January 15, 2016 201285818

Commonwealth of Kentucky 

Workers’ Compensation Board




OPINION ENTERED:  July 7, 2017



CLAIM NO. 201477163



FREIDA PEGUES                                 PETITIONER


















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



RECHTER, Member.  Frieda Pegues (“Pegues”) appeals from the January 27, 2017 Opinion and Order rendered by Hon. Chris Davis, Administrative Law Judge (“ALJ”).  The ALJ dismissed Pegues’ claim for a low back injury.  Pegues filed a petition for reconsideration, which the ALJ denied as untimely.  On appeal, Pegues argues the ALJ improperly ignored the medical evidence which unanimously established a work-related injury.  For the foregoing reasons, we affirm.

          Pegues began working for White Castle System (“White Castle”) in 2013.  Her position required her to bring supplies to the stations and other workers in the restaurant, and she lifted boxes frequently.  On June 12, 2014, Pegues testified she was lifting a box of cheeseburgers weighing approximately ten pounds when she experienced pain in her low back.  She reported the accident to her supervisor and rested for an hour.  Because her pain persisted, she left work early and sought medical attention with her family physician, Dr. Sam Persad.  Dr. Persad’s records were not submitted into evidence however, Pegues testified he sent her to Dr. Gregg Malmquist.

          Before being examined by Dr. Malmquist, Pegues presented at the Medical Center of Bowling Green on June 16, 2014 with complaints of hip and back pain for the past three months.  She denied any specific trauma.  Her range of back motion was normal.  An x-ray revealed diffuse degenerative disc disease throughout the lumbar spine.  She was diagnosed with acute low back pain and was discharged. 

          Dr. Malmquist examined Pegues on June 19, 2014.  She reported a four-month history of low back and leg pain, with weakness and numbness.  She reported no history of trauma.  Dr. Malmquist ordered x-rays which revealed posterior changes at L5—S1.  He diagnosed possible L4-5 and L5-S1 herniated nucleus pulposus.  He recommended a lumbar MRI.

          Pegues was eventually referred to Dr. Mladen Djurasovic, who performed lumbar interfusion surgery in February, 2015.  Dr. Djurasovic’s records were not submitted into evidence.

          White Castle submitted medical records documenting incidents of low back pain prior to the alleged work incident.  Pegues presented to the Medical Center of Bowling Green with low back pain on June 28, 2012 and July 12, 2012.  Pegues was examined on May 19, 2014 at Greenview Regional Healthcare for “back pain, thoracic pain”.  She reported the pain began after lifting a small child.  On June 16, 2014, she returned to the Medical Center of Bowling Green with low back pain radiating into her left leg.  She denied a specific injury but indicated the pain had persisted for three months. 

     Dr. Anthony McEldowney conducted an independent medical evaluation (“IME”) on May 20, 2016.  Pegues reported pain in her low back and legs.  Dr. McEldowny diagnosed L5-S1 herniated nucleus pulposus.  He opined Pegues suffered a work-related injury to her lumbar spine on June 12, 2014, which required lumbar fusion.  He recommended a neurostimulator for pain.

          Dr. Thomas Loeb conducted an IME on November 8, 2016.  Dr. Loeb took a history of the June 12, 2014 lifting incident at work, and noted Pegues’ complaints of low back pain.  He diagnosed multilevel degernative disc disease which is worse at L5-S1 and status post fusion surgery.  Dr. Loeb reviewed Pegues’ medical records since the alleged work incident, as well as her prior medical records documenting low back pain.  He opined she had a ratable and active pre-existing condition prior to the alleged work incident.  He further opined the work incident caused “at the very most” a mild to moderate transient strain of the soft tissues in the lumbar spine.  Rather, he believes the progressive worsening of her condition is the result of the natural course of her underlying, pre-existing, active degenerative disc disease. 

          The ALJ first determined Pegues did not suffer a work-related injury, either temporary or permanent.  He noted her prior treatment for low back pain since 2012, and her specific treatment on May 19, 2014.  At the May 19, 2014 hospital visit, Pegues reported back pain since lifting a child.  The ALJ also reviewed the June 16, 2014 medical records, just four days after the alleged incident, and emphasized Pegues reported no injury or traumatic event.  She likewise reported no work injury to Dr. Malmquist on June 19, 2014, and described low back pain for the prior four months.  Finally, the ALJ addressed the fact Dr. McEldowney and Dr. Loeb found a work-related injury.  He explained these opinions were based on the history of the June 12, 2014 work incident, which he did not find credible.  Based on these circumstances, the ALJ concluded Pegues had no work-related incident on June 12, 2014.  He dismissed the claim. 

          Pegues filed a petition for reconsideration on February 14, 2017.  She argued the ALJ improperly characterized her hospital records dated May 19, 2014.  According to Pegues, she reported thoracic and scapular pain at that hospital visit, not low back pain.  She also asserted the ALJ improperly rejected the medical evidence in dismissing her claim.  By Order dated March 1, 2017, the ALJ first noted Pegues’ petition for reconsideration was untimely, because it was filed more than fourteen days after the January 27, 2017 Opinion and Order.  The ALJ further explained he acted within his discretion in rejecting Pegues’ description of how her accident occurred.

          On appeal, Pegues again claims the ALJ improperly rejected the medical evidence in dismissing her claim. Because Dr. McEldowney found a work-related permanent injury, and Dr. Loeb found a work-related temporary injury, Pegues argues the ALJ was compelled to find at least a temporary injury. 

          As the claimant in a workers’ compensation proceeding, Pegues 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).  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).  The ALJ, as fact-finder, has the sole authority to determine the quality, character and substance of the evidence.  Square D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993).  However, issues such as medical causation are within the province of medical experts. 

     Pegues cites to Kingery v. Sumitomo Electric Wiring, 481 S.W.3d 492 (Ky. 2015), for the proposition that the ALJ may not rely on lay testimony, personal experience or inference to make findings that directly conflict with the medical evidence.  We find the current claim distinguishable.  In Kingery, the Kentucky Supreme Court determined the ALJ provided insufficient and untenable grounds for rejecting the uncontroverted medical proof, and relying instead upon the claimant’s opinion as to the cause of her medical condition.  Here, the ALJ considered the possibility of a permanent or temporary injury, as found by Drs. McEldowney and Loeb, respectively.  However, he noted both opinions were based on the mechanism of injury described by Pegues; that is, a lifting incident at work.  The ALJ rejected this narrative of a work incident, and provided evidence-based reasons for doing so.  He cited Pegues’ prior treatment for low back pain, as well as the fact she denied any specific trauma or incident in her first two medical encounters just days after the alleged work injury.  In fact, when she visited Dr. Malmquist about a week after the alleged work incident, she reported her low back pain began four months prior. 

     The ALJ acted within his discretion to disbelieve Pegues’ testimony, including her account of what occurred on June 12, 2014.  Magic Coal Co. v. Fox, 19 S.W.3d 88 (Ky. 2000).  Because Dr. Loeb’s medical opinion was based upon Pegues’ account of the work-related incident, the ALJ acted within his discretion to reject the medical proof.  Upon review of the totality of the evidence submitted, we cannot conclude the proof compels a finding in Pegues’ favor. 

     Accordingly, the January 27, 2017 Opinion and Order rendered by Hon. Chris Davis, Administrative Law Judge, is hereby AFFIRMED.       

          ALL CONCUR.









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