opinion and Order dismissing his claim against Denyo for a cervical injury and the April 14, 2014, Order on Petition for Reconsideration denying his petition for reconsideration of Hon. Steven G. Bolton, Administrative Law Judge (“ALJ”).  Winfield also seeks review of the April 29, 2016, Opinion, Award, and Order in which the ALJ determined he sustained a work-related abdominal injury/hernia on April 29, 2013, and awarded temporary total disability (“TTD”) benefits, permanent partial disability (“PPD”) benefits, and medical benefits.  The April 29, 2016, Opinion, Award, and Order readopted and incorporated by reference the entirety of the March 7, 2014, Opinion and Order dismissing the cervical claim.

          In the Form 101 filed August 9, 2011, Winfield alleged an August 17, 2011, injury stating he went to the doctor on his lunch break with symptoms of high blood pressure, numbness, and tingling in the arm originally attributed to a heart condition.  Winfield’s doctor admitted him to the hospital.  As a result of this event, Winfield alleged injuries to the cervical and left upper extremity.  He also alleged a work-related hernia while pushing an 800 pound generator on April 29, 2013.  The Form 101 indicates he underwent surgery for hernia repair.

          After the introduction of various medical evidence and Winfield’s September 16, 2013, deposition, in a January 15, 2014, Benefit Review Conference (“BRC”) Order & Memorandum, the parties agreed to bifurcate the cervical injury claim leaving the abdominal/hernia injury in abeyance.[1]  In the BRC Order, the parties waived a formal hearing, and agreed the issue would stand submitted based on the record with the parties filing briefs within thirty days of the order.

          During his September 16, 2013, deposition, Winfield described the 2011 event alleged to have caused his cervical injury:

Q: Now we’re going to talk about your injuries just a little bit.

     What happened on August 17, 2011?

A: August – that’s the time when – as I was actually wiring one of the units to the frame, I started experiencing numbness and tingling in my left hand and went to Brenda, which does the nursing. She did a blood pressure test and tested that I had a high – my blood pressure was high, and she had notified me that she was going to check it again in about 15 minutes, which at the time she checked it, we didn’t realize it was five minutes before lunch, and she said if she checked it again and it was high as it had been, then by law she was required to call an ambulance and have me seen about it. 

Q: So I’m guessing it was pretty high, not just slightly elevated?

A: Yes, ma’am. Yeah, it was high.

Q: So did she check you again in a little while?

A: No, ma’am. At lunchtime I went ahead and went to my doctor, and went to make a doctor’s appointment, and they told me that I looked flushed, and asked –

Q: I’m sorry, was this Dr. Ellis’s office?

A: No, ma’am, I believe it was Dr. Hendricks.

Q: Is that the ER?

A: No, ma’am.

Q: How did you come to see Dr. Hendricks?

A: That was my physician at the time.

          Because Winfield’s blood pressure was elevated, his doctor called an ambulance and he was transported to the hospital emergency room.  Winfield remained in the hospital for three days.  Winfield elaborated further regarding the August 17, 2011, event:

Q: When you first felt the symptoms back on the 17th, were you doing anything in particular? I mean, did you just start noticing the numbness come on?

A: We were running a particular unit that’s the biggest unit that we have, and the gentleman that usually helped me in that area wasn’t there that day and I was working by myself.

Q: What does it mean by running a unit; what unit?

A: The line running the unit.

Q: So physically what were you doing?

A: Picking up frames and moving them to where I needed to put them together.

Q: And usually there’s somebody to help you with that?

A: Yes.

Q: So were you by yourself when the symptoms started?

A: Yes.

Q: How big were the frames? Describe them however you can, by size or weight.

A: They’re about – they look like an armoire, about neck high and about eight feet wide.   

          Winfield estimated the frames he normally lifted with assistance weighed a minimum of 150 pounds.  He testified he was off work for three months due to “cervical.”  He experienced symptoms in his neck and lower back and underwent physical therapy.  Winfield identified his first symptom as numbness and tingling in his left hand, specifically in the middle, ring, and small fingers.  He later developed neck pain after he was released from the hospital.  His neck pain was located at the base of his neck between the shoulders.  Although his lower back pain resided after a couple of weeks, he continued to experience neck problems. 

          Winfield returned to work performing a different job putting in doors.  He indicated he was able to perform this work “fairly well.”  Winfield testified he first saw Dr. Ellis approximately six to eight months after the August 2011 injury.  Because Denyo would not let him return to work with restrictions, Dr. Ellis released him to work without restrictions.[2]  He had only seen Drs. Hendricks and Ellis for his neck problems. 

          Winfield testified the physical therapy he underwent helped relieve the pain and numbness.  When he returned to work, he was taking Lortab and Gabapentin which were prescribed by Dr. Ellis for his neck problems.  Winfield testified his neck symptoms worsened while he was off work after the 2013 abdominal injury.  He was still experiencing numbness in the same three fingers and partial numbness in his right middle finger.  He was scheduled to see Dr. Van Horne, a neurosurgeon.  Winfield has remained off work since the 2013 injury due to problems with his hernia and his neck and hand symptoms.  The physician’s assistant in Dr. Ellis’ office provided a written statement that Winfield was not to return to work until he saw a neurosurgeon. 

