April 28, 2017 201599854

Commonwealth of Kentucky 

Workers’ Compensation Board




OPINION ENTERED: April 28, 2017



CLAIM NO. 201599854



JAMES BRUCE                                    PETITIONER

















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


STIVERS, Member. James Bruce (“Bruce”) seeks review of the December 19, 2016, Opinion and Order of Hon. Jonathan R. Weatherby, Administrative Law Judge (“ALJ”) dismissing his claim for income and medical benefits for an alleged work-related back injury occurring on July 31, 2014.  Bruce also appeals from the February 15, 2017, Order denying his petition for reconsideration. 

          On appeal, Bruce asserts the ALJ’s reliance upon Dr. Richard Sheridan’s impairment rating is erroneous since the impairment rating is not in conformity with the 5th Edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (“AMA Guides”).  Bruce also argues he is entitled to reimbursement for medical expenses related to the cure and relief of his low back condition. 

          At his September 20, 2016, deposition, Bruce testified he worked for Grace Discount Food (“Grace”) pulling pallets, stocking shelves, and stocking the frozen section in the store.  Bruce described the injury as follows:

Q: All right. So, James, in your own words, July 31, 2014 tell me what happened.

A: I was in the walk-in freezer getting a case of product out, everything was covered in ice, and as I picked up the product and turned to walk out of the freeze [sic] my feet slipped from under me and I bounced off the rack and hit the floor.

Q: What part of your body hit the floor?

A: My back.

Q: Lower back?

A: Yes.

Q: Did you feel symptoms in your lower back or any other part of your body at that time?

A: My whole back hurt that day.

          Bruce advised the store manager of the injury and went next door to Metcalfe Family Practitioners where he was sent for x-rays and advised by the nurse practitioner that he likely had a muscle strain.[1]  Bruce was off work one or two days.  He was next seen by Dr. Kelly McMurtrey, a chiropractor, who took him off work and referred him to an orthopedic specialist.[2]  Bruce was treated by Dr. McMurtrey on sixteen occasions.  Because her treatment only provided temporary relief, Dr. McMurtrey referred Bruce to an orthopedic physician, Dr. Barret Lessenberry. Dr. Lessenberry prescribed anti-inflammatory medications and ordered an MRI. After the MRI was performed, Dr. Lessenberry diagnosed a disc protrusion and recommended three epidural injections and physical therapy.  Bruce only underwent one of the recommended injections because Grace’s workers’ compensation carrier refused to pay for the rest. Bruce testified the one injection provided relief for a couple of weeks. He attended six physical therapy sessions and was provided a TENS unit.  Dr. Lessenberry released him to return to work with twenty-five pound and, later, fifty-pound lifting restrictions.  However, Grace would not allow him to return to work with either of these restrictions. 

          Bruce began working for Amneal Pharmaceutical (“Amneal”) approximately a year after Grace refused to allow him to return to work.  At the time he began working for Amneal, Bruce was not being treated by Dr. Lessenberry.  He has not been treated by any doctors other than Drs. McMurtrey and Lessenberry.  Bruce testified he occasionally experienced low back symptoms at work consisting of pain radiating down his hips and legs.  Sitting and standing too long prompt his symptoms.  Bruce believes he is capable of returning to his prior job with Grace.

           At the October 18, 2016, hearing, Bruce indicated he was only allowed six physical therapy sessions by Grace’s workers’ compensation carrier.  Although the workers’ compensation carrier approved the use of a TENS unit, it later reversed its position resulting in Bruce returning the TENS unit.  Bruce continues to work at Amneal and at times experiences low back symptoms at work.  Approximately two weeks before the hearing, Bruce returned to Dr. McMurtrey for an adjustment for which he paid.  Bruce testified that of the sixteen visits to Dr. McMurtrey, Grace’s workers’ compensation carrier paid for twelve visits, and he paid for four visits at $40.00 per visit.  Bruce testified he has now paid Dr. McMurtrey $200.00 ($160.00 for the last four visits of the initial sixteen visits plus $40.00 for the last visit to Dr. McMurtrey in October 2016). 

