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.
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 (
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