          Since Winfield’s deposition of January 23, 2015, and his testimony at the March 1, 2016, hearing relate to his back injury and occurred after the ALJ’s decision, they will not be discussed.

          After summarizing Winfield’s September 16, 2013, deposition testimony and the medical evidence, the ALJ set forth the following analysis:

     As the parties have chosen to bifurcate this matter to address only issues pertaining to a claimed injury to the cervical spine, I will confine my observations to that issue. I will observe from the outset that not by any stretch of the imagination is this issue the intellectual cakewalk portrayed by either party in its brief, and the conclusion I reach herein could be changed by a scintilla of evidence.

     . . .

     Mr. Winfield thought he was having a heart attack on August 17, 2011. According to his deposed testimony of September 16, 2013, he began experiencing numbness and tingling in his 3 fingers (middle, ring & pinky) of his left hand. He thought he might have been having a heart attack and went to Brenda, who is in human resources and/or the nurse at the facility. Brenda checked his blood pressure and it was high. She waited 15 minutes and checked it again and it was still high. It was 5 minutes before lunch and if she had checked it again and it was high she would have to by law call an ambulance. So at lunch he went to Dr. Hendricks, his family physician at the time. There, he was told he looked flushed. Someone took him back and checked his blood pressure. It was elevated and they called the ambulance. The ambulance took him to the emergency room, where he was admitted to the hospital for 3 days. At the hospital they did a stress test, blood work and a MRI of his cervical spine.

     Mr. Winfield, insofar as I am able to discern from the record, was at no time up to this point able to pinpoint any specific injury to his cervical spine. He described no sudden pain, no pop, no strain, nothing that would have made him think at the time of his report to Brenda that he had suffered a neck injury of any type.

     He went to the Ephraim McDowell Regional Medical Center, where he apparently tested negative on all diagnostic heart procedures administered. The ER record of August 17, 2011 is not in this record, but the MRI report from August 18, 2011 was filed with Plaintiff’s Form 101. It was apparently ordered because there was no cardiovascular reason ascertainable that would account for Plaintiff’s complaint of ‘left arm weakness.’

     The radiologist reading the MRI reported small broad-based bulging at C4/5, C5/6 and especially C6/7. Mild central stenosis was suggested at C4/5 and C5/6 with mild to moderate central stenosis at C6/7 due to disc bulging. Moderate to severe bilateral neural foraminal narrowing was suggested at C6/7 with mild neural foraminal narrowing at C5/6. There was no other evidence of abnormal enhancement or mass in the base of the left neck, left lung apex, or brachial plexus.

     The impression of the reading radiologist the day after the event of August 17, 2011 was ‘mild to moderate degenerative changes (especially at C6/7) but otherwise negative MRI of the cervical spine.’(emphasis supplied).

     Thus, the ‘history’ given by the Plaintiff to various physicians was developed in his mind significantly after the event of August 17, 2011 when he had no thought of any cervical injury, could relate no instance of cervical injury and suffered not [sic] cervical pain, but left arm weakness or numbness and tingling in his fingers.

     Now, one with some knowledge of spine conditions, either degenerative or traumatic in nature, might suspect that the Plaintiff actually had a cervical injury that caused his symptoms. But as of August 18, 2011 no one knew that because the Plaintiff had no direct knowledge of the cause of his symptoms. The results of the 8/18/2011 MRI, while informative, do not constitute objective medical findings that establish a causative link between Plaintiff’s work event and his cervical spine. Up to this point there is no causal connection established between Plaintiff’s cervical spine condition and any trauma suffered in the workplace.

     On August 29, 2011, Mr. Winfield presented to the office of Dr. Robert Knetsche of Central Kentucky Spine Surgery where he was examined by Kurt S. Schlenther PA. Plaintiff reported to the PA that his neck pain had begun ‘1 week ago’ i.e. on or about August 22, 2011. The pain was severe, localized to the neck, aching and constant. It is made worse with lifting and physical activity. Of note is a statement that the Plaintiff had been ‘seen in the emergency room for pain management between 1-5 times in the last year.’ This history was elicited 11 days post work event. A moderate neck disability was found on testing. Although he mentions a history of ‘a lot of heavy lifting and labor intensive activities,” PA Schlenther does not ascribe a causation.

     The next record is over a month later when the Plaintiff presented to Dr. Bryan Ellis, M.D. at Danville Family Physicians. On September 27, 2011, the Plaintiff recounted to Dr. Ellis the same sequence of events and symptoms as related in his deposition. There is no specific incident related to Dr. Ellis of traumatic injury to the cervical spine or any work activity that could conceivably have caused a traumatic injury. Dr. Ellis noted the 8/18/2011 MRI and a NCV ordered by Dr. Deepa Nidhiry that possibly noted symptoms of carpal tunnel syndrome. In his review of symptoms he noted ‘neck pain,’ but made no further comment and did not ascribe a causative factor to that neck pain. In his assessment, he noted neck pain and carpal tunnel syndrome.

