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March 10, 2017 201490095

Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED:  March 10, 2017

 

 

CLAIM NO. 201490065

 

 

AMERICAN FUJI SEAL                             PETITIONER

 

 

 

VS.           APPEAL FROM HON. CHRIS DAVIS,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

JAMES ROBERTS and

HON. CHRIS DAVIS,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

AFFIRMING

 

                       * * * * * *

 

 

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

 

ALVEY, Chairman.  American Fuji Seal (“AFS”) appeals from the September 21, 2016 decision rendered by Hon. Chris Davis, Administrative Law Judge (“ALJ”) awarding James Roberts (“Roberts”) temporary total disability (“TTD”) benefits, permanent partial disability (“PPD”) benefits, and medical benefits.  AFS also appeals from the December 1, 2016 order denying its petition for reconsideration.

On appeal, AFS argues the ALJ misapplied the standard of law for exclusion of pre-existing active impairment.  It also argues the ALJ’s decision is not supported by substantial evidence.  Because we determine the ALJ did not err in his determination regarding Roberts’ pre-existing condition, and additionally because his findings are supported by substantial evidence and no contrary result is compelled, we affirm.

Roberts filed a Form 101 on January 29, 2016 alleging he sustained injuries to his neck, right shoulder, right wrist, sternum, back and both knees on March 7, 2014 when a forklift driven by a co-worker backed over a service cart he was operating.  The Form 104 filed with the claim indicates Roberts worked continuously for AFS from 1976 until his surgery in May 2015.

Roberts testified by deposition on March 10, 2016, and at the hearing held July 28, 2016.  Roberts is a resident of Bardstown, Kentucky.  He was born on April 19, 1957.  Roberts is a high school graduate, and has an associate’s degree in machine tool technology. He additionally has a degree from Louisville Tech as a marine technician or boat mechanic.   

Roberts began working for AFS in 1976, and held many different jobs during his employment there, including operating various machines.  For the last nine to ten years prior to the accident, he worked as a maintenance technician.  This job involved unloading rail cars, running sprinkler systems, maintaining air and oil lines, and installing water heaters.  He also worked on steam boilers and air conditioning units.  As a maintenance technician he was required to lift up to thirty pounds on a maximum basis.  He worked twelve hours per day, and he earned over twenty-six dollars per hour.  His work cycle consisted of working seven days, then off two.  After the March 7, 2014 accident, Roberts continued to work until May 2015, performing most of his job duties, except for heavy lifting.  AFS has not allowed him to return to work with his restrictions.  In addition to working for AFS, Roberts operated a boat repair shop as a side business beginning in 1993, but he has been unable to continue doing that except for minor work since the March 2014 accident.

On March 7, 2014, Roberts was tasked with filling a solvent tank.  He was required to travel on a service cart which was smaller than a golf cart.  To reach the solvent tank, he had to drive down a ramp.  When he reached the ramp he waited for a fork truck ahead of him to exit.  At some point the fork truck, rather than exiting, backed up and ran over the cart he was operating.  He reported the accident to safety personnel, but refused to go to the hospital, or to initially have any treatment.  Roberts completed his shift, and he gradually developed neck and back stiffness, and pain with tingling and numbness into the toes of his right foot.  He also developed symptoms in his shoulders, right worse than left.  During the accident, his knees struck the dashboard of the cart, and he developed problems in both.  His symptoms were significantly worse the day following the accident.

On the following Monday, Roberts completed an accident report and sought treatment at Bardstown Ambulatory Care.  In addition to the other symptoms, he developed problems in his hips, right greater than left.  He was given an injection and medication was prescribed.  Roberts was eventually referred to Dr. Gregory Nazar who referred him to pain management.  Dr. Nazar eventually performed low back surgery in May 2015.  Dr. Kyaw Htin saw Roberts on one occasion for pain management, and administered an injection.  Dr. Nazar later referred Roberts to Dr. Rodney Chou for pain management.  Despite the surgery, Roberts continues to have right hip pain with numbness from his waist to his toes.

