Workers’
Compensation Board
OPINION
ENTERED: April 21, 2017
CLAIM NO. 201501741
KENERGY ELECTRIC PETITIONER
VS. APPEAL FROM HON. JONATHAN
R. WEATHERBY,
ADMINISTRATIVE LAW JUDGE
MARK ANTHONY LEONARD and
HON. JONATHAN R. WEATHERBY,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
ALVEY,
Chairman. Kenergy Electric (“Kenergy”)
appeals from the Opinion and Award rendered October 31, 2016 by Hon. Jonathan
R. Weatherby, Administrative Law Judge (“ALJ”).
The ALJ found Mark Anthony Leonard (“Leonard”) sustained cumulative
trauma injuries to his shoulders, and awarded permanent partial disability
(“PPD”) benefits increased by the three multiplier pursuant to KRS
342.730(1)(c)1, and medical benefits.
Kenergy also appeals from the January 5, 2017 order on petition for
reconsideration.
On
appeal, Kenergy argues there is no credible evidence supporting the ALJ’s
findings Leonard sustained cumulative trauma injuries to both shoulders
warranting a 20% impairment rating, and he lacks the physical capacity to
return to his former job. Kenergy also
argues the ALJ’s determinations are arbitrary or capricious, and amount to an
abuse or unwarranted exercise of discretion.
Because the ALJ’s determinations are supported by substantial evidence
and he acted within the scope of his discretion, we affirm.
Leonard
filed a Form 101 alleging cumulative trauma injuries to both shoulders due to
repetitive use while performing his job.
Leonard alleged January 30, 2015 as the date of injury, which is also
the last day he worked for Kenergy before experiencing a heart attack on
January 31, 2015. Leonard did not return
to work after his heart attack.
Leonard
testified by deposition on March 8, 2016 and at the hearing held August 30,
2016. Leonard was born in July 1957, and
resides in Owensboro, Kentucky. He
graduated from high school and is certified as a master electrician. Leonard began working for Kenergy in 1975,
and spent the last twenty years of his career working as an underground
construction foreman. His crew typically
consisted of himself and two others.
Leonard operated various equipment such as a trenchers, backhoes, bucket
trucks, chainsaws, post-hole diggers, shovels, long sticks, hot sticks, and
hand tools. He used a backhoe or trencher
to dig ditches for installing cable. He
was also required to dig with a shovel.
In the mornings, he and his crew loaded wire with a digger derrick for
use at the job sites. He carried pipes,
installed wires, worked out of cherry pickers, climbed poles, helped push and
pull line, and rolled cable on a reel.
Leonard worked on uneven terrain, and was required to crawl, bend,
squat, and lift. He described his job as
consisting of hard, manual labor which required him to use his arms and
shoulders extensively.
Leonard
stated he sustained a work-related left knee injury in 2002 which required
surgery. In 2005, Leonard injured his
left shoulder at work. He initially
sought treatment with his chiropractor, Dr. Larry Tinius, before seeing Dr.
Raymond Shea. Dr. Shea ordered an MRI,
and performed surgery on the left shoulder.
Leonard was eventually released to full duty work with no
restrictions. Leonard injured his right
shoulder in 2011 at work. Dr. Douglas
Lowery performed surgery and eventually released him to full-duty work without
restrictions.
At
the hearing, Leonard stated he experiences pain in both shoulders, with his
left shoulder worse than his right. At
the deposition, Leonard stated his right shoulder symptoms began a few months
after his 2011 right shoulder surgery and his left shoulder symptoms have been
present for “a long time.” He sleeps on
a heating pad every night and takes over-the-counter Tylenol for pain. Leonard attributes his shoulder conditions to
his work activities at Kenergy. He last
treated with Dr. Shea in 2015. Leonard
reported Dr. Shea recommended shoulder replacement surgery. The parties did not submit Dr. Shea’s records
into evidence.
Leonard
last worked for Kenergy on January 30, 2015. At that time, Leonard was neither prescribed
medication, actively treating with a physician, nor under any formal
restrictions relating to either shoulder.