     It is of interest to note that Dr. Ellis filed a supplemental report on November 12, 2013, some 27 months post event ascribing Mr. Winfield’s ‘current condition’ as being ‘…the result of an injury on August 17, 2011 or the work activities of heavy, repetitive lifting on a regular and sustained basis arousing and exacerbating previously dormant conditions resulting in symptoms and necessitating treatment.’ Dr. Ellis does not explain what information caused him to change his opinion of 9/27/2011 some two years plus after the event with no recorded change in the Plaintiff’s history as originally related.

     Dr. Primm examined the Plaintiff on October 18, 2013. His report contains a thorough recitation of Plaintiff’s medical records up to that date, which includes the 4/29/2013 work related injury relating to his hernia. Other than ongoing complaints of neck pain, there is no medical evidence in that record as to causation of that neck pain. While Dr. Primm ascribed a ‘resolved soft tissue cervical strain’ to the 8/17/2011 work injury, he makes that diagnosis solely on the history he received from the Plaintiff (as stated in the ‘Impression’ paragraph of his report). This history included the fact that Plaintiff felt a numbness and tingling in his left hand while he was lifting a generator, a detail that he described in his earlier testimony, but to which he then ascribed no significance. However, according to Dr. Primm the Plaintiff was ‘somewhat vague’ about the onset of his symptoms and he did not seem to be able to identify a specific injury. Dr. Primm went on to state that he did not find evidence from his exam, nor from review of the Plaintiff’s medical records following the 8/17/2011 neck injury that he sustained a permanent injury or now has objective signs of a permanent impairment relative to the injury. Dr. Primm goes on to state that he ‘really cannot relate his continuing complaints of neck pain to the 8/17/2011 incident. Dr. Primm provided a supplemental report on November 25, 2013 opining that the Plaintiff reached MMI within 6 months of the original date of injury, or February 17, 2012.

     Referencing from the 04/29/2013 date of injury, Dr. William Daniels, M.D., an orthopedic surgeon, included the history as shown by Plaintiff’s medical records since August 17, 2011 and concluded that an injury of neck diagnosis was not appropriate for the work related injury of 4/29/2013 because the ‘cervical spine issues are pre-existing, degenerative in nature and there is no evidence of significant objective findings in the records, including the MRI of the cervical spine performed on 06/03/2013.’

     Thus, other than Dr. Ellis’ statement of November 12, 2013, and Dr. Primm’s report of October 18, 2013, I can find no other probative or competent evidence in the record that there has been any work-related traumatic event arising out of and in the course of employment which is the proximate cause producing a harmful change in the human organism of Gregory Winfield evidenced by objective medical findings.

     I find Dr. Primm’s report to be compelling and persuasive evidence in the record regarding the Plaintiff’s work related injury, but I also note that despite his belief that it had been resolved some 20 months prior to the date of his initial examination, he based his opinion as to the existence of a temporary cervical strain solely on the oral history given to him by the Plaintiff, as did Dr. Ellis. I further believe that the medical testimony by both Dr. Ellis and Dr. Primm has been corrupted by inaccurate or incomplete information related to them in the history given by the Plaintiff. Consequently, their evidence cannot support an award of benefits to the claimant. Cepera [sic] v. Fabricated Metals Corp., 132 S.W.3d 839 (Ky. 2004). In making this finding, I hasten to add that I do not find the Plaintiff to be dishonest or to have knowingly committed fraud. I just believe that as time went on, things that he did not originally observe or remember became part of his perceived history by process of elimination rather than actual recollection. As to the true facts of the event at work, I have to rely on his recollection closest in time, which I find to be the most compelling and persuasive account of that event.

          The ALJ entered the following findings of fact and conclusions of law:

     1. The medical evidence reveals that Plaintiff did not carry his burden of proof to show by objective medical findings that he sustained a work related injury to the cervical spine. KRS 342.0011(1). In making this finding, I rely on the testimony of the Plaintiff, the record as summarized in my Analysis set out herein above, and the report of Dr. William Daniels, which I find to be the most compelling and persuasive evidence in the record.

     2. The remaining issues as to Plaintiff’s claim for benefits due to an alleged work-related injury to the cervical spine are therefore moot.

          Winfield filed a petition for reconsideration raising many of the same arguments asserted on appeal.    Winfield emphasized all of the medical evidence, including that of Dr. Daniel Primm, established he at least sustained a cervical strain as a result of the August 17, 2011, injury.  Winfield contended he has not received medical benefits or TTD benefits as a result of the injury and needed treatment for his condition.  Therefore, he requested the ALJ reconsider his decision in light of the medical evidence which the ALJ misunderstood.

