Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED:  January 6, 2017

 

 

CLAIM NO. 201584893

 

 

KENTUCKY EYE INSTITUTE                         PETITIONER

 

 

 

VS.         APPEAL FROM HON. DOUGLAS W. GOTT,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

DAENA WILDS

and HON. DOUGLAS W. GOTT,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

AFFIRMING

                       * * * * * *

 

 

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

 

STIVERS, Member. Kentucky Eye Institute appeals from the August 3, 2016, Opinion, Award, and Order and the August 30, 2016, Order on Reconsideration of Hon. Douglas Gott, Administrative Law Judge ("ALJ"). The ALJ awarded Daena Wilds (“Wilds”) temporary total disability ("TTD") benefits, permanent partial disability ("PPD") benefits, and medical benefits for a work-related left hip injury. On appeal, Kentucky Eye Institute asserts the ALJ erred by finding Wilds sustained her burden of proving an "Injury" as defined by the Act.

          The Form 101 alleges on May 8, 2015, Wilds tripped, fell, and broke her left hip and the neck of the left femur bone while in the employ of Kentucky Eye Institute. She underwent a total left hip arthroplasty performed by Dr. James Ritterbusch on May 9, 2015.

          Wilds was deposed on April 18, 2016. Concerning the events of May 8, 2015, she testified as follows:

A: Yes, 5/8. What happened was, I drove to Corbin. I was on crutches from what was called a stress fracture or a bruise, and so I was on crutches. And I walked in the back door, and coincidentally, a coworker was getting out of her car when I was. So she was carrying my equipment in, helping me get my stuff in. And I went in the backdoor, and in the backdoor was a hallway maybe six or eight feet long. And they kept equipment. Like, they also traveled to satellite offices as well. And when they would come in, they would set their equipment down in [sic] the floor. And my right crutch got caught in a strap of a bag that was laying in [sic] the floor. And when it caught, I looked down and saw it caught, and I started hopping around trying to right myself up. And when I started hopping around is when I heard a crack and then fell.

          Wilds also testified at the June 21, 2016, final hearing.

          Wilds introduced the February 3, 2016, Independent Medical Evaluation ("IME") report of Dr. James C. Owen, who after performing an examination diagnosed: "Persistent mild hip pain with significantly good ranges of motion deficit status post hip arthroplasty." Dr. Owen specified Wilds' injury was the cause of her complaints:

Within reasonable medical probability, the patient's injury was the cause of his/her complaint. Yes the fall was the cause of the fracture of the femoral neck in my opinion, it would not have given way spontaneously unless she was hopping on it which she does describe and/or if it were severely contused as it would have been with the fall. Either way it is a work-related incident that provoked what was otherwise a mild distress lesion in association with asymptomatic avascular necrosis. She did not know about either of her hips and had no significant difficulty with her hips prior to this incident. 

 

          Under "Explanation of Causal Relationship," Dr. Owen detailed as follows: "Again by either excessive torsion and torque in a standing hopping mode or per excessive torsion and torque and contusion as she fell." Dr. Owen deemed Wilds to be at maximum medical improvement and assessed a 15% whole person impairment rating pursuant to the 5^th Edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment. As to whether Wilds had a pre-existing active impairment, he stated as follows:

She had preexisting active stress reaction in association with the avascular necrosis, which itself was entirely asymptomatic until approximately four days prior to the injury. I do think a subtraction of 3% would be appropriate for the preexisting active component. This is certainly not the primary cause for the situation.

 

          Wilds introduced several medical records of Dr. Ritterbusch. In a record dated May 8, 2015, Dr. Ritterbusch set forth the following "History of Present Illness":

The patient is a 53-year-old who approximately 2 weeks ago started having left hip pain. This persisted and her physician, Dr. Gregory Hood, obtained an x-ray, which was not really diagnostics, but obtained an MRI, which showed bilateral avascular necrosis of the femoral head. In addition, there was edema of the left femoral neck. The patient was seen by Dr. Michael Kirk, my partner, who placed her on a low dose of hydrocodone and crutches, and she had been doing better. However, this morning at work she got her crutches caught on an equipment bag and fell and had severe immediate pain of the left hip. She was brought to Baptist Health Lexington. X-ray showed displaced fracture of the base of the femoral neck. The patient denies pain anywhere else acutely. She had no loss of consciousness, no lightheadedness prior to her fall.