In the months leading up to January 30, 2015, Leonard testified he
worked forty hours or more per week. On
January 31, 2015, Leonard suffered a heart attack. He receives Social Security disability
benefits and long-term disability benefits based solely upon his heart
condition.
At
his deposition, Leonard stated if had he not experienced the heart attack, he
would have continued working for Kenergy.
Leonard also stated that in the week prior to his heart attack, he was
performing his job but was no longer able to push or pull wire without
assistance. Leonard also testified he advised
two other employees he was unable to perform some physical aspects of the
job. He had difficulty climbing poles
and performing work from the bucket truck or on the pole, and was unable to
push and pull wire. At the hearing,
Leonard stated as follows:
Q: Okay.
Could you go back with your shoulder conditions to Kenergy and do your
job, in your opinion, Mark?
A: I could, but it would really hurt me. You know, I was doing it then, but it was
hurting me.
Q: Okay. Do you think you could
do that job on a sustained basis?
A: No sir.
Kenergy
filed the records of Leonard’s family physician, Dr. Gary Wahl, for treatment
from 1985 to 2015. Dr. Wahl treated
Leonard for various maladies, including intermittent complaints of shoulder
pain. The records reflect Leonard
complained of left shoulder pain on one occasion in 1985 and once in 1986, on
several occasions in 1994, and again in 1999.
Dr. Wahl diagnosed Leonard with tendonitis and administered an injection
in May of 1994. Dr. Wahl documented
complaints of right arm pain on several occasions in 1987, which he treated
with medication and an injection. On
October 21, 2015, Dr. Wahl noted Leonard had been having some bilateral
shoulder pain for which he recommended extra strength Tylenol.
Kenergy
also filed the records from Leonard’s chiropractor, Dr. Tinius, which span from
1997 to 2014. The majority of the
records are handwritten and illegible.
However, it appears the majority of the chiropractic care addressed all
areas of his back. Included in these
records is an August 31, 2011 report of an MRI of the right shoulder from
Owensboro Health. The MRI demonstrated
focal partial undersurface “rim rent” tear distal supraspinatus; partial
intrasubstance tearing versus tendinitis/tendinosis distal infraspinatus;
anterior labral tear with small paralabral cyst; and underlying moderate
glenohumeral and acromioclavicular joint osteoarthritic change. On January 15, 2014, Dr. Tinius specifically
noted Leonard’s complaints of pain in both shoulders.
Kenergy
filed the records from Dr. A. Gayle Rhodes, an occupational physician, who
treated Leonard in 2005 and 2011. In
February 2005, Dr. Rhodes noted Leonard felt a pop and experienced pain in his
shoulder on February 8, 2005. Dr. Rhodes
diagnosed right shoulder osteoarthritis and impingement syndrome. She ordered diagnostic studies, prescribed
medication, assigned restrictions, and referred Leonard to Dr. Shea. Leonard did not return until June 2011
reporting he injured his right shoulder on May 27, 2011 at work. Dr. Rhodes initially diagnosed a right
shoulder strain, and recommended a course of conservative treatment. In August 2011, Dr. Rhodes ordered an
MRI. She diagnosed Leonard with an anterior
labral tear and partial tears of the rotator cuff related to work activity, and
referred him to Dr. Lowery.
Kenergy
filed Dr. Lowery’s records who treated Leonard initially for left shoulder pain
in May 2011. He noted Leonard’s left
shoulder symptoms began in 2002, and surgery was performed that year by Dr.
Shea. He diagnosed an osteoarthritic
shoulder joint and recommended arthroscopic surgery. Leonard returned in September 2011 reporting right
shoulder pain following the May 2011 work accident. Dr. Lowery diagnosed a rotator cuff
sprain/strain/ tear and recommended surgery.
The October 5, 2011 operative report indicates Dr. Lowery performed
right shoulder arthroscopy with subacromial decompression for impingement and
debridement of articular sided partial thickness rotator cuff tear. Dr. Lowery ultimately released Leonard to
return to full duty work in February 2012 and assessed a 0% impairment rating
for the right shoulder.
Kenergy
filed the records of Dr. Gayle Reader, who began treating Leonard for his
cardiac condition following his January 31, 2015 heart attack. Dr. Reader completed disability paperwork for
Leonard for his heart condition.
