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Workers’
Compensation Board
OPINION
ENTERED: November 4, 2016
CLAIM NO. 201500572 & 201500571
JOHNNY COLLINS PETITIONER
VS. APPEAL FROM HON. STEPHANIE
L. KINNEY,
ADMINISTRATIVE LAW JUDGE
PINE BRANCH MINING LLC and
HON. STEPHANIE L. KINNEY,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
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* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
ALVEY,
Chairman. Johnny Collins (“Collins”) appeals from the
Opinion and Order rendered April 18, 2016 by Hon. Stephanie L. Kinney,
Administrative Law Judge (“ALJ”) dismissing his claim against Pine Branch
Mining, LLC (“Pine Branch”) for cumulative trauma injuries to multiple body
parts. Collins also seeks review of the
July 6, 2016 order overruling his petition for reconsideration.
On
appeal, Collins essentially argues the evidence compels a finding he suffered
from cumulative trauma injuries due to his work activities with Pine
Branch. Because substantial evidence
supports the ALJ’s determination and no contrary result is compelled, we
affirm.
Collins
filed a Form 101 on April 22, 2015, alleging injuries to his neck and back due
to repetitive use while working for Pine Branch. Collins listed the date of injury as July 7,
2014. He simultaneously filed a Form 103
alleging occupational hearing loss due to repetitive exposure to loud noise in
the work place, for which he also provided a July 7, 2014 date of injury. Collins previously filed a workers’
compensation claim for bilateral carpal tunnel syndrome in 2006. The ALJ consolidated the injury and hearing
loss claims. Subsequently, the ALJ
granted Collins’ motion to amend his Form 101 to include additional injuries to
his shoulders, left knee and bilateral carpal tunnel syndrome all of which he
alleged was caused by cumulative trauma at work. Pine Branch filed a timely special answer
raising the statute of limitations defense and a Form 111 denying Collins’
claims.
Collins
testified by deposition on July 6, 2015, and at the hearing held February 18,
2016. Collins was born in December 1949
and resides in Hazard, Kentucky. He
graduated from high school and holds a surface mining certificate. Collins has
worked in surface mining where he operated heavy equipment for over forty
years, with over twenty-one years spent operating a loader for Pine Branch. While operating a loader, he dug up rock and
loaded it into a truck, which required repetitive use of his upper extremities
and left leg. Collins alleged his body
was constantly jarred and jerked while performing this job. He also maintained and inspected the
equipment he operated. Collins worked
fifty to fifty-eight hours a week, and continued to work until July 7,
2014. He ceased working due to unrelated
renal failure. Collins testified he did
not miss any work prior to his cessation of employment, other than to attend
his monthly doctor visits for his unrelated condition.
As
noted above, Collins previously filed a workers’ compensation claim for
bilateral carpal tunnel syndrome in 2006.
Collins underwent carpal tunnel releases on both upper extremities and
was off work for thirteen weeks. Despite
the procedures, subsequent testing performed in 2007 demonstrated he still had
carpal tunnel syndrome. Collins
indicated he was able to work despite his continuing symptoms. Collins was paid temporary total disability
benefits and settled his claim for $20,000.
Collins testified that throughout
his employment with Pine Branch, he experienced minor falls, none for which he
sought medical treatment or missed any work.
He also alleged he frequently hit his head on equipment. At the deposition, Collins testified he first
injured his neck at work in 2001 when he hit his head on a steering
cylinder. Collins notified his supervisor
and filed an injury report. Collins’
family physician referred him to the Spine and Brain Clinic. There, Collins had a cervical MRI, underwent
physical therapy, and was prescribed narcotic pain medication. He also sought chiropractic care. Permanent restrictions were not imposed. Collins testified his neck has gradually
worsened since the 2001 incident, and he has treated regularly for this
condition. Collins treats once a month
at Kentucky Pain Care and is currently prescribed Lorcet. Collins was able to work with his medication. Collins continues to experience neck pain which
occasionally radiates into his shoulders, and he has limited range of
motion.
Collins testified he began
experiencing back pain approximately seven to eight years ago which he
attributes to the constant jarring he endured as a heavy equipment operator. He also experiences limited range of motion
in his shoulders, as well as knee pain.
