January 15, 2016 201285818

Commonwealth of Kentucky 

Workers’ Compensation Board




OPINION ENTERED:  September 8, 2017



CLAIM NO. 201602553



RICKEY THACKER                                 PETITIONER


















                       * * * * * *



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



RECHTER, Member.  Rickey Thacker (“Thacker”) appeals from the June 9, 2017 Opinion, Award and Order rendered by Hon. Brent E. Dye, Administrative Law Judge (“ALJ”) awarding medical benefits in a hearing loss claim, but dismissing his claim for cumulative trauma injuries to the neck, back and knees.  On appeal, Thacker argues the ALJ erred in finding timely notice was not given and in dismissing the cumulative trauma claim.  For the reasons stated herein, we affirm.

          Thacker’s injury claim alleged cumulative trauma/repetitive stress injuries to multiple body parts sustained on November 21, 2014.  He also filed a hearing loss claim that is not a subject of this appeal.

          Thacker was born on December 29, 1962.  He began his employment with Sidney Coal Company (“Sidney”) in 2005 as an outside utility man and has worked underground as a rock duster, underground utility man, belt man and dispatcher.  His work was physically demanding, requiring him to lift, carry, push and pull throughout the work shift. 

          Thacker denied any low back or neck symptoms prior to his employment with Sidney.  Around 2007 or 2008, he began to experience knee and back pain.  His pain was worsening in 2008, prompting him to see Dr. Raymond Bishop, who indicated Thacker’s problems were the result of the kind of work he was doing.  Thacker ceased working for Sidney when he was laid off in November 2014.  He eventually secured employment as a maintenance worker/custodian and he has performed some lawn mower repair work.  Thacker admitted that prior to filing his claim he did not give notice of a work injury to Sidney.

          Thacker submitted the November 22, 2016 report of Dr. Anbu Nadar who performed an independent medical evaluation (“IME”) on October 4, 2016.  Dr. Nadar noted a history of back problems as early as 2008.  X-rays were obtained and he received conservative treatment with medication.  He had also treated for ongoing neck and back pain with Dr. Bishop.  Thacker’s symptoms progressively worsened over the years and he sought treatment with Dr. Adam Akers.  Dr. Nadar diagnosed chronic cervical and lumbosacral strains, degenerative disc disease, and bilateral patellofemoral arthrosis.  Dr. Nadar opined Thacker sustained repetitive injuries over his employment history causing permanent soft tissue changes in the cervical spine, lumbar spine, and knees.  Dr. Nadar assigned a 5% impairment rating for the cervical condition, 5% for the lumbar condition, and 2% for each knee for a combined 14% whole person impairment rating pursuant to the American Medical Association, Guides to the Evaluation of Permanent Impairment, 5th Edition (“AMA Guides”).  Thacker did not have an active impairment prior to the work injury. 

          Thacker submitted medical records from Pikeville Medical Center, including CT scans taken April 29, 2012.  The cervical CT scan showed mild C5-6 and C6-7 disc space narrowing, large anterior and posterior spurs in the lower cervical spine, and degenerative changes.  The thoracic and lumbar CT scans revealed degenerative changes without fractures. 

          Thacker submitted Dr. Akers’s records documenting chiropractic treatment for mid and lower back pain from August 10, 2015 through November 12, 2015.  In the initial visit, Thacker gave a history of right lower back and right hip pain for approximately one year that was recently aggravated by getting out of a car. 

          Sidney submitted the report of Dr. Michael Best who performed an IME on March 7, 2017.  Thacker reported no specific cervical work-related injury, but did relate trauma to his neck following an ATV accident in 2012.  He was off work for five months following the accident, then returned to work on unrestricted duty.  Thacker denied any specific injury to his low back or knees at work, though he experienced some knee pain in 2008 while working in low coal. 

