*/
Workers’
Compensation Board
OPINION ENTERED: January
27, 2017
CLAIM NO. 201166947
TRACY RUSSELL PETITIONER
VS. APPEAL
FROM HON. JANE RICE WILLIAMS,
ADMINISTRATIVE
LAW JUDGE
SMITHFIELD
PACKING COMPANY;
KDMC
SPINE AND PAIN CTR;
HON.
JANE RICE WILLIAMS,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
* * * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. Tracy Russell (“Russell”)
appeals from the September 7, 2016 Medical Dispute Opinion and Order rendered
by Hon. Jane Rice Williams, Administrative Law Judge (“ALJ”), finding a
cervical MRI and neck treatment are not related to her work-related injury, and
therefore are non-compensable. On
appeal, Russell argues the ALJ erred in finding the contested expenses are not
covered under the parties’ settlement agreement and in finding her employer,
Smithfield Packing Company (“Smithfield”), is not responsible for further
treatment of her neck. There being
substantial evidence supporting the ALJ’s conclusion, we affirm.
Russell filed her claim on March 14, 2013 alleging injury
to her “left shoulder/left upper arm/left arm” on March 15, 2011 while she was
turning and pushing hams in the process of labeling them. She indicated she felt her shoulder pop and
she was unable to move it. Russell’s
claim was resolved by settlement approved September 29, 2014. The agreement identified the body part
affected as “left shoulder/left upper extremity” and the diagnosis as “scapular
dyskinesis.”
Russell received a lump sum payment for complete dismissal of all claims
other than the right to future medical benefits.
Smithfield filed a Form 112 and motion to reopen on March
17, 2016 to challenge the work-relatedness of a cervical MRI and treatment of
Russell’s neck. It submitted the May 24,
2016 report of Dr. F. Daniel Wolens who conducted a
records review. Dr. Wolens
noted three other physicians concluded Russell was suffering from scapular dyskinesis.
Regarding the causation of Russell’s cervical condition, he then opined:
Through the time of the Agreement as to Compensation and Order Approving
Settlement, this individual’s only clinical finding and diagnosis was that of
scapular dyskinesis.
By this time, two sets of electrodiagnostic
studies were performed without evidence of a cervical radiculopathy. Cervical MR imaging conducted on 5/6/2014 was
also without evidence of cord or root compression. Therefore, by the time of that Agreement,
there was neither history, physical examination findings, electrodiagnostic
findings, nor MR imaging findings of cervical pathology. A third set of electrodiagnostics
in 2015 was also without evidence of a radiculopathy.
Since the Agreement, this individual’s symptoms have changed from that
of periscapular pain to numbness, tingling, and
weakness in the left upper extremity.
Therefore, the clinical pattern of this patient’s condition has changed
since the time of the Agreement. If this
individual were to have cervical pathology at this time, it would not be
causally associated with the work event.
The cervical spine has again already been extensively evaluated; by
multiple clinicians, two sets of electrodiagnostics,
and cervical MR imaging, all without evidence of pathology. If there were to be pathology now, this would
have resulted from processes occurring after the work incident and even after
the last set of electrodiagnostic studies by Dr.
Leung on 2/19/2015. Furthermore, if
there were to be a cervical radiculopathy, this would not be the result of
scapular dyskinesis, which again represents simply an
abnormal motion pattern of the scapula.
It does not contribute any risk factors for the development of cervical
pathology. Therefore, given the fact
that there was strong evidence that the cervical pathology did not follow the
work injury and that scapular dyskinesis itself does
not cause cervical pathology, there would be no causal association between the
3/15/2011 event and now the evaluation for cervical pathology.