Collins also feels he has hearing loss, and was sent to Beltone by his
attorney. He has not received any
medical treatment for his alleged injuries other than for his neck. Collins does not believe he can return to his
former job due to his back, shoulder and leg pain.
Pine Branch filed the records from
Bluegrass Orthopaedics indicating Collins treated for bilateral carpal tunnel
syndrome from January 2006 through June 2007.
Diagnostic testing was consistent with moderate bilateral carpal tunnel
syndrome. Dr. William O’Neill performed
a right carpal release on March 2, 2006 and a left carpal tunnel release on
March 30, 2006. After continued complaints,
Dr. O’Neill ordered a repeat EMG/NCV study.
On May 16, 2007, Dr. O’Neill stated the repeated study showed
improvement in the degree of severity.
However, Collins still experienced significant numbness after returning
to work. Dr. O’Neill diagnosed numbness
and tingling in both hands, status post carpal tunnel releases, secondary to
work, as well as neck pain. On June 13,
2007, Dr. O’Neill confirmed the repeat EMG verified the diagnosis of carpal
tunnel syndrome despite the releases, and noted abnormal findings upon physical
examination. Dr. O’Neill assessed a 5%
impairment rating for each extremity, combining for a total of 10%, pursuant to
the American Medical Association, Guides to the Evaluation of Permanent
Impairment, 5th Edition (“AMA Guides”). He did not assign permanent restrictions.
Thereafter, the parties entered
into a settlement agreement, which was approved by Hon. Sheila Lowther,
Administrative Law Judge, on December 26, 2007.
The agreement noted the diagnosis of bilateral carpal tunnel syndrome,
the releases performed on both upper extremities, and the 10% impairment rating
assessed by Dr. O’Neill. The parties
settled the claim for a lump sum of $20,000.
The settlement included a waiver of future medical benefits, right to
reopen, and vocational rehabilitation.
Pine Branch filed the records from
Spine and Brain Neurosurgical Center, which showed Dr. Gay Richardson treated
Collins’ neck every three months from April 10, 2009 to October 5, 2011. Dr. Richardson ordered physical therapy and a
cervical MRI, and regularly refilled prescriptions for Lortab and Robaxin. In the last treatment note of record dated
October 5, 2011, Dr. Richardson diagnosed Collins with degenerative cervical
disc disease, cervical spondylosis without myelopathy, cervical stenosis,
cervicalgia, carpal tunnel syndrome and chronic pain.
Pine Branch also filed the results
of the hearing test conducted on September 9, 2014 by Dr. George Chaney. Dr. Chaney noted Collins may be considered as
a candidate for the use of hearing aids.
In support of his injury claim,
Collins filed records from Dr. Chad Morgan, D.C. On March 2, 2015, Dr. Morgan noted Collins
reported hitting his head on a steering cylinder in 2001. Dr. Morgan performed an examination and
ordered a series of lumbar x-rays. He
diagnosed tension headache, cervicalgia, brachial neuritis/ radiculitis, NOS,
lumbago, sciatica, cervical subluxation, and lumbar subluxation. He noted Collins has a history of job related
micro-trauma, and job related physical jarring and trauma from operating heavy
equipment. Dr. Morgan also completed a
questionnaire. He agreed Collins’ neck
and back issues were caused, either wholly or in part, by his job
activities. He agreed Collins’ job
brought into disabling reality the cumulative trauma which had been ongoing for
a number of years. He also agreed
Collins had no active impairment prior to his employment with Pine Branch.
Collins filed the June 23, 2015
report of Dr. Arthur Hughes, who also testified by deposition on February 27,
2016. Dr. Hughes noted Collins has had
neck pain since 2001 when he hit his head. He also noted shoulder pain, low back pain,
and left knee pain, along with the previous carpal tunnel releases. Dr. Hughes diagnosed neck pain, right
shoulder pain and limitation of motion, left shoulder pain and limitation of
motion, bilateral carpal tunnel syndrome, status post bilateral carpal tunnel
releases, low back pain with radiculopathy, and left knee pain. He stated Collins’ injuries caused his
complaints.
