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August 25, 2017 201602030

Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED:  August 25, 2017

 

 

CLAIM NO. 201602030

 

 

SHAUN D. MILLER                                PETITIONER

 

 

 

VS.         APPEAL FROM HON. JOHN B. COLEMAN,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

FORD MOTOR CO. and

HON. JOHN B. COLEMAN,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

AFFIRMING

 

                       * * * * * *

 

 

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

 

ALVEY, Chairman.  Shaun D. Miller (“Miller”) appeals from the Opinion and Order rendered April 11, 2017 by Hon. John B. Coleman, Administrative Law Judge (“ALJ”) dismissing his claim for alleged cumulative trauma injuries to his lumbar and cervical spine.  Miller also appeals from the May 24, 2017 order denying his petition for reconsideration.

     On appeal, Miller argues the overwhelming weight of the evidence compels a finding that his cervical and lumbar injuries were caused by his work activities while employed by Ford Motor Co (“Ford”).  Because substantial evidence supports the ALJ’s determination regarding causation and no contrary result is compelled, we affirm. 

     Miller filed a Form 101 on September 13, 2016, alleging cumulative trauma injuries to his neck, low back and bilateral lower extremities due to his repetitive job duties with Ford as an assembler, which became disabling on April 30, 2016.  The claim was bifurcated on the issues of work-relatedness/causation, notice, unpaid or contested medical expenses, injury as defined by the Act, and temporary total disability. 

     Miller testified by deposition on December 7, 2016, and at the hearing held February 22, 2017.  Miller was born in December 1980 and is thirty-six years old.  Prior to working at Ford, Miller worked as an assistant manager at a sporting goods store, a special education teacher, a sorter, and installer of insulation.  Miller stated he had no neck or low back symptoms requiring medical attention prior to 2012. 

     Miller began working at Ford as an assembler in July 2012, and described five positions he held throughout his employment there.  He initially worked in the “tack-off” booth for six months, where he cleaned the vehicles before they were painted.  He then moved to a position for the next six months where he wiped the vehicles with alcohol before they went into heaters.  For the next year and a half, Miller smoothed out sealer to prevent water leaks to right passenger side tailgates.  For the next six months, he sat inside the passenger seats of unfinished vehicles and bent over to smear sealer with a brush.  All four jobs required repetitive twisting, bending, and looking down, but none required heavy lifting. 

     Miller explained the tasks involved with the last position he held at Ford: 

. . . . On my job I take a little bit of Silly putty and at the top -- I put it on the top of the car.  I would take and put the silly putty up, looking down with my neck.  Arms extended out and I would push down, then I would turn back to my station, twisting my body both ways.  Put the putty down and I would grab my Skive and I would skive from up above, probably eye level, down the car, and I would bend all the way -- I don’t know probably, I don’t know, below waist level, turn around, wipe the sealer off and then I’d go back down with the rag and clean it off, bending all the way back down to waist level probably, and then I would twist back and wipe that off.  That was on the Escapes.  On the Lincolns I would basically do the same thing, twisting, turning.  My job was really fast.  I had to work really quick, you know, throughout the process.  So there was a lot of twisting, turning, bending, looking down.

 

Miller testified this position required him to stand and look down all day, but it did not require heavy lifting.  Miller testified he worked four days a week, ten to eleven and a half hour shifts.  Miller estimated he worked on 750 vehicles per shift.

          Miller did not experience any symptoms until April 30, 2016.  On that day, while working in the job described above, Miller began experiencing low back pain and numbness radiating into his legs, as well as numbness in the pinky, ring and middle fingers of both hands.  He notified his supervisor and requested treatment at Ford Medical that day.  His symptoms progressed and worsened over the next week and a half, and he also began experiencing neck pain.  Miller treated at Ford Medical on several occasions before going to the emergency room at Harrison County Hospital in Indiana on May 2, 2016.  He also treated with his primary care physician, Dr. Lisa Clunie.  She administered injections, ordered diagnostic studies, restricted Miller from work and referred him to Dr. Joseph Finizio who recommended physical therapy and administered a lumbar epidural injection.  Dr. Finizio performed a multi-level cervical fusion surgery on August 30, 2016, and has recommended surgical intervention for Miller’s low back condition. 

          Miller has not returned to work since the beginning of May 2016.  Dr. Finizio prescribed a muscle relaxer and Hydrocodone.  Miller has noticed a fifty to sixty percent improvement in his neck symptoms since surgery.  Miller continues to have some neck pain and numbness in his fingers of both hands, as well as low back pain with numbness in both lower extremities.  Miller receives short-term disability benefits through Unicare.  His medical expenses have been paid through his health insurance.   

