Workers’
Compensation Board
OPINION ENTERED: July 14, 2017
CLAIM NO. 201571248
JCIM PETITIONER
VS. APPEAL FROM HON. TANYA PULLIN,
ADMINISTRATIVE LAW JUDGE
MEHO SULJEVIC
AND HON. TANYA PULLIN,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. JCIM appeals the August 19, 2016 Opinion, Order and Award and the
February 1, 2017 Order on Reconsideration rendered by Hon. Tanya Pullin,
Administrative Law Judge (“ALJ”). JCIM
argues the ALJ failed to provide a sufficient basis for her decision, and her
conclusions are not supported by substantial evidence. For the reasons set forth herein, we
affirm.
Meho Suljevic
(“Suljevic”) alleged he suffered a cumulative trauma injury to his lumbar spine
while working for JCIM. He later amended
his claim to include an injury to his left hip, left thigh and groin. The ALJ dismissed the claim for the hip,
thigh and groin pain, and that finding has not been appealed. As such, our summary will include the proof
relating only to the lumbar spine injury.
From 2001 through 2008,
Suljevic worked at JCIM as a machine operator.
During this period, he primarily operated machines using his hands and
fingers. From 2008 to 2014, he worked as
a service operator. Suljevic testified
his duty was primarily to package plastic automotive interior parts that had
metal clips. The parts greatly varied in
size, and weighed anywhere from one to one-hundred pounds. After packaging the parts, he would move the
boxes to pallets or to a shelf. He
testified he would do this every day at work, and would continually move the
parts all around. “I had to bend and get
up.” These activities constituted his
work duties every day.
Gradually, he began
experiencing low back pain in February 2014, which he first attributed to his
kidneys. He eventually visited his
family physician, Dr. Ivan Ljubic. As
the ALJ noted, Dr. Lujbic’s office notes are largely illegible. However, it is clear that Dr. Ljubic
eventually referred Suljevic to Dr. Mohammad Majd.
Suljevic first visited Dr.
Majd on June 3, 2014. He complained of
low back pain and bilateral leg pain, which began two to three months
prior. Dr. Majd reviewed an MRI and
diagnosed disc degeneration stenosis and spondylolisthesis of L5-S1. He recommended a brace, pain management and
physical therapy. Suljevic visited Dr.
Majd again on September 2, 2014 with continued complaints of low back and left
leg pain. Dr. Majd recommended surgery,
which he performed on October 6, 2014.
The surgery consisted of an L5 laminectomy, bilateral foraminotomy with
decompression of the L5 and S1 nerve root, transforminal interbody fusion and
arthrodesis. Post surgically, Suljevic’s
radicular symptoms resolved but he continued to experience low back pain. Five months later, after a course of aquatherapy,
Suljevic’s low back pain had increased.
Dr. Majd ordered continued aquatherapy and a different prescription pain
management course.
In an April 3, 2015 letter
to Dr. Majd, Suljevic’s attorney described his job duties as “heavy repetitive
work.” Counsel further explained:
[Suljevic]
packed and shopped spare parts for automobiles.
Some of the parts were unfinished so he had to do finishing work adding
clips, screws, etc. Parts were sometimes
small but they were also very large.
They weighed anywhere from 1 to 100 pounds. The boxes with multiple parts, the smaller
parts, were also heavy because they would contain as many as 50 parts. Basically, his job involved heavy lifting,
pushing, and carrying the boxes to the pallets where the forklift would pick
them up. In addition, many times he did
work up to 12 hours per day.
Dr. Majd responded by
letter dated May 5, 2015. He stated
Suljevic explained, “his job required him to do manual activity and he is doing
a lot of repetitive motion of his lumbar spine with loading and unloading
objects.” Dr. Majd reiterated his
diagnosis of spondylolytic, spondylolisthesis of L5-S1 based on imaging
studies, and described the unsuccessful treatments Suljevic attempted before
surgery was performed. Dr. Majd opined,
“I believe his job did not cause the spondylolytic, spondylolisthesis. Also I believe the repetitive motion with his
job aggravated this dormant clinical situation and brought it to the reality
which causes significant clinical symptoms and finally surgical intervention.”
