August 18, 2017 201592512

Commonwealth of Kentucky 

Workers’ Compensation Board




OPINION ENTERED: August 18, 2017



CLAIM NO. 201592512 & 201476150



APRIL MAYHEW                                   PETITIONER

















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


STIVERS, Member. April Mayhew (“Mayhew”) appeals from the March 28, 2017, Opinion and Order dismissing Mayhew’s claim and the May 1, 2017, Order overruling her petition for reconsideration of Hon. Douglas W. Gott, Administrative Law Judge (“ALJ”). In the March 28, 2017, Opinion and Order, the ALJ dismissed Mayhew’s claim for alleged injuries to her low back sustained on July 7, 2014, and February 26, 2015. On appeal, Mayhew asserts the ALJ’s dismissal of her low back claims is not supported by substantial evidence.

The Form 101 for Claim No. 2014-76150 alleges Mayhew sustained a work-related injury to her back on July 7, 2014, while working as a Certified Nursing Assistant (“CNA”) for Auburn Nursing Home (“Auburn”) in the following manner: “Plaintiff was transferring a resident from his chair, when she fell and felt pain in her back.”

The Form 101 for Claim No. 2015-92512 alleges Mayhew sustained a work-related injury, also to her back, on February 26, 2015, in the following manner: “Plaintiff was transferring a resident from her bed to her wheelchair, when she felt pain in her back.”[1]

On July 14, 2016, Mayhew filed a Motion to Consolidate Cases requesting the ALJ consolidate the  claims, which was sustained by order dated August 4, 2016.

Mayhew was deposed on October 24, 2016. She described the alleged work injury occurring on July 7, 2014, as follows:

A: There – everybody was getting ready for dinner, and he [the patient] wanted to be lifted up in his chair. And I lifted him up. And when I did that, pain, like, it just came, and I fell to the floor.


Q: Where do you recall feeling pain?



A: Yeah. I don’t – I just remember I don’t – like in my (indicating) back. Like, I don’t – it’s been a long time ago, and I’ve had that other one since. But I don’t know. My groin, my sciatic nerve, I don’t – I just felt pain.



A: And I fell.


Q: You’re pointing – right now, you’re pointing to the front area of your body?



Q: Can you tell me where you felt pain in relation to your belt line on the front part of your body?


A: The first – I don’t – I’m trying to – I don’t know. I just remember it being, like, in – I’m trying not to get it mixed up with the second one. Because I – but I don’t know. I just remember, like, my low – it’s like my lower back and, then, my whatever, right here. (Indicating.)


Q: And now, again, you’re pointing to the front area of your body –


A: Yeah.


Q: And now, you say you had pain in the rear of your body on both sides of your buttocks?


A: Yeah.


Q: Okay. Can you describe that pain for me?


A: No. It hurt.


Q: Okay. Was it a burning sensation?


A: It was – that first one, it was just pain. But as time went on after that, well, it was just, like, burning, burning.



Q: The burning progressed?


A: Yes.


          After this alleged injury, Mayhew was treated at UrgentCare and then Greenview Hospital. She did not take time off from work and performed her normal job duties until the second incident.

          Mayhew described the alleged work injury of February 26, 2015:

A: I went in there and got her up. And when I – when we sat up on the side of the bed, when I got up and we went to turn, I felt pain in my back and – so bad.


Q: When you say ‘her,’ you mean the resident?


A: Yes.

Q: Okay. So you were attempting to move a patient or a resident?


A: Yes.


Q: And you turned?


A: Yeah. Turned with her – when I – we stood up and I went to turn and put her in her wheelchair, I felt that pain.


Q: Where did you feel the pain?


A: Right there. (Indicating.)


Q: Okay. You’re pointing to the left side of your body –


A: Yeah.


Q: - again, in your buttock area?


A: Like, right above my butt.


Q: Okay. In your low back?


A: Yes. It was just – phew.


Q: Can you describe that pain for me?


A: It was not like nothing [sic] I ever experienced before in my life.


Q: Was it sharp?


A: Like, I guess you could say sharp. It was – I don’t really – it was just – phew. Like nothing I’ve ever experienced before or felt.


          Mayhew described the low back symptoms she continued to experience:

A: Some. If I sit too long, like – or if I – and then a lot of nerve damage in my le- left leg and foot.



Q: Have you been diagnosed with drop foot?


A: Yes.


Q: Is that your left foot?


A: Yes.


Q: As we sit here today, do you have pain in your low back?



A: Yes.


Q: The more you sit here?


A: But it’ll be okay, I think.