          Dr. Best indicated the mild degenerative changes shown in the 2012 CT scans following the ATV accident were normal findings for Thacker’s age and were part of the normal aging process.  He found no indication of cumulative trauma.  Dr. Best disagreed with Dr. Nadar’s assessment of impairment for the spine.  Dr. Best noted there is no basis for an impairment rating because the mild degenerative changes are insufficient pursuant to the AMA Guides to establish a rating.  Furthermore, Dr. Best opined Thacker does not meet any of the DRE Category II criteria.  Dr. Best further concluded Dr. Nadar’s impairment rating for the knees is inappropriate because he did not use x-rays in assigning his impairment rating, as required by the AMA Guides. 

          The ALJ found Thacker’s alleged cumulative trauma injuries to his knee, neck, and back manifested sometime in 2008.  Thacker did not give notice until the filing of his Form 101 on November 21, 2016.  Therefore, the ALJ determined Thacker did not provide notice, “as soon as practicable.”  The ALJ further found KRS 342.200’s provisions did not excuse Thacker’s significant delay in giving notice.  The ALJ next noted Thacker may recover for any injury caused by cumulative trauma within two years of the filing of the claim.  However, the ALJ determined Thacker did not meet his burden of proving he sustained work-related cumulative trauma injuries. He explained:

After reviewing and weighing the medical evidence, as well as Thacker’s testimony, the ALJ finds Thacker did not meet his burden, and prove, he sustained cumulative trauma, neck, low back, and bilateral knee, injuries. Not only did Thacker not prove he sustained cumulative trauma injuries within the two-year period before he filed his claim, he did not prove his job duties caused any cumulative trauma injuries. The ALJ is unpersuaded Thacker’s job duties caused or aggravated degenerative conditions, culminating in a physical impairment sooner than would have occurred, had he performed less strenuous work. The ALJ finds Dr. Best’s opinions credible and the most persuasive. The three April 29, 2012 CT scans support Dr. Best’s opinions. Although conducted approximately five years before Dr. Best’s exam, the cervical, thoracic, and lumbar CT scans only showed mild degenerative changes. These changes were not severe or advanced. These objective, diagnostic, studies support Dr. Best’s opinion that Thacker has normal, age appropriate, degenerative changes, which his job duties did not cause, aggravate, arouse, or exacerbate.


Dr. Best thoroughly examined Thacker’s neck, low back, and knees. He found Thacker had normal cervical and lumbar findings, other than slightly decreased motion. Dr. Best found Thacker had normal knees. He did not appreciate any edema, effusion, crepitus, or ecchymosis.  Dr. Best reviewed x-ray reports. The results indicated Thacker had mild spinal degenerative changes. He opined natural aging caused the changes.  The changes were normal, considering Thacker’s age and sex. Dr. Best opined Thacker’s job duties did not cause any cumulative trauma injuries.


The ALJ does not find Dr. Nadar’s opinions credible.  The main reason is Dr. Nadar did not adequately explain how Thacker’s job duties caused or aggravated his alleged injuries. Instead, he merely indicated “[f]rom his history and the nature of his employment in the coalmines, I do agree with the patient’s history of repetitive injuries…[.]” Dr. Nadar did not explain the exact science and medicine, concerning how performing these activities caused Thacker’s alleged symptoms.


Although Dr. Nadar reviewed the diagnostic study reports, and indicated what they showed, he did not indicate the degenerative changes were advanced or severe.  Dr. Nadar did not opine the changes were greater than what he would expect to find in a 54-year old man. He did not explain how the work’s nature, and duration, aggravated and/or accelerated Thacker’s conditions into a symptomatic, disabling, state sooner than would have occurred had Thacker performed less strenuous work.


The ALJ finds Thacker did not sustain cumulative trauma injuries. The ALJ is unconvinced Thacker’s mild degenerative changes are greater than had he performed less strenuous work.


The natural aging process caused Thacker’s changes [sic] degenerative changes.  They are age appropriate. Accordingly, the ALJ is dismissing Thacker’s alleged physical cumulative trauma injuries with prejudice.


          Thacker did not file a petition for reconsideration and appealed directly to the Board.  On appeal, Thacker first argues the ALJ erred in finding notice was not given in a timely manner.  He asserts he was first notified of an actual injury by Dr. Nadar in November 2016, because he previously reported only pain to Dr. Bishop and was given no diagnosis.  Thacker also contends the evidence compels a finding he suffered cumulative trauma injuries.  