          Ford filed the May 2016 treatment records from its medical department, OHSIM, which demonstrate Miller was treated on four occasions by nurse Susan Schultz, Dr. Charles Sherrard and Dr. Ring Tsai.  On Monday, May 2, 2016, Miller reported his back began to hurt the previous Saturday at work, which had worsened, and he developed a burning sensation in his left leg.  Miller was treated for a possible low back strain with radiation into his left leg.  Miller returned the following day.  Dr. Sherrard noted, “It is reasonable and likely that the EE has had some degree of muscular strain related to his job however it is not reasonable or likely he has any significant spinal internal derangement related to his job.”  Miller was again treated for a sprain/strain injury.  On May 6, 2016, Dr. Tsai noted Miller’s symptoms appeared more discogenic, “which did not have occupational cause for it.”  He noted Miller’s job requires no bending or lifting, and, “can only be causing strained muscle.  It is medically not likely that this job can cause sciatica or discogenic problems.”  On May 8, 2016, Miller returned complaining of low back and left leg symptoms. 

          Miller was treated by Jennifer Murphy, FNP, on May 6, 2016 for complaints of low back pain beginning six days prior, as well as neck pain.  She diagnosed Miller with cervicalgia and acute radicular low back pain, and prescribed medication.

          Ford also filed Unicare Certification for Disability Benefits dated May 13, 2016 and May 23, 2016.  The first was completed by Dr. Clunie.  She identified Miller’s disabling diagnoses as sciatica, cervicalgia, and acute radicular low back pain.  Dr. Clunie checked “no” to the following question: “Is disability due to current occupation?”  Dr. Finizio completed the second form.  He identified Miller’s disabling diagnoses as back and neck pain.  Like Dr. Clunie, Dr. Finizio checked “no” to the following question: “Is disability due to current occupation?” 

          Ford filed Dr. Thomas Menke’s December 12, 2016 report.  He summarized Miller’s onset of symptoms while working at Ford and subsequent treatment, including the August 30, 2016 C4-C7 fusion surgery.  He noted Miller had worked for Ford for four years, and described the job tasks Miller was engaged in at the time his symptoms began in April 2016.  Dr. Menke noted Miller reported he had to look down most of the time, and repetitively twist and turn.  Dr. Menke diagnosed bilateral spondylolysis at L4-5 with Grade I anteriolisthesis and degenerative changes at C4-C7 levels predominantly with resultant stenosis.  Dr. Menke opined Miller’s work activities did not cause either his lumbar or cervical condition.  He stated as follows:

I would not attribute any diagnosis to Mr. Miller’s work.  Specifically, even he does not claim a work injury.  He seems to be stating that his problems are related to repetitive work.  However he has only been at that job for 4 years.  He did not describe a very demanding job to me.  Looking down is typically well-tolerated.  Overhead work is more problematic for the neck.  Degenerative changes in the cervical and thoracic spine are much more likely to be related to familial tendencies, meaning a genetic predisposition and his morbid obesity.  Even if he has put on weight since the injury, he is well over 100 lb. overweight and I don’t think he has put that weight on since the onset of symptoms that he described back in April.  Also, as I have further stated, spondylolysis in particular is most commonly a developmental problem, a stress fracture that occurs at a vulnerable area during the adolescent growth spurt. 

 

. . . .

 

As I have already stated, he did not have a physically demanding job.  It did require some repetitive motion, but no heavy lifting.  He had to look down, which is usually well-tolerated.  I do not think his job, which he only did for 4 years, caused the conditions that I have listed in my impression.  I think it is much more likely that the L4-5 spondylolysis was developmental.  I think that that became symptomatic due to degenerative change in his lumbar spine.  I think his cervical diagnosis is degenerative in nature.  I think that the degeneration at his age is related to genetic predisposition and his morbid obesity.

 

     Dr. Menke found no evidence of a pre-existing, active condition.  Dr. Menke opined Miller has not yet attained maximum medical improvement (“MMI”) for either his low back or neck.  Dr. Menke declined to assess any work-related temporary restrictions.  He recommended follow-up care for Miller’s neck.  He also noted Miller is a surgical candidate for his low back and left leg symptoms.  Dr. Menke opined the recommended treatment is reasonable and necessary, but unrelated to a work injury. 

