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January 15, 2016 201285818

Commonwealth of Kentucky 

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