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September 22, 2017 201601126

Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED: September 22, 2017

 

 

CLAIM NO. 201601126

 

 

JENNIFER L. PATTON                             PETITIONER

 

 

 

VS.         APPEAL FROM HON. DOUGLAS W. GOTT,

              CHIEF ADMINISTRATIVE LAW JUDGE

 

 

 

FORD MOTOR CO.

and HON. DOUGLAS W. GOTT,

CHIEF ADMINISTRATIVE LAW JUDGE                RESPONDENTS

 

 

OPINION

AFFIRMING

                       * * * * * *

 

 

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

 

STIVERS, Member. Jennifer L. Patton (“Patton”) seeks review of the April 26, 2017, Opinion and Order of Hon. Douglas W. Gott, Chief Administrative Law Judge (“CALJ”), awarding temporary medical benefits but dismissing her claim against Ford Motor Co. (“Ford”) for permanent income and medical benefits.  Patton also appeals from the May 24, 2017, Order ruling on her petition for reconsideration.[1] 

          On appeal, Patton asserts the CALJ erred in dismissing her claim for work-related cervical and lumbar spine injuries.  There was no dispute Patton fell at work in the latter part of March 2016.[2]  As a result of the fall, Patton was taken to Ford Medical for what its record described as treatment for minor injuries. 

          In the Form 101, Patton alleged injuries as follows: “right knee, neck, lower/upper back, right leg, both arms, hips & pelvis.” 

          Patton testified at depositions on November 21, 2016, and January 19, 2017.[3]  On March 27, 2017, the CALJ entered an order stating the parties agreed to waive a hearing and submit the claim as of the date of the order.  The parties were to file simultaneous briefs.  During the November 21, 2016, deposition, Patton testified she had been employed by Ford since 1993.  She acknowledged she previously sustained a work-related right knee injury and a

non-work-related left knee injury.  As a result of the right knee injury, physical restrictions were imposed on her work activities.  She had previously received treatment for work-related carpal tunnel syndrome for which physical restrictions were imposed.[4]  Patton acknowledged Ford’s plant physician, Dr. Raymond Hart, had worked with her in order to find jobs within her restrictions.  She provided the following account of the event occurring on either March 28 or 29, 2016:

Q: -- can you tell me what happened?

A: Yes, ma’am. I got to work about 5:15 in the morning. And as I came up to my area, I noticed that the floor was real shiny. And when I got to my area, it was like they had tape up right across where they had raised the floor up, but they didn’t put a ramp down there.

     So in between where they raised the floor, I have to go up the steps to do the roof ditch. So as soon as the line started, we called the supervisor. He’s like, oh, my God. He kept saying, just be careful. So as soon as –

Q: Who was the supervisor?

A: It was Jerome Martin, yes, ma’am.

Q: So you-all knew, and he said, be careful?

A: Yes, ma’am, because nobody knew the floor had been raised, but as soon as the line started, like the first four or five trucks maybe, the roof ditch alarm went off.

     So me and Rhonda take turns, you know, who goes up first, you know, and then who gets the next one, so it was my first. So I went up the steps, and I come back down not realizing that I should step up, because they had added the new floor.

     I went up the steps. You know, you don’t want to stop the line, so I went up the steps and done my job, come back down. And just as I went to go back to my next truck, that’s when I tripped and fell.

. . .

Q: So when you tripped, then how did your body fall, or what happened?

A: I bounced.

Q: So what hit the floor?

A: I tripped. Like right here (indicating), hit the floor, and I bounced, and then I fell some more. And everybody come running.

. . .

A: Oh, I’m sorry. I hit the right side of my face. It was like the whole right side of my body banged down on the side. I fell sideways.

Q: Did you hurt any part of your back or your left side?

A: No, ma’am, not that I noticed. Everything was my like whole right side hit like that (indicating).

Q: Did you hit the floor, or did you hit like a railing?

A: I hit the floor and part of the railing right there, and then there was some metal things on the floor. They cut my arm.

Q: So did you walk to medical?

A: No, ma’am. The ambulance took me to medical, because I couldn’t hardly stand up.

          Patton was treated at Ford Medical by Dr. Hart and cleared to return to the line.  She went home that afternoon because of the pain she was experiencing.  The next day she reported to work and requested permission to go to the emergency room. Dr. Hart arranged for her to go to Jewish Hospital Medical Center East’s emergency room where x-rays were taken and she was provided a prescription.  Patton acknowledged that personnel at Jewish Hospital told her she could try to return to work.  Patton testified that upon returning to work she experienced pain when she stood up.  As a result, she was placed in Ford’s cafeteria with work restrictions for three to four days earning the same wages. 