          Under "Impression," "displaced femoral neck fracture" was listed. A record dated May 9, 2015, indicates a total left hip arthroplasty was performed on that date.

          Dr. Ritterbusch was deposed on May 13, 2016, and testified he started treating Wilds on May 8, 2015, the day of the work-related incident. Prior to treating with Dr. Ritterbusch, Wilds had a consultation with his partner, Dr. Michael Kirk. At that time, Wilds had avascular necrosis of her left hip. Regarding that condition, Dr. Ritterbusch testified as follows:

Avascular necrosis is due to death of the cells within the femoral head. It is - - is can occur from many conditions. And what happens - - we think that the blood supply has been interpreted [sic], and you can get further deformity and collapse of the femoral head and long term problems such as arthritis. 

 

          Dr. Ritterbusch explained that at the time Wilds saw Dr. Kirk, she was being treated for a bone stress lesion.

That was actually her present [sic], why she saw Dr. Kirk and why these x-rays were taken. According to her history, I believe she had a new dog, and she was walking the dog more and started having hip pain. In reviewing Dr. Kirk's history, an x-ray was obtained. It wasn't really diagnostic. Dr. Hood obtained an MRI. This showed a bone stress lesion or edema on the inferior medial femoral neck. What this represents is a stress-type reaction which can progress to a stress fracture. It's sort of a continuum. If you think of it somewhat like shinsplints, and shinsplints can progress to a fracture of a tibia. That's what actually was the presenting problem when she saw Dr. Kirk, and what he treated her for. At that time, avascular necrosis was asymptomatic.

 

          Dr. Kirk put Wilds on crutches to relieve the bone stress lesion.

          Concerning the event of May 8, 2015, Dr. Ritterbusch opined:

Q: Now, you saw Ms. Wilds, and she described this mechanism - - she gets her crutch caught while she's at work on 5/18 of 2015 on some type of bag or something - - a medical bag. She says she hears a pop, and then she falls. Is it likely the pop she feels or hears, the pop or the crack, is that likely the lesion further fracturing?

 

A: I think it was the fracture at the femoral neck causing the pain. It was weakened from that stress lesion as an early stress fracture there, and the pop was the healthier bone breaking.

 

Q: Now, was it medically probable that she was going to have further fracture irregardless of this event of 5/8, or this event on 5/8, do you think, produced additional stress on the underlying lesion? Was it a natural occurrence, or do you think the stress, the contortion of whatever she's doing when she's trying to twist?

 

A: Yes. I think it was the injury was the result of - - not necessarily that she had a stress lesion. She would develop a fracture needing treatment. As I recall, she had been on crutches and had been feeling better.

 

...

 

Q: I'm just trying to clarify in my mind - - when she reported to you the incident where she caught her crutch and heard and felt the pop, is it your opinion that that was the incident when the fracture occurred that caused the need for the hip replacement?

 

A: Yes.

 

Q: And is that opinion held within a reason [sic] degree of medical probability?

 

A: Yes, it is.

 

          ...

Q: The fracture was already present before anything happened at work on 5/8/2015?

 

A: There was a stress reaction. It was not - - it was just a weakening of the medial femoral neck but not propogated into a fracture at that time.

 

Q: Okay. All right. And then after 5/8/2015, that's when you have the actual fracture appear on the imaging?

 

A: Yes, that's correct.

 

          The May 5, 2015, medical report of Dr. Michael Kirk was filed in the record by Kentucky Eye Institute. Under "History of Present Illness" is the following:

The patient is a 53 year old female who presents at the office today with a left hip problem. It began 2 weeks ago and now occurs continuously. The patient complains of pain. The left hip problem has been occurring in a persistent pattern. The symptoms are very severe. The patient feels aching and sharp pain. The symptoms are made worse by walking. The symptoms have been associated with giving away. The patient states that the symptoms are worsening since the onset. Prior injuries include none. The patient works as an audiologist. The primary care provider is Greg Hood, MD. Prior diagnostic studies include an MRI (BH) and an X-ray (BH).

