Workers’
Compensation Board
OPINION ENTERED: July 7, 2017
CLAIM NO. 201477163
FREIDA PEGUES PETITIONER
VS. APPEAL FROM HON. CHRIS DAVIS,
ADMINISTRATIVE LAW JUDGE
WHITE CASTLE SYSTEM
AND HON. CHRIS DAVIS,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
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.
COUNSEL
FOR PETITIONER:
HON JOSEPH MCREYNOLDS
520 EAST MAIN ST
PO BOX 187
BOWLING GREEN, KY 42102
COUNSEL
FOR RESPONDENT:
HON RONALD J POHL
303 N HURSTBOURNE PKWY #110
LOUISVILLE, KY 40222
ADMINISTRATIVE
LAW JUDGE:
HON CHRIS DAVIS
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601