          Bruce introduced the records of Metcalfe Family Practitioners and Dr. Lessenberry.  Bruce also introduced the January 6, 2016, Impairment Rating report of Laura Goulbourne (“Goulbourne”), a physical therapist, which reflects a diagnosis of discogenic back pain and an assessment of an 8% impairment rating pursuant to the AMA Guides. The report notes Bruce was referred to her by Dr. Lessenberry.  Within the report, Goulbourne sets out the portions of the AMA Guides upon which she relied in assessing the impairment rating.  Attached to the report is Dr. Lessenberry’s note of January 19, 2016, which states, in relevant part, as follows:

His impairment rating was completed on 1/6/16 with the result of 8% impairment to the person as a whole. The patient was placed in DRE category 2 based on 5th Edition AMA Guidelines.

The patient did have pre-existent symptoms and, in fact, had had treatment for these symptoms previously. I think the work related fall was responsible for 50% of the impairment that might not have arisen had he not sustained the fall.

          Grace introduced the May 18, 2015, Independent Medical Evaluation report of Dr. Sheridan in which he concluded Bruce had reached maximum medical improvement (“MMI”) in relation to his low back pain and had no permanent restrictions associated with the injury.  Pursuant to the AMA Guides, he opined Bruce had zero impairment. 

          In his December 19, 2016, Opinion and Order, the ALJ set forth the parties’ stipulations which are, in relevant part, as follows:

The Plaintiff sustained a work-related injury on or before July 31, 2014, with the Defendant having received due and timely notice of Plaintiff’s injury.”

TTD benefits were paid to the Plaintiff at the rate of $166.64 per week from November 3, 2014 through May 21, 2015 for a total of $4,795.15.

The Defendant has paid on behalf of the Plaintiff medical expenses in the amount of $7,254.79.

          After summarizing Bruce’s testimony and the medical evidence, the ALJ provided the following findings of fact and conclusions of law:

9. The ALJ is most persuaded by the opinion of Dr. Sheridan in this matter and is unable to rely upon the inconsistent evidence provided by the Plaintiff to establish an impairment rating in this matter. The impairment rating issued by Ms. Goulbourne and then discounted by Dr. Lessenberry does not constitute the basis of an opinion upon which the ALJ may confidently rely.


10. Dr. Sheridan has detailed the thorough examination that he performed and reviewed diagnostic imaging before reaching the determination that the Plaintiff has a 0% impairment with no restrictions and no pre-existing component. This opinion has convinced the ALJ and the ALJ therefore finds that the Plaintiff has a 0% whole person impairment.

          Bruce filed a petition for reconsideration asserting Dr. Sheridan’s impairment rating does not conform to the AMA Guides.  Bruce also took issue with the ALJ’s statements regarding Dr. Lessenberry’s impairment rating, and he requested the ALJ reconsider the impairment rating of Dr. Lessenberry. 

          The ALJ denied Bruce’s petition for reconsideration.

          On appeal, Bruce argues the ALJ’s reliance upon Dr. Sheridan’s impairment rating is misplaced, as he “does not really use the Mandatory Guides.” Bruce argues Drs. Lessenberry and McMurtrey, along with the physical therapist, observed pain, spasm, alteration of gait, and other objective findings during “the acute phase.”  On the other hand, Dr. Sheridan did not examine Bruce until nearly nine months later.  Thus, his failure to find the acute symptoms “means nothing with respect to impairment” according to the AMA Guides. Bruce argues Dr. Sheridan did not apply the language of the AMA Guides, but only “feigns to do so.” 

          Next, Bruce argues since he sustained a work-related injury he is entitled to medical benefits.  In spite of that fact, the ALJ did not require Grace to bear the cost of Bruce’s treatment even though he experiences continual post-injury pain.  Bruce notes his hearing testimony establishes he paid $160.00 for medical care, and the ALJ’s decision deprived him “of his statutory entitlement for payment of medical bills.”

          As the claimant in a workers’ compensation proceeding, Bruce 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). Since Bruce 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). The function of the Board in reviewing the ALJ’s decision is limited to a determination of whether the findings made by the ALJ 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).

          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 discretion to determine all reasonable inferences to be drawn from the evidence. Miller v. East Kentucky Beverage/Pepsico, Inc., 951 S.W.2d 329 (Ky. 1997); Jackson v. General Refractories Co., 581 S.W.2d 10 (Ky. 1979).  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). Although a party may note evidence that would have supported a different outcome than that 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). The Board, as an appellate tribunal, may not usurp the ALJ’s role as fact-finder by superimposing its own appraisals as to the weight and credibility to be afforded the evidence or by noting reasonable inferences that otherwise could have been drawn from the record.  Whittaker v. Rowland, 998 S.W.2d 479, 481 (Ky. 1999).  So long as the ALJ’s ruling with regard to an issue is supported by substantial evidence, it may not be disturbed on appeal. Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986).