          In his April 14, 2014, Order on Petition for Reconsideration, the ALJ sustained a portion of the petition for reconsideration ordering as follows:

     As to the reference on page 9 of the Opinion and Order to the medical note of August 18, 2011, it is hereby modified to read, and the following language is substituted as follows:

     08/18/2011- MRI of the cervical spine and left brachial plexus with and without IV gadolinium revealed no evidence of abnormal enhancement or mass seen in the base of the left neck, left lung apex or brachial plexus. It also revealed mild to moderate degenerative changes (especially at C6/7) but otherwise negative MRI of the cervical spine and brachial plexus.

     The remainder of that paragraph was a typographical error and is hereby DELETED from the Opinion and Order of March 7, 2014. 

          The ALJ overruled the remainder of the petition for reconsideration as a re-argument of the facts.

          Winfield appealed the decision to this Board.  In an Opinion dated August 15, 2015, we dismissed the appeal concluding the ALJ’s March 17, 2014, Opinion and Order was interlocutory and we lacked jurisdiction to decide the appeal.  The claim was remanded to the ALJ for entry of a final decision on all remaining contested issues.  This led to the April 29, 2016, Opinion, Award, and Order in which the ALJ determined Winfield had a 6% impairment rating as a result of the abdominal injury sustained on April 29, 2013, and awarded TTD benefits, PPD benefits, and medical benefits.  As previously noted, the April 29, 2016, Opinion, Award, and Order readopted and incorporated by reference the March 7, 2014, Opinion and Order as if fully set out therein.

          On appeal, Winfield argues there is no evidence supporting a dismissal of his cervical injury claim.  Winfield notes that even though Denyo did not pay TTD benefits and denied the claim without any evidence to support the denial, it secured an independent medical evaluation (“IME”) performed by Dr. Primm, who diagnosed a cervical strain related to the August 17, 2011, work injury.  He notes the other medical proof of Denyo consists of a medical records review conducted by Dr. William Daniels on June 21, 2013, which he contends also documents a work-related injury of August 17, 2011.  Winfield observes Dr. Daniels reported a history of symptoms, treatment, and an MRI following the 2011 injury.  He maintains Dr. Daniels did not address whether Winfield sustained a work injury on August 17, 2011, other than to note when his cervical problems and treatment began.  Dr. Daniels opined there was no evidence suggesting a cervical injury or condition is related to the April 29, 2013, work injury.  Winfield contends this is because Dr. Daniels was only concerned with the nature of the 2013 injury; thus, his opinion regarding Winfield’s cervical condition pertained solely to the April 29, 2013, injury.  Winfield asserts Dr. Daniels correctly noted his injury was pre-existing as it arose on August 17, 2011.  Consistent with that statement, he notes Dr. Daniels did not find he had a cervical condition prior to the August 17, 2011, injury.  Winfield emphasizes Dr. Daniels’ finding of a cervical condition pre-existing the April 29, 2013, injury, his documentation of the arousal of symptoms on August 17, 2011, and the treatment flowing from that time period are proof of an August 17, 2011, injury.  Winfield represents that is the reason he filed Dr. Daniels’ report in the record which the ALJ ultimately misunderstood. 

          Winfield contends the ALJ’s concerns regarding the history he provided is wild speculation and is not supported by the medical records.  He again asserts there is no proof of neck problems prior to August 2011 and the medical records establish a cervical injury occurring on August 17, 2011.  Winfield cites to Dr. Ellis’ statement that he had reviewed the MRI of the cervical spine and concluded Winfield’s ongoing complaints and symptoms were consistent with chronic cervical pain arising from the event of August 17, 2011. 

          Winfield concludes by arguing there is no lay or medical evidence contradicting his claim of a work-related cervical injury on August 17, 2011.  Thus, all the evidence does not support the finding Winfield did not have a compensable cervical injury.  Winfield argues he suffered a work-related injury and is entitled to medical benefits for the injury and TTD benefits for the three months he was off work immediately following the injury.  Therefore, the ALJ’s decision should be reversed with directions to award the appropriate benefits.

          As the claimant in a workers’ compensation proceeding, Winfield had the burden of proving each of the essential elements of his cause of action for a cervical work injury.  Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979).  Since Winfield 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).             

          In his October 18, 2013, report generated as a result of an orthopedic evaluation, Dr. Primm summarized the medical records he reviewed including the results of a cervical MRI performed on August 18, 2011.  He noted as follows:

A cervical MRI was done there on 8/18/2011 for a history of left arm weakness. That scan reported a small broad-based bulging disc at C4-5, C5-6, and especially at C6-7.  There was mild central stenosis at C4-5 and C5-6 and mild to moderate central stenosis at C6-7 due to disc bulging.  There also were changes of moderate to severe bilateral neural foraminal narrowing suggested at C6-7 with mild neural foraminal narrowing at C5-6.

