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OPINION RENDERED: [Date Rendered]

Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED:  April 7, 2017

 

 

CLAIM NO. 201600225

 

 

MANDA COLEMAN                                  PETITIONER

 

 

 

VS.         APPEAL FROM HON. DOUGLAS W. GOTT,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

FORD MOTOR COMPANY/ASSEMBLY PLANT

HON. DOUGLAS W. GOTT,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

 

OPINION

AFFIRMING

 

                       * * * * * *

 

 

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

 

RECHTER, Member.  Manda Coleman (“Coleman”) appeals from the January 3, 2017 Opinion and Order and the January 10, 2017 Order rendered by Hon. Douglas W. Gott, Administrative Law Judge (“ALJ”).  The ALJ concluded Coleman failed to prove she sustained a work-related low back injury during her employment with Ford Motor Company/Assembly Plant (“Ford”).  On appeal, Coleman argues the evidence compels a finding in her favor.  We affirm.

          Coleman testified by deposition on April 12, 2016 and at the hearing held November 29, 2016.  Coleman worked at Ford as a floater performing various jobs in different areas of the plant.  On Thursday, October 1, 2015, she was placed on the motor line.  She used an air gun mounted on a tether slightly above the level of her head, which she pulled down to chest level in order to tighten three bolts per vehicle on 600 to 700 vehicles per shift.  Coleman acknowledged she had no symptoms at work that day.  She felt “achy” that night when she went to bed, which she described as normal for her. 

          The next morning, Coleman woke up with her leg “numbed up” and had difficulty walking.  Her toes were numb and cold.  She had back pain to the left side and into her left leg.  Coleman did not work on Fridays.  She reported to work in pain on Monday, informed Ford of her condition, and her supervisor allowed her to go home.  She returned to work on Tuesday, October 6, 2015 and went to Louisville Orthopaedic Clinic that day.  She ultimately underwent surgery on December 7, 2015, that “drastically” improved her condition. 

          Coleman first treated with Dr. Venu Vemuri of Louisville Orthopaedic Center on October 6, 2015 for her lumbar condition.  Dr. Vemuri recorded a history of intermittent low back pain since the 1990s.  Coleman indicated she developed bilateral lumbar pain around October 3, 2015 but could not recall any specific injury.  She mentioned pulling on an air gun the day before she developed pain, but was not sure this triggered the pain.  Dr. Vemuri ordered a lumbar MRI from High Field & Open MRI on October 8, 2015.  The MRI revealed a disc herniation at L5-S1 which appeared slightly increased from a previous MRI.  Dr.  Vemuri performed a microdiscectomy on December 7, 2015.

          Coleman next visited the Ford Occupational Health and Safety Information Management System on October 7, 2015 with complaints of back pain.  She provided the following history:

The only thing I can think of what happened was last Thursday I was doubled up on a job on the Motor Line – Delta part.  I was pulling down an overhang gun all day on Thursday.  Over the weekend my back started hurting more.

 

A note the next day indicates Coleman denied pain in her back at work or did not report any injury the prior Thursday.  Dr. Charles Sherrard noted Coleman did not have lumbar pain.  Rather, he indicated she had pain centered over the left posterior-lateral hip/gluteal area and radiating into her thigh.  Dr. Sherrard explained to Coleman that pulling the tethered gun would not be a mechanism of injury for her symptoms.   

          Coleman applied for short-term disability benefits from Unicare on October 21, 2015.  Dr. Vemuri completed the treating physician section.  He opined the disability was not due to the current occupation and was not the result of an injury. 

          Dr. John Johnson treated Coleman on October 22, 2015 for low back, left buttock pain and numbness and tingling into the left leg to her toes.  Coleman provided a history of developing low back pain and pain into her buttocks and left lower extremity two weeks earlier when lifting an overhead gun on the assembly line.  An MRI revealed a large herniated disc at L5-S1 on the left.   

          Dr. Jules Barefoot performed an independent medical evaluation (“IME”) on July 18, 2016.  He diagnosed status post left-sided L5-S1 discectomy with ongoing evidence of a persistent L5 neuropathy.  Dr. Barefoot assigned a 13% impairment rating pursuant to the American Medical Association, Guides to the Evaluation of Permanent Impairment, 5th Edition (“AMA Guides”).  Although Coleman had a history of back complaints in the past, Dr. Barefoot opined she was asymptomatic and had a non-ratable condition in her spine prior to the work injury.  He concluded the work injury activated the condition into its current symptomatic disabling reality and necessitated the surgery.                     

          Coleman underwent physical therapy at Pinnacle Physical Therapy.  At the initial evaluation on November 2, 2015, Coleman stated she woke up on October 2, 2015 with lower extremity numbness, tingling, pain and weakness.  She denied any symptoms the day before. 

