*/
200-CA-00(NP)

RENDERED:  APRIL 7, 2017; 10:00 A.M.

NOT TO BE PUBLISHED

 

Commonwealth of Kentucky

Court of Appeals

 

NO. 2016-ca-000693-wc


 

 

landmark MEDIA PUBLISHING, LLC

D/B/A STANDARD PUBLISHING COMPANY

AS INSURED/ADMINISTERED BY

PRAETORIAN/QBEAI                                                               APPELLANT

 

 


 

                           PETITION FOR REVIEW OF A DECISION

v.                   OF THE WORKERS’ COMPENSATION BOARD

                                        ACTION NO. wc-14-90414

 

 

 

MARK BRANHAM; LANDMARK MEDIA
PUBLISHING, LLC D/B/A STANDARD
PUBLISHING COMPANY AS INSURED BY
TRAVELERS; AND ALJ R. ROLAND CASE
                                                                                                      APPELLEES

 

 

 

OPINION

AFFIRMING

 

** ** ** ** **

 

BEFORE:  ACREE, JONES AND J. LAMBERT, JUDGES.

ACREE, JUDGE:  An Administrative Law Judge (ALJ) awarded Appellee Mark Branham medical expenses for care and relief from the effects of an alleged work-related injury.  The Workers’ Compensation Board affirmed.  Appealing, Appellant Landmark Media Publishing, LLC d/b/a Standard Publishing Company claims the ALJ and the Board ignored Branham’s medical record, which revealed Branham’s condition was identifiable, symptomatic, and surgical prior to the work incident and, instead, erroneously relied on the unreliable opinion of a plaintiff independent medical exam physician.  We affirm.

FACTS AND PROCEDURE

                   Branham worked as a press operator for Standard Publishing beginning in 1995.  His job duties included loading press machines with paper rolls weighing between 900 and 2,000 pounds, and equaling out the ink cartridges.  This process involved frequent squatting, bending, and climbing a steep ladder.  Branham was also required to maintain the equipment by changing twenty-four large rubber mats every six months.  Changing each mat required Branham to loosen a bolt using a three foot long wrench, which placed significant “stress and strain” on the body.

                   Branham filed a Form 101 in December 2014 seeking compensation for four injuries: two related to his left knee and two related to an abdominal hernia.  The hernia is the subject of this appeal.  A formal hearing was held on August 7, 2015.  A partial summary of the evidence follows.[1]

                   In 1999, Branham underwent laparoscopic surgery to remove his kidney, which he then donated to his brother.  Branham testified that, post-surgery, he experienced pain in his stomach and sides for which he was prescribed a probiotic. 

                   In December 2012, Branham treated with Dr. Elizabeth Doyle, his family physician, complaining of abdominal pain.  Dr. Doyle observed mild tenderness in the right lower quadrant of Branham’s abdomen.  She observed Branham exhibited no distension and no mass, and “hernia confirmed negative in the right inguinal area and confirmed negative in the left inguinal area.”  (R. 152).  Dr. Doyle ordered a CT scan of Branham’s abdomen.

                   The CT scan, performed on December 12, 2012, revealed a “small fat-containing umbilical hernia.”  However, the radiologist interpreting the scan did not mention the hernia in his impressions.

                   Dr. Paul Rafson, a general surgeon, examined Branham on December 26, 2012.  Dr. Rafson had treated Branham on several prior occasions.  The doctor noted Branham had a history of and had been diagnosed with reflux type symptoms.  Dr. Rafson described Branham’s recent CT as “unremarkable.”  (R. 17).  The doctor also observed Branham had “tenderness in the right upper quadrant [of his abdomen] and perhaps a small lipoma subcutaneously in the right upper quadrant,” and that Branham had “a small umbilical hernia which may be related to his laparoscopic procedure or not.”  (Id.).  Dr. Rafson recommended a gallbladder ultrasound.  Branham testified at the final hearing that Dr. Rafson also informed him that his stomach was not emptying properly and recommended a probiotic that “seemed like it kind of helped it a little bit.”  (R. 505).