          Dr. Primm cited to the reports of Dr. Ellis generated after August 17, 2011.  Significantly, he also discussed the report from physician’s assistant, Kurt Schlenther at Central Kentucky Spine Surgery, in Danville, Kentucky.  He noted Schlenther provided the range of motion in the cervical spine and the results of the sensory examination.  At that time, Schlenther’s impressions included a disc herniation, cervical radiculopathy, and cervicalgia.  However, Schlenther noted as follows:

His examination was a little confusing [Winfield] had a broad dermatomal pattern, hypoesthesia that is not consistent with the aforementioned levels.  Winfield had breakaway motor strength to the left upper extremity in the biceps, triceps, and deltoids.

          Dr. Primm set forth the results of his examination and diagnosed the following: “1) Cervical strain based on history, relating to the 8/17/2011 work event. 2) Small epigastric hernia, based on review of medical records.”  He answered the following questions:

Q1. What is your diagnosis?

A1. My diagnosis as it relates to his 8/17/2011 work injury is one of a resolved soft tissue cervical strain.

Q2. Did the patient sustain a permanent injury to his neck as a result of his work on August 17, 2011? Are the patient’s ongoing neck complaints related to his employment on August 17, 2011?

A2. I did not find evidence from his exam, nor from review of his medical records following the 8/17/2011 neck injury, that he sustained a permanent injury or now has objective signs of a permanent impairment relative to the injury. I really cannot relate his continuing complaints of neck pain to the 8/17/2011 incident.

Q3. If your response to the first inquiry is yes, has the patient reached maximum medical improvement? If so, does he have any degree of permanent impairment as it relates to the back?

A3. As above.

Q4. Do you recommend any additional medical treatment for the neck?

A4. At this point in time, I do not feel he requires any additional medical treatment for his 8/17/2011 neck injury. Certainly, I do not think he should still be receiving routine refills for muscle relaxants, narcotics, and gabapentin. I do not think this is indicated for his 8/17/2011 neck strain.

Q5. Would you recommend any permanent restrictions for this patient?

A5. From the standpoint of his cervical spine and his 8/17/2011 reported neck strain, I would not know of any reason to recommend permanent restrictions. However, I would leave any restrictions relative to his hernia repair to his treating general surgeon.

          In a November 25, 2013, letter addressing maximum medical improvement (“MMI”) relative to the work-related cervical strain, Dr. Primm stated that based on his history, a review of the medical records, and the examination performed on October 18, 2013, “Winfield should have reached [MMI] with his cervical strain resolving no later than six months after the original injury date.”

          In his June 21, 2013, medical records review report, Dr. Daniels stated that according to the medical records reviewed, Winfield was a forty-one year old male with an injury date of April 29, 2013.  Further, the medical records document that on that date Winfield, while pushing a small generator down the assembly line, felt a strain in his abdominal area.  Dr. Daniels recited the treatment Winfield received on August 18, 2011, and thereafter.  Dr. Daniels noted Winfield returned to work on December 15, 2011.  He also noted Denyo had indicated that the only way Winfield would be able to return to work would be with restrictions of no overhead work and limited lifting up to ten pounds or less.  Winfield returned to work on December 15, 2011.  Dr. Daniels discussed treatment occurring in 2012 and early in 2013.  Dr. Daniels answered the following questions:

1. Is the injury of neck diagnosis appropriate for the work related injury?

No. The neck diagnosis is not appropriate for the work related injury.

. . .

2. Is treatment related to work related injury?

The Neck/cervical spine diagnosis and/or treatment of any kind as documented in the provided records, is not related to the work related injury, which apparently resulted in an exacerbation of his abdominal/hernia pre-existing condition.

          The report of Dr. Daniels, relied upon by the ALJ, does not support the ALJ’s determination Winfield did not sustain a work-related cervical injury on August 17, 2011.  Dr. Daniels did not address whether Winfield sustained a cervical injury on August 17, 2011.  Rather, his report addressed the nature of the April 29, 2013, injury.  Thus, the ALJ could not rely upon Dr. Daniels’ report in dismissing Winfield’s claim. 

          That said, although the ALJ did not cite to Dr. Primm’s opinions in his findings of fact and conclusions of law, in his analysis he found Dr. Primm’s report “to be compelling and persuasive evidence in the record regarding [Winfield’s] work related injury.”  The report of Dr. Primm supports the dismissal of that portion of Winfield’s claim seeking permanent income and medical benefits.  Dr. Primm unequivocally opined that on August 17, 2011, Winfield sustained a work injury consisting of a soft tissue cervical strain which has resolved.  Similarly, Dr. Primm found no evidence Winfield had sustained a permanent neck injury as a result of the August 17, 2011, event.  Dr. Primm found “no objective signs of a permanent impairment relative to the injury.”  Thus, he could not relate Winfield’s continued complaints of neck pain to the August 17, 2011, incident. 