Q: Where else, if anywhere else, are you feeling pain as we sit here today?


A: Under my butt, that – my left leg.


Q: Down your left leg?


A: Uh-huh. But it’s – yeah.


Q: Can you tell me what that pain feels like.


A: It’s – I’m trying to think of how to describe it. It’s just like aching, thro- it’s almost like aching, throbbing, almost. I guess- I don’t know how to describe it really.

Q: Is that pain always present in your body, or do you have times-



Q: Or do you have times when you are not pain – or when you are pain free?


A: There are – there are my good days. But then…


          Mayhew testified that she would not be able to perform her pre-injury job at Auburn.

          Mayhew also testified at the February 6, 2017, hearing.

Auburn introduced in evidence the January 30, 2017, Independent Medical Examination report of Dr. Dennis O’Keefe. After examining Mayhew and performing a medical records review, Dr. O’Keefe set forth the following diagnoses:

A. Right groin pull secondary to the work-related injury on July 7, 2014 – resolved without residual.


B. Low back and left leg pain, secondary to disc herniation at the L5-S1 level on the left – not related to the work-related injury of February 26, 2015. This appears to have represented a pre-existing active condition.


Dr. O’Keefe expressed the following opinions in response to several questions:

2. Is Plaintiff’s alleged July 2014 injury related to Plaintiff’s alleged 2/26/15 back injury? Specifically, is there any medical proof that Plaintiff suffered a back injury of any kind in July 2014?


Review of records indicates that the patient’s discomfort on July 7, 2014, involved the right lower quadrant of the abdomen and the right groin. This does not appear to be related to the Plaintiff’s low back injury of February 26, 2015. The two episodes appear to be independent.


3. When did the claimant reach maximum medical improvement (MMI) with regard to any condition related to the work injury?


With regard to the right groin pain, Ms. Mayhew was off work for only a day or two following the incident. She would have reached MMI by July 14, 2014.


With regard to low back and left leg pain that the patient described as being related to a work injury of February 26, 2015, records indicate that she had at least three visits to various medical facilities prior to that date with similar complaints. It would appear that her low back and left leg pain represents an active pre-existing condition not related specifically to the events of February 26, 2015. [sic] The record available to me, Ms. Mayhew had no complaints of low back or left leg pain during the period of July 7, 2014 through December 8, 2014.


It would be my opinion that Ms. Mayhew reached MMI following her lumbar spine surgery on or around July 1, 2016. This would be a little over three months following surgery. However, the MMI from her surgical intervention does not appear to be due to a work-related injury.


4. Based upon the objective medical findings and using the AMA Guides to the Evaluation of Permanent Impairment, 5th Edition, what is the claimant’s current percentage of permanent impairment, if any? (if the Claimant is not at MMI, please calculate tentative impairment in the event the judge finds the claimant to be at MMI). Do you agree with Dr. Fishbein’s impairment ratings?


Based upon the AMA Guidelines, 5th Edition, Table 15-3, page 384, Ms. Mayhew would fit into DRE Category III. I would award her a 10% permanent impairment to the body as a whole based upon her disc herniation and subsequent surgery.


It would be my opinion that the right groin pull suffered by Ms. Mayhew in July 2014 was a temporary condition which resolved without residual impairment. I feel that she would have a 0% permanent impairment to the body as a whole with regard to the right groin pull.


5. Do you agree with Dr. Fishbein’s assessment that Plaintiff retained an active impairment rating as it pertains to her back as it related to the alleged July 7, 2014, injury?


No, I do not feel that Ms. Mayhew retained an active impairment rating as it pertains to the injury of July 7, 2014. By my review of records, she did not have any significant period of being off work following the July 7, 2014, injury. There are no records available for my review that indicate any kind of medical treatments or continuing problems with regard to the right groin pull during the period July 7, 2014 to December 8, 2014.


6. If an impairment rating is assessed, is any percentage attributable to (a) a pre-existing active condition; (b) prior injuries; (c) prior symptomatic degenerative changes; or (d) the natural aging process? If so, using the AMA Guides, 5th Edition, what was the permanent impairment rating immediately before the alleged work incidents?


Based upon the AMA Guides, 5th Edition, and Ms. Mayhew’s medical evaluations on December 8, 2014, January 14, 2015, and January 27, 2015, it would appear that Ms. Mayhew had evidence of active impairment within reasonable medical probability represented a lumbar disc herniation at the L5-S1 level with S1 root compression. This would be considered a pre-existing active condition prior to the patient’s reported work injury of February 26, 2015. Her impairment rating prior to February 26, 2015 would be a 10% permanent impairment to the body as a whole.