Included in those records is a job description for the crew leader position
at Kenergy. It outlines that crew leaders
are regularly required to use their hands, stand, walk, reach with their upper
extremities, and climb or balance. A
crew leader is occasionally required to sit, stoop, kneel, crouch or crawl and
lift and/or move up to 100 pounds.
In
support of his claim, Leonard submitted the September 9, 2015 letter by Dr.
James Rushing, D.C. Dr. Rushing opined
Leonard’s bilateral shoulder condition is caused, either in whole or in part,
by his job activities. He further opined
the continuation of Leonard’s job duties would have adverse health
consequences.
Leonard
also filed the February 3, 2016 report of Dr. Stephen Autry, who also testified
by deposition on June 14, 2016. He noted
Leonard’s work as an electrician for Kenergy required “substantial work over
shoulder level with lifting well over 50 pounds with jerking, pulling, climbing
and also working in inclement weather.”
He noted Leonard has not returned to work since the January 2015 heart attack. He noted Leonard injured his right shoulder
in 1995 and in 2011, which required surgery by Dr. Lowery. Dr. Autry reviewed the medical records
available to him and performed an examination.
In relevant part, Dr. Autry diagnosed bilateral shoulder rotator cuff
tendinosis and post-traumatic osteoarthritis changes of the glenohumeral
surfaces and AC joints aggravated by Leonard’s work. Dr. Autry opined Leonard’s injury caused his
complaints. He opined Leonard sustained
cumulative trauma injuries to both shoulders caused by lifting, pulling,
jerking, and overhead work while employed as a lineman. Dr. Autry stated as follows in describing the
causal relationship:
The claimant has worked in his occupation as an electrician for
over 40 years. Over this time, he has
sustained injuries, which have been detailed above.
The rotator cuff is a group of connected muscle insertions
(tendons) that like the clutch of a car stabilizing and engaging the humerus
(arm) and glenoid (shoulder blade).
There is substantial leverage placed on this structure during lifting,
pulling, and jerking particularly when the arm is in awkward positions. Recurrent injuries can tear the insertion
(attachment) of these tendons.
Microscopic tears can with recurrent stress loading progress to a complete
tear.
Joint articular surfaces are covered with a thin but complex layer
called articular cartilage. This
structure has layers of cells and spaces of hydration. This allows for minimal joint friction and
shock absorption with impact loading and motion. Severe sudden or recurrent impact can break
down the architecture of this surface causing erosion and an irregular
surface. Jobs which require frequent
joint stresses can cause breakdown of the articular surface.
This, taken in conjunction with the other problems detailed above,
represent condition(s) in which the symptoms have been asymptomatic, dormant,
and non-disabling but have been aroused into a disabling condition by his
latest employment.
Dr.
Autry assessed a 9% impairment rating for the right shoulder and 11% for the
left shoulder, for a combined total of
20% pursuant to the American Medical Association, Guides to the Evaluation
of Permanent Impairment, 5th Edition. He opined Leonard had reached maximum medical
improvement. He restricted Leonard from
repetitive bending, twisting, stooping, crouching, and overhead or above
shoulder level use of arms; and no climbing or lifting more than 20 pounds on a
regular basis. Dr. Autry opined Leonard
lacks the physical capacity to return to work in the type of employment
performed at the time of his injuries.
Dr.
Autry’s deposition testimony is consistent with his report. He identified the records he reviewed in
preparing his report. When asked if he
knew Leonard previously treated with Dr. Tinius, Dr. Wahl and Dr. Rhodes, Dr.
Autry responded, “I did not have - - I read the breadth of the records
available to me.” Dr. Autry confirmed
his bilateral shoulder diagnoses are due to cumulative trauma, which occurred
over a period of time. When questioned
about Leonard’s previous pain complaints and diagnoses related to his shoulders,
Dr. Autry explained:
I think the issue really is that work did not in and of itself
cause these issues, but the term that I would use is that it substantially
aggravated those conditions. It didn’t
just exacerbate them, it was not a temporary thing, but it cumulatively
contributed to the severity and the permanency of the changes that we just
discussed.