                   Branham returned to Dr. Rafson in April 2013 complaining of abdominal pain that was “bearable” but “would come and go.”  (R. 506).  Dr. Rafson stated in a clinical note:

[Branham] had an EGD that showed some retained gastric contents.  I tried him on some Reglan with only mixed results.  . . . When I discussed his abdominal discomfort today, he describes it as mostly related to activity and seems to be most tender around his umbilical area where he does have an umbilical hernia.  Rather than going ahead with a HIDA scan to further workup his gallbladder situation, I suggested that we fix his umbilical hernia first and see if that is the problem . . . .

 

(R. 434).  Branham elected not to proceed with surgery.  He testified he “didn’t feel like [surgery] was warranted,” as the pain was not “killing” him.  (R. 506). 

                   Branham testified that, on July 8, 2013, he was wielding a wrench to change a mat on a press machine when he felt a tearing sensation in his abdominal area around his navel.  He felt immediate excruciating pain.  Branham further aggravated his abdominal pain on July 31, 2013, when lifting computer monitors at work.  Branham testified that, after these events, when he looked in a mirror he could see a “little bulge in my bellybutton.”  (R. 507).

                   Branham returned to Dr. Doyle’s practice, but was seen by another physician, Dr. Stephen Payne.  Branham reported to Dr. Payne he was lifting something heavy at work on July 8, 2013, and had been having abdominal pain ever since along with associated nausea and a decrease in appetite.  Dr. Payne observed tenderness and a small area of prominence lateral to the umbilicus on the right.

                   Branham treated with Dr. Rafson again in August 2013.  Dr. Rafson performed hernia repair surgery in December 2013. 

                   Branham returned to work in February 2014.   He testified that on April 1, 2014, he was tightening a bolt on a press machine when he again felt a ripping sensation in his abdomen.  Dr. Doyle referred Branham to Dr. Richard Pokorny, a general surgeon.

                   Dr. Pokorny examined Branham on September 8, 2014, and subsequently performed a hernia repair surgery on October 7, 2014.  Branham returned to work on November 3, 2014. 

                   Branham testified his condition improved following the second surgery, but he continues to experience abdominal pain when performing intense activity, such as strenuous lifting or pulling.  He struggles to perform all aspects of his job and often delegates physical tasks to other employees.

                   Gary Swaney, the plant manager at Standard Publishing, also testified.  Swaney stated Branham is the best employee in the press room.  He has observed no deficiencies in Branham’s physical ability to perform his job.  Swaney confirmed Branham is a supervisor and retains the authority to delegate tasks to his subordinates. 

                   Dr. Warren Bilkey conducted an independent medical examination (IME) on March 2, 2015.  He opined that Branham sustained a work-related “injury abdominal strain, umbilical, incisional hernia” on July 8, 2013, and a work-related recurrent strain and umbilical hernia on April 1, 2014.  Dr. Bilkey thought Branham had straightforward injuries.  The doctor found no permanent impairment related to the July 2013 abdominal injury, but assigned a 2% whole person impairment for the April 2014 abdominal injury.  Dr. Bilkey concluded by noting:

It is pertinent to discuss causation with respect to the hernia condition.  The hernias that Mr. Branham had occurred at the site of the prior laparoscopic surgery.  That surgery caused a weak spot to occur in the abdominal wall making the hernia more likely.  However, the hernia did not exist as a symptomatic concern until July 8, 2013 and then there was surgery to repair it.  The second work injury that of 4/1/14 caused a recurrence of symptomatic hernia . . . .

 

(R. 255-56).  In a supplemental letter dated June 3, 2015, Dr. Bilkey again stated that Branham suffered a work-related injury to his abdominal wall by pulling on a wrench on July 8, 2013, and the pulling on the wrench aggravated a pre-existing hernia into symptomatic and disabling reality. 

