*/
Workers’
Compensation Board
OPINION ENTERED: March 10, 2017
CLAIM NO. 201598230
ANDRE PYATT PETITIONER
VS. APPEAL FROM HON. CHRIS DAVIS,
ADMINISTRATIVE LAW JUDGE
UPS SUPPLY CHAIN SOLUTION
HON. CHRIS DAVIS,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. Andre Pyatt
(“Pyatt”) appeals from the September 6, 2016 Opinion
and Order and the October 31, 2016 Order rendered by Hon. Chris Davis,
Administrative Law Judge (“ALJ”). The
ALJ found Pyatt sustained no permanent work-related
injury and dismissed the claim with the exception of benefits already
paid. On appeal, Pyatt
argues the ALJ erred in finding no permanent work-related injury. Because the ALJ’s determinations are supported
by substantial evidence and a contrary result is not compelled, we affirm.
Pyatt testified by deposition on
April 7, 2016 and at the hearing held July 26, 2016. Pyatt was employed
by UPS Supply Chain Solutions (“UPS”) as a picker, moving boxes of products to
fill orders. He injured his low back in
June 2014 when he felt a pop in his back while stooping to lift a heavy item. Pyatt described his
pain as being in his “whole back” with radiation down his legs to his
feet. At his deposition, he denied any
hip problem after this first incident. Pyatt sought medical treatment and was placed on light
duty. He worked at a position within his
restrictions until January 15, 2015, when he returned to the warehouse picker
position. However, his low back pain
progressed during his shift. He believed
the pain was caused by the repeated lifting on that day. He testified his hip pain began after January
15, 2015.
At the hearing, Pyatt indicated
he heard his back pop and felt a burning sensation in his back while picking up
boxes on January 15, 2015. He described
his injury as “the same injury” as in June 2014 and in the same area. Pyatt indicated he
never completely healed from the June 2014 injury and continued to have low
back, right hip and groin pain.
Pyatt provided a history of an
acute onset of low back pain while lifting on January 15, 2015. He complained of ongoing low back pain
radiating to his buttocks and hips, right greater than left. Pyatt acknowledged
he was involved in a motor vehicle accident at age 15, sustaining a hip
dislocation that required surgery. He
indicated he recovered from surgery and had no significant ongoing problems
with chronic hip or back pain thereafter.
Pyatt reported a work incident in June 2014
produced some low back pain, but he was able to return to work after four
months.
Dr. Jules J. Barefoot performed an independent medical
evaluation (“IME”) on December 8, 2015. Dr.
Barefoot diagnosed end-stage degenerative osteoarthritis of the right hip. He indicated the condition was dormant,
asymptomatic, and non-disabling prior to the work injury. The workplace activities activated the
condition into disabling reality. Dr.
Barefoot opined Pyatt’s low back pain was likely
referred pain from the right hip region.
He considered Pyatt at maximum medical
improvement (“MMI”) if he receives no further treatment. Dr. Barefoot assigned a 20% impairment rating
pursuant to the American Medical Association Guides to the Evaluation of
Permanent Impairment, 5th Edition (“AMA Guides”) for arthritis of the
right hip with bone on bone contact.
UPS submitted treatment records of Dr.
Peter Urda of River City Health Services. On January 16, 2015, Pyatt
reported pain from his shoulders down to the lower back. Dr. Urda noted a
previous injury to the same body area in June 2014 and opined Pyatt sustained an exacerbation of the prior injury. Dr. Urda diagnosed
cervical and lumbar sprains. Pyatt returned on January 23, 2015, continuing to complain
of pain in his lower back up into his shoulders.
Pyatt
submitted records from Dr. Venu Vemuri
and Madhusudhan R. Yakkanti
of the Louisville Orthopaedic Clinic. On March 10, 2015, Dr. Vemuri
diagnosed right hip end-stage osteoarthritis, low back pain, and cervical
radiculopathy. He opined the hip condition
was causing “a lot” of the back pain, and recommended a cervical MRI. Dr. Vemuri also referred
Pyatt to Dr. Yakkanti for evaluation
of the right hip degenerative joint disease.
Dr. Yakkanti diagnosed
right hip degenerative osteoarthritis, post-traumatic, and particularly
noted it has been eighteen years since the time of injury. He indicated Pyatt
possibly had pre-existing arthritis which was brought into reality by his
recent physical activity at work. He
agreed with Dr. Vemuri “that most of his back
symptoms are possibly related to his right hip arthritis.”