7. What permanent work restrictions would be reasonable, necessary and causally related to the work injury, if any?


If one accepts the statements that the right groin pull was a transient injury with no long-term residual and the low back and left leg pain problems pre-existed the reported work injury of February 26, 2015, Ms. Mayhew would not have any restrictions related to her work injuries. Given the fact that Ms. Mayhew did undergo surgery and did have a clearly demonstrated lumbar disc herniation, I would recommend that she left or carry no more than 50 pounds on an occasional basis.


8. In your opinion, is the claimant physically capable of performing the type of work that was performed at the time of the alleged work injury? Is [sic] she is not, is that inability due to the effects of a work injury?


I feel that Ms. Mayhew is physically capable of returning to work as a Certified Nursing Assistant. As noted above, I recommend that she not lift more than 50 pounds on an occasional basis. If she is required to assist heavy patients, she should only do so with the assistance of a coworker.


9. What future medical treatment would be reasonable, necessary and causally related [sic] the work injury?


In my opinion, Ms. Mayhew has reached MMI. I feel that she does not need continuing care with regard to her low back and legs at this point in time. She may require the use of occasional over-the-counter analgesics for transient episodes of pain.


10. Was the surgical procedure performed by Dr. Schwank related to plaintiff’s alleged work injury? If not, please explain. If so, was it reasonable and necessary for the cure and relief of plaintiff’s work injury?


Based upon the issues as noted above, it would be my opinion that Dr. Schwank’s surgery was related to a pre-existing active condition that existed prior to February 26, 2015.


Dr. Schwank’s surgical procedure was reasonable, necessary and appropriate for treatment of the patient’s herniated lumbar disc. However, based upon the information listed above, it did not appear that the disc herniation was due to a work-related injury on February 26, 2015.


11. Do you find any objective medical evidence of malingering, exaggeration, symptom magnification, drug seeking behavior, or voluntary self-limiting behavior by the claimant?


Ms. Mayhew appeared to demonstrate some symptom magnification behavior in that her voluntary range of motion at the low back was much less than what would have been reasonably expected for someone her age and overall general health and currently at MMI. Her gait was also somewhat histrionic and much slower and atypical for a normal gait after having undergone simple laminotomy [sic] and discectomy.


The December 15, 2016, Benefit Review Conference  Order lists the following contested issues: work-relatedness/causation; notice (2014 injury); benefits per KRS 342.730; injury as defined by the Act; temporary total disability (“TTD”) benefits; pre-existing active; and average weekly wage. 

In her brief to the ALJ, Mayhew argued entitlement to permanent partial disability (“PPD”) benefits and medical benefits as a result of the alleged injuries to her back occurring on July 7, 2014, and February 26, 2015.

          In the March 28, 2017, Opinion and Order, the ALJ set forth the following conclusions regarding the alleged injuries of July 7, 2014, and February 26, 2015:

     16. The dots simply do not connect for Mayhew for either of her back injury claims. She has not satisfied her burden of proof.

     July 7, 2014 injury claim. The evidence fails to show Mayhew suffered a low back injury on July 7, 2014. She had a groin strain, as noted by Dr. O’Keefe, but not a back injury. She sought treatment from two medical facilities on the date of injury – an unspecified immediate care center, believed to be CorpCare, and Greenview Hospital. At Corpcare she had “lower abdominal and groin pain.” Examination of systems, including “Musculoskeletal,” “Neurologic,” and “Back,” were normal. At Greenview, she had “rt groin pain.” The fact no lumbar x-ray was taken at either facility confirms the lack of a low back complaint.

     Mayhew was released to return to work, and did so without restrictions. She had no subsequent treatment for five months until she had a lumbar x-ray at The Medical Center at Franklin on December 8, 2014. The x-ray was normal. The history on the report was that Mayhew had back pain “since yesterday.” This is the first mention of back pain in a medical record after July 7, 2014. The note contains no history of a work injury on July 7, 2014. (No accompanying treatment or clinical notes were filed.)

     The evidence from Dr. Poe and Dr. Reynolds will be discussed in greater detail in connection with the 2015 injury claim, but, for present purposes, it is noted that neither received a history of a July 7, 2014 work injury when they saw Mayhew in January of 2015.

     Mayhew was asked to explain why there was no history of a July 7, 2014 injury in the records of The Medical Center at Franklin, Dr. Reynolds, and Dr. Poe through January of 2015. She did not directly answer the question. She suggested she was confused by dates, which was not in context with the question. (depo p. 70-71).