Roberts admitted he had experienced right hip problems prior to March 7, 2014, but it was different and much worse after his accident.  He also testified he had treated with Dr. Sanjiv Mehta for a right knee problem in 2012 which improved after an injection.  He had no ongoing problem prior to the date of the accident.  Roberts also stated he had experienced problems with his right rotator cuff in the past, but had not treated for that condition for more than two years prior to his work accident.

Roberts submitted several hundred pages of medical records in support of his claim.  Those records include a November 23, 2015 report from Dr. James Rice; treatment records from Dr. Nazar from May 7, 2014 through September 16, 2015; records from KORT Physical Therapy from July 2, 2015 through October 7, 2015; the March 11, 2015 lumbar MRI report from Lincoln Trail Diagnostics; treatment records from Bardstown Ambulatory Care from March 7, 2015 through September 25, 2015;  and records of Dr. Htin and the Flaget Memorial Hospital in Bardstown for treatment on August 12, 2014 and September 15, 2014.

Dr. Rice, an orthopedic surgeon, evaluated Roberts on November 23, 2015.  He stated Roberts injured his back, neck and knees in the March 7, 2014 accident.  At the time of the evaluation, Roberts complained of back, neck and bilateral knee pain.  He also complained of numbness in both arms and feet.  The report notes Roberts had a history of previous chronic pain in his low back, right hip, and neck.  As a result of the work accident, Dr. Rice diagnosed a lumbar herniated nucleus pulposus with radiculopathy, cervical pain, and bilateral knee contusions.  He determined Roberts reached maximum medical improvement (“MMI”) on October 7, 2015.  He also determined Roberts’ condition was caused by his work injury. 

Pursuant to the American Medical Association, Guides to the Evaluation of Permanent Impairment, 5th Edition (“AMA Guides”), Dr. Rice assessed a combined 20% impairment rating of which he attributed 13% to the lumbar condition, 6% to the cervical condition, and 3% to the bilateral knee contusions.  All of the impairment ratings were caused by the March 7, 2014 work injury.  Dr. Rice noted no additional treatment is necessary, and he restricted Roberts from lifting over twenty-five pounds on a repetitive basis.

Dr. Rice testified by deposition on June 14, 2016.  After reviewing records from Dr. Mehta dated February 12, 2014, Dr. Rice determined 6% of the impairment could have been pre-existing and active prior to the work accident.  He stated Roberts’ low back condition was worsened by the work accident.  He stated he did not believe Roberts could return to his pre-injury work.

Dr. Nazar first saw Roberts for treatment on May 7, 2014.  He diagnosed Roberts with a herniated lumbar disc superimposed on a chronic bulging disc, and recommended an L4-L5 epidural injection. He specifically stated, “My interpretation is that he is [sic] an acute herniated disc at that level.  The acute rupture is likely what was precipitated by the accident.”  Dr. Nazar performed lumbar surgery in May 2015.  He began treating Roberts for neck pain in August 2015.  A cervical MRI revealed degenerative changes from C3-C4 to C6-C7 for which he did not recommend surgery.  No additional reports were provided by Dr. Nazar.  He was not deposed, and the evidence does not reflect what records he may or may not have reviewed to assist with his determination.

The records from Bardstown Ambulatory Care reflect treatment for Roberts’ cervical and lumbar pain, in addition to his knee, right hip and shoulder pain.  The records from Flaget Memorial Hospital reflect treatment for lumbar degenerative disc disease with right L4-L5 radiculopathy.  Dr. Htin administered an epidural injection which provided some relief.

AFS filed as evidence the letter from Dr. Chou dated January 19, 2015.  Dr. Chou stated Roberts reached MMI on January 19, 2016.  He assessed a 10% impairment rating pursuant to the AMA Guides for Roberts’ lumbar condition.  He also limited Roberts’ lifting to no greater than thirty-five pounds.  He also stated Roberts should continue to use Baclofen, Hydrocodone and Mobic.  Dr. Chou did not address causation.