     In an addendum dated February 6, 2017, after reviewing a CD of diagnostic studies, Dr. Menke stated his previous diagnoses and opinion regarding causation remain unchanged.    

     Miller filed Dr. Jules Barefoot’s October 25, 2016 report.  He noted Miller worked at Ford as an assembler at the time of injury and had been there for four years.  Miller reported his job involved repetitive turning and twisting.  Dr. Barefoot diagnosed Miller as status post C4-C7 anterior cervical fusion on August 30, 2016, and lumbar L4-5 spondylolisthesis and stenosis with ongoing and non-verifiable radicular symptoms.  Dr. Barefoot also opined Miller had not reached MMI.  Dr. Barefoot opined Miller’s conditions are work-related, stating, “[i]t is clear by an examination of his medical records that he has had complaints of both cervical and lumbar pain for which he sought treatment beginning in May of 2016.”  He also indicated Miller’s work- related injury brought his condition into a disabling reality.  Dr. Barefoot opined all treatment has been reasonable and necessary for Miller’s work injury and recommended continuing treatment with Dr. Finizio, which may include operative intervention of the lumbar spine. 

     In the April 11, 2017 opinion, after summarizing the evidence, the ALJ provided the following analysis and conclusions in dismissing Miller’s claim: 

The plaintiff herein, Shaun Miller, alleges the development of repetitive/ cumulative work injuries to his cervical and lumbar spine as the result of his four years of employment with the defendant, Ford Motor Company. He explained his work duties for the defendant in some detail. The plaintiff had multiple jobs for the defendant during his four years of employment. He worked for a period of time wiping down the surface of vehicles in preparation for painting prior to changing jobs to one wherein he was responsible for applying sealant to taillights. He also had another similar job wherein he applied sealant to the inside of the passenger door. The job he was performing at the time his symptoms arose also involved applying some sealant to the tailgate area. The plaintiff used a device to remove excess sealer, which had been previously applied, prior to plugging a small hole with some putty by using his left thumb. He smoothed the putty out with his right thumb. None of his jobs involved heavy lifting, but he did describe having to perform his job numerous times throughout the working day. From reviewing the entirety of the plaintiff’s testimony, it is clear that he relates the serious condition in his cervical spine to looking down while applying the "silly putty like" sealant and the serious condition in his lumbar spine from twisting or turning while performing his job activities.

 

Under KRS 342.0011(1), “injury” is defined as any work related traumatic event or series of traumatic events, including cumulative trauma arising out of and in the course of employment which is the proximate cause producing a harmful change to the human organism evidenced by objective medical findings. . . . KRS 342.0011(1). In Haycraft v. Corhart Refractories, 544 S.W.2d 222 (Ky. 1976), the Court held that a cumulative trauma injury could be proven by showing the nature and duration of the work probably aggravated a degenerative disc condition to the degree that it culminated in an active physical impairment sooner than would have been the case had the work been less strenuous, and to that extent the pre-existing condition is itself an injury.

 

After reviewing the entirety of the evidence herein, not only as summarized above but as contained in the entire file, I have simply not been convinced that the plaintiff's work activities with the defendant led to the conditions in his cervical and lumbar spine for which he seeks benefits. The plaintiff’s claim is supported by the medical opinion of Dr. Barefoot. However, Dr. Barefoot does not give a detailed explanation of the plaintiff's job activities with the defendant and/or how those job activities led to the advanced foraminal stenosis and spondylosis at multiple levels in the plaintiff’s cervical spine or spondylosis, spondylolilsthesis and anteriorlisthesis in the lumbar spine. Dr. Menke pointed out that the plaintiff's job, while repetitive, was not very physically demanding or the type of work which would be expected to cause the conditions in the plaintiff’s cervical and lumbar spine. Instead, he pointed out that the more likely causes of the plaintiff's conditions included genetic predisposition and morbid obesity. The opinion of Dr. Menke is supported by the opinion of the treating family physician, Dr. Clunie, and the treating neurosurgeon, Dr. Finizio. Each of these physicians completed applications for the plaintiff's disability policies indicating that the conditions were not related to the plaintiff’s current occupation. While I sympathize with the plaintiff's situation, I must recognize that an employee has the burden of proof and the risk of non-persuasion to convince the trier of fact of every element of his workers’ compensation claim. Snawder v. Stice, 576 S.W.2d 276 (Ky. App., 1979). In this instance, I just do not find convincing evidence that the nature and duration of the plaintiff's job activities caused or aggravated the developmental/genetic conditions in the plaintiff's cervical and lumbar spine on which to base an award of income and/or medical benefits.

