January 15, 2016 201285818

Commonwealth of Kentucky 

Workers’ Compensation Board




OPINION ENTERED:  July 14, 2017



CLAIM NO. 201571248



JCIM                                          PETITIONER


















                       * * * * * *



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.






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