 

          Dr. Kirk indicated "left hip femoral neck stress reaction" under "Today's Impression." Under "Current Plans" is the following:

I reviewed the findings with the patient today. She is a 53-year-old female with a two-week history of left hip pain, which is worsening over that timeframe. Her MRI shows some avascular changes and a small area of the femoral head, without collapse. However, there is an area of edema in the femoral neck consistent with a stress reaction. I think that is what is bothering her the most at the current time. She will continue with toe-touch weightbearing on crutches, and I will see her back in 2 weeks with a repeat x-ray. I will see her back sooner if there's any problems. I did provided [sic] a limited prescription of pain medication today. She's had treatment before, so we're minimizing the number of pills and keeping a close eye on that. I did provide a prescription for Mobic today also. Long term, she could be looking at her hip replacement surgery for the AVN if it worsens. Certainly if the stress reaction worsens during this course of treatment, screw fixation may be considered.

 

          Kentucky Eye Institute also filed the April 27, 2016, IME report of Dr. Gregory Gleis. Dr. Gleis opined Wilds suffered from a "[p]re-existing actively symptomatic left femoral neck stress fracture" prior to the occurrence on May 8, 2015. On May 8, 2015, the left femoral neck stress fracture became a displaced fracture. He opined the fracture occurred before Wilds landed on the floor. He also opined as follows:

A. Left femoral neck's 'stress fracture - lucent line' was an actively pre-existing condition prior to her work incident.

B. According to Ms. Wilds, if she had not been on crutches because of left hip pain, she would not have fallen.

 

Her incident at work occurred because she was using crutches for symptoms from the left femoral neck 'stress fracture - lucent line.'

 

If not for the left femoral neck 'stress fracture - lucent line,' 'hopping' would not have caused the femoral neck to fracture.

According to Ms. Wilds' history, if not for the left femoral neck 'stress fracture - lucent line' and using crutches, she would not have lost her balance and 'hopped' causing the femoral neck to fracture.

 

C. Based upon Ms. Wilds' history that she felt a 'pop/snap' prior to landing on the floor, this is consistent that the femoral neck fractured before she landed on the floor.

 

According to Ms. Wilds' history, the mechanism of left femoral neck fracture was the increased stress on the femoral neck when 'hopping' caused the incomplete fracture to become complete and displaced.

 

Alternatively, the femoral neck 'stress-fracture - lucent line' could have spontaneously fractured even without her 'hopping.'

 

          Dr. Gleis diagnosed Wilds’ condition following the incident of May 8, 2015:

A. Ms. Wilds' loss of balance at work on 05/08/15 resulted in her 'hopping' which caused the left femoral neck pre-existing stress fracture to become a complete - displaced fracture.

 

B. Alternatively, because of the left hip 'giving-way,' Ms. Wilds lost her balance, which caused the left femoral neck stress fracture to become a complete-displaced fracture.

 

C. Avascular necrosis of both hips has not been affected by the May 8, 2015 work incident.

 

Left hip pre-existing AVN did affect the treatment of the left femoral neck stress fracture. If not for the femoral head AVN, the left hip could have been treated with a 'hip pinning' rather than a total hip replacement.

 

          Dr. Gleis assessed a 15% whole person impairment rating, one-half of which constituted a pre-existing active impairment.

          During his June 6, 2016, deposition, Dr. Gleis characterized Wilds' avascular necrosis as follows:

Q: Now, prior to the work event at Kentucky Eye Institute when she was going through the doorway, would you medically classify the avascular necrosis as a preexisting active condition, and if so, why?

 

A: Well, there's two parts of that phrase that you used, 'preexisting' and then the word 'active.'

 

Q: Yes.

 

A: For the word 'preexisting,' there's no question that it was preexisting because it showed up on an MRI that was done. Now, whether it was active or not becomes more of a fine point because she sought medical care for hip pain, and the MRI showed that she had a stress fracture in her medial femoral neck. And in medical probability, the pain that she had was from the stress fracture, and she explained that she had a new puppy and was walking the dog a lot, and that's where Dr. Kirk, who saw her initially, diagnosed the stress fracture and recommended she go on crutches. And then she had a second condition, which was the avascular necrosis, which she had in both hips. But her only painful area was the hip that had the stress fracture. So probably her symptoms were coming from the left femoral neck stress fracture, and her symptoms were not from the avascular necrosis. So it would have been asymptomatic but present.

 

          Dr. Gleis opined the avascular necrosis was not an active condition at the time she suffered the complete fracture of the femoral neck: "That when the fracture occurred, the avascular necrosis lesions were asymptomatic conditions." He further opined that the total hip replacement surgery was "very appropriate" because of the "likelihood that the femoral head avascular necrosis would have become asymptomatic [sic] in the future."