. . . .
I think that certainly he had a preexistent finding, but based
upon his history and the type of activities that he did in his employment, it’s
within, I believe a reasonable medical certainty that there was significant
aggravation of those findings.
Despite
Leonard’s testimony he would have continued to work if he had not had the heart
attack, Dr. Autry opined it would, “have been very hard for him. My experience has been that many people, what
I would describe as work hurt, they have impairments. Impairments don’t necessarily imply someone
can’t function, they just can’t function normally.” Dr. Autry stated as follows:
Q: . . . [I]s it your
opinion that Mr. Leonard has impairment and restrictions due to repetitive
work, and is unable to perform the job he held on January 30, 2015, despite the
fact he wasn’t treating in 2013, 2014 or 2015; despite the fact he wasn’t
taking any medications in relation to his shoulder 2013, 2014 or 2015; despite
the fact that he was under no restrictions on January 30, 2015; and despite the
fact he suffered a massive heart attack on January 31; and despite the fact Mr.
Leonard himself testified he would have continued working had he not had the
heart attack?
A: Yes, it’s my opinion
within reasonable medical certainty that regardless of some of the issues that
you have brought up in your question, Mr. Leonard would have had a very
difficult time returning to, or given the structural changes identified on the
exam and corroborated by diagnostic studies.
Dr.
Autry additionally stated that without considering the heart attack, his
examination and clinical findings support the opinion Leonard does not retain the
physical capacity to return to his pre-injury employment due to his physical
conditions caused by his repetitive trauma injuries.
Kenergy
filed Dr. Frank Bonnarens’ March 31, 2016 report. Leonard reported a 2005 left shoulder injury
requiring surgery and a subsequent right shoulder injury requiring
surgery. Dr. Bonnarens also noted
Leonard is no longer working due to the effects of his heart attack. Dr. Bonnarens diagnosed right shoulder status
post rotator cuff repair with a good result and arthritis at both the AC joint
and in the glenohumeral joint, and left shoulder advanced osteoarthritis with
limited range of motion. He noted
following both the 2005 and 2011 surgeries, Leonard’s activities were not
restricted and he retained the physical capacity to return to his work with
Kenergy. Although Dr. Bonnarens would
have restricted Leonard’s activities due to the left shoulder as of January 30,
2014 and January 30, 2015, they would not have been work-related but due to his
arthritis and osteophytes. Dr. Bonnarens
opined Leonard has no work-related injury, and that “this is not wear and tear
related to work issue.” He opined
Leonard retains the physical capacity to return to his prior job considering
his shoulders only. Dr. Bonnarens would
have assigned a 0% impairment rating as a result of both the 2005 and 2011
surgeries. Dr. Bonnarens opined although
Leonard had a ratable left shoulder condition on January 29, 2015, it was not
work-related. Dr. Bonnarens opined
Leonard’s osteoarthritis is due to the normal aging process, and not to his
work activities with Kenergy.
After
summarizing the evidence, the ALJ made the following findings:
11. The ALJ is compelled to reference that the Plaintiff presented well at the final hearing and his testimony is given great
weight herein. The Plaintiff credibly
explained that after all of his prior issues,
he returned to full duty without restrictions but that he could not return to the same job now due to the pain and difficulty that he is currently experiencing.
12. The
ALJ is also persuaded by the credible opinion of Dr. Autry who concluded that
the Plaintiff's activities at work aggravated his condition and
that the Plaintiff did not retain the physical
capacity to return to his prior employment. Dr. Autry credibly noted that the
Plaintiff's job duties involved overhead shoulder lifting, lifting over 50
pounds, pulling and climbing, and working in inclement weather and that the cause of the Plaintiff's bilateral shoulder
condition is due to cumulative trauma from his work as a lineman.
13. The
ALJ is most convinced by the opinion of Dr. Autry as his opinion is the most
supportive of the credible testimony of the Plaintiff. Dr. Autry assessed a 20%
whole person impairment and determined that the Plaintiff, due to his extensive
restrictions, does not retain the ability to return to the same type of work.