          Patton was taken off work when she saw her family physician, Dr. Sylvia Cole.  Dr. Cole referred her to Dr. Kimathi Doss.  She also saw Dr. Craig Roberts who had previously treated the injuries to her knees.  Patton returned to work for Ford in August of the same year.  She was unable to perform the jobs in which she was placed because she could not “stretch [her] arms and stuff.”  Patton worked one week and then suffered a stroke.[5]  At the time of her deposition, she was still off work due to the stroke. 

          Patton testified the fall injured her right shoulder for which Dr. Doss administered an epidural injection.  The fall also injured her neck and the right side of her back extending down into her hip.  Patton acknowledged experiencing neck and back pain prior to her fall at work, neither of which prevented her from performing her job at Ford.  Patton testified she has to use a cane because of the March 2016 fall.

          At the January 19, 2017, deposition, Patton reiterated much of her previous testimony.  She admitted she received treatment for neck symptoms prior to the subject injury but denied having any treatment for back symptoms prior to her injury.  On the date she was injured, the treatment provided by Ford Medical consisted of cleaning her abrasions.  Raising her arms up and down causes pain and pulls her neck.  She cannot go up and down stairs and is unable to pull.  She takes Gabapentin for her neck and back symptoms.  She cannot return to the “back panel finesse” position she was performing when injured because it causes arm and neck pain.  Patton testified she had not seen Dr. Doss prior to 2016.  She acknowledged the records of Dr. Doss reveal she was diagnosed with degenerative disc disease of the cervical and lumbar spine on April 9, 2012.  She told Ford Medical that in addition to injuring her right knee, left wrist, right shoulder, and hips, she also hit her head which she surmised was left out of Ford Medical’s record.  Patton acknowledged the only visible injury after the fall was bleeding at her wrist and leg which was cleaned by Ford Medical.  She denied having any conversation with Dr. Hart on March 31, 2016, as reflected in Ford’s medical records.  Notably, Patton testified she used a cane off and on for years prior to the subject work injury.

          Ford introduced its medical records concerning the medical treatment provided to Patton after the March 2016 fall and Dr. Hart’s summary of Patton’s complaints and the treatment provided for this injury.  Ford also submitted the July 21, 2016, medical record of Dr. Doss, the medical records of Jewish Hospital Medical Center East, and the November 29, 2016, report of Dr. Thomas Loeb generated as a result of an independent medical evaluation (“IME”) conducted on that same date.

          Patton submitted the August 30, 2016, report of Dr. Jules Barefoot generated as a result of an IME conducted on the same date.  Patton also introduced the February 20, 2017, deposition of Dr. Loeb.

          In the April 26, 2017, Opinion and Order, after discussing the lay and medical evidence, the CALJ provided the following findings of fact and conclusions of law:

     The ALJ is not impressed with Patton’s medical proof. She has not proven anything more than the transient hip contusion and cervical strain that Dr. Loeb conceded. She has not sustained her burden of proving entitled [sic] to temporary or permanent income benefits.

     The ALJ recognizes Plaintiff’s wish that the ALJ consider bias in what could be construed as self-serving statements of Ford’s medical staff. But in this case the ALJ accepts the statements of Dr. Hart and the nurses. From those records, the ALJ questions whether Patton’s injury was as severe as she claims; the ALJ does not believe she hit her head and bounced off the floor as she testified. (p. 17-18). She clearly had an “injury,” as evidenced by the right knee and left forearm abrasions that required immediate medical attention. But she has not proven an injury that kept her off work or that has resulted in permanent impairment.

     Patton was given the outside evaluation she requested at Jewish Hospital. The diagnostic studies there were normal, and no treatment referral was made. She filed no other treatment notes to support her claims of various injuries.

     Patton’s sole medical support is from Dr. Barefoot, who is not persuasive in this instance. He diagnosed neck and back injuries solely from a history that Patton “tripped and fell.” He did not record any further information on the fall – whether she fell to the ground, whether she struck anything, how hard she fell, what body parts were impacted. He did not recognize that she did not initially complain of neck or back pain. And his assignment of impairment is not supported with a statement of strain injuries superimposed on preexisting degenerative changes, but simply a statement of the existence of the preexisting condition. (Dr. Barefoot did not support Patton’s other claim of injuries to her right knee and leg, her arms, or her hips and pelvis.

