Workers’
Compensation Board
OPINION ENTERED: August 18, 2017
CLAIM NO. 201495481
VIRGIE CLINIC PHARMACY, INC. PETITIONER
VS.
APPEAL
FROM HON. STEPHANIE L. KINNEY,
ADMINISTRATIVE LAW JUDGE
SANDRA RENEE WEST
AND HON STEPHANIE L. KINNEY,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. Virgie Clinic Pharmacy,
Inc. (“Virgie Pharmacy”) appeals from the September 30, 2016 Opinion, Order and
Award and the November 15, 2016 Order rendered by Hon. Stephanie L. Kinney,
Administrative Law Judge (“ALJ”). The
ALJ awarded Sandra Renee West (“West”) permanent partial disability benefits
for shoulder and wrist injuries. On
appeal, Virgie Pharmacy argues the ALJ abused her discretion by relying on an
impairment rating assessed by Dr. Anbu Nadar and in enhancing benefits by the three
multiplier. We affirm.
West testified by deposition on March 2, 2016 and at the
hearing held August 1, 2016. She began
working for Virgie Pharmacy as a cashier in 2011. On January 22, 2014, West was standing on a
chair while attempting to place a Christmas tree on a shelf. She lost her balance and fell. She immediately treated at the Pikeville
Medical Center emergency room, was admitted to the hospital, and had surgery on
her wrist the next day.
During her deposition testimony, West indicated she felt
she could return to her cashier job at the pharmacy. She had worked intermittently filling in for
another employee at the grill, but had not returned to her regular position as
a cashier. At the hearing, West stated
she did not believe she could return to the cashier position she performed at
the time of her injury. She explained
that, in addition to her cashier duties, she was required to stock the front
area, clean the front parking lot, clean windows, and climb ladders while
putting up decorations on windows and the ceiling. West explained she also had to lift boxes of
labels, handle incoming shipments of boxes, and move boxes in the storage
area. West indicated she did less
lifting when she filled in at the grill.
She also discussed a position she had obtained with Aramark at the
University of Pikeville cafeteria.
Because she had not yet started the position, she was unsure of the
exact job requirements.
West submitted Dr. Nadar’s
records and reports. Dr. Nadar diagnosed a comminuted fracture of the right distal
radius, right shoulder strain with impingement with rotator cuff tendinitis,
and cervical strain. He performed open
reduction/internal fixation surgery for the wrist fracture on January 23, 2014,
and rotator cuff arthroscopy with sub-acromial decompression and excision of
the lateral end of the clavicle on June 15, 2014. Dr. Nadar opined
West did not retain the physical capacity to return to the type of work she
performed at the time of the injury. He restricted
West to lifting no more than twenty pounds on an
occasional basis and five to ten pounds on a frequent basis. Dr. Nadar opined West would have limitations in work activity that required
heavy lifting, frequent bending, twisting, turning, or pushing and pulling with
her right arm.
In a December 16, 2015 report, Dr. Nadar
assigned an 8% impairment rating to the upper extremity for the wrist injury,
which translates to a 5% whole person impairment pursuant to the
American Medical Association, Guides to the Evaluation of Permanent
Impairment, 5th Edition (“AMA Guides”). He assigned a 13% whole person impairment rating
for the shoulder based upon deceased range of motion and the distal clavicle
resection. Dr. Nadar
also assigned a 5% impairment rating for a cervical condition. In a Form 107 completed that same date, Dr. Nadar assigned an 8% rating for the wrist, 13% rating for
the shoulder and 5% rating for the cervical condition.
Dr. Nadar
testified by deposition on May 25, 2016.
He initially treated West on January 22, 2014 for the work injury. He performed surgery to reduce the wrist
fracture, including use of a plate and screws.
He also obtained an MRI that revealed a partial tear of the rotator cuff
and impingement because of spurring. Dr.
Nadar was questioned about a variation in the range
of motion measurements he obtained from West and those documented in physical
therapy records. He explained the
natural variability inherent in range of motion measurements, and indicated he
was concerned that the physical therapist may have been too optimistic in the
assessment or that West had regressed.