          Dr. Gleis opined that at the time of the May 8, 2015, incident, the stress fracture was a pre-existing active condition, as "that is what brought her to the doctor for her left groin and left hip pain." Regarding what he believes occurred on May 8, 2015, he opined:

Well, to me, based upon her history and knowing that she had the preexisting symptomatic stress fracture, when she said that before she hit the ground when she lost her balance, she heard something pop or snap in the left hip, and that's when she fell. So the fracture occurred before she hit the ground.

 

          The June 7, 2016, Benefit Review Conference  Order lists the following contested issues: work-relatedness/causation; benefits per KRS 342.730; "injury" as defined by the Act [handwritten: "ideopathic"]; TTD; pre-existing active; and medical benefits. The parties stipulated Wilds sustained a work-related injury on May 8, 2015.^[1]

          In the August 3, 2016, Opinion, Award, and Order, the ALJ set forth the following findings and conclusions:

     6.   It has long been the rule that the claimant bears the burden of proof and the risk of nonpersuasion before the fact-finder with regard to every element of a workers compensation claim. Young v. Burgett, 483 S.W.2d 450 (Ky. 1972). 

 

     KRS 342.0011(1) defines a compensable “injury” as being "any work related traumatic event or series of traumatic events, including cumulative trauma," that is the proximate cause producing a harmful change in the human organism evidence by objective medical findings. 

 

     7.   The ALJ finds Wilds has sustained her burden of proving a work related fracture to the femoral neck of her right leg, and that the additional injury beyond what was already present caused her to require hip replacement surgery.  This finding is expressly supported by the treating physician, Dr. Ritterbusch, and by Dr. Owen and Dr. Gleis, and not reasonably disputed by Dr. Snider.  It is also corroborated by the highly credible testimony from Wilds.  The Defendant’s only argument appeared to be that the surgery may have eventually become necessary anyway because of the preexisting bone lesion, which is a defense without merit. Derr Construction Co. v. Bennett, 873 S.W.2d (Ky. 1994).

 

     8.   The ALJ relies on Dr. Owen to find Wilds’ impairment is 12%.  She makes no claim to multipliers.  Her PPD is calculated as follows:  AWW of $991.36 x 2/3 = $660.91 x 12% = $79.31 per week for 425 weeks.

 

     9.   Wilds is entitled to temporary total disability benefits from the date of injury through maximum medical improvement, which the ALJ finds to have been reached on February 3, 2016.  Dr. Ritterbusch was still actively treating Wilds at the time, but Dr. Owen assigned MMI on that date. 

          Kentucky Eye Institute filed a petition for reconsideration which, in relevant part, was denied.^[2]

          On appeal, Kentucky Eye Institute asserts the medical evidence relied upon by the ALJ regarding causation fails to establish the May 8, 2015, work event produced an injury as defined by the Act. Additionally, Kentucky Eye Institute asserts the ALJ failed to set forth sufficient findings of fact and conclusions of law. We affirm.

          Wilds, as the claimant in a workers’ compensation proceeding, 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 Wilds was successful in meeting her burden, the question on appeal is whether there is substantial evidence of record to support the ALJ’s decision. Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984). “Substantial evidence” is defined as evidence of relevant consequence having the fitness to induce conviction in the minds of reasonable persons. Smyzer v. B. F. Goodrich Chemical Co., 474 S.W.2d 367 (Ky. 1971).  

          In rendering a decision, KRS 342.285 grants an ALJ as fact-finder the sole discretion to determine the quality, character, and substance of evidence. Square D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993). An ALJ may draw reasonable inferences from the evidence, reject any testimony, and believe or disbelieve various parts of the evidence, regardless of whether it comes from the same witness or the same adversary party’s total proof. Jackson v. General Refractories Co., 581 S.W.2d 10 (Ky. 1979); Caudill v. Maloney’s Discount Stores, 560 S.W.2d 15 (Ky. 1977). In that regard, an ALJ is vested with broad authority to decide questions involving causation. Dravo Lime Co. v. Eakins, 156 S.W.3d 283 (Ky. 2003). Although 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). Rather, it must be shown there was no evidence of substantial probative value to support the decision. Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986). 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).

          The function of the Board in reviewing an ALJ’s decision is limited to a determination of whether the findings made 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). The Board, as an appellate tribunal, may not usurp the ALJ's role as fact-finder by superimposing its own appraisals as to weight and credibility or by noting other conclusions or reasonable inferences that otherwise could have been drawn from the evidence. Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999). 