          The opinions of Dr. Primm constitute substantial evidence supporting the dismissal of that portion of Winfield’s claim seeking permanent income and medical benefits.  However, the report of Dr. Primm and the remaining medical evidence overwhelmingly support a finding Winfield sustained a cervical injury as a result of the work event of August 17, 2011.  The August 29, 2011, record of Schlenther documents such an injury.  In a questionnaire completed on November 12, 2013, Dr. Ellis stated he had reviewed an MRI scan of the cervical spine performed during Winfield’s hospitalization on August 18, 2011.  Dr. Ellis expressed the opinion Winfield’s “history of complaints and symptoms are consistent with chronic cervical pain which arose at work will [sic] lifting as reported by Winfield.”  Dr. Ellis opined Winfield’s current condition is the result of the August 17, 2011, injury or the work activities of heavy repetitive lifting on a regular and sustained basis arousing and exacerbating a previously dormant condition resulting in symptoms and necessitating treatment.

          We note that even after the ALJ stated he found Dr. Primm’s report to be compelling and persuasive regarding the cervical injury, he then stated he believed the testimony of Drs. Ellis and Primm had been corrupted by inaccurate or incomplete information related to them by Winfield.  However, the ALJ did not provide any basis for making that conclusory statement as required by Commonwealth v. Workers’ Compensation Board, 697 S.W.2d 540 (Ky. App. 1985). 

          The ALJ did not identify the information which he deemed to be either inaccurate or incomplete.  In making the statement regarding Winfield’s perceived history as opposed to his actual recollection, the ALJ did not identify specific medical records or testimony he deemed to be less than factual or incomplete.  In discussing what occurred at the time of or shortly after the August 2011 injury, the ALJ did not point to any statement or portion of the history which Winfield provided that he deemed to be inaccurate or at worst fabricated.  The ALJ cannot make conclusory statements without citing to supportive evidence in the record.

          The ALJ could not reject the uncontroverted medical evidence absent a sufficient explanation of his reason for doing so.  Here, there was no such explanation.  Thus, we do not believe, as determined by the ALJ, Winfield’s cervical injury claim is controlled by Cepero v. Fabricated Metals Corp., 132 S.W.3d 839 (Ky. 2004).  Cepero, supra, is inapplicable in the case sub judice.  Cepero, supra, was an unusual case involving not only a complete failure to disclose, but affirmative efforts by the employee to cover up a significant injury to the left knee only two and a half years prior to the alleged work-related injury to the same knee.  The prior, non-work-related injury had left Cepero confined to a wheelchair for more than a month.  The physician upon whom the ALJ relied in awarding benefits was not informed of this prior history by the employee and had no other apparent means of becoming so informed.  Every physician who was adequately informed of this prior history opined Cepero’s left knee impairment was not work-related but, instead, was attributable to the non-work-related injury two and a half years previous.

          We find nothing in the case sub judice akin to Cepero, supra, since we are dealing with, as characterized by the ALJ, inaccurate or incomplete information and not a deliberate attempt by Winfield to cover up or fabricate an injury.  The fact that a doctor may have received inaccurate or incomplete information merely goes to the weight to be afforded his testimony and does not necessarily corrupt his opinions.  Significantly, the ALJ went on to state he did not find Winfield to be dishonest or to have knowingly committed fraud. 

          In light of the fact the ALJ relied upon the opinions of Dr. Primm in resolving the cervical injury claim, that portion of the ALJ’s March 7, 2014, Opinion and Order dismissing in total Winfield’s claim for a cervical injury on August 17, 2011, must be vacated.  The claim will be remanded to the ALJ for a finding Winfield sustained a temporary cervical work injury on August 17, 2011, and a determination of whether Winfield is entitled to TTD benefits and medical benefits as a result of the temporary cervical strain. 

          We are compelled to note that in the January 15, 2014, BRC Order, in which the parties agreed to bifurcate the claim, the parties stipulated regarding the injury in question, “an August 17, 2011 alleged.”  However, in the February 8, 2016, BRC order, the parties stipulated Winfield sustained a work-related injury or injuries on August 17, 2011, and April 29, 2013.  Consistent with the February 8, 2016, BRC Order, the February 25, 2016, Formal Hearing Order reflects the parties stipulated Winfield sustained a work-related injury on August 17, 2011, and April 29, 2013.  803 KAR 25:010 Section 16(2) states as follows:

Upon cause shown, a party may be relieved of a stipulation if the motion for relief is filed at least ten (10) days prior to the date of the hearing, or as soon as practicable after discovery that the stipulation was erroneous.

          Here, Denyo did not seek relief from its stipulation contained in the February 8, 2016, BRC Order and in the February 25, 2016, Hearing Order.  Consequently, Denyo is bound by the stipulation that Winfield sustained work-related injuries on August 17, 2011, and April 29, 2013. 

          Despite the dissent’s assertion to the contrary, the ALJ failed to provide any explanation for rejecting Dr. Primm’s finding of a temporary cervical strain as well as the opinion of Dr. Ellis.  Instead, the dissent provides an explanation by citing to evidence in the record which could support the ALJ’s decision to dismiss Winfield’s cervical injury claim.  The dissent asserts the ALJ stated he rejected Dr. Ellis’ opinion on causation because it was provided two years after the incident.  The dissent then cites to a sentence contained within the ALJ’s analysis of Dr. Ellis’ testimony indicating Dr. Ellis did not explain what information caused him to change his opinion of September 27, 2011, given more than two years after the event with no recorded change in Winfield’s history as originally related.  However, the ALJ did not cite to this statement as grounds for rejecting Dr. Ellis’ opinion.  In fact, the ALJ failed to cite to any portion of Dr. Ellis’ records in support of his decision on this issue. 