The ALJ therefore finds that the Plaintiff has sustained a 20% whole person
impairment and that the mechanism of injury is cumulative trauma suffered while
in the employ of the Defendant. The ALJ further finds that the Plaintiff does
not retain the ability to return to the same type of work.
The ALJ awarded PPD benefits increased
by the three multiplier and medical benefits.
Kenergy filed a petition for
reconsideration, essentially making the same argument regarding the application
of the three multiplier it now raises on appeal. The ALJ made the following additional
findings in denying the petition:
1. The ALJ finds that the
Plaintiff was credible and convincing in his testimony that his right shoulder
pain is rated as a 5 or 6 on 1 to 10 scale and that his left shoulder pain is
rated as an 8 or 9 on a 1 to 10 scale.
2. The ALJ finds that Dr.
Autry was credible in his assessment of the Plaintiff's restrictions which
include no overhead or above the shoulder use of the arms with no lifting of
over 20 pounds on a regular basis. Dr. Autry noted that the Plaintiff's job
duties included overhead shoulder lifting and lifting of over fifty pounds.
3. The ALJ finds based upon
the Plaintiff's stated pain levels, the restrictions issued by Dr. Autry, and
the strenuous requirements of his job, that the Plaintiff does not retain the
ability to return to the same type of work despite his stated intent to attempt
to do so were it not for his heart attack. The ALJ therefore declines to
disturb the Opinion and Award.
On appeal, Kenergy
argues substantial evidence does not support the ALJ’s determination Leonard
sustained cumulative trauma injuries to his shoulders for which he is entitled
to PPD benefits, and lacks the physical capacity to return to the same type of
work. Kenergy notes after each of
Leonard’s previous injuries to the shoulders, he returned to work without
restrictions. He continued to work full
time, and did not actively seek medical treatment for his shoulder condition in
the years prior to his heart attack.
Kenergy also asserts Dr. Autry did not take into account prior treatment
records which demonstrates his “lack of credibility.” It also states Dr. Autry’s physical findings
are not credible since his opinion requires the belief Leonard’s range of
motion worsened in the year after his heart attack despite not performing
manual labor. Kenergy also emphasizes
Leonard ceased working solely due to the unrelated, January 2015 heart
attack. Kenergy also argues the ALJ’s
opinion was arbitrary or capricious and amounted to an abuse or unwarranted
exercise of discretion.
Leonard, as the
claimant in a workers’ compensation proceeding, had the burden of proving each
of the essential elements of his cause of action. See KRS 342.0011(1); Snawder v. Stice, 576 S.W.2d 276 (Ky.
App. 1979). Since he was successful in
his burden, the question on appeal is whether substantial evidence of record
supports the ALJ’s decision. Wolf
Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984). “Substantial evidence” is
defined as evidence of relevant consequence having the fitness to induce conviction
in the minds of reasonable persons. Smyzer
v. B. F. Goodrich Chemical Co., 474 S.W.2d 367 (Ky. 1971).
In rendering a decision, KRS 342.285
grants an ALJ as fact-finder the sole discretion to determine the quality,
character, and substance of evidence. Square D Co. v.
Tipton, 862 S.W.2d 308 (Ky. 1993). An ALJ may draw reasonable
inferences from the evidence, 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.
Jackson v. General
Refractories Co., 581 S.W.2d 10 (Ky. 1979); Caudill v. Maloney’s Discount Stores,
560 S.W.2d 15 (Ky. 1977). Magic Coal
Co. v. Fox, 19 S.W.3d 88 (Ky. 2000).
An ALJ is vested with broad authority to decide questions involving
causation. Dravo Lime Co. v. Eakins,
156 S.W.3d 283 (Ky. 2003). Although a
party may note evidence supporting a different outcome than 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). Rather, it must be shown there was no evidence of
substantial probative value to support the decision. Special Fund v. Francis, 708 S.W.2d
641 (Ky. 1986).
The function of the Board in
reviewing an ALJ’s decision is limited to a determination of whether the
findings made 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). The Board, as an appellate tribunal, may not
usurp the ALJ's role as fact-finder by superimposing its own appraisals as to
weight and credibility or by noting other conclusions or
reasonable inferences that otherwise could have been
drawn from the evidence. Whittaker v. Rowland, 998
S.W.2d 479 (Ky. 1999).