Dr. Nadar reaffirmed his prior impairment
rating for the wrist and shoulder, and his restrictions of lifting no more than
twenty pounds occasionally, five to ten pounds frequently, and no heavy
lifting, frequent bending, twisting, turning or pushing and pulling with her
right arm. Dr. Nadar
acknowledged he had not seen a written job description. Rather, he explained he relied on his
discussion with West in determining that she would not be able to return to
full duty in the job she was performing at the time of her injury.
Dr. Robert E. Windsor read an April
28, 2014 MRI report which West submitted.
Dr. Windsor’s analysis revealed a partial-thickness rotator cuff tear,
moderate to severe impingement related to osteophytes at the distal acromion
and the acromioclavicular joint, and mild infraspinatus tendonitis or
tendinopathy.
Dr. David Jenkinson performed an
independent medical evaluation on November 11, 2014. West complained of intermittent pain in her
shoulder and wrist, though her primary complaint was decreased motion in the
right shoulder. Dr. Jenkinson diagnosed
a comminuted fracture of the right distal radius and right shoulder pain with
rotator cuff tendonitis and impingement.
He opined West requires no additional treatment or diagnostic testing,
and has no temporary or permanent restrictions.
Furthermore, Dr. Jenkinson opined West has no
significant abnormality that would prohibit returning to her former employment
as a cashier. He assigned a 15% whole
person impairment rating pursuant to the AMA Guides for decreased right
wrist and shoulder range of motion.
Dr. Jenkinson conducted a second
evaluation performed on March 29, 2016.
On examination, West had full range of motion
of the shoulder, elbow and forearm with no complaints. She had slightly decreased range of motion of
the right wrist. Dr. Jenkinson opined
West has shown significant improvement since the prior exam. He assigned a combined 10% impairment rating
consisting of 6% for the shoulder, 3% for the wrist and 1% for decreased finger
motion. He opined West does not need
further treatment and is capable of returning to her former work or any comparable
employment without restrictions.
The
ALJ determined West’s wrist and shoulder conditions were work-related, but the
cervical condition was not. Relying on
Dr. Nadar’s opinion, the ALJ found West
has a 5% impairment rating for the wrist injury and 13% rating for the shoulder
injury. Regarding West’s
retained physical capacity, the ALJ found as follows:
Plaintiff has not returned to full-time
employment with the Defendant. She does
continue to work for the Defendant on an intermittent and extremely sporadic
basis. Plaintiff does not feel she is
capable of performing her preinjury work which is corroborated by Dr. Nadar’s opinion that Plaintiff does not retain the physical
capacity to perform her pre-injury work.
Virgie Pharmacy filed a petition for reconsideration
essentially making the same arguments it raises on appeal. In her November 15, 2016 Order, the ALJ
overruled Virgie Pharmacy’s petition for reconsideration, noting Dr. Nadar’s report clearly limited West from overhead
activities, to lifting greater than twenty pounds on an occasional basis, and
lifting five to ten pounds on a regular basis.
Additionally, the ALJ noted West’s testimony that she frequently had to
engage in lifting and rearranging crates of pill bottles and engage in some
custodial activities. The ALJ found
credible West’s hearing testimony that she did not feel she was capable of
performing the custodial activities of her job.
Finally, the ALJ noted Virgie Pharmacy’s petition is nothing more than a
re-argument of the merits of the case.
On appeal, Virgie Pharmacy argues the ALJ abused her
discretion in relying upon Dr. Nadar’s impairment
rating. It notes Dr. Nadar
indicated in the narrative portion of his IME report that West had an 8% upper
extremity impairment rating that translates to a 5% whole person rating. However, he assigned an 8% rating for the
wrist in his Form 107. Virgie Pharmacy
requests a finding that the 8% rating is erroneous and that Dr. Nadar intended the 5% impairment to stand. It also objects to Dr. Nadar’s
13% rating for the shoulder injury because his range of motion measurements are
inconsistent with the remainder of the record, and the most recent measurements
were normal. Virgie Pharmacy asserts Dr.