          The dissent asserts the ALJ stated he rejected Dr. Primm’s opinions on causation because according to Dr. Primm, Winfield suffered a work-related injury by history.  The ALJ never made such a statement.  Rather, the ALJ stated Dr. Primm based his decision solely on oral history.  The dissent then provides an interpretation which is based upon the ALJ’s prior discussion of Dr. Primm’s report.  However, the ALJ never alluded to any portion of this prior discussion as support for his decision to dismiss the cervical claim.  The dissent’s understanding is based upon assumption rather than a clear statement made by the ALJ.  This Board and the parties cannot be left to infer what the ALJ meant.    

          The dissent refers to a portion of the ALJ’s discussion of Winfield’s testimony contained within his analysis.  However, the ALJ does not reference that portion of testimony as a basis for rejecting the opinion of Dr. Primm.  More importantly, the ALJ did not cite to any portion of Winfield’s testimony as a basis for rejecting Dr. Primm’s opinion of a temporary cervical strain based on history. 

          The distinction must be made that Dr. Primm’s opinion was based on history which encompasses both oral and medical history.  The ALJ did not engage in the analysis attributed to him by the dissent, and it is the dissent, rather than the ALJ, who provides the reasons and basis for the ALJ’s decision to dismiss the cervical injury claim. 

          The ALJ’s analysis on page 20 and 21 of the March 7, 2014, Opinion and Order regarding the alleged cervical injury contains no explanation as to why he rejected Drs. Ellis’ and Primm’s opinions except to state their opinions were corrupted by inaccurate or incomplete history provided by Winfield.  After stating he found Dr. Primm’s report to be compelling and persuasive, the ALJ noted Dr. Primm’s belief the sprain had resolved some twenty months prior and, as did Dr. Ellis, based his opinion of a temporary cervical strain solely on the oral history given to him by Winfield.  Significantly, Dr. Primm does not state his impression of “cervical strain based on history, relating to the work event” is based solely on the history received from Winfield.  History includes medical records.  In fact, in his report Dr. Primm cited to more than one test result concerning the cervical region.  Dr. Primm stated he found no objective evidence supporting a permanent injury.  He did not, however, state there is no objective evidence of a temporary cervical strain.   

          The ALJ did not provide the explanation attributed to him by the dissent as the basis for his rejection of the opinions of Dr. Primm.  It is not within the Board’s authority to provide the rationale behind an ALJ’s decision when none has been provided.   

          Accordingly, those portions of the March 7, 2014, Opinion and Order, the April 14, 2014, Order on Petition for Reconsideration, and the April 29, 2016, Opinion, Award, and Order relating to the dismissal of Winfield’s claim for permanent income and medical benefits are AFFIRMED.  However, those portions of the March 7, 2014, Opinion and Order and the April 14, 2014, Order on Petition for Reconsideration dismissing Winfield’s claim in its entirety are VACATED. Since it readopts the entire March 7, 2014, Opinion and Order, that portion of the April 29, 2016, Opinion, Award, and Order relating to the complete dismissal of Winfield’s cervical injury claim is VACATED.  This claim is REMANDED to an Administrative Law Judge, as designated by the Chief Administrative Law Judge, for entry of a decision finding Winfield sustained a temporary cervical sprain on August 17, 2011, and determining his entitlement to TTD benefits and medical benefits. As the ALJ relied upon Dr. Primm’s opinion in resolving whether Winfield sustained a cervical injury and Dr. Primm opined MMI was attained six months from the August 17, 2011, injury, Winfield’s entitlement to TTD benefits, if any, may only span all or a portion of that six month period.

          ALVEY, CHAIRMAN, CONCURS.

          RECHTER, MEMBER, CONCURS IN PART, DISSENTS IN PART, AND FILES A SEPARATE OPINION.

RECHTER, MEMBER. I must respectfully dissent because I believe the ALJ adequately explained his reason for dismissing Winfield’s claim for a cervical injury.  When read in its totality, I conclude the ALJ expressed his interpretation of the evidence: that is, Winfield suffered an event at work which caused him to be referred to the emergency room.  After a cardiac work-up revealed no abnormalities, a cervical MRI was performed which indicated some degenerative changes.  At the time, Winfield identified no event or injury or incident at work which caused him neck pain.  The physicians at the hospital did not relate the MRI findings to his work.  As acknowledged by the ALJ, it is possible the tingling in Winfield’s arm was a product of his neck condition.  However, no one, at the time of the incident, stated the neck condition was caused by his work.