          We find no merit in Bruce’s first argument the ALJ erred in relying upon Dr. Sheridan’s opinions.  First and foremost, we point out that Bruce did not object to Dr. Sheridan’s report or identify Dr. Sheridan’s impairment rating is not compliant with the AMA Guides as a contested issue.  803 KAR 25:010 Section 13(11) and (12) read as follows:

(11) If at the conclusion of the BRC the parties have not reached agreement on all the issues, the administrative law judge shall:

(a) Prepare a final BRC memorandum and order including stipulations and identification of all issues, which shall be signed by all parties or if represented, their counsel, and the administrative law judge; and

(b) Schedule a final hearing.

(12) Only contested issues shall be the subject of further proceedings.

          The September 16, 2016, Benefit Review Conference (“BRC”) Order and Memorandum demonstrates the parties identified the contested issues as “benefits per KRS 342.730; unpaid or contested medical expenses.”  No other contested issue was listed.  Thus, Bruce waived his right to raise as an issue before the ALJ and on appeal that Dr. Sheridan’s impairment rating is not in conformity with the AMA Guides.

          In Howard v. Cumberland River Coal, 2015-CA-001704-WC, rendered August 26, 2016, Designated Not To Be Published, the Court of Appeals stated:

Since KRS [footnote omitted] 342.730(1)(b) mandates use of the AMA Guides in determining impairment and benefits awarded, Howard argues that an evidentiary objection to noncompliance is unnecessary for appellate preservation purposes and that an ALJ is not free to rely upon an AMA noncompliant medical expert's opinion. However, we agree with the Board's conclusion that Howard was required to raise an objection if he believed that Dr. Hall's impairment rating was not compliant with the AMA Guides. 803 KAR [footnote omitted] 25:010 § 13(13) requires that all contested issues be raised before the ALJ; per 803 KAR 25:010 § 13(14), only the issues listed as “contested” may proceed beyond the benefit review conference. Since Howard did not raise the issue before the ALJ, the Board correctly held that the ALJ could not address that issue, nor could the Board. Furthermore, failure to raise an issue before an administrative body precludes that issue from judicial review. Urella v. Ky. Bd. of Med. Licensure, 939 S.W.2d 869, 873 (Ky. 1997).

Slip Op. at 2.

         Further, we conclude Dr. Sheridan’s opinions were in accordance with the AMA Guides. In his report of May 18, 2015, Dr. Sheridan provided a history and the results of his examination of Bruce’s lumbar spine and low extremities.  His examination of Bruce’s lumbar spine revealed “the lumbar spine is full in all modes” and Bruce’s gait was normal. Bruce had “positive Waddell rotation tests.”  Bruce needed no aids and his toe and heel walking was symmetrical.  His squat was 100% of standard and performed unassisted.  He was able to get on and off the examination table unassisted, and in a normal fashion.  The supine straight leg raising signs elicited complaints of low back pain on the respective sides.  However, Bruce’s lower limb lengths were equal.  He had negative Bragard and Lasegue signs bilaterally and negative FABERE tests bilaterally.  Bruce’s hips had full motion and neither appeared irritable.  Dr. Sheridan concluded Bruce reached MMI regarding his low back pain and, had no permanent restrictions associated with the injury.  Citing to page 385 of the AMA Guides, he opined Bruce fell within DRE Category I and had 0% impairment rating.

          The opinions of Dr. Sheridan as set out above constitute substantial evidence upon which the ALJ was free to rely in reaching a decision on the merits. Kentucky Utilities Co. v. Hammons, 145 S.W.2d 67, 71 (Ky. App. 1940) (citing American Rolling Mill Co. v. Pack et al., 128 S.W. 2d 187, 190 (Ky. App. 1939).  As previously stated, where the evidence with regard to an issue preserved for determination is conflicting, the ALJ, as fact-finder, is vested with the discretion to pick and choose whom and what to believe. Caudill v. Maloney’s Discount Stores, 560 S.W.2d 15 (Ky. 1977). Further, after reviewing page 385 of the AMA Guides, we conclude Dr. Sheridan’s 0% impairment rating, based on his examination findings, comports with the AMA Guides. Consequently, we find no error in the ALJ’s reliance upon Dr. Sheridan’s opinions. 

