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