     Along those lines, Mayhew was not a good witness. Her testimony was often non-responsive, and confusing. An example was being asked about the specifics of her 2014 injury. She said, “The first – I don’t – I’m trying to – I don’t know. I just remember it being, like in – I’m trying not to get it mixed up with the second one. Because I – but I don’t know. I just remember, like my low – it’s like my lower back and, then, my whatever, right here.” (depo p. 45-46)

     As to treatment that continued after the second alleged injury on February 26, 2015, a history of an injury in 2014 was never documented.

     Dr. Fishbein’s assignment of impairment to a 2014 injury is not persuasive for at least two reasons. His opinion of permanency flies in the face of all the evidence above; none of the treatment records Dr. Fishbein summarized document a low back injury. Further, his assignment of either 2% or 3% impairment is not in accordance with the AMA Guides. Impairment commences at 5% under Table 15-3 of the Guides; there is no allowance for a rating less than that, other than 0%.

     Finally, there is the unique circumstance of this claim being amended to assert an injury prior to the injury originally alleged on the Form 101; one would expect the 2014 injury to have been asserted with the 2015 injury on the Form 101. The revelation of the treatment discussed above in December 2014-January 2015 creates an impression that low back complaints from a July 7, 2014 incident were conjured after the fact to explain treatment prior to the 2015 injury and serve as the original source of back pain.

     17. February 26, 2015 injury. The evidence supporting dismissal of the two injury claims runs together. A bridge between the two would be Mayhew’s testimony that “all my problems have been on my left leg,” and began after the 2015 injury. (p. 36). If all her problems began in 2015, then they do not relate to the 2014 injury.

     But the problem with relating her problems to a February 26, 2015 injury is that they began before that date. She gave Dr. Poe a history of two years of low back pain on January 14, 2015. She gave Dr. Reynolds a history of two years of low back pain on March 2, 2015. This coincides with the records from The Medical Center at Bowling Green, where she was given diagnoses of back pain and sciatica in 2012 and 2013.

     Mayhew seemed impressed to have been given a diagnosis of sciatica to explain her complaints. She used the label at least seven times in her deposition alone. (p. 34-36, 45, 49, 51). She said, “And then I got told it was sciatic nerve,” implying that diagnosis came following a work injury and finally explained her problem. (p. 49). But she had been given the sciatica diagnosis at The Medical Center at Bowling Green in 2013, before either work injury. The 2014 work injury clearly did not cause a herniated lumbar disc, for the reasons explained in the preceding paragraph. So that leaves Mayhew to prove the radiating leg symptoms emanating from a herniated disc stemmed from an injury on February 26, 2015. But she was diagnosed with sciatica by Dr. Reynolds on January 27, 2015; and complained to Dr. Poe about burning pain and numbness down the left leg on January 14, 2015, a month before the alleged work injury.

     Mayhew did not give a history of a work related injury in her first appointments with Dr. Reynolds and Dr. Poe after February 26, 2015. (3/2/15 for Dr. Reynolds and 1/14/15 for Dr. Poe). She gave Dr. Reynolds a history of a work injury “in Feb or March” on her fourth appointment with him after February 26, 2015. (5/21/15). She treated with Dr. Poe through April 10, 2015, and never gave him a history of a work injury.

     Mayhew’s presentation to The Medical Center at Bowling Green on February 26, 2015 is not consistent with an operable herniated disc causing radicular symptoms. An x-ray reported “no acute abnormalities, chronic findings,” and Mayhew was released to unrestricted work immediately.

     The ALJ believed Susan Taylor that Mayhew complained of back and leg pain at work prior to either of the injury dates in this case.

     A lack of polish as a witness does not disqualify a meritorious claim. But sometimes vague, confusing testimony signals a greater concern. It is one thing not to be a good historian, but another to fail to remember the names of businesses where applications for employment have been made since the injury (p. 20), or significant details about treatment that occurred in the not too distant past. Asked in her October 24, 2016 deposition about treatment during the time she saw Dr. Reynolds, she said, “I don’t remember. It’s been a long time ago. To me, it’s been a long time ago.” (p. 50). And then we have the added, significant concern about the reliability of testimony. Mayhew denied any prior injuries or treatment before her claimed work injuries (p. 51); that plainly is not true. She attempted to rehabilitate herself at the Hearing by acknowledging sciatic nerve symptoms before either injury injury [sic] but unpersuasively attempted to minimize the misrepresentation by several times saying “it was nothing that changed my life.” (HT p. 26)

