September 15, 2017 201459633

Commonwealth of Kentucky 

Workers’ Compensation Board




OPINION ENTERED:  September 15, 2017



CLAIM NO. 201459633



KEVIN STORY                                    PETITIONER

















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


ALVEY, Chairman.   Kevin Story (“Story”) appeals from the Opinion, Award and Order rendered April 3, 2017 by Hon. R. Roland Case, Administrative Law Judge (“ALJ”).  The ALJ awarded temporary total disability (“TTD”) benefits, permanent partial disability (“PPD”) benefits based upon a 6% impairment rating for bilateral carpal tunnel syndrome/hand conditions enhanced pursuant to KRS 342.730(1)(c)1, and medical benefits for injuries Story sustained on October 21, 2014 while working for Kelly Services at Toyota.  The ALJ dismissed Story’s claim for a cervical injury.  Story also seeks review of the May 8, 2017 order denying his petition for reconsideration.

          On appeal, Story argues the ALJ’s conclusions regarding his cervical spine are not based upon substantial evidence.  Because substantial evidence supports the ALJ’s determination and no contrary result is compelled, we affirm. 

          Story filed a Form 101 on August 4, 2016, alleging he injured his neck, both arms and both hands in the course and scope of his work as an assembly worker for Kelly Services at Toyota on October 24, 2014.  Kelly Services provides employees to Toyota in the automobile manufacturing process.  He is a high school graduate and has a commercial drivers’ license.  His work history consists of employment as a home remodeling sales representative, beer delivery/sales representative, farm delivery/sales representative, ER Technician/ICU CNA, and as a special needs bus driver. 

          Story testified by deposition on October 3, 2016, and at the hearing held February 1, 2017.  He is a resident of Louisville, Kentucky.  He stated Kelly Services provides temporary employees for the Toyota manufacturing facility in Georgetown, Kentucky.  He had to pass testing to begin working there.  After orientation and training, he was placed in the assembly department at Toyota.  After satisfactorily completing a period of employment with Kelly Services, he hoped he would be hired by Toyota on a permanent basis.

          On October 21, 2014, his job involved installing hoods and fenders on cars.  The installation of the hoods involved working with a co-worker and using lifting devices.  He also used power tools to install bolts.  At the time he experienced problems in his arms, he was a “little behind” in the process, and had to push a hoist out of the way, due to the speed of the co-worker.  He was in an awkward position when the incident occurred.  As he was driving home, his fingers began cramping and clamping.  When he woke up the next morning, he could not open his hands, and he was unable to work.  He missed work that day, but returned the following day, and went to the Toyota medical department.  He was placed on light duty for a few weeks, and he never returned to the assembly line. 

          Story later treated with Dr. Thirkannad (no first name provided) at Kleinert & Kutz who administered injections to his wrists.  He stated the injections provided no relief.  He also had physical therapy and two EMGs.  He was eventually referred to Dr. Martin Favetto who performed carpal tunnel releases on both the left (October 2015) and right (January 2016) wrists.  Story stated he continues to experience problems with pain, weakness and numbness in the hands.  He has difficulty gripping.  He stated he also has headaches and a pain in his neck.  He additionally stated his arms go numb.  He stated he has difficulty with both house and yard work, and would be unable to perform his job duties for Kelly Services at Toyota.  He currently takes baby aspirin for his symptoms, and uses ice on his neck.  He last worked in November 2014.

          In support of his claim, Story filed Dr. Favetto’s May 24, 2016 report.  Dr. Favetto noted Story is post-op for his carpal tunnel releases.  He noted Story has not seen a spine surgeon, nor has he undergone physical therapy or an MRI for his neck.  He stated if a spine surgeon determines his neck condition is not work-related, then Story has reached maximum medical improvement (“MMI”).