          Dr. Primm and Dr. Ellis later related the neck condition to Winfield’s work.  The ALJ stated why he rejected Dr. Ellis’ statement regarding causation: it was provided nearly two years after the incident and “Dr. Ellis does not explain what information caused him to change his opinion of 9/27/2011 some two year plus after the event with no recorded change in the Plaintiff’s history as originally related.”  He also stated why he rejected Dr. Primm’s statement regarding causation: according to Dr. Primm, Winfield suffered a work related injury “by history”.  The ALJ interpreted Dr. Primm’s statement to mean he based causation on Winfield’s stated history of a work-related event.  This is a reasonable interpretation of the evidence, and the ALJ enjoys the discretion to interpret the evidence in this manner.

          I agree with the majority that the ALJ expressed himself inartfully at times.  The ALJ stated he found Dr. Primm’s report to be compelling and persuasive evidence regarding Winfield’s work related injury.   However, he then goes on to explain why he is suspect of Dr. Primm’s statements regarding causation.  My reading of this phrase is that the ALJ found Dr. Primm’s opinion credible as to the nature and severity of Winfield’s injury, if not the cause.  I base this understanding on the ALJ’s prior discussion of Dr. Primm’s report:

[Dr. Primm] contains a thorough recitation of Plaintiff’s medical records up to [October 18, 2013], which includes the 4/29/2013 work related injury to his hernia.  Other than ongoing complaints of neck pain, there is no medical evidence in that record as to causation of that neck pain.  While Dr. Primm ascribed a “resolved soft tissue cervical strain” to the 8/17/2011 work injury, he makes that diagnosis solely on the history he received from the Plaintiff (as stated in the “Impression” paragraph of his report).  This history included the fact that Plaintiff felt a numbness and tingling in his left hand while he was lifting a generator, a detail that he described in his earlier testimony, but to which he then ascribed no significance.  However, according to Dr. Primm, the Plaintiff was “somewhat” vague about the onset of his symptoms and he did not seem to be able to identify a specific injury.” 

 

          I disagree that the ALJ should be bound to accept Dr. Primm’s statement regarding a temporary, work-related cervical injury on remand.  While Dr. Primm’s opinion allows for a finding of a temporary work-related cervical injury, the ALJ articulated a rational reason why that opinion should not require such a finding.   

          I also agree that the citation to Cepero is unwise.  While Cepero generally stands for the proposition that an inaccurate history can render a medical opinion unreliable, there is no indication Winfield actively hid a medical condition, as was the case in Cepero.  Acknowledging this factual distinction, the ALJ “hastened to add” that he did not believe Winfield purposely fabricated anything.  Rather, the ALJ explained why he believed Winfield’s memory of the event became distorted over time.  He identified specific proof to support this interpretation: the fact that Winfield did not relate a neck or arm injury to anyone on August 17, 2011, or at his later appointments with Dr. Ellis and never identified a work-related incident which precipitated his pain.  The ALJ explained:

Mr. Winfield, insofar as I am able to discern from the record, was at no time up to this point able to pinpoint any specific injury to his cervical spine.  He ascribed no sudden pain, no pop, no strain, nothing that would have made him think at the time of his report to Brenda that he had suffered a neck injury of any type … Thus, the ‘history’ given by the Plaintiff to various physicians developed in his mind significantly after the event of August 17, 2011 when he had no thought of any cervical injury, could relate no instance of cervical injury and suffered not cervical pain, but left arm weakness or numbness and tingling in his fingers. 

 

          As a final matter, I disagree the parties stipulated the cervical injury is work-related.  The initial BRC order listed August 17, 2011 as an alleged injury.  The subsequent BRC orders did not.  However, in both subsequent orders, “work relatedness/causation” was checked as a contested issue.  At best, the wording on the form is contradictory.  Also, the February 8, 2016 BRC order was issued after the parties had conducted the bifurcated hearing on the cervical injury, and the ALJ’s opinion had been issued.  The primary issue at that hearing was the work-relatedness of the cervical injury.  At the very least, the issue was most certainly tried by consent.  

          When read in its totality, the ALJ’s opinion evinces a comprehensive consideration of all the evidence and articulates his interpretation of the proof.  His interpretation is not unreasonable, and within his discretion.  I would not direct a finding on remand of a temporary cervical injury.  I would affirm.

COUNSEL FOR PETITIONER:

HON WILLIAM E BROWN II

2224 REGENCY RD

LEXINGTON KY 40503

COUNSEL FOR RESPONDENT:

HON RONALD J POHL

3292 EAGLE VIEW LN STE 350

LEXINGTON KY 40509

CHIEF ADMINISTRATIVE LAW JUDGE:

HON ROBERT L SWISHER

657 CHAMBERLIN AVE

FRANKFORT KY 40601



[1] By Order dated January 13, 2014, the ALJ ordered the claim placed in abeyance until such time as Winfield achieved maximum medical improvement (“MMI”) following the surgery performed by Dr. Paul Deluca to repair the hernia.

[2] Winfield changed his family physician using Dr. Ellis.