                   Dr. Ellen Ballard, at Standard Publishing’s request, conducted an IME on April 1, 2015.  Dr. Ballard’s opinion was, at least initially, consistent with that offered by Dr. Bilkey.  She opined that both hernias were work-related as they were caused by twisting and heavy work at Standard Publishing.  Dr. Ballard noted it was possible that Branham’s prior laparoscopic surgery in 1999 may have led to his hernia, but that his work appeared to have aggravated it and caused him to need to have surgery.  Dr. Ballard found Branham to be at maximum medical improvement; assigned a 0% impairment rating for both hernias; and found Branham did not require additional treatment or work restrictions. 

                   Dr. Ballard later changed her mind.  She submitted an addendum to her IME report on August 6, 2015, stating:

On further review of the records regarding Mr. Branham, he was symptomatic from his umbilical hernia on April 13, 2013.  The umbilical hernia is likely related to the fact that he had a laparoscopic procedure performed to remove his kidney when he donated a kidney to his brother.  His subsequent complaints are related to non-work related problems rather than to a work-related cause of his umbilical hernia.  The note from April 13, 2013, clearly indicates that it was recommended that he have an umbilical hernia repair prior to the date of his reported work injury on July 8, 2013.

 

(R. 490).

                   The ALJ found Branham’s abdominal injuries to be causally related to his work.  The ALJ also found Dr. Ballard’s oscillating opinions to be of particular concern.  He noted that Dr. Ballard, upon reviewing twenty medical records, concluded that both hernias were work-related.  In her subsequent report she altered her opinion on “further review of the records,” but failed to indicate that she reviewed additional records or identify the basis for her change of opinion.  Ultimately, the ALJ was persuaded by Dr. Ballard’s initial opinion, Dr. Bilkey’s medical opinion and Branham’s lay testimony.  The ALJ explained:  

Although the prior surgery in 1999 and complaints and findings prior to July 8, 2013 are worrisome to the Administrative Law Judge, the plaintiff’s report of the injury to his family physician and the original opinion of Dr. Ellen Ballard and the opinion of Dr. Warren Bilkey persuade the Administrative Law Judge the injury of July 8, 2013 further aroused a pre-existing condition into disabling reality necessitating the surgery and the Administrative Law Judge therefore finds the July 8, 2013 injury to be work-related and will award medical expenses but not permanent partial or temporary total.

 

The Administrative Law Judge will note in passing he has great respect for the opinion of Dr. Ballard as his experience is that she will make findings when they are warranted regardless of whom the examination is conducted.  The Administrative Law Judge is simply unable to find any basis for her change of opinion and will therefore go with her initial finding and opinion . . . .

 

The last injury occurred on April 1, 2014 and was a recurrent hernia . . . . The Administrative Law Judge will not repeat his review of Dr. Ballard’s two (2) reports.  However, the Administrative Law Judge would note that in the second report Dr. Ballard does not clearly state whether her revised opinion applies to the April 1, 2014 injury.  The Administrative Law Judge finds that this injury was work-related[.] . . . .

 

(R. 608-10).  The ALJ, relying on Dr. Ballard’s 0% impairment rating, declined to find a permanent impairment because of the April 1, 2014 injury.

                   Standard Publishing filed a petition for reconsideration requesting that the ALJ reconsider its finding of work-relatedness as it pertained to the July 8, 2013 injury.  The ALJ denied Standard Publishing’s reconsideration petition.

                   Standard Publishing then appealed to the Board.  It argued the ALJ abused its discretion and erred in finding Branham sustained a work-related hernia injury on July 8, 2013.  The Board was not persuaded.  It reasoned:

The question on appeal is whether there is substantial evidence to support the ALJ’s decision. Here, Branham testified he experienced specific traumas on the two alleged injury dates.  A bulge in his abdomen was first observed after the 2013 work injury.  Branham testified the type of pain he experienced following the work injuries was different than any pain he experienced prior to the injuries.  Although a December 2012 CT scan revealed a small umbilical hernia, a reasonable inference is that this was only an incidental finding and not a cause of the complaints since the reviewing physician did not list the umbilical hernia in the impressions in his CT report.  Although surgery had been discussed prior to the work injuries, Branham had been able to work continuously with his condition.  It was not until he experienced the work traumas that he viewed his condition as serious enough to warrant surgery.  After recovering from the first hernia repair, Branham returned to work performing his regular duties without difficulty until he experienced additional trauma at work on April 1, 2014 when he again experienced a tearing sensation while pulling on a wrench.

