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January 15, 2016 201285818

Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED:  September 22, 2017

 

 

CLAIM NO. 201690404

 

 

MARIA CRISTINA-RODRIGUEZ                       PETITIONER

 

 

 

VS.                         

APPEAL FROM HON. JONATHAN R. WEATHERBY,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

MILITARY DELI & BAKERY SERVICES

AND HON. JONATHAN R. WEATHERBY,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

AFFIRMING

 

                       * * * * * *

 

 

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

 

 

RECHTER, Member.  Maria Christina Rodriguez (“Rodriguez”) appeals from the March 27, 2017 Opinion and Order and the May 26, 2017 Order on Reconsideration rendered by Hon. Jonathan R. Weatherby, Administrative Law Judge (“ALJ”) dismissing her claim against Military Deli & Bakery Services (“MDBS”).  On appeal, Rodriguez argues the ALJ erred in determining she failed to establish her abdominal hernia is work-related.  Because the evidence does not compel a contrary finding, we affirm.

          Rodriguez testified by deposition on November 8, 2016, and at the hearing held January 25, 2017.  She worked at MDBS as a baker.  Her job duties required lifting boxes of ingredients and placing them on shelves and counters. 

          At her deposition, Rodriguez testified the alleged injury occurred on March 3, 2016.  She experienced pain, which she attributed to lifting trays of bread.  She reported the incident to her supervisor and immediately sought treatment at the Hardin Memorial Hospital emergency room.  At the hearing, Rodriguez testified the injury occurred on March 16, 2016.  She stated she had experienced pain in her abdomen that gradually increased since March 3, 2016. 

          Records from Hardin Memorial Hospital indicate Rodriguez treated on March 15, 2016 for complaints of sharp stabbing pain in the abdomen that started several months earlier and was worsening.  An abdominal CT scan revealed a new ventral hernia in the pelvis.  The scan also revealed a previous cholecystectomy and hysterectomy.  Rodriguez was directed to follow up with her doctor.  She visited Heartland Urgent Care on March 18, 2016, where she was diagnosed with a ventral hernia and referred to a general surgeon.  Also on March 18, 2016, Rodriguez filed a first report of injury indicating a lifting injury at work on March 15, 2016.    

          Dr. Matthew Benns first treated Rodriguez on May 28, 2016.  Dr. Benns recorded a history of several months of relatively constant abdominal pain, worse with movement or activity.  He surgically repaired the hernia on June 10, 2016.  In a June 29, 2016 letter, Dr. Benns opined Rodriguez’s ventral hernia “was possibly caused by and would certainly be exacerbated by heavy lifting that occurred prior to her surgery.”  On September 21, 2016, Dr. Benns noted Rodriguez was doing well and had reported “occasional pain with activity (rarely), but overall much better.”  He recommended that she continue to increase her activity back to baseline, and return in six months.

          Dr. Warren Bilkey performed an independent medical evaluation (“IME”) on November 7, 2016.  Rodriguez stated she began developing abdominal pain when lifting trays of bread in March 2016.  Dr. Bilkey diagnosed an abdominal wall hernia, status post-surgical repair with residual chronic pain.  He attributed the diagnoses and surgery to the March 16, 2016 work injury.  Dr