     The ALJ recognizes that Dr. Barefoot went on in his report to say the preexisting condition was asymptomatic, and from that the ALJ could possibly infer an opinion of work related arousal. But given the relative weakness of the case, that opinion needed to be firmly stated, and was not. Further, the ALJ has several concerns about a work related arousal here. One is Dr. Doss’ documentation that a degenerative condition was diagnosed in 2012, a condition that would not have been stated but for the existence of some complaint and treatment for it. Another is the Ford clinic note from the month before the work injury when Patton complained about the same right hip she voiced as a primary complaint from the March 28, 2016 incident. And still another is Patton’s admitted use of a cane over the years. The cane could be said to at least be partially related to Patton’s preexisting knee condition; no evidence was submitted either way. And the ALJ is left to wonder about its exhibition in this case given Dr. Loeb’s observation that he observed Patton walking in the parking lot after his exam without it, and without appearance of an altered gait to justify its need.

     Addressing TTD, there are no records of a treating physician taking Patton off work to contrast with the Ford records documenting her being returned to work without restrictions. Dr. Barefoot does not provide any evidence on this issue either. His report would infer MMI as of the date of the evaluation, August 30, 2016, but his assignment of impairment is based on the belief of a permanent work related injury, an opinion the ALJ has rejected.

          The ALJ awarded temporary medical benefits limited to Patton’s treatment at Jewish Hospital on the day after the injury.  Patton’s claim for permanent income and medical benefits was dismissed. 

          Patton filed a petition for reconsideration taking issue with the CALJ’s finding she had not met her burden of proof establishing neck and low back injuries as a result of the work injury.  She requested the ALJ correct patent errors and enter the appropriate award of medical and income benefits.  Significantly, Patton did not request additional findings of fact or assert the CALJ’s findings were inadequate.

          As previously noted, in the May 24, 2017, Order, the CALJ concluded the petition for reconsideration was a re-argument of the merits which had been addressed with “more than sufficient support to permit meaningful appellate review.”  As a result, the CALJ’s decision remained unaltered. 

          On appeal, Patton contends the evidence compels a finding she met her burden of establishing a work-related injury and the CALJ erroneously relied upon the report of Dr. Doss in deciding to dismiss her claim.  Patton notes there is no evidence in the record indicating she required ongoing treatment for cervical and lumbar spine conditions prior to the injury.  She asserts Dr. Doss’ medical note is void of any evidence she has been treated for neck or spine conditions after April 2012.  She observes that her work-related neck and back symptoms were only noted following the occurrence of the work injury.  Patton argues her testimony she was not experiencing any symptoms or seeking medical treatment for neck or back problems prior to the work injury is supported by the absence of any medical records indicating otherwise.  In addition, Dr. Doss’ medical record establishes her symptoms had progressively worsened after the injury despite trials of physical therapy and medication. 

          Patton maintains that even though the CALJ was unimpressed with the opinions of Dr. Barefoot, the evidence compels findings consistent with Dr. Barefoot’s opinions.  Patton disagrees with the CALJ’s characterization of Dr. Barefoot’s opinions as his opinions were expressed in unequivocal terms.  Patton also contends Dr. Loeb’s opinions bolster her allegation of a work-related injury, as he opined her condition is a result of well documented pre-existing multi-level degenerative disc disease, and admitted there was nothing in the medical record indicating Patton was actively treating or symptomatic immediately prior to the injury. 

          Alternatively, Patton urges that if the Board disagrees and finds the evidence does not compel a contrary conclusion, the CALJ’s decision should be vacated and the claim remanded for additional findings of fact and a correct interpretation of the medical evidence.  Patton charges the CALJ attributed great weight to the medical record of Dr. Doss in finding she suffered from long-term back and neck complaints unrelated to the work injury.  Therefore, at a minimum the CALJ should be required to address the inconsistencies contained in his decision.  Patton argues the CALJ did not “address the fact that additional diagnoses pertaining to the neck and back were added only following the subject work injury.”  She asserts there is no discussion concerning the complete lack of medical records indicating Patton ever received treatment for neck and back conditions from 2012 until the subject injury.  Finally, Patton contends the CALJ should rectify his incorrect characterization of Dr. Barefoot’s report as failing to provide a firm statement indicating the work-related arousal of a pre-existing condition.  We affirm.