          Ford submitted May 19, 2016 and July 6, 2016 reports of Dr. Martin Schiller who performed an IME at Ford’s request.  Coleman informed Dr. Schiller her back problems began in 2013 when she jumped out of a chair after seeing a bug.  Dr. Schiller noted this mechanism would not cause a disc herniation.  Prior to working at Ford, Coleman’s work as a nurse aide required lifting and she could have injured her back in that job.  Dr. Schiller concluded Coleman’s back condition is unrelated to a work injury.  He indicated he could not find any injury at Ford that could cause a disc herniation, and there is nothing in the history at work that would lead to a diagnosis of work-related disc herniation.  Dr. Schiller opined Coleman’s major problem is depression with psychosomatic illness. 

          The ALJ made the following findings relevant to this appeal:

Coleman has not met her burden of proof in this claim.  Substantial evidence dos [sic] not exist to support a finding that the onset of pain and need for surgery are related to the mechanism of injury she described.  She barely had to reach over her head to grab the air gun.  There was no testimony that the weight of the gun or the tension of the tethered line was significant.  If there was an injury, one would expect it to be to the neck or mid-back, not the low back, as Dr. Sherrard said.  She acknowledged that Ford put the gun in an ergonomically attractive position.  With the gun in hand, she did not claim to have been placed in any sort of awkward position in carrying out the bolting action.  She had no onset of back or leg complaints during her shift, which is not consistent with having suffered an acute herniation of a disc.  She failed to provide a work related history to Dr. Vemuri on her first appointment with him.  She apparently wanted him to document potential work relatedness by calling two days later and requesting an addendum to the first note; but this comes across as a reach in that Dr. Vemuri says, “She is not certain this triggered her symptoms but is suspicious that it was related since her pain began a day or two after.”  (Dr. Vemuri did not endorse Coleman’s claim with an opinion of relatedness.)  Neither did she give a work related history at Pinnacle Physical Therapy.  And we know Coleman had prior back problems because she told Dr. Vemuri she had been having problems since the 1990’s; and because the 2015 MRI confirmed the effacement of the left S1 nerve root had “increased” from an MRI in 2014, which was prior to the alleged injury date.  The ALJ relies on this evidence, and the opinion of Dr. Schiller, in finding that Coleman has not proven her case.

 

          Coleman filed a petition for reconsideration arguing the ALJ misinterpreted the medical and lay evidence concerning causation/work-relatedness.  She emphasized there are no medical records to suggest she had a prior active condition.  By order dated January 10, 2017, the ALJ denied the petition for reconsideration as a re-argument of the merits of the claim.

          On appeal, Coleman argues the ALJ erred in failing to award benefits for the low back condition.  She asserts the ALJ misinterpreted the medical evidence which she believes, when taken as a whole, compels a finding in her favor.  Coleman emphasizes the acute onset of her symptoms, as documented by Louisville Orthopaedic and Dr. Johnson.  Moreover, Dr. Barefoot specifically related the low back condition and surgery to her work activities.  Coleman notes the lack of medical records documenting or suggesting any other causative diagnosis.

          As the claimant in a workers’ compensation proceeding, Coleman had the burden of proving each of the essential elements of her cause of action.  Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979).  Because she 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). 

          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 sole authority to draw any reasonable inference from the evidence.  Miller v. East Kentucky Beverage/Pepsico, Inc., 951 S.W.2d 329 (Ky. 1997).  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); Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999).  Mere evidence contrary to the ALJ’s decision is not adequate to require reversal on appeal.  Id. 

          As a threshold issue, Coleman had the burden of proving a permanent harmful change to the human organism caused by her work.  A 2014 MRI established Coleman had a disc herniation at L5-S1 prior to the alleged work injury.  While her herniation was larger on an October 8, 2015 MRI, the evidence does not compel a finding that Coleman’s work caused the change in the herniated disc.  Coleman acknowledges she was not experiencing symptoms on October 1, 2015 while she was at work.  Dr. Sherrard and Dr. Schiller indicated pulling on the tethered air gun would not be a mechanism that would produce Coleman’s symptoms or a lumbar disc herniation.  Dr. Schiller further stated he could not find any work-related causal injury responsible for the disc herniation, and specifically concluded her symptomatology is unrelated to the work injury.  The opinions of Drs. Sherrard and Schiller constitute the requisite substantial evidence supporting the ALJ’s determination.   

          While Coleman has identified evidence supporting a different conclusion, there was substantial evidence presented to the contrary.  We are convinced the ALJ properly understood and considered all of the evidence in reaching his conclusion and within his discretion.  The ALJ’s conclusions are not so unreasonable as to compel a different result.  Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000).

          Accordingly, the January 3, 2017 Opinion and Order and the January 10, 2017 Order rendered by Hon. Douglas W. Gott, Administrative Law Judge, are hereby AFFIRMED.

          ALL CONCUR.

COUNSEL FOR PETITIONER:

 

HON JOY L BUCHENBERGER

401 WEST MAIN ST

SUITE 1910

LOUISVILLE, KY 40202

 

COUNSEL FOR RESPONDENT:

 

HON JOHANNA F ELLISON

300 WEST VINE STREET

SUITE 600

LEXINGTON, KY 40507

 

ADMINISTRATIVE LAW JUDGE:

 

HON DOUGLAS W GOTT

PREVENTION PARK

657 CHAMBERLIN AVE

FRANKFORT, KY 40601