Dr. Warren Bilkey conducted
an independent medical evaluation (“IME”) on February 22, 2016 and a review of
Suljevic’s medical records. He diagnosed
a lumbar strain, aggravation of degenerative disc disease of the lumbar spine,
aggravation of spondylolisthesis with canal and foraminal stenosis. Dr. Bilkey opined Suljevic’s lumbar spine
condition is “fully work injury related” and that his work activities brought
an underlying degenerative disc disease into disabling reality. Dr. Bilkey noted Suljevic’s work required
“relatively heavy lifting” and “repetitive bending and lifting.” He opined Suljevic is at maximum medical
improvement for the lumbar spine and, referencing the American Medical
Association, Guides to the Evaluation of Permanent Impairment, 5th
Edition (“AMA Guides”), he assigned a 20% whole person impairment.
Dr. Michael Best conducted
an IME on October 15, 2015, which included a physical exam and medical records
review. Dr. Best diagnosed
spondylolisthesis, but opined his work activities did not cause or aggravate
this condition. Like Dr. Bilkey, he
assigned a 20% whole person impairment pursuant to the AMA Guides, but
did not relate any portion of the impairment to Suljevic’s work. He recommended no restrictions or future
medical treatment.
Dr. Thomas Loeb conducted an
IME on January 12, 2016. He concluded
Suljevic’s lumbar condition is solely related to pre-existing degenerative
changes and was not caused or aggravated by his work activities. He emphasized the lack of objective data that
could establish a causal link between Suljevic’s repetitive lifting and the
structural alteration of his spine. He
assessed a 20% whole person impairment rating pursuant to the AMA Guides,
but attributed no portion of this impairment to Suljevic’s work. Dr. Loeb’s January 12, 2016 Form 107 slightly
contradicted his written report: in his Form 107, he stated 5% of the
impairment rating is attributable to pre-existing active impairment.
The ALJ first determined
Suljevic suffered an injury to his lumbar spine, as evidenced by Dr. Majd’s
medical records. She then considered
whether this injury was caused by Suljevic’s work:
In his IME report Dr. Bilkey opined that
although Plaintiff had significant degenerative disease prior to May 10, 2014
it was Plaintiff’s work activity that made it symptomatic. He also opined that there is a
work-relatedness aspect to the ongoing problem with Plaintiff’s hip. Dr. Bilkey’s opinion is that the lumbar
condition and the hip condition are fully work – related injuries.
In his IME Dr. Best opined
that the spondylitic spondylolisthesis is a pre-existing condition that does
worsen with time and age and that Plaintiff’s work did not cause the
condition. He noted that at the very
most the work resulted in additional pain which would be impairment ratable.
Dr. Loeb opined that Plaintiff’s
condition was due to long-standing progressive pre-existing degenerative
changes. He stated there was no specific
objective data in the record that could prove Plaintiff’s repetitive lifting
caused any structural alteration to the underlying pre-existing condition or to
the natural course of degeneration. In a
second IME report, Dr. Loeb opined that he completely disagreed with Dr.
Bilkey’s opinion that “both the lumbar condition and the hip condition are therefore
fully work-related.” He stated that he
finds no relationship between the current hip complaints and any work injury
from any objective standpoint.
When the casual relationship
between an injury and trauma is not readily apparent to a layman, the question
is one properly within the province of medical experts. Mengel
v. Hawaiian-Tropic Northwest & Central Distributors, Inc., 618 S.W. 2s
184 (Ky. App. 1981).
Also in evidence in this
claim is substantial information from Plaintiff’s treating physician, Dr. Majd,
who performed surgery on Plaintiff. It
is, in fact, this treating physician’s opinions which are most persuasive to
the ALJ as this treating physician has had the most contact with Plaintiff and
best understands the full implications, causes and likely results of the
surgery which he himself performed.
Because he performed the surgery on Plaintiff’s back the treating
physician is also most knowledgeable about the condition of Plaintiff’s
back/spine due to direct observation and extensive treatment and observation of
Plaintiff’s back/spine.
Dr. Majd, the treating
physician who performed the surgery on Plaintiff’s spine, has opined that
Plaintiff’s job did not cause “spondylolytic, spondylolisthesis. Also I believe that repetitive motion of his
job aggravated this dormant clinical condition and brought it to the reality
which causes significant clinical symptoms and finally surgical
intervention.” After reviewing all
medical evidence in the claim, the ALJ finds the opinion of Dr. Majd most
persuasive and, therefore, finds that Plaintiff did sustain a cumulative trauma
injury related to his work. Relying on
Dr. Majd’s medical opinion, the ALJ finds that Plaintiff’s work aggravated and
brought into disabling reality his back injury.