Russell submitted the records of Kimberly Green, APRN
(“Nurse Green”), documenting treatment from March 30, 2015 through November 17,
2015. She noted a prior MRI showed disc
herniation at C4-5 and C5-6 and degenerative disc disease. Russell had no neuropathy or
radiculopathy. In the final treatment
note, Russell complained of neck pain radiating to her left arm and scapula. Nurse Green diagnosed brachial plexus
neuropathy, chronic left shoulder pain, muscle spasm, anxiety, and
cervicalgia. In an October 30, 2015
letter seeking reconsideration of the cervical MRI, Nurse Green recommended
Russell be considered for a spinal cord stimulator trial. To ensure a safe trial, Nurse Green stated
imaging studies should not be more than one year old and therefore, a cervical
MRI is medically necessary.
Russell submitted the report of Dr.
Ben Kibler who performed an evaluation on March 18,
2013. Dr. Kibler
indicated Russell had a marked amount of scapular dyskinesis
with decompensation. Dr. Kibler recommended physical therapy.
The ALJ found as follows:
In the specific instance, Defendant Employer has moved to reopen this
claim to challenge the work relatedness of an MRI and all treatment to the
neck. The opinion of Dr. Wolens is persuasive in that the contested request is not
due to the effects of the work injury.
As stated by Dr. [sic] Green in her letter, at the time of Dr. Kibler’s examination, Plaintiff demonstrated significant
degenerative disc disease of the cervical spine. The evidence is not convincing that the
cervical degeneration is a result of the March 2011 shoulder injury. Defendant Employer has met its burden of
proving the treatment is not reasonable and necessary for the cure and/or
relief of the work injury. Therefore,
same is non-compensable.
On appeal, Russell argues the ALJ erred in finding the
contested MRI and treatment of the neck are not compensable. She challenges Dr. Wolens’
opinion on the grounds he ignored the existence of plexopathy
and assumed the treatment related to the neck is attributable to bulging
discs. Russell avers Nurse Green
recognized the pain and spinal issues are attributable to plexopathy
and the scapular dyskinesis, and not attributable to
degenerative disc disease. Therefore,
the ALJ was compelled to rely on Nurse Green’s diagnosis.
In essence, Russell
argues the evidence she presented from Nurse Green is more probative than the
opinion of Dr. Wolens. 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, id. An ALJ may
draw reasonable inferences from the
evidence, reject any testimony, and believe or disbelieve various parts of the
evidence. 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). Russell’s
burden on appeal is to show there was no evidence of
substantial probative value to support the decision. Special Fund v. Francis, 708 S.W.2d 641
(Ky. 1986).
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).
The record contained substantial evidence supporting the ALJ's determination. Dr. Wolens reviewed treatment records including those of Dr. Kibler and Nurse Green. He opined the neck complaints and need for an MRI are not related to the work-related shoulder injury. Dr. Wolens unequivocally stated scapular dyskinesis does not cause cervical pathology and concluded there is no causal relationship between the work event and the evaluation for cervical pathology.
While Russell has identified evidence supporting a
different conclusion, there was substantial evidence presented to the
contrary. The opinion of Nurse Green represents
nothing more than conflicting evidence compelling no particular result. Copar,
Inc. v. Rogers, 127 S.W.3d
554 (Ky. 2003). The ALJ acted within her
discretion to determine which evidence to rely upon, and it cannot be said the
ALJ’s conclusions are so unreasonable as to compel a different result. Ira A. Watson Department Store v. Hamilton,
34 S.W.3d 48 (Ky. 2000).
Accordingly, the September 7, 2016 Medical Dispute Opinion and Order rendered by Hon. Jane Rice Williams, Administrative Law Judge, is hereby AFFIRMED.
ALL CONCUR.
COUNSEL FOR PETITIONER:
HON
ROBERT MILLER
210
E 2ND ST
GRAYSON,
KY 41143
COUNSEL FOR RESPONDENT:
HON
RODNEY J MAYER
600
E MAIN ST STE 100
LOUISVILLE,
KY 40202
ADMINISTRATIVE LAW JUDGE:
HON
JANE RICE WILLIAMS
PREVENTION
PARK
657
CHAMBERLIN AVENUE
FRANKFORT,
KY 40601