     And again on this second claim, Dr. Fishbein does not provide convincing evidence on causation or impairment. His initial report was issued without knowledge of the prior complaints and treatment. After he reviewed the prior records he said the preexisting condition deserved some apportionment, so his recognition of prior active impairment goes against Mayhew’s testimony that her complaints were insignificant, and also against the argument in her brief that there is no active impairment under Finley. (p. 12). As to the rating, the ALJ does not find Dr. Fishbein’s opinion of 2% active impairment to be in accordance with the AMA Guides because, as noted above in resolution of the 2014 injury claim, there is no provision under Table 15-3 for an impairment rating between 0% and 5%. Further, there is no explanation for that 2% rating – no identification of a condition for which impairment is assigned under Table 15-3. And then for the reduced 11% rating, Dr. Fishbein arbitrarily assigns 2% to the 2014 injury and 9% to the 2015 injury, in essence compounding his error because Table 15-3 does not provide for impairment between 8% and 10% either; DRE Lumbar Category II impairment caps at 8% and Category III begins at 10%. So even if Mayhew had proven causation, her claim for permanent income or medical benefits still fails because she has not met her burden of establishing a reliable impairment rating on which to base such an award. Jones v. Brasch-Barry Gen. Contractors, 189 S.W.3d 149 (Ky. App. 2006).

     Plaintiff’s supplemental brief attempts to take this case down a path different from what was pled or practiced. She argues that her condition is the result of an accumulation of lifting incidents with patients that “became disabling” on February 26, 2015. This was not a “cumulative trauma” case, but a claim of two acute injuries, neither of which the ALJ finds to have been proven.

          Mayhew filed a petition for reconsideration requesting the ALJ to reconsider his Opinion and Order and award TTD benefits, PPD benefits, and medical benefits. As previously noted, the order of May 1, 2017, overruled the petition for reconsideration.

          On appeal, Mayhew asserts the ALJ erred in dismissing her claims arising from the alleged work injuries to her back occurring on July 7, 2014, and February 26, 2015. We affirm.

As the claimant in a workers’ compensation proceeding, Mayhew had the burden of proving each of the essential elements of her cause of action, including “injury” as defined by the Workers’ Compensation Act. KRS 342.0011(1); Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979); and Eck Miller Transportation Corp. v. Wagers, 833 S.W.2d 854, 858 (Ky. App. 1992). Since Mayhew was unsuccessful in meeting her burden of proof, 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). 

          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). An ALJ may draw reasonable inferences from the evidence, 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. Jackson v. General Refractories Co., 581 S.W.2d 10 (Ky. 1979); Caudill v. Maloney’s Discount Stores, 560 S.W.2d 15 (Ky. 1977). 

          When reviewing a decision on appeal, the function of the Board is limited to a determination of whether the findings made 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). The Board, as an appellate tribunal, may not usurp the ALJ's role as fact-finder by superimposing its own appraisals as to weight and credibility or by noting other conclusions or reasonable inferences that otherwise could have been drawn from the evidence. Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999). 

          Here, substantial evidence supports the ALJ’s determination that Mayhew did not sustain work-related injuries to her back on July 7, 2014, and February 26, 2015. We acknowledge there is medical evidence in the record in support of a finding Mayhew sustaining work-related injuries on said dates.[2] However, the ALJ has the discretion to exclusively rely upon the opinions of Dr. O’Keefe, as set out herein, which are substantial evidence in support of the ALJ’s decision. The fact Mayhew can cite to evidence that would have supported a different outcome than that reached by the ALJ is not an adequate basis to reverse on appeal.  McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974).  Rather, it must be shown there was no evidence of substantial probative value to support the ALJ’s decision dismissing Mayhew’s claim for injuries sustained on these dates.  Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986).

          Accordingly, the March 28, 2017, Opinion and Order and the May 1, 2017, Order are hereby AFFIRMED.  

          ALL CONCUR.



3209 W END AVE












[1] On February 15, 2016, Mayhew filed a “Motion to Amend Form 101” (Claim No. 2015-92512) in order to clarify the name of the Defendant Employer as “Bolster and Jeffries Health Care Group, LLC, d/b/a Auburn Nursing.” By order dated March 2, 2016, Hon. Jeanie Owen Miller, Administrative Law Judge, sustained Mayhew’s motion.

[2] This evidence includes but is not limited to the October 11, 2016, Independent Medical Examination report and the November 3, 2016, and January 26, 2017, supplemental reports of Dr. Richard E. Fishbein.