 

Dr. Bilkey believed the incident of pulling on a wrench on July 8, 2013 aggravated the pre-existing hernia into disabling reality, and the April 1, 2014 incident caused a recurrence of the hernia.  Substantial evidence supports a conclusion Branham experienced a harmful change as a result of the work-related trauma.  Dr. Bilkey’s opinion is substantial evidence that the July 8, 2013 incident made Branham’s condition materially worse and necessitated surgical repair.  Likewise, Dr. Bilkey’s opinion is substantial evidence the incident on April 1, 2014 also caused a harmful change necessitating the additional surgical repair . . . .

 

We find no error in the ALJ’s reliance on the original opinion of Dr. Ballard.  Dr. Ballard originally opined the physical nature of Branham’s work caused the hernias.  Dr. Ballard never explained with specificity why she reached a contrary opinion regarding causation upon second review of the same evidence.  Dr. Ballard’s original opinion is consistent with Dr. Bilkey’s opinion and Branham’s account of the work-related incidents and the tearing sensations he experienced on those occasions.  It is within the ALJ’s discretion as fact-finder to determine the quality of the evidence.  Because Dr. Ballard did not give a detailed or precise reason for the change in her opinion, we conclude it was within the ALJ’s discretion to afford more weight to Dr. Ballard’s first opinion.

 

(R. 777-79) (internal citations omitted).

                   This appeal followed.

STANDARD OF REVIEW

                   This Court’s role in reviewing a decision of the Board “is to correct the Board only where the Court perceives the Board has overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause gross injustice.”  W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).       

ANALYSIS

                   Standard Publishing argues the ALJ erred in finding Branham’s July 8, 2013 hernia injury work-related.  It contends the ALJ’s reliance on Dr. Bilkey’s medical opinion on causation which, according to Standard Publishing, was obviously and substantially contradicted by the medical records, was unreasonable and a clear abuse of the ALJ’s discretion.  We are not persuaded.

                   Where, as here, the claimant succeeds before the ALJ and the employer appeals a finding to the Board, the employer must “show that no substantial evidence supported the finding, i.e., that it was unreasonable under the evidence.”  Kroger v. Ligon, 338 S.W.3d 269, 273 (Ky. 2011) (footnote omitted).  Evidence is substantial if, when taken alone or because of all the evidence, it has probative value to induce conviction in the mind of a reasonable person.  Burton v. Foster Wheeler Corp., 72 S.W.3d 925, 929 (Ky. 2002).  We review an ALJ’s award to determine whether his findings were reasonable under the evidence.  Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986).  “[A] finding that is unreasonable under the evidence is subject to reversal on appeal.”  Lizdo v. Gentec Equipment, 74 S.W.3d 703, 705 (Ky. 2002).

                   A pre-existing condition that is both asymptomatic and produces no impairment prior to the work-related injury constitutes a pre-existing dormant condition.  Finley v. DBM Techs., 217 S.W.3d 261, 265 (Ky. App. 2007).  The work-related arousal of a pre-existing dormant condition into disabling reality is compensable.  Id.  However, a pre-existing active condition is not compensable.  Id.  To be active, an underlying pre-existing condition must be symptomatic and impairment ratable under the AMA Guidelines immediately prior to the work-related injury.  Id.

                   Standard Publishing acknowledges that Dr. Bilkey’s medical opinion was that the work incident on July 8, 2013, caused Branham’s pre-existing hernia to become symptomatic and compensable.  The thrust of its argument to this Court is that Dr. Bilkey’s opinion is so unreliable and against the weight of the medical evidence it cannot possibly amount to substantial evidence to support the ALJ’s finding of work-relatedness. 