Jenkinson’s opinion is more persuasive and, therefore, the ALJ should have
relied upon it.
As the claimant in a workers’ compensation proceeding, West had the burden of proving each
of the essential elements of her cause of action. Snawder
v. Stice, 576 S.W.2d 276 (Ky. App. 1979). Since West
was successful in her burden, 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 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 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).
We find no error in the ALJ’s determination of West’s
impairment rating for the wrist condition.
The ALJ relied on the 5% rating Dr. Nadar
assessed in the narrative report rather than the 8% stated in the Form
107. The narrative report correctly
indicates the 8% upper extremity impairment converts to a 5% whole person
impairment pursuant to Table 16-3 in the AMA Guides. No additional findings regarding Dr. Nadar’s rating for the wrist are required.
Virgie Pharmacy’s argument concerning the 13% rating for
the shoulder is merely a re-argument of the merits. Where
evidence is conflicting, the ALJ may choose whom or what to believe. Pruitt v. Bugg
Brothers, 547 S.W.2d 123 (Ky. 1977).
Nothing
in the record indicates Dr. Nadar’s range of motion
testing was invalid at the time he performed his examination. The fact that another examining physician at
a different time found a greater degree of range of motion may be considered,
but is not dispositive. Furthermore, Dr.
Nadar testified that there could be variation between
examinations. He provided an explanation
for the variation, explaining that the physical therapy results may not have
been accurate or West’s condition may have regressed during the year after
physical therapy. The ALJ was free to be
persuaded by this explanation and rely upon Dr. Nadar’s
impairment rating for the shoulder injury.
Virgie Pharmacy next argues the ALJ abused her discretion
in awarding the three multiplier. It
contends West’s deposition testimony establishes that she could return to her
job. Although West changed her testimony
at the hearing, Virgie Pharmacy claims the testimony is not credible, and her
statement regarding lifting a box of labels is inadequate to establish an
inability to return to her previous employment.
We find no error in the ALJ’s determination that West is
entitled to the three multiplier. An ALJ may give weight to a
claimant’s own testimony regarding her retained physical capacity and
occupational disability. Hush v.
Abrams, 584 S.W.2d 48 (Ky. 1979).
The claimant’s own testimony is competent evidence as to whether the
claimant retains the physical capacity to return to the type of work performed
at the time of injury. Carte v. Loretto
Motherhouse Infirmary, 19 S.W.3d 122 (Ky. App. 2000).
Here, the ALJ found
West’s hearing testimony credible regarding her limitations. West testified she would have difficulty with
the frequent lifting and moving of boxes required in her job. Although West indicated at the deposition
that she thought she could return to her job, she was not questioned regarding
the specific requirements of the cashier position. Additionally, Dr. Nadar
restricted West to lifting only five to ten pounds on
a frequent basis, and specifically indicated she did not retain the physical
capacity to return to the type of work she performed at the time of the
injury. While Dr. Nadar
did not review a written job description, he testified he discussed at length
with West the type of work she was performing.
West’s hearing testimony and Dr. Nadar’s
opinion are substantial evidence supporting the ALJ’s determination regarding the three multiplier.
While Virgie Pharmacy has identified evidence supporting a
different conclusion regarding the impairment rating and application of the
three multiplier, there was substantial evidence presented to the
contrary. 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). There being substantial evidence
supporting the ALJ’s decision, it may not be disturbed on appeal. Special Fund v. Francis, 708
S.W.2d 641 (Ky. 1986).
Accordingly, the September 30, 2016 Opinion, Order and Award and the November 15, 2016 Order rendered by Hon. Stephanie L. Kinney, Administrative Law Judge, are hereby AFFIRMED.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON THOMAS C DONKIN
2452 SIR BARTON WAY STE 300
LEXINGTON, KY 40509
COUNSEL
FOR RESPONDENT:
HON C PHILLIP WHEELER
5055 N MAYO TRAIL
PIKEVILLE, KY 41501
ADMINISTRATIVE
LAW JUDGE:
HON STEPHANIE L. KINNEY
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601