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April 21, 2017 201501741

Commonwealth of Kentucky 

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

 

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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