                   Standard Publishing argues Branham’s hernia was symptomatic prior to his alleged work injury in July 2013.  It points out that Branham presented to Dr. Doyle with complaints of abdominal pain in December 2013, at which time a CT scan of the abdomen confirmed an umbilical hernia.  When Branham returned to Dr. Rafson in April 2013 – three months before the alleged work injury – again complaining of abdominal pain, the hernia was symptomatically disabling enough as to require surgery.  Standard Publishing contends the medical records as a whole reveal the hernia was symptomatic, identifiable, diagnosed, and surgical before the first alleged work-related hernia date.  Standard Publishing argues it was patent error for the ALJ and the Board to rely on medical causation opinions that are in direct contradiction to the undisputed medical facts. 

                   Medical records, like all documentary evidence, are subject to some degree of interpretation.  Standard Publishing interprets the medical records in this case as demonstrating, unequivocally, that Branham’s hernia was symptomatic, diagnosed, and surgical all prior to the July 2013 work injury.  Dr. Bilkey did not share Standard Publishing’s view.  Neither did the ALJ nor the Board. 

                   We, like the ALJ and the Board, see nothing in the medical records directly linking the umbilical hernia to Branham’s abdominal pain prior to the work injury in July 2013.  In December 2013, Dr. Doyle treated Branham’s abdominal discomfort with a probiotic.  She did not diagnosis a symptomatic hernia.  The radiologist interpreting Branham’s subsequent CT scan identified the hernia in his findings, but did not mention it in his clinical impressions.  Dr. Rafson, despite knowing of the hernia in December 2013, described the CT scan as unremarkable and elected to focus on Branham’s gallbladder as the possible source of his pain.  Dr. Rafson noted that the hernia might or might not be related to Branham’s prior laparoscopic procedure.  In April 2013, Dr. Rafson suggested hernia surgery simply to “see if that is the problem.”  Dr. Rafson’s statement lacks conviction.  

                   Dr. Bilkey was simply not convinced that the hernia was symptomatic and thus the source of Branham’s abdominal pain prior to July 2013.  And, there is room in the medical record from which Dr. Bilkey could make this finding.  It is further supported by Branham’s lay testimony that he experienced a tearing sensation in his abdominal in July 2013, after which the nature and character of his abdominal pain changed dramatically.  We cannot say Dr. Bilkey’s medical opinion is unreasonable or against the weight of the evidence such that it was error for the ALJ and the Board to rely on it as evidence to support their respective findings that Branham sustained a work-related injury on July 8, 2013.

                   Standard Publishing also appears to argue that it was error for the ALJ to rely upon Dr. Ballard’s first medical opinion that the hernias were caused by work because of her subsequent corrected opinion of non-work relatedness.  The Board satisfactorily and fully disposed of this argument.  We agree with the Board’s reasoning.  In any event, Dr. Ballard’s opinion was merely secondary to that offered by Dr. Bilkey.  Even if the ALJ erred in relying on it, Dr. Bilkey’s opinion still stands as substantial evidence to support the ALJ’s finding.

                   In sum, we find Dr. Bilkey’s medical opinion constitutes substantial evidence in support of the ALJ’s finding that Branham sustained a work-related injury on July 8, 2013.   The Board committed no error in upholding the ALJ’s findings and decision.

CONCLUSION

                   We affirm the April 15, 2016 Opinion of the Workers’ Compensation Board. 

 

                   ALL CONCUR.

 

BRIEF FOR APPELLANT:

 

Thomas C. Donkin
Lexington, Kentucky

 

BRIEFS FOR APPELLEES:

 

Scott E. Burroughs
Louisville, Kentucky

 

Tamara Cotton
Louisville, Kentucky

 



[1] We have omitted from this opinion facts and evidence related to Branham’s knee injuries as they are not pertinent to this appeal.