Dr. Hughes noted Collins developed
pain and impaired functioning in multiple areas of the body including his neck,
shoulders, wrists, lower back and left knee during his forty-one years of
working in the mines. Dr. Hughes opined,
“[t]hese areas of pain and impaired functioning are a consequence of repetitive
and cumulative trauma to the affected areas.
This affected bones, joints, ligaments, tendons, and muscles resulting
in pain and impaired functioning.” He
stated Collins’ symptoms and impaired functioning had been asymptomatic,
dormant, and non-disabling, but were aroused into disabling condition by his
latest employment.
Pursuant to the AMA Guides,
Dr. Hughes assessed a combined 30% impairment rating for the right shoulder,
left shoulder, right carpal tunnel syndrome, left carpal tunnel syndrome, low
back and left knee. He assessed a 0%
impairment rating for the cervical spine.
Dr. Hughes stated Collins reached maximum medical improvement on June
23, 2015 if no additional treatment is approved. Dr. Hughes does not believe Collins can
return to his former job and assigned permanent restrictions. Dr. Hughes’ testimony is consistent with his
report.
Pine Branch filed the August 7,
2015 report of Dr. Daniel Primm. Like
Dr. Hughes, he noted Collins complained of worsening neck pain which began
following the 2001 incident. Dr. Primm
noted Collins complained of low back pain occasionally radiating into his hips,
in addition to left knee soreness and giving way. Following an examination, Dr. Primm diagnosed
degenerative changes consistent with age and no evidence of cervical or lumbar
radiculopathy. Dr. Primm found no
objective evidence of permanent impairment to Collins’ low back, left knee,
right upper extremity or left upper extremity based upon the AMA Guides. If Collins’ current renal failure requiring
home dialysis is not taken into consideration, Dr. Primm believes Collins could
return to work as an equipment operator without restriction. Dr. Primm stated as follows:
I do not believe there is any objective evidence this man suffers
from any type of cumulative injury to the low back, left knee, or the upper
extremities. I could not reproduce any
findings of diminished range of motion in his shoulders, as Dr. Hughes reported
in his notes. I also could not find any
evidence of any radicular symptoms in the upper or lower extremities.
Pine
Branch also filed the September 2, 2015 report of Dr. Russell Travis, who
reviewed medical records from March 21, 2007 through August 7, 2015. Dr. Travis found no evidence of low back
symptoms or problems which would warrant an impairment rating. He noted Collins did not complain of low back
pain until he was evaluated by Dr. Morgan at the request of his attorney. Dr. Travis disagreed with Dr. Hughes’
diagnosis of low back pain with radiculopathy and his correlating assessment of
impairment. Likewise, Dr. Travis found
no justification for an impairment rating for either shoulder since Collins did
not complain of right arm pain until he was seen by Dr. Morgan. Dr. Travis noted Collins did not complain to
Dr. Morgan of left shoulder pain. Dr.
Travis stated as follows with regard to Collins’ alleged cumulative trauma:
I am baffled how one could diagnose “cumulative trauma injury” in
Mr. Johnny Collins. There is absolutely
no indication in these medical records that there has ever been an MRI of the
lumbar spine, either right or left shoulder, knees, or any other area except
for a cervical MRI done years ago on 12/10/08 and that was [sic] report given
by Gay Richardson, MD at the pain clinic.
It is also of note that Mr. Collins never complained of radicular pain
in the upper extremities, some pain in the shoulders from the neck but no
radicular pain in the upper extremities . . .
Dr. Travis noted Collins quit working
due to related stage 4 renal failure rather than his multiple alleged
cumulative trauma injuries. He found none
of the available imaging studies supported a finding of more than expected
lumbar or shoulder degenerative changes due to cumulative trauma. Dr. Travis emphasized his disagreement with
Dr. Hughes’ report.
In
support of his hearing loss claim, Collins filed the January 23, 2015
audiological evaluation performed at Beltone Hearing Center. Audiometric results demonstrated moderate to
high frequency loss. Speech
discrimination was 90dB in the right and 90dB in the left and 100dB
binaurally. Collins was recommended to
use hearing aids.
The
December 14, 2015 university evaluation report of Dr. Brittany Brose was
introduced. She evaluated Collins on
November 17, 2015. Collins reported
long-term noise exposure in the coal mining industry, as well as gradual
hearing loss in both ears beginning in 2003.