          We begin by noting Thacker did not file a petition for reconsideration and appealed directly to the Board.  An ALJ must be afforded the opportunity to make any corrections, via petition for reconsideration, concerning a misunderstanding of the evidence upon which the fact-finder relies.  Pursuant to KRS 342.285, an award or order of the ALJ shall be conclusive and binding as to all questions of fact if a petition for reconsideration is not filed as provided for in KRS 342.281.  Absent a petition for reconsideration, questions of fact, including the adequacy of the ALJ’s findings of fact, are not preserved for appellate review.  Brasch-Barry General Contractors v. Jones, 175 S.W.3d 81, 83 (Ky. 2005).  See also Hornback v. Hardin Memorial Hospital, 411 S.W.3d 220, 223 (Ky. 2013).  The issue is narrowed to whether the ALJ’s decision is supported by substantial evidence in the record.  Halls Hardwood Floor Co. v. Stapleton, 16 S.W.3d 327 (Ky. App. 2000).  Stated otherwise, inadequate, incomplete, or even inaccurate fact-finding on the part of an ALJ will not justify reversal or remand if there is substantial evidence in the record supporting the ultimate conclusion.  Eaton Axle Corp. v. Nally, 688 S.W.2d 334 (Ky. 1985). 

          As the claimant in a workers’ compensation proceeding, Thacker bore 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 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 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) superseded by statute on other grounds as stated in Haddock v. Hopkinsville Coating Corp., 62 S.W.3d 387 (Ky. 2001). 

          Notice and causation are threshold issues.  The ALJ addressed the notice issue prior to ruling on causation.  However, as noted by the ALJ, the notice issue is moot if Thacker cannot show that he sustained cumulative trauma injuries to his neck, back, and/or knees.  Accordingly, we first address Thacker’s argument regarding causation.

          Thacker notes the ALJ found Dr. Best credible despite the absence of any mention or discussion of the job duties by Dr. Best in determining whether they could have led to the alleged conditions.  In contrast, Dr. Nadar thoroughly discussed the type of work and concluded the work activities were the cause of the injuries that were of a cumulative traumatic nature. 

          The ALJ found the opinion of Dr. Best to be the most credible regarding whether Thacker sustained cumulative trauma injuries.  Dr. Best opined Thacker had degenerative changes of the spine that were merely the product of natural aging.  He stated the job duties did not cause, aggravate, arouse or exacerbate the degenerative changes.  He specifically stated there is no objective evidence of cumulative trauma injury to the cervical and lumbar spine.  Dr. Best’s opinion constitutes substantial evidence supporting a determination that Thacker did not sustain a cumulative trauma injury to the cervical or lumbar spine.  

          Regarding Thacker’s knees, Dr. Best found no abnormality or injury on examination.  He also explained that, without reference to x-rays of the knees, the impairment rating assessed by Dr. Nadar was improper pursuant to the AMA Guides.  Although not required to do so, the ALJ explained why he did not find the opinions of Dr. Nadar persuasive. 

          Dr. Best’s opinions constitute substantial evidence upon which the ALJ was free to rely in reaching a decision on the merits.  Where the evidence with regard to an issue is conflicting, the ALJ, as fact-finder, is vested with the discretion to pick and choose whom and what to believe.  Caudill v. Maloney’s Discount Stores, 560 S.W.2d 15 (Ky. 1977).

          While Thacker has identified evidence supporting a different conclusion, there was substantial evidence presented to the contrary.  As such, the ALJ acted within his discretion to determine which evidence to rely upon, and it cannot be said the ALJ’s conclusions are so unreasonable as to compel a different result.  Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000).

          There being substantial evidence to support a finding that Thacker did not sustain an injury, all other issues are moot.  An error, if any, relating to notice would therefore be harmless error.

          Accordingly, the June 9, 2017 Opinion, Award and Order rendered by Hon. Brent E. Dye, Administrative Law Judge, is hereby AFFIRMED.







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