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Workers’
Compensation Board
OPINION
ENTERED: February 3, 2017
CLAIM NO. 201501756
SHEILA NEAL PETITIONER
VS. APPEAL FROM HON. TANYA
PULLIN,
ADMINISTRATIVE LAW JUDGE
HAZARD ARH
and HON. TANYA PULLIN,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
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BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
STIVERS,
Member.
Sheila Neal (“Neal”) appeals from the June 30,
2016, Opinion and Order and the September 20, 2016, Order overruling Neal's
Petition for Reconsideration of Hon. Tanya Pullin, Administrative Law Judge
("ALJ"). The ALJ dismissed Neal's claim for income and future medical
benefits and awarded only those medical benefits paid by Neal's employer, Hazard
Appalachian Regional Healthcare (“Hazard ARH”).
On appeal, Neal asserts substantial
evidence does not support the ALJ's decision she sustained only a transient
injury on February 7, 2014, and she is entitled to income benefits and future
medical benefits.
The Form 101 alleges Neal sustained
work-related injuries on February 7, 2014, to her back, neck, left and right
upper extremities, left and right lower extremities and tailbone while in the
employ of Hazard ARH as a case manager in the following manner: "Claimant
was walking down the steps from the 4th Floor. The light was out, causing her
to trip and fall down the steps."
The January 26, 2016, Independent
Medical Evaluation ("IME") report and the Form 107-I of Dr. Gregory
Snider were introduced by Hazard ARH. After performing an examination of Neal
and reviewing various medical records, Dr. Snider set forth the following
diagnoses in the IME report:
1. Alleged slip and fall, 02/07/14.
2. Multiple myalgias and arthralgias.
3. Neck pain.
4. Right greater than left upper extremity
pain.
5. Back pain.
6. Right greater than left lower extremity
pain.
7. Coccygodynia.
8. Morbid obesity.
Dr. Snider provided the following
discussion:
It is difficult to confirm or refute that Ms.
Neal had any type of work injury or incident. At the least, her evaluation was
delayed approximately six months. She has had no objective testing that
reveals any anatomic change attributable to this incident. Her symptoms
exceed any objective findings by a considerable degree. In my opinion, Ms. Neal
suffered, at most, a lumbar contusion, sprain, or strain. There is no evidence
that there is any persistent residual injury. I am unable to explain the extent
and degree of her current complaints. I do not see any evidence that the
work-related injury caused a harmful change to Ms. Neal's anatomy. (emphasis in
original)
Pursuant to the 5th Edition
of the American Medical Association, Guides to the Evaluation of Permanent
Impairment, (“AMA Guides”), Dr. Snider opined as follows regarding
an impairment rating for each alleged injury:
·
DRE
Cervical Category I - 0% WPI.
·
DRE
Lumbar Category I - 0% WPI.
·
For
the shoulders and knees, there is no evidence of any anatomic change upon which
impairment can be calculated.
Total:
0% WPI for the injury described.
Dr. Snider opined Neal can continue to
work as a case manager, and "no further formal medical treatment is
reasonable or necessary." Dr. Snider opined Neal reached maximum medical
improvement on December 7, 2014.
The April 19, 2016, Benefit Review
Conference Order lists the following contested issues: benefits per KRS
342.730; work-relatedness/causation; injury as defined by the ACT; and TTD.
Under "other" is handwritten the following: extent and duration;
application modifiers; medical expenses; permanency of injury; medical expenses
after January 26, 2016.
In the July 5, 2016, Opinion and
Order, the ALJ unequivocally relied upon the medical opinions of Dr. Snider to
conclude any injuries Neal sustained on February 7, 2014, at her workplace
after falling were transient in nature. The ALJ determined as follows:
In this case, Plaintiff first sought
treatment for the alleged injury nearly six months after the date of the
alleged injury, February 14 [sic], 2014. Even Plaintiff's own evidence shows
that Plaintiff first sought treatment for complaints related to that injury on
August 4, 2014. Even though in the meantime Plaintiff was treated in the emergency
room for kidney stones, that emergency room report contains no reference to
complaints of diagnoses related to Plaintiff's back, neck, left and right upper
extremities, left and right lower extremities, or tailbone.
This significant lapse of time between the
incident and the first-sought treatment brings into question whether the
incident of February 7, 2014 [sic] is directly related to Plaintiff's current
complaints of pain.
Therefore, the ALJ looks to the medical
evidence. Dr. Autry assigned a 9% permanent impairment rating and specifically
noted that 3% of that total was for additional pain. He also opined that
falling down the stairs caused a 'traumatic impact, loading and straining.' Dr.
Snider assessed a 0% permanent impairment rating under the Guides and diagnosed
a transient lumbar contusion/strain. Dr. Snider assessed no work restrictions.
The ALJ finds persuasive the opinion of Dr. Snider because it is in line with
the treatment reports of Dr. Sharma who treated Plaintiff numerous times from
March 2, 2015 [sic] to November 23, 2015. Further, Dr. Snider reviewed the
treatment records of Dr. Sharma and Dr. Wicker as well as MRIs, x-rays, CT
scans and an ARH emergency room report.
While the ALJ found Plaintiff to be a
truthful and credible witness, the objective medical evidence in his report led
Dr. Snider to opine that any injury which occurred on February 7, 2014 [sic] at
Plaintiff's workplace was 'transient.' Based upon the report of Dr. Snider, the
ALJ finds that any injury which Plaintiff suffered in a fall at her workplace
on February 14 [sic], 2014 [sic] resulted only in 'transient' injuries that
were not permanent. The ALJ finds persuasive Dr. Snider when he assessed a 0%
permanent impairment rating because it is consistent with the diagnostic
testing reports filed in evidence in this claim.
While Plaintiff may have sustained a
transient or temporary injury in the fall on February 7, 2014, according to Dr.
Snider Plaintiff reached MMI and did not have any permanent impairment-ratable
injury.
Regarding Neal’s entitlement to medical
benefits, the ALJ concluded as follows:
As to future medical treatments, it is well
established that an ALJ can award future medical benefits for a work-related
injury, although a claimant has reached MMI and no permanent impairment rating
was assessed. In FEI Installation, Inc. v. Williams, 214 S.W.3d 318-319
(Ky. 2007) the Supreme Court of Kentucky concluded:
'Disability exists for the purposes of KRS
342.020(1) for so long as a work-related injury causes impairment regardless of
whether the impairment rises to a level that it warrants a permanent impairment
rating, permanent disability rating, or permanent income benefit.'
However, in FEI Installation, Inc. v.
Williams, supra, at 318 the Court
cited Robertson v. United Parcel Service, 64 S.W.3d 284 (Ky. 2201) in
which it was explained that a harmful change in the human organism may or may
not be permanent and depending on [sic] the case future medical treatment may
not be the liability of the Defendant Employer.
This specific case is more like the case in Robertson
v. United Parcel Service, supra,
in which the claimant had only a temporary flare-up of symptoms than the case
in FEI Installation, Inc. v. Williams, supra, wherein the claimant had had a work-related condition
serious enough to require surgery and continued physical therapy after the
surgery. Also in FEI Installation, Inc. v. Williams, supra, no medical evidence indicated
that future medical treatment would be unreasonable or unnecessary.
However, in this specific case, unlike the
case in FEI, supra, Dr. Snider
clearly opined that 'no further formal medical treatment is reasonable or
necessary for the work injury described.' Dr. Autry, whose IME report was filed
by Plaintiff, said 'No additional treatments for conditions identified in this
report is likely.'
As to medical expenses paid by Defendant Employer, the ALJ has
found that Plaintiff suffered a transient injury which resolved. There was no
evidence presented in this case to the contrary, therefore the ALJ finds that
the medical expenses paid by the Defendant Employer for treatment of the
transient condition were reasonable and necessary. The parties stipulated that
medical benefits in the amount of $8,021.55 have been paid by Defendant
Employer on behalf of Plaintiff.
Neal filed a petition for
reconsideration asserting the ALJ erred in finding she sustained only a
transient injury. By Order dated September 20, 2016, the ALJ overruled Neal's
petition for reconsideration reasoning, in part, as follows:
The Plaintiff is not a physician and it was
necessary for the Administrative Law Judge to rely upon medical reports from
physicians that were entered into the record. In her original Opinion and Order
the Administrative Law Judge relied on Dr. Gregory R. Snider's medical report
wherein he diagnosed a transient lumbar contusion/strain and assigned a 0%
permanent impairment rating under the AMA
Guides to the Evaluation of Permanent Impairment, Fifth Edition. Dr. Mukut
Sharma treated the Plaintiff on numerous occasions and, although he did not
assign an impairment rating, his treatment reports are in line with the
conclusions and opinions of Dr. Snider which help to make Dr. Snider's opinions
persuasive to the Administrative Law Judge [sic] Dr. Snider's assessments are
also in line with other diagnostic testing reports filed in evidence in this
claim.
As stated in the original Opinion and Order the Administrative
Law Judge reviewed and considered all medical evidence filed in the claim,
including the reports of Dr. Wicker. One early report suggested the possibility
of a fractured coccyx, but x-rays from March 2, 2015 [sic] showed no fracture
and no abnormality of the coccyx. This x-ray report is also in line with the
medical opinion of Dr. Snider. The Administrative Law Judge was persuaded by
the medical opinion of Dr. Snider on the transient nature of any injury
sustained in the February 7, 2014 [sic] incident.
On
appeal, Neal asserts substantial evidence does not support the ALJ's decision
Neal sustained only a transient injury on February 7, 2014, therefore she is
entitled to income benefits and future medical benefits. We affirm.
Neal, as the
claimant in a workers’ compensation proceeding, had the
burden of proving each of the essential elements of her
cause of action, including injury as defined by the Act and entitlement to
future medical benefits. See KRS
342.0011(1); Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979). Since
Neal was unsuccessful in that burden, the question on appeal is whether the
evidence regarding the existence of permanent cervical and psychological
injuries 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).
As fact-finder, the ALJ has the sole
authority to determine the weight, credibility and substance of the evidence. Square D Co. v. Tipton,
862 S.W.2d 308 (Ky. 1993). Similarly, the ALJ
has the discretion to determine all reasonable inferences to be drawn from the
evidence. Miller v. East Kentucky Beverage/Pepsico, Inc., 951 S.W.2d 329
(Ky. 1997); Jackson v. General Refractories Co., 581 S.W.2d 10 (Ky.
1979). The Board, as an appellate tribunal, may not usurp the ALJ’s role
as fact-finder by superimposing its own appraisals as to the weight and
credibility to be afforded the evidence or by noting reasonable
inferences that otherwise could have been drawn from the
record. Whittaker v. Rowland,
998 S.W.2d 479, 481 (Ky. 1999). So long as the ALJ’s ruling with regard to an
issue is supported by substantial evidence, it may not be disturbed on appeal. Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky.
1986).
The January 26, 2016, IME report of
Dr. Snider constitutes substantial evidence in support of the ALJ's
determination Neal sustained only transient injuries on February 7, 2014, and,
consequently, is not entitled to income benefits. As substantial evidence
supports the ALJ's determination Neal sustained transient injuries and not
permanent injuries, this determination will not be disturbed. While the record
contains medical evidence contrary to the ALJ’s decision, the ALJ is not obligated
to rely on this evidence. The ALJ may reject any testimony and believe or
disbelieve various parts of the evidence, regardless of whether it comes from
the same witness or the same adversary party’s total proof. Magic Coal Co.
v. Fox, 19 S.W.3d 88 (Ky. 2000). Although a party may note evidence that
would have supported a different outcome than that reached by an ALJ, such
proof is not an adequate basis to reverse on appeal. McCloud v. Beth-Elkhorn Corp.,
514 S.W.2d 46 (Ky. 1974).
Concerning Neal’s entitlement to future
medical benefits, it is possible for an injured worker to
establish a temporary injury for which temporary benefits
may be paid, but fail to prove a permanent harmful change to the human organism
for which permanent benefits are authorized. Robertson v.
United Parcel Service, 64 S.W.3d 284 (Ky. 2001). It is also possible to
sustain a permanent injury that does not warrant an impairment rating but
requires ongoing treatment. FEI Installation, Inc. v. Williams, 214
S.W.3d 313 (Ky. 2007). In Mullins v. Mike Catron Construction/Catron
Interior Systems, Inc., 237 S.W.3d 561 (Ky. App. 2007), the Court of
Appeals addressed FEI Installation, Inc. v. Williams, supra, and
noted the ALJ is entitled to exercise his or her discretion in making a determination
regarding future medical benefits. Where there is evidence the claimant will
not require future medical treatment for the effects of his work-related
injury, an award of medical benefits is not required. Mullins, supra.
In the June 30, 2016, Opinion and
Order, the ALJ conducted the appropriate analysis pursuant to FEI
Installation, Inc. v. Williams, supra, and Robertson v. United
Parcel Service, supra. and determined Neal is not entitled to future
medical benefits. Factoring into the ALJ's decision, among other evidence, is
Dr. Snider's opinion that "no further formal medical treatment is
reasonable or necessary for the work injury described." As substantial
evidence supports the ALJ's determination not to award future medical benefits,
and the ALJ carried out a thorough analysis and ultimately exercised the
discretion afforded under the applicable law, her decision will not be
disturbed.
Accordingly, the June 30, 2016,
Opinion and Order and the September 20, 2016, Order overruling Neal's Petition
for Reconsideration are AFFIRMED.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON MCKINNLEY MORGAN
921 S MAIN ST
LONDON KY 40741
COUNSEL
FOR RESPONDENT:
HON DENISE KIRK ASH
P O BOX 34125
LEXINGTON KY 40588
ADMINISTRATIVE
LAW JUDGE:
HON TANYA PULLIN
657 CHAMBERLIN AVE
FRANKFORT KY 40601