After performing an examination, Dr. Brose concluded Collins has greater
hearing loss than would be expected for a person his age. Dr. Brose stated objective and behavioral
measures are consistent and show a typical high frequency hearing loss pattern
of that seen with long term noise exposure.
She concluded an audiogram and other testing established a pattern of
hearing loss compatible with that caused by hazardous noise exposure in the
workplace. Dr. Brose assessed a 0%
impairment rating, and recommended binaural hearing aids.
After
summarizing the evidence, the ALJ stated as follows:
Plaintiff is 65 years old and has worked in the mining industry
for 41 years. Plaintiff has alleged
cumulative trauma to numerous body parts including his neck, back, shoulders,
left knee and bilateral carpal tunnel syndrome that manifested on his last date
of employment, July 7, 2014. Plaintiff
stopped working on July 7, 2014 due to Stage IV renal disease. Prior to July 7, 2014, Plaintiff was working,
without interruption, on a full-time and unrestricted basis.
Plaintiff did not complain of any type of back or upper extremity
symptoms until he saw Dr. Morgan on March 2, 2015. There are no diagnostic studies of
Plaintiff’s shoulders or left knee that would show to what degree, if any,
Plaintiff’s degenerative changes are present.
Physical examination of those body parts shows decreased range of
motion, which is a subjective finding.
Dr. Primm evaluated Plaintiff and his clinical examination was
normal. Dr. Primm reviewed Plaintiff’s treatment records and was unable to find
any objective evidence that Plaintiff suffers from any work-related cumulative
trauma. Dr. Travis, a neurosurgeon, also
opined Plaintiff did not sustain any work-related cumulative trauma. After a
careful review of the evidence, this ALJ finds Plaintiff has not met his burden
of proving a work-related injury, evidenced by objective findings, to his back,
shoulders, neck or left knee, relying on Drs. Primm and Travis.
Plaintiff has a long-standing history of neck problems that began
in 2001 following an acute and specific work accident wherein he hit his
head. Plaintiff continued to work, but
also continued to pursue treatment for his neck complaints. As such this ALJ finds Plaintiff’s cervical
complaints originated with the 2001 work accident, and is not the result of
alleged cumulative trauma, relying upon Drs. Primm and Travis.
Plaintiff has alleged cumulative trauma to his back and lumbar
x-rays showed degenerative changes at L3 and 4 with spurring. However, Plaintiff’s treatment notes fail to
document any significant low back while treating with Dr. Chaney. Plaintiff did not complain of any low back
symptoms until he saw Dr. Morgan on March 2, 2015. In other words, Plaintiff did not complain or
seek treatment for his back until approximately 11 months after he stopped
working due to renal failure. As such
this ALJ finds Plaintiff has not met his burden of proving a work-related
injury to his low back.
Plaintiff has also alleged work-related bilateral carpal tunnel
syndrome. Plaintiff’s past medical
history is positive for a prior bilateral carpal tunnel claim that he settled
for $20,000.00 on November 20, 2007. Plaintiff’s treatment records, as
summarized by Dr. Travis, do not note any significant complaints related to
carpal tunnel syndrome following the November 20, 2007 settlement. As such, this ALJ finds Plaintiff has not met
his burden of proving an injury, and/or cumulative trauma, following the
November 20, 2007 settlement.
The
ALJ accepted Dr. Brose’s opinion regarding Collins’ occupational hearing
loss. The ALJ dismissed Collins’ claim
for benefits related to his alleged cumulative trauma injuries and awarded
medical benefits for his hearing loss.
Collins filed a petition for
reconsideration arguing the ALJ did not provide an adequate explanation of the
basis for her decision, and noted Dr. Hughes is the only physician who
considered Collins’ work history and job duties. Collins requested additional findings of fact
regarding medical causation and a finding more consistent with the opinion of
Dr. Hughes. The ALJ summarily overruled
Collins’ petition.
On appeal, Collins argues the ALJ
should have relied upon the opinions of Drs. Morgan and Hughes to find the
existence of cumulative trauma injuries.