UPS submitted an August 11, 2015 form
that was sent to and completed by Dr. Vemuri. Dr. Vemuri
diagnosed low back pain and indicated Pyatt was at
MMI for his back, requiring no restrictions.
A return to work note on August 11, 2015 indicated Pyatt
was able to work with restrictions from August 12, 2015 through September 1,
2015, and with no restrictions after September 2, 2015.
Dr. Ronald Fadel
conducted an IME on June 3, 2015. Dr. Fadel diagnosed lumbar spine strain/sprain injury and end-stage
degenerative disease of the right hip. He
anticipated complete resolution of the low back pain in six to eight
weeks. He opined Pyatt’s
low back pain was not related to his pre-existing hip condition, and found no
work–related injury to the neck.
After reviewing additional records and
conducting a second examination, Dr. Fadel prepared a
second report on June 22, 2016. The
examination was unremarkable except for complaints of tingling over the dorsum
of both feet with soft touch stimulation.
Dr. Fadel diagnosed status post strain/sprain
injury of the lumbar spine; possible age related degenerative spondylosis with
secondary foraminal/canal stenosis; possible lumbar discopathy with secondary compression neuropathy; end stage
post-traumatic degenerative joint disease right hip; and possible occult
peripheral neuropathy. Dr. Fadel doubted Pyatt had any
“compelling residuals” from the work injury.
Regarding the presence of any pre-existing active impairment, Dr. Fadel stated:
His history supports a pre-existing, if not active lumbar
disorder and his evaluation confirmed the presence of pre-existing
post-traumatic degenerative arthritis of his right hip entirely unrelated to
the subject injury and based upon the history of injury, my examinations and
review of records not brought into disabling reality by the subject injury.
Dr. Fadel disagreed with Dr. Barefoot’s
diagnoses and conclusions. He stated it is
medically illogical to relate the low back complaints to the hip disease. Rather, it typically presents as groin and/or
medial thigh pain. Dr. Fadel indicated all of the medical records he reviewed and Pyatt’s deposition testimony establish his injury complaint
was to the low back.
The ALJ’s findings relevant to this appeal are as follows:
As
for the low back condition no doctor has specifically opined or even alluded to
the low back being a separate work-related condition. I cannot further analyze a negative. There is no evidence of record to find that
the low back is a separate work-related condition.
As
for the right hip condition it is not disputed that the Plaintiff had a
childhood hip condition which required medical treatment and surgery. It is also not disputed that, at best, Dr.
Barefoot has diagnosed the Plaintiff with “end-stage” right hip arthritis. In other words his condition clearly existed
prior to January 15, 2015.
The
Plaintiff argues that despite the advanced state of his condition and the prior
medical treatment that as of January 15, 2015 the condition was pre-existing
and dormant. He argues that he had never
been assigned an impairment rating and was under no restrictions or
occupational disability. He therefore
argues for a finding that his condition was pre-existing and dormant and
brought into disabling reality by the work accident.
However
for that part of the analysis to apply the condition must now be in a disabling
reality worse than prior to the date of the injury. There is no evidence, beyond the Plaintiff’s
testimony and the opinion of Dr. Barefoot, based entirely on the Plaintiff’s history,
that the condition has worsened or been brought into disabling reality. Dr. Barefoot’s
opinion, even under these circumstances, constitutes reliable and substantial,
but not compelling evidence.
Dr.
Fadel has affirmatively stated that “The hip is
irrelevant in this case and is not the cause of his current complaints” (Fadel, 06/03/15, p. 6)
Given
that the Plaintiff has a significant history of pre-existing hip surgeries
[sic] and degeneration, that his current diagnosis even by Dr. Barefoot is “end
stage” degeneration of the hip, the lack of any expert other than Dr. Barefoot
even alluding to the hip being work-related or there being a permanent work
injury and in specific reliance on Dr. Fadel I find
the right hip to also not be work-related.
Therefore
the Plaintiff has no work-related condition.
His transitory strain he may or may not have had to the lower back has
resolved without any further benefits payable.
This
claim is dismissed in its entirety except as to medical benefits already paid
for the low back.
Pyatt filed a petition for
reconsideration raising essentially the same arguments he makes on appeal. In his October 31, 2016 order on
reconsideration, the ALJ reiterated his conclusion the hip condition was
neither caused by nor brought into disabling reality by any work injury, and
overruled the petition for reconsideration.