Having found that the injury
is work-related the ALJ also finds that Plaintiff did suffer an injury as
defined by the Act.
The ALJ awarded temporary
total disability benefits and permanent partial disability benefits based on a
20% whole person impairment rating.
These benefits were enhanced pursuant to KRS 342.730(1)(c)3.
JCIM petitioned for
reconsideration, arguing Dr. Majd’s opinion does not constitute substantial
evidence upon which to base the award, because he provided no rationale linking
Suljevic’s job duties to the injury. Furthermore,
JCIM argued Suljevic did not testify as to sufficient repetitive job duties
that would establish causation. JCIM also requested further findings of fact
regarding Suljevic’s alleged job tasks and whether he established a causal link
between his work and the injury.
In her February 1, 2017
Order on Reconsideration, the ALJ reiterated her reliance upon Dr. Majd’s
opinion to support the determination Suljevic suffered a work-related
cumulative trauma injury to his lumbar spine.
She also noted Dr. Bilkey’s opinion supports this conclusion. As such, she denied the petition. JCIM now appeals, raising the same arguments.
As the claimant in a
workers’ compensation proceeding, Suljevic 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 he was successful, the question on appeal is whether substantial
evidence 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 Suljevic’s claim, the ALJ
relied upon the medical opinions of Drs. Majd and Bilkey to conclude he
suffered a work-related cumulative trauma injury to his lumbar spine. Both physicians opined Suljevic’s established
lumbar condition was caused by the arousal of an underlying degenerative
condition. Each cited his work
activities, which included repetitive bending and lifting. Suljevic testified he was required to
repeatedly bend and lift objects and boxes of varying sizes and weight. This proof constitutes the requisite
substantial evidence to support the ALJ’s decision.
JCIM argues Dr. Majd’s
opinion lacks sufficient detail explaining how Suljevic’s work activities
caused his lumbar condition. First,
JCIM’s argument ignores the fact the ALJ also relied upon Dr. Bilkey’s
opinion. Dr. Bilkey explained how
Suljevic’s repeated lifting and bending “would be conducive to the development
of low back pain particularly in the face of pre-existing degenerative disease that
was asymptomatic.”
Furthermore, 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). It is not within the province of this Board
to re-weigh the evidence, and reach an alternative conclusion. Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999). We do not believe the opinions of Drs. Majd
and Bilkey are so vague or otherwise lacking to declare them unreliable as a
matter of law. In addition, contrary to
JCIM’s assertions on appeal, the letter from Suljevic’s counsel to Dr. Majd
indicated he was aware of Suljevic’s daily job duties. As such, the ALJ acted within her discretion
in relying upon the doctors’ opinion.
JCIM also argues the
ALJ provided insufficient findings of fact regarding the cause of Suljevic’s
lumbar spine injury. Again, we
disagree. An ALJ’s decision must
adequately set forth the basic facts upon which the ultimate conclusion was
drawn so the parties are reasonably apprised of the basis of the decision.
Big Sandy Community Action Program v. Chafins, 502 S.W.2d 526 (Ky.
1973). Here, the ALJ provided an
exhaustive review of the proof, including the medical opinions upon which she
ultimately relied. She explained why she
found Dr. Majd’s opinion particularly credible, as he was the treating physician. In her Order on Reconsideration, the ALJ
provided further explanation for her reasoning, and noted Dr. Bilkey’s opinion
also supported the ultimate conclusion. The explanation she provided
demonstrates she exercised her discretion in assessing the proof, and is more
than sufficient to apprise the parties of her decision. New Directions Housing Authority v. Walker,
149 S.W.3d 354, 358 (Ky. 2004).
Accordingly, the August
19, 2016 Opinion, Order and Award and the February 1, 2017 Order on
Reconsideration rendered by Hon. Tanya Pullin, Administrative Law Judge, are
hereby AFFIRMED.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON DENISE KIRK ASH
PO BOX 34125
LEXINGTON, KY 40588
COUNSEL
FOR RESPONDENT:
HON WAYNE C DAUB
600 W MAIN ST #300
LOUISVILLE, KY 40202
CHIEF ADMINISTRATIVE
LAW JUDGE:
HON TANYA PULLIN
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601