          Story also filed Dr. Thomas Gabriel’s March 22, 2015 report.  Dr. Gabriel diagnosed Story with bilateral carpal tunnel syndrome cause by his “short employment exposure” at Toyota.  He advised Story to avoid using air guns and vibratory equipment.  He also advised Story to avoid engaging in forceful gripping or grasping.  He stated Story had not reached MMI.  He recommended wrist decompression surgery, after which Story would reach MMI in three to four months.

          Story additionally filed Dr. Anthony McEldowney’s October 25, 2016 report.  Dr. McEldowney noted Story was status post left and right carpal tunnel releases.  He diagnosed a cervical sprain/strain versus a cervical disc abnormality caused by the October 21, 2014 work injury.  He did not believe Story had reached MMI.  He additionally stated he did not believe Story retained the physical capacity to return to the type of work performed at the time of the injury.  He recommended Story avoid stress or strain to the cervical spine, and should avoid lifting, carrying, pushing or pulling, as well as prolonged static placement or repetitive motion of the neck.

          Kelly Services filed the report of Dr. Michael Best who evaluated Story at its request on March 23, 2016.  Dr. Best noted Story’s job duties, the history of his injuries, and his medical treatment.  Dr. Best also reviewed the results of the EMG ordered by Dr. Ellen Ballard on December 17, 2014, which reflected findings of mild bilateral carpal tunnel syndrome, but no radiculopathy.  He noted a repeat EMG performed on March 9, 2015 reflected the same findings.  On physical examination, he noted Story had full cervical range of motion, no anatomical sensory deficit, and a negative Spurling’s test for radiculopathy and numbness.  Based upon the physical examination, and the review of the EMG results, he did not believe Story had sustained a cervical injury.

          In a supplemental report dated November 15, 2016, Dr. Best stated he had reviewed, and noted inconsistencies with Dr. McEldowney’s report.  He again stated Story’s cervical condition was not related to the October 21, 2014 work event.

          Dr. Best testified by deposition on December 8, 2016.  He noted the EMG testing revealed evidence of mild carpal tunnel syndrome, but not cervical radiculopathy.  He found no signs of cervical radiculopathy on physical examination.  He noted Dr. Ballard commented the EMG showed no cervical radiculopathy.  He based his determination of no cervical radiculopathy on the EMG reports, and the results of the physical examination.  He stated a cervical MRI is not indicated because there are no cervical symptoms.

          Kelly Services filed the EMG/NCS report from Dr. Ballard dated December 17, 2014.  In the report, as reflected by Dr. Best, Dr. Ballard noted the study revealed Story has bilateral carpal tunnel syndrome, right worse than left.  In her correspondence dated October 17, 2016, Dr. Ballard stated as follows:

There is no evidence of any cervical radiculopathy or any other nerve condition, neuropathy or radiculopathy, other than carpal tunnel.  All of my opinions are with a reasonable degree of medical probability.  The test included both upper extremities and cervical paraspinals.  Therefore, if there was any evidence of radiculopathy, this would have been apparent.


          Kelly Services also filed the December 8, 2016 report of Dr. Richard Dubou who evaluated Story at its request.  Dr. Dubou noted the treatment by Dr. Thirkannad, including the injections.  He also noted the evaluations by Dr. Gabriel, and treatment by Dr. Favetto which included bilateral carpal tunnel releases.  He opined Story reached MMI four months after the right carpal tunnel release performed in January 2016.  He noted a functional capacity evaluation revealed Story could perform medium work.  He additionally noted Story takes only low dose aspirin to treat his complaints.

          Dr. Dubou found Story is status post bilateral carpal tunnel surgery with an excellent symptomatic result.  He assessed a 6% impairment rating pursuant to the 5th Edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (“AMA Guides”).   He cautioned Story to avoid using vibratory tools and not engage in repetitive or overhead work.  He also advised Story to avoid repetitive lifting greater than ten pounds, or infrequent lifting greater than fifteen pounds.  

          A Benefit Review Conference was held on January 10, 2017.  The issues preserved were whether Story sustained a work-related cervical injury, his capacity to return to work at the job performed at the time of the injury, benefits per KRS 342.730, average weekly wage, unpaid/contested medical bills, and TTD benefits.