On appeal, Pyatt argues the ALJ
erred in failing to find a work-related injury.
He concedes his right hip condition pre-existed the work incident, but asserts
there is no evidence the condition was active and symptomatic immediately prior
to the work injury, a conclusion supported by the opinions of Drs. Yakkanti and Vemuri. Thus, Pyatt
contends the condition cannot be excluded as pre-existing and active pursuant
to Finley v. DBM Technologies, 217 S.W.3d 261 (Ky. App. 2007).
In the alternative, Pyatt argues
the evidence compels a finding he sustained an injury to his lumbar spine
requiring further examination and diagnostic workup. He notes Dr. Fadel diagnosed
a lumbar strain/sprain and recommended an in-depth comprehensive lumbar
evaluation to determine whether Pyatt had reached MMI. Pyatt contends the
ALJ failed to properly analyze Dr. Fadel’s opinion.
As the claimant in a workers’ compensation proceeding, Pyatt had the burden of proving each
of the essential elements of his cause of action. Snawder
v. Stice, 576 S.W.2d 276 (Ky. App. 1979). Pyatt bore the
burden of proving the alleged work injuries produced a permanent harmful change
to his hip and/or back. Because he was
unsuccessful in that burden, the question on appeal is 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) superseded by statute on other grounds as
stated in Haddock v. Hopkinsville Coating Corp., 62 S.W.3d 387 (Ky.
2001).
The evidence does not compel a finding
that either alleged work injuries produced a harmful change to Pyatt’s right hip.
The initial treatment records do not document a hip injury or complaints
of hip pain. Dr. Vemuri
noted imaging of the right hip revealed a severe deformity of the femur head
and bone-on-bone arthritis, likely due to congenital hip dysplasia or childhood
hip disease. The ALJ was convinced Pyatt had “end-stage” arthritis of the hip prior to the
first work injury, consistent with Dr. Barefoot’s
diagnosis. Although medical records
reflect Pyatt had subjective complaints of hip and
groin pain beginning months after the last alleged injury, no physician opines
there was a physical change in the condition of the hip caused by the alleged
work injuries. Dr. Fadel
specifically stated the hip condition was unrelated to the work injury and was
not brought into disabling reality by the work injury, which constitutes
substantial evidence to support the ALJ’s conclusion. The opinions of Drs. Vemuri
and Yakkanti to the contrary are merely conflicting
evidence. Where
evidence is conflicting, the ALJ, as fact-finder, has the discretion to pick and choose whom and
what to believe. Caudill v. Maloney’s Discount
Stores,
560 S.W.2d 15 (Ky. 1977).
Similarly,
Dr. Barefoot’s opinion that Pyatt
had referred pain in the low back from the hip condition was refuted by Dr. Fadel. Dr. Fadel opined that the hip condition could not produce back
pain, but rather as groin and/or medial thigh pain. Additionally, Pyatt’s
hip was not documented in the medical records as being symptomatic until March,
2015, well after the alleged work injuries.
Faced with conflicting medical evidence, the ALJ found Dr. Fadel’s opinion most persuasive, which was within his
discretion. Based on this evidence, the
ALJ could reasonably conclude Pyatt did not sustain a
work-related hip injury.
The evidence does not compel a finding
that Pyatt sustained a permanent harmful change to
his low back as a result of the alleged work injuries. The Louisville Orthopaedic
Clinic placed Pyatt at MMI for his back condition in
the August 11, 2015 return to work note and indicated no restrictions were
needed after September 2, 2015. The
parties stipulated that temporary total disability benefits were paid through
September 1, 2015. No physician assessed
a permanent impairment rating for the back condition. Thus, the record does not compel a finding
that Pyatt is entitled to any greater benefits than
the period already paid as ordered by the ALJ.
While Pyatt has identified
evidence supporting a different conclusion, there was substantial evidence
presented to the contrary. The ALJ acted
within his 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 6, 2016 Opinion and Order and the October 31, 2016 Order rendered by Hon. Chris Davis, Administrative Law Judge, are hereby AFFIRMED.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON SCOTT C JUSTICE
111 W WASHINGTON ST, SUITE 100
LOUISVILLE, KY 40202
COUNSEL
FOR RESPONDENT:
HON CHRISTOPHER NEWELL
10503 TIMBERWOOD CIRCLE
SUITE 112
LOUISVILLE, KY 40223
ADMINISTRATIVE
LAW JUDGE:
HON CHRIS DAVIS
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601