Kenergy’s arguments on appeal are essentially a request for this Board to
reweigh the evidence and direct a finding in his favor,
which we are not permitted to do. Whittaker v. Rowland, 998
S.W.2d 479 (Ky. 1999). Conflicting
evidence was presented which did not compel any particular result. McCloud v. Beth-Elkhorn Corp.,
514 S.W.2d 46 (Ky. 1974).
The ALJ simply chose to
rely upon the opinions of Dr. Autry, as well as the testimony of Leonard, in
determining he sustained cumulative trauma injuries to his shoulders warranting
a 20% impairment rating and he does not have the physical capacity to return to
his former job. Dr. Autry diagnosed bilateral shoulder rotator cuff
tendinosis and post-traumatic osteoarthritic changes of the glenohumeral
surfaces and AC joints aggravated by his work.
Dr. Autry clearly opined in his report and at his deposition that
Leonard’s shoulder conditions are due to cumulative trauma from lifting,
pulling, jerking, and sustained overhead work while employed as a lineman. He provided a detailed explanation regarding
causation in the report and concluded, “This, taken in conjunction with the
other problems detailed above, represent condition(s) in which the symptoms
have been asymptomatic, dormant, and non-disabling but have been aroused into a
disabling condition by his latest employment.”
Dr. Autry assessed a combined 20% impairment rating pursuant to the AMA Guides
for the bilateral shoulder conditions.
Dr.
Autry noted Leonard’s work with Kenergy required, “substantial work over
shoulder level with lifting well over 50 pounds with jerking, pulling, climbing
and also working in inclement weather.”
He restricted Leonard from repetitive bending, twisting, stooping,
crouching, and overhead or above shoulder level use of arms; and no climbing or
lifting more than 20 pounds on a regular basis.
Dr. Autry opined Leonard lacks the physical capacity to return to work
in the type of employment performed at the time of his injuries. At the deposition, Dr. Autry stated his
opinions remained unchanged despite Leonard’s testimony he would have continued
working if he had not suffered the heart attack. He again opined Leonard did not have the
physical capacity to return to work considering the shoulder condition alone
given the structural changes identified on the exam and corroborated by diagnostic
studies.
Leonard
testified he worked for Kenergy for approximately forty years, and described
the various equipment he used and the physical aspects of his job. Leonard attributed his current shoulder
conditions to his work activities with Kenergy.
Kenergy is correct in that Leonard testified at the deposition he would
have continued working had he not suffered a heart attack in January 2015. However, he also stated that in the week
prior to his heart attack, he was no longer able to push or pull wire alone,
had difficulty climbing poles and performing work from the bucket truck or on
the pole. At the hearing, Leonard stated
he did not believe he could return to his former job with his current condition
on a sustained basis.
The
opinions of Dr. Autry and Leonard’s own testimony constitute substantial
evidence supporting the ALJ’s determinations Leonard sustained cumulative
trauma injuries warranting a 20% impairment rating, and he did not have the
physical capacity to return to former job.
Kenergy’s arguments
discrediting the opinion of Dr. Autry go to the weight of the evidence and do
not serve to render his opinions unsubstantial. The ALJ appropriately
exercised his discretion in accepting the opinions of Dr. Autry, and
substantial evidence supports the ALJ’s determinations.
Accordingly, the October 31, 2016 Opinion and
Award and the January 5, 2017 Order on petition for reconsideration rendered by
Hon. Jonathan R. Weatherby, Administrative Law Judge, are hereby AFFIRMED.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON TROY K PEAKE
138 SOUTH THIRD STREET
LOUISVILLE, KY 40202
COUNSEL
FOR RESPONDENT:
HON MCKINNLEY MORGAN
921 SOUTH MAIN STREET
LONDON, KY 40741
ADMINISTRATIVE
LAW JUDGE:
HON JONATHAN R WEATHERBY
657 CHAMBERLIN AVE
FRANKFORT, KY 40601