          Concerning the second argument, we vacate that portion of the ALJ’s December 19, 2016, Opinion and Order dismissing Bruce’s claim in total.  At the September 16, 2016, BRC, the parties stipulated Bruce sustained a work-related injury on or about July 31, 2014, and Grace received due and timely notice. The parties also stipulated TTD benefits were paid from November 3, 2014, through May 21, 2015, for a total of $4,793.00, and paid medical expenses in the amount of $7,254.79. Under contested issues it is specifically noted TTD is “not at issue.”  Just as significant, Dr. Sheridan, upon whom the ALJ relied, opined Bruce has no permanent restrictions associated with this “injury.”

          At the hearing, the following exchange took place between the ALJ and the parties’ attorneys:

The Court: On the 16th of September of this year, a Benefit Review Conference was held in this matter and the following matters were stipulated: That there is jurisdiction under the Act, that the parties or there was an employment relationship at all relevant times, that the plaintiff sustained a work-related injury on July 31st of 2014, and that due and timely notice was given.

     I show that TTD benefits were paid at a rate of $166.64 a week from November 3rd of 2014 to May 21st of 2015 for a total of $4,795.15. Medical expenses were paid in the amount of $7,254.79. And I show that plaintiff’s average weekly wage, which was just stipulated to just prior to going on the record here today, as $259.51. I show plaintiff’s date of birth as August 30th of ’64?

The Witness: Yes.

The Court: Thank you. He has obtained a GED and the contested issues therefore are benefits per KRS 342.730, unpaid or contested medical expenses and temporary total disability; is that correct?

Mr. White: Not any more. It’s correct, other than the temporary total disability. We’ve checked that and gone over that and that’s all been paid. So we can take that off the table.

The Court: Okay. Do the parties agree to remove temporary total disability as an issue?

Mr. Hartsock: Yes, judge.

The Court: Thank you.

Mr. White: It was late and we weren’t sure all the payments were made, but we’ve concluded now they are.

          Since Dr. Sheridan opined Bruce sustained an injury and the parties’ stipulated Bruce sustained a work-related injury and his entitlement to TTD benefits was not an issue, the ALJ erred in dismissing Bruce’s claim in total.  The parties identified entitlement to medical benefits as a contested issue and the ALJ failed to resolve that issue.  Bruce offered testimony at the hearing that he had paid $160.00 for four physical therapy visits.  Thus, the claim must be remanded to the ALJ for entry of an amended decision finding Bruce sustained a work-related low back injury and entry of the appropriate award of TTD and medical benefits. Since the parties stipulated there was no issue as to the amount of TTD benefits to which Bruce is entitled, the award of TTD benefits shall be for the duration and the amount paid by Grace.  However, on remand the ALJ must determine the medical benefits to which Bruce is entitled. 

          In FEI Installation, Inc. v. Williams, 214 S.W.3d 313 (Ky. 2007), the Kentucky Supreme Court instructed that KRS 342.020(1) does not require proof of an impairment rating to obtain future medical benefits, and the absence of a functional impairment rating does not necessarily preclude such an award.  Therefore, the absence of an impairment rating does not preclude the ALJ, on remand, from awarding future medical benefits. Consequently, on remand the ALJ must determine, based on the medical evidence, the extent to which Bruce is entitled to medical benefits.

          Accordingly, that portion of the December 19, 2016, Opinion and Order dismissing Bruce’s claim for permanent income benefits is AFFIRMED.  As the February 15, 2017, Order denying Bruce’s petition for reconsideration does not relate to Bruce’s entitlement to medical benefits, it is also AFFIRMED. The ALJ’s dismissal of Bruce’s claim set forth in the December 19, 2016, Opinion and Order is REVERSED. The claim is REMANDED to the ALJ for entry of an amended opinion and award finding Bruce sustained a work-related injury and awarding TTD benefits, as stipulated by the parties, and awarding medical benefits in conformity with the views expressed herein.

          ALL CONCUR.














[1] Bruce’s hearing testimony reflects Grace’s personnel directed he be seen by Metcalfe Family Practitioners.

[2] Dr. McMurtrey’s records reveal she first saw Bruce on October 30, 2014.