          On review, we find Patton’s appeal to be nothing more than a re-argument of the evidence before the CALJ.  Patton impermissibly requests this Board to engage in fact-finding and substitute its judgment as to the weight and credibility of the evidence for that of the CALJ.  That is not the Board’s function.  See KRS 342.285(2); Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985). 

          As the claimant in a workers’ compensation proceeding, Patton 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 Patton was unsuccessful in her burden of establishing an injury meriting an award of permanent income and medical benefits, 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 that would have supported a different outcome than that 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).   

          The CALJ agreed with Dr. Loeb as he found Patton had not proven anything more than a transient hip contusion and cervical strain.  In his November 29, 2016, report, Dr. Loeb set forth the medical history provided by Patton.  As noted by the CALJ, within that medical history Dr. Loeb specifically stated that when he observed Patton leaving the building after his examination, she walked without the use of cane and was carrying the cane in her hand.  After performing a physical examination and reviewing the medical records, Dr. Loeb could not identify any specific pathology from the work injury of March 29, 2016, other than a moderate contusion of the right hip and right upper arm and cervical spine strain not incurring any major deep tissue damage.  He concluded there was no specific injury to the neck or low back.  Dr. Loeb opined Patton had well-documented pre-existing multilevel degenerative disc disease, particularly in the cervical spine, dating back to films taken on September 13, 1994.  Dr. Loeb concluded as follows:

     In summary, I cannot find any real injury pattern in this case. There is no pathologic entity that has been either described or found objectively in the medical record other than transient contusion and transient strain with contusion being to the right hip and right shoulder and strain of the cervical spine without neurologic compromise. In my opinion, there is absolutely no true injury pattern that occurred from this fall at the Ford Plant on 3/29/2016.

          However, Dr. Loeb noted  Patton had residual effects from the stroke on the left side but not on the right side.  In accordance with the 5th Edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (“AMA Guides”), Dr. Loeb believed none of Patton’s “alleged pathologic entities have any merit.”  He expressed the opinion Patton would receive a 0% permanent partial impairment rating pursuant to the AMA Guides.  In addition, he would not impose any restrictions on Patton’s work activities due to the alleged work injury of March 2016.    Finally, the symptoms Patton exhibited at the time of his examination had no bearing or relationship to the work injury of March 29, 2016, as a soft tissue injury from that date would have long since resolved. 

          The CALJ also relied upon the records of Ford Medical dated March 29, 2016, March 30, 2016, March 31, 2016, and April 13, 2016.  Those records indicate Patton sustained a “sprain/strain injury of unspecified muscle and tendon at shoulder and upper level arm” and “contusion of the hip.”  As a result, the contusions were cleaned and Patton was provided with an ice pack and Ibuprofen. 

          In his December 8, 2016, summary, Dr. Hart stated Patton reported to Ford Medical on March 29, 2016, and recounted how she fell.  Patton indicated she struck her right knee, left wrist, right shoulder, and right hipbone.  Upon physical examination, Patton presented with an abrasion to her right knee and left forearm.  Both appeared minor.  He noted as follows: “I noted the [sic] she had ‘bumps, bruises but appears minor, no joint injury, no head neck or back issues.’”  Treatment consisted of ice, cleaning and dressing the abrasions, and Patton took some of her own Aleve.  Patton stated she was fine and returned to work.  Dr. Hart had no concerns that this was a more serious injury. 

          Patton returned on March 30, 2016, and said she was “sore all over the [right] side I have to go home.”  He discussed the option of an outside evaluation, and Patton went to Jewish Hospital East emergency room for an evaluation.  The hospital evaluation consisted of multiple x-rays, all normal, and diagnoses of contusions and cervical sprain.  Patton was not taken off work or given any restrictions.  Consequently, she returned to work.  Patton returned to Ford Medical on March 31, 2016, with her “committeeman” stating she had been “OK” but must go home and could not do her job.  Dr. Hart reassured Patton the injuries were minor and she should be okay to work.  Patton stated she wanted a second opinion from her doctor.  At that time, Dr. Hart reminded Patton she had already received a second opinion from the emergency room.  Patton returned on April 4, 2016, and stated she was hurting and could not do her job.  He noted that when he evaluated her, Patton “walked easily and consistent with her baseline and did not have any trouble moving her head or shoulders,” until he formally examined her.  Dr. Hart sent Patton to in-plant physical therapy for evaluation and treatment.  Dr. Hart added: “I noted she completed the evaluation and treatment, and with her union rep she said and I quoted ‘I can work OK, I want to go back out there.’”  Dr. Hart noted he has worked with Patton on multiple occasions in the past helping her with job placement.  His assessment was Patton was difficult to place because of her longstanding multiple medical issues including “restrictions with her prior knee issues.” 