          In the Opinion, Award and Order issued April 3, 2017, the ALJ awarded TTD benefits from November 17, 2014 (the date Story last worked for Kelly Services) through December 8, 2016 (the date Dr. Dubou examined him).  He awarded PPD benefits based upon the 6% impairment rating assessed by Dr. Dubou, and medical benefits for the bilateral carpal tunnel condition.  The ALJ also determined Story does not retain the capacity to return to the job performed at the time of the injury, and enhanced the award of PPD benefits by the three-multiplier contained in KRS 342.730(1)(c)1. 

          The ALJ, relying upon the opinions of Drs. Ballard and Best, additionally determined Story did not sustain a work-related cervical injury.  He awarded no TTD benefits, PPD benefits, or medical benefits for the alleged cervical condition. 

          Story filed a petition for reconsideration arguing the ALJ failed to address the opinions of Drs. Favetto and McEldowney in his decision.  Story additionally argued Dr. Best’s opinions are inconsistent with the AMA Guides.  In the order denying the petition for reconsideration, issued May 8, 2017, the ALJ noted he had considered Story’s evidence regarding the alleged cervical injury.  The ALJ noted the opinions of Drs. Best and Ballard persuaded him that Story did not sustain a work-related cervical injury.

          On appeal, Story argues the ALJ erred in dismissing his claim for a work-related cervical injury.  He argues the ALJ’s determination is not supported by substantial evidence.  As the claimant in a workers’ compensation proceeding, Story had 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 Story was unsuccessful in his burden regarding his alleged cervical condition, 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 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 sole authority to judge 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).  An ALJ is vested with broad authority to decide questions involving causation.  Dravo Lime Co. v. Eakins, 156 S.W.3d 283 (Ky. 2003).  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); Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999).  Mere evidence contrary to the ALJ’s decision is not adequate to require reversal on appeal.  Id.  In order to reverse the decision of the ALJ, it must be shown there was no substantial evidence of probative value to support his decision.  Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986).

          The Board, as an appellate tribunal, may not usurp an 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 could otherwise have been drawn from the record.  Whittaker v. Rowland, supra.  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, supra.

     We find Story’s appeal to be nothing more than a re-argument of the evidence before the ALJ.  After careful review, we find the ALJ accurately summarized the evidence and had a complete understanding of the issues before him.  Contrary to Story’s assertion in his petition for reconsideration, we note the ALJ summarized the evidence from both Drs. Favetto and McEldowney in his decision.

     Both Drs. Ballard and Best opined Story had no cervical radiculopathy.  Dr. Best determined there were no physical findings supporting a diagnosis of cervical radiculopathy.  Dr. Best stated the lack of physical findings coupled with the absence of radiculopathy on electrical testing support his determination that Story did not require the referral for an MRI, and did not sustain a work-related cervical injury. 

     The ALJ, as fact-finder, has full discretion to determine the physician or physicians upon which he relies.  If “the physicians in a case genuinely express medically sound, but differing opinions as to the severity of a claimant's injury, the ALJ has the discretion to choose which physician's opinion to believe.” Jones v. Brasch-Barry General Contractors, 189 S.W.3d 149, 153 (Ky. App. 2006).  Here, the ALJ chose to rely upon the opinions of Drs. Ballard and Best, and he provided his reasoning for doing so.  Those opinions constitute substantial evidence supporting the ALJ’s determination.  We note Story introduced evidence which could have supported a determination by the ALJ.  However, this does not compel a contrary result.  Therefore, we will not disturb the ALJ’s determination.

     Accordingly, the April 3, 2017 decision and the May 8, 2017 order on petition for reconsideration by Hon. R. Roland Case, Administrative Law Judge, awarding TTD benefits, PPD benefits, and medical benefits for Story’s bilateral carpal tunnel condition, and finding he did not sustain a cervical injury, are hereby AFFIRMED.

          ALL CONCUR.