            Here, the ALJ relied primarily upon the opinions of Drs. Owen and Ritterbusch. Standing alone, the opinions on causation expressed by Dr. Owen in the February 3, 2016, IME are sufficient to establish causation. Dr. Owen stated that within reasonable medical probability, the fall of May 8, 2015, caused the fracture of the femoral neck. He also opined the femoral head would not have fractured spontaneously "unless she was hopping on it which she does describe and/or if it were severely contused as it would have been with the fall. Either way it is a work-related incident that provoked what was otherwise a mild distress lesion in association with asymptomatic avascular necrosis." Of the 15% impairment rating assessed by Dr. Owen, he attributed only 3% to a pre-existing active stress reaction while stating "[t]his is certainly not the primary cause for the situation."

          Lending further support for the ALJ’s decision concerning causation are the opinions of Dr. Ritterbusch who opined in his deposition that, within reasonable medical probability, the May 8, 2015, incident caused the fracture of the femoral neck and the need for hip replacement surgery.

          When the cause of a condition is not readily apparent to a lay person, medical testimony supporting causation is required. Mengle v. Hawaiian-Tropic Northwest & Central Distributors, Inc., 618 S.W.2d 184 (Ky. App. 1981). Medical causation must be proven by medical opinion within “reasonable medical probability.” Lexington Cartage Company v. Williams, 407 S.W.2d 395 (Ky. 1966). The opinions of Drs. Owen and Ritterbusch on the issue of causation constitute substantial evidence upon which the ALJ could rely, and this Board will not disturb the ALJ's determination.

          The ALJ stated he also relied upon the opinions of Dr. Gleis and the credible testimony of Wilds to determine Wilds met her burden of proving causation. As the opinions of Drs. Owen and Ritterbusch constitute substantial evidence in support of causation, we need not discuss the impact of Dr. Gleis' opinions and Wilds' testimony concerning the causation issue.  

         We find no merit in Kentucky Eye Institute’s argument the ALJ failed to set forth sufficient findings apprising the parties of the basis of his determination regarding causation.

          The ALJ must provide a sufficient basis to support his or her determination. Cornett v. Corbin Materials, Inc., 807 S.W.2d 56 (Ky. 1991). Parties are entitled to findings sufficient to inform them of the basis for the ALJ’s decision to allow for meaningful review. Kentland Elkhorn Coal Corp. v. Yates, 743 S.W.2d 47 (Ky. App. 1988); Shields v. Pittsburgh and Midway Coal Mining Co., 634 S.W.2d 440 (Ky. App. 1982). However, an ALJ is not required to engage in a detailed discussion of the facts or set forth the minute details of his reasoning in reaching a particular result. The only requirement is the decision must adequately set forth the basic facts upon which the ultimate conclusion was drawn so the parties are reasonably apprised of the basis of the decision. Big Sandy Community Action Program v. Chafins, 502 S.W.2d 526 (Ky. 1973). The holding of the Kentucky Supreme Court in New Directions Housing Authority v. Walker, 149 S.W.3d 354, 358 (Ky. 2004) is instructive.  There, the Supreme Court remanded the claim “for further consideration, for an exercise of discretion, and for an explanation that will permit a meaningful review.” 

          The August 3, 2016, Opinion, Award, and Order fully informs the parties of the basis of the ALJ's determination regarding causation. The August 3, 2016, decision clearly explains the medical opinions upon which the ALJ relied in determining Wilds met her burden of establishing causation. We believe the ALJ's discussion of the evidence demonstrates why he found the testimony of Drs. Owen and Ritterbusch compelling on this issue.

          Accordingly, concerning all issues raised on appeal, the August 3, 2016, Opinion, Award, and Order and the August 30, 2016, Order on Reconsideration are AFFIRMED. 

          ALL CONCUR.

COUNSEL FOR PETITIONER:

HON GREGORY L LITTLE

1510 NEWTOWN PIKE STE 108

LEXINGTON KY 40511

COUNSEL FOR RESPONDENT:

HON FRANK M JENKINS 631 E MAIN ST LEXINGTON KY 40508

ADMINISTRATIVE LAW JUDGE:

HON DOUGLAS W GOTT

657 CHAMBERLIN AVE

FRANKFORT KY 40601