 

Miller filed a petition for reconsideration essentially making the same arguments he now raises on appeal.  The ALJ denied the petition stating as follows: 

. . . . The ALJ has once again reviewed the evidence, which includes medical opinions linking the plaintiff's condition with his work activities as well as medical opinions pointing to other causes of the plaintiff's condition. After considering the entirety of the evidence including not only the medical evidence, but the plaintiff's testimony regarding his work activities, I was simply more convinced by the medical opinion finding a lack of causal relationship between the plaintiff's work activities and his condition.

 

 

          On appeal, Miller argues the ALJ committed reversible error by dismissing the claim since the overwhelming evidence demonstrates the repetitive demands of his job with Ford caused his low back and cervical conditions.   Miller urges the Board to consider his testimony and Dr. Barefoot’s opinions.

          As the claimant in a workers’ compensation proceeding, Miller had the burden of proving each of the essential elements of his cause of action, including causation/work-relatedness.  Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979).  Since Miller was unsuccessful in that burden, 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).  The function of the Board in reviewing the ALJ’s decision is limited to a determination of whether the findings made by the ALJ 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).

          As fact-finder, the ALJ has the sole authority to determine the weight, credibility and substance of the evidence.  Square D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993). Similarly, the ALJ has the discretion to determine all reasonable inferences to be drawn from the evidence.  Miller v. East Kentucky Beverage/Pepsico, Inc., 951 S.W.2d 329 (Ky. 1997); Jackson v. General Refractories Co., 581 S.W.2d 10 (Ky. 1979).  The ALJ may 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.  Magic Coal Co. v. Fox, 19 S.W.3d 88 (Ky. 2000).  Although a party may note evidence supporting a different outcome than reached by an ALJ, such proof is not an adequate basis to reverse on appeal. McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974).

          The Board, as an appellate tribunal, may not usurp the ALJ’s role as fact-finder by superimposing its own appraisals as to the weight and credibility to be afforded the evidence or by noting reasonable inferences that otherwise could have been drawn from the record.  Whittaker v. Rowland, 998 S.W.2d 479, 481 (Ky. 1999).  So long as the ALJ’s ruling with regard to an issue is supported by substantial evidence, it may not be disturbed on appeal.  Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986).

          Miller essentially requests this Board to re-weigh the evidence, and substitute its opinion for that of the ALJ, which we cannot do.  Whittaker v. Rowland, supra.  The ALJ adequately explained why he did not find Dr. Barefoot’s opinion persuasive.  The ALJ noted Dr. Barefoot did not provide a detailed explanation of Miller’s job activities and how they led to his cervical and lumbar spine conditions.  The ALJ found Dr. Menke’s opinion most persuasive, particularly in light of the disability forms completed by Drs. Clunie and Finizio.  As noted above, Dr. Menke did not attribute either Miller’s cervical or lumbar condition to his work activities with Ford, and he provided a detailed explanation supporting his opinion.  In the May 13, 2016 and May 23, 2016 disability forms, both Drs. Clunie and Finizio indicated Miller’s disability is not due to his current occupation.

          It was the ALJ’s prerogative to rely upon Dr. Menke’s opinion, in conjunction with the disability forms and Miller’s testimony, in determining his low back and cervical conditions are unrelated to his work activities with Ford.   Miller merely points to conflicting evidence supporting a more favorable outcome, which is not an adequate basis to reverse on appeal.  McCloud v. Beth-Elkhorn Corp., supra.  Because substantial evidence supports the ALJ’s determination and no contrary result is compelled, his decision shall remain undisturbed.

          Accordingly, the April 11, 2017 Opinion and Order and the May 24, 2017 Order on petition for reconsideration rendered by Hon. John B. Coleman, Administrative Law Judge, are hereby AFFIRMED.

          ALL CONCUR.

 

 

COUNSEL FOR PETITIONER:

 

HON JOSEPH A MAYHORN

401 WEST MAIN ST, STE 1910

LOUISVILLE, KY 40202

 

COUNSEL FOR RESPONDENT:

 

HON JOHANNA F ELLISON

300 WEST VINE ST, STE 600

LEXINGTON, KY 40507

 

ADMINISTRATIVE LAW JUDGE:

 

HON JOHN B COLEMAN

657 CHAMBERLIN AVE

FRANKFORT, KY 40601