          As noted by the CALJ, the report of Jewish Hospital East reflects the March 30, 2016, x-rays of the right humerus and right hip were negative. 

          The CALJ also relied upon the July 21, 2016, report of Dr. Doss which reveals Patton had a long history of neck and low back pain.  She had also had arm and leg pain.  Patton was there with new imaging of both the cervical and lumbar spine.  She reported her symptoms had become worse and physical therapy had not helped.  Under the heading “Past Medical History,” Dr. Doss noted Patton had previously been diagnosed with degenerative joint disease of the cervical and lumbar spine on April 9, 2012. 

         Contrary to Patton’s assertions, the medical evidence set out herein from Drs. Loeb, Hart, and Doss, as well as the records of Jewish Hospital East, constitutes substantial evidence upon which the CALJ was free to rely in reaching a decision on the merits.  Kentucky Utilities Co. v. Hammons, 145 S.W.2d 67, 71 (Ky. App. 1940) (citing American Rolling Mill Co. v. Pack et al., 128 S.W. 2d 187, 190 (Ky. App. 1939)).  Moreover, in line with Robertson v. United Parcel Service, 64 S.W.3d 284 (Ky. 2001), we believe the ALJ could reasonably conclude based on the evidence, the injury of March 29, 2016, produced only temporary harmful changes involving Patton’s hip and cervical region which were transient in duration, and that fully resolved resulting in no permanent impairment or disability or the need for future medical treatment. 

          While Patton is correct in that the contrary opinions espoused by Dr. Barefoot could have been relied on by the CALJ to support a different outcome in her favor, in light of the remaining record, the views articulated by Dr. Barefoot represent nothing more than conflicting evidence compelling no particular result.  Copar, Inc. v. Rogers, 127 S.W. 3d 554 (Ky. 2003).  As previously stated, where the evidence with regard to an issue preserved for determination 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).  Consequently, we find no error. 

          Here, the CALJ choose not to rely upon Dr. Barefoot and set out with specificity the reasons why he did not rely upon Dr. Barefoot’s findings and opinions.  As previously noted, this Board is without the authority to usurp the discretion afforded the CALJ in choosing the medical evidence upon which he relied. 

          Further, we find no merit in Patton’s assertion the decision should be vacated and remanded for additional findings. Even though Patton filed a petition for reconsideration, she made no request for additional findings nor did she take issue with the adequacy of the CALJ’s findings.  KRS 342.285; Eaton Axle Corp. v. Nally, 688 S.W.334 (Ky. 1985).  Consequently, Patton waived her right on appeal to seek remand for additional findings.  Because the outcome selected by the CALJ is supported by substantial evidence and a different result is not compelled, we are without authority to disturb his decision on appeal.  Special Fund v. Francis, supra. 

          Accordingly, the April 26, 2017, Opinion and Order and the May 24, 2017, Order ruling on Patton’s petition for reconsideration are AFFIRMED.  

          ALL CONCUR.

COUNSEL FOR PETITIONER:

HON JOSEPH MAYHORN

401 W MAIN ST STE 1910

LOUISVILLE KY 40202

COUNSEL FOR RESPONDENT:

HON ELIZABETH M HAHN

401 S FOURTH ST STE 2200

LOUISVILLE KY 40202

CHIEF ADMINISTRATIVE LAW JUDGE:

HON DOUGLAS W GOTT

657 CHAMBERLIN AVE

FRANKFORT KY 40601

 



[1] Although the CALJ did not specifically state the petition for reconsideration was overruled or denied, he declined to change any portion of his decision in this order.

[2] Patton alleged she fell on March 28, 2016, and Ford’s medical records reflect she fell on March 29, 2016.

[3] The CALJ was present at the January 19, 2017, deposition.

[4] Patton did not elaborate as to whether carpal tunnel syndrome affected one hand or both.

[5] Apparently, the stroke did not occur at work.