He argues, “the ALJ has erred in her interpretation of the substance of
Dr. Hughes’ findings, in the omission of Collins’ testimony, and in the medical
evidence in the record resulting in an error in judgment regarding dismissal of
this claim.”
As the claimant in a workers’ compensation proceeding, Collins had the burden of proving each of the essential elements of his cause of action. See KRS 342.0011(1); Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979). Since Collins was unsuccessful in his burden related to his alleged cumulative trauma injuries, 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 determining whether the ALJ’s findings are so unreasonable under the evidence they must be reversed as a matter of law. Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000).
Causation is a factual
issue to be determined within the sound discretion of the ALJ as
fact-finder. Union Underwear Co. v.
Scearce, 896 S.W.2d 7 (Ky. 1995); Hudson v. Owens, 439 S.W.2d 565
(Ky. 1969). An ALJ is vested with broad
authority to decide questions involving causation. Dravo Lime Co. v. Eakins, 156 S.W.3d
283 (Ky. 2003). Where the evidence is
conflicting, the ALJ, as fact-finder, has the discretion to pick and choose
whom and what to believe. Caudill v.
Maloney’s Discount Stores, 560 S.W.2d 15 (Ky. 1977). 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 which 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 this instance, Drs. Morgan
and Hughes offered differing medical opinions than those of Drs. Primm and
Travis. Drs. Primm’s and Travis’
opinions constitute substantial evidence supporting the ALJ’s determination Collins failed to prove a work-related injury, evidenced by
objective findings, to his back, shoulders, neck, left knee or upper
extremities.
Dr. Primm performed an
examination and diagnosed degenerative changes consistent with age and no evidence of
cervical or lumbar radiculopathy. Dr.
Primm noted Collins stated he first injured his neck in 2001 when he stuck his
head, and noted he subsequently sought treatment with several medical
providers. However, Collins complained
his pain gradually worsened. Dr. Primm
found no objective evidence of permanent impairment to Collins’ low back, left
knee, right upper extremity or left upper extremity based upon the AMA Guides. Dr. Primm firmly opined there is no objective
evidence establishing Collins suffered from any type of cumulative injury to
the low back, left knee, or the upper extremities. Dr. Primm also noted he could reproduce any
findings of diminished range of motion in his shoulders or find any evidence of
any radicular symptoms in the upper or lower extremities.
Likewise,
after performing a medical records review, Dr. Travis found no evidence of low
back symptoms or problems which would warrant an impairment rating, as well as
no justification for an impairment rating for either upper extremity. Like Dr. Primm, Dr. Travis agreed there was
no evidence of cumulative trauma injuries.
Dr. Travis noted Collins quit working due to renal failure, and found no
available imaging studies supported a finding of more than expected lumbar or
shoulder degenerative changes due to cumulative trauma. The opinions of Dr. Travis and Primm
constitute substantial evidence supporting the ALJ’s determination. We additionally note Collins testified he
sustained a specific injury to his neck in 2001 and has regularly treated for
cervical symptoms ever since. Dr. Primm
also noted the 2001 cervical injury.
There is no evidence indicating Collins timely sought workers’
compensation benefits for the 2001 cervical injury.
The ALJ’s determinations establish she understood and weighed the
evidence before her, and found Collins failed to prove he sustained
work-related injuries. The ALJ, as
fact-finder, has full discretion to determine the physician or physicians upon
which he relies. If “the physicians in a
case genuinely express medically sound, but differing opinions as to the
severity of a claimant's injury, the ALJ has the discretion to choose which
physician's opinion to believe.” Jones v. Brasch-Barry General Contractors,
189 S.W.3d 149, 153 (Ky. App. 2006).
Accordingly, the April 18, 2016 Opinion and Order
and the July 6, 2016 order on petition for reconsideration rendered by Hon.
Stephanie L. Kinney, Administrative Law Judge, are hereby AFFIRMED.
ALL
CONCUR.
COUNSEL
FOR PETITIONER:
HON MCKINNLEY MORGAN
921 SOUTH MAIN STREET
LONDON, KY 40741
COUNSEL
FOR RESPONDENT:
HON W BARRY LEWIS
PO BOX 800
HAZARD, KY 41702
ADMINISTRATIVE
LAW JUDGE:
HON STEPHANIE L KINNEY
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601