Dr. Brian Sonsin was Roberts’ treating physician prior to the accident.  AFS submitted his treatment records from January 4, 2012 through July 2, 2013.  Those records reflect Roberts treated for a pinched nerve in his right hip in January 2012; sciatica in April 2012; sciatica and knee pain in August 2012; myalgias, fatigue and arthralgias in February 2013; right shoulder pain in June 2013; and bilateral hand and fingertip numbness with neck pain in July 2013.  The records include prescriptions for Hydrocodone and Tramadol.

AFS also filed treatment records of Dr. Mehta from Louisville Bone & Joint for treatment from December 6, 2011 through February 12, 2014.  In December 2011, Dr. Mehta diagnosed Roberts with bilateral knee degenerative joint disease for which he continued to treat until December 2013.  The records also reflect Dr. Mehta began treating Roberts for right hip pain in September 2013.  The treatment note of February 12, 2014 reflects Roberts complained of low back and right hip pain with right leg pain.  Dr. Mehta indicated this probably reflected radiculopathy.  He prescribed a Medrol Dosepak and Flexeril to be taken as needed.  Dr. Mehta indicated he would follow up in three weeks, but no subsequent records were filed as evidence.

Dr. Rick Lyon, an orthopedic surgeon, evaluated Roberts at AFS’s request on May 5, 2016.  Dr. Lyon recited the history of the March 7, 2014 accident.  He noted Roberts attributed his low back and right leg pain to the accident, despite having treated for these complaints one month prior.  Roberts reported his previous condition resolved after taking a dosepak.  Dr. Lyon diagnosed low back pain status post discectomy at L4-L5; neck pain with multilevel degenerative joint disease; Osgood-Schlatter’s in the knees; bilateral patello-femoral pain; and right sternoclavicular joint pain.  Dr. Lyon determined Roberts did not sustain a new injury or sciatica attributable to the lumbar spine in the March 2014 accident.  Likewise, he determined Roberts did not sustain cervical injuries in the March 2014 accident.  He found Roberts sustained direct impact injuries to both knees in the accident for which he had reached MMI.  Dr. Lyon assessed a 4% impairment rating pursuant to the AMA Guides, of which half was attributable to the right knee, and half to the left.

A benefit review conference (“BRC”) was held on July 13, 2016.  The BRC order and memorandum reflect the contested issues include injury as defined, benefits per KRS 342.730, work-relatedness/causation, exclusion for pre-existing disability/impairment; TTD; future medical benefits; and whether Roberts has the ability to return to the type of work performed on the date of the accident.

In the decision rendered on September 21, 2016, the ALJ found the evidence compelled a finding that the bilateral knee conditions were work-related.  He found the 3% impairment rating assessed by Dr. Rice for the knee conditions was most appropriate.  He dismissed the claim for the cervical condition based upon Dr. Lyon’s opinion.  He found the lumbar condition is work-related based upon Dr. Nazar’s opinion.  He adopted the 10% impairment rating assessed by Dr. Chou for the lumbar condition.  Based upon the restrictions outlined by Dr. Chou, the ALJ determined Roberts does not retain the capacity to return to the type of work performed on the date of the injury.  The ALJ awarded TTD benefits through January 19, 2016 when Dr. Chou determined Roberts had reached MMI.  He then calculated the PPD benefits as $156.89 weekly based upon a 10% impairment rating with the application of a 3.2 multiplier pursuant to KRS 342.730(1)(c)1 & 3, and awarded medical benefits for the L4-L5 and bilateral knee injuries.

Roberts filed a petition for reconsideration arguing the ALJ failed to include the 3% for the knee conditions in calculating the award of PPD benefits.  He also argued that pursuant to KRS 342.730(1)(c)1 & 3, the multiplier of 3.4 was applicable instead of 3.2.  AFS filed a petition for reconsideration arguing the ALJ erred in finding Roberts’ low back condition entirely work-related.  In the order issued December 1, 2016, the ALJ denied AFS’s petition for reconsideration.  The ALJ sustained Roberts’ petition, and amended the award of PPD benefits based on a 13% impairment rating with the application of the 3.4 multiplier for a weekly payment of $239.95.

On appeal, AFS argues the ALJ misapplied the standard of law for exclusion of pre-existing active impairment.  AFS also argues the decision is not supported by substantial evidence. 

AFS had the burden of proving Roberts had a pre-existing active disability, and whether the PPD award for his lumbar condition should be reduced.  Since AFS was unsuccessful on those issues, the questions on appeal are whether the ALJ applied the appropriate standard, and 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 a determination of whether the findings made by the ALJ 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).

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 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 supporting 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).  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).

In this instance, the evidence does not compel a finding in AFS’s favor in reducing the award of PPD benefits for the lumbar condition.  There is no question Roberts previously treated for right shoulder, lumbar, and right knee complaints.  Likewise, there is no question he treated with Dr. Mehta less than a month prior to the date of the accident for right hip pain, which may have indicated radiculopathy.  However, the only information in the record regarding the interim between February and March is Dr. Lyon’s note that Roberts reported he took a dosepak and the problem resolved.  Likewise, Dr. Nazar clearly and repeatedly stated the condition for which he performed surgery was due to the March 7, 2014 accident.  The evidence does not establish what information was provided to Dr. Nazar, or all of the elements he relied upon in reaching his determination.  He was not deposed, and there is no clear outline of the records upon which he relied.

To succeed in establishing a pre-existing active condition, AFS was required to prove it was both symptomatic and impairment ratable prior to the date of the accident.  Finley v. DBM Technologies, 217 S.W.3d 261 (Ky. App. 2007).  In this case, the ALJ determined that notwithstanding Dr. Rice’s testimony, Dr. Nazar opined Roberts sustained an acute herniated disc as a result of the work injury which necessitated surgery.  Therefore, he found the entirety of the impairment rating assessed by Dr. Chou was due to the injury and surgery, not to an active condition.

  Likewise, the record is completely devoid of any evidence establishing Robert’s ability to work was in any way restricted or that he was disabled in any manner prior to the date of the injury.  The evidence establishes Roberts was able to work on a daily basis performing his usual job until the accident.  He continued to work until the surgery performed in May 2015.  Likewise, Dr. Nazar clearly opined, as relied upon by the ALJ, Roberts sustained a herniated disc at L5-S1 on March 7, 2014 which ultimately required surgery.    While AFS introduced medical evidence consisting of the cross-examination of Dr. Rice regarding a pre-existing impairment, the evidence does not compel a finding Roberts had a pre-existing active disability prior to the date of injury due to his lumbar condition.

          AFS also argues the ALJ’s decision regarding Roberts’ lumbar spine is not supported by substantial evidence.  Citing to Cepero v. Fabricated Metals Corp., 132 S.W.3d 839 (Ky. 2004), AFS argues an opinion from a physician regarding causation who relies upon an inaccurate or largely incomplete history cannot constitute substantial evidence.  This case is distinguished from Cepero, which is 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.  There is no evidence of such failure in this case.  The burden was on the employer to prove this failure and it did not do so.  As noted above, only Dr. Nazar’s treatment records were introduced.  No report was filed, and he was not deposed.  The record does not establish what he may or may not have considered in finding Roberts’ herniated disc was caused by the March 7, 2014 work injury.        

          Based upon the foregoing, we determine the ALJ appropriately considered the evidence, and provided a correct analysis in his assessment of Roberts’ lumbar condition.  The record does not compel a finding of reducing the award of benefits for the lumbar condition due to a pre-existing disability, and the ALJ’s determination is supported by substantial evidence.  The ALJ’s findings will not be disturbed.

          Accordingly, the September 21, 2016 Opinion, Order and Award and the December 1, 2016 Order on Reconsideration rendered by Hon. Chris Davis, Administrative Law Judge are hereby AFFIRMED.

     ALL CONCUR.

 

 

 

COUNSEL FOR PETITIONER:

 

HON KRISTIN M DOWNS

771 CORPORATE DR, STE 101

LEXINGTON, KY 40503

 

COUNSEL FOR RESPONDENT:

 

HON JAMES W SPIES

420 WEST LIBERTY ST, STE 260

LOUISVILLE, KY 40202

 

ADMINISTRATIVE LAW JUDGE:

 

HON CHRIS DAVIS

657 CHAMBERLIN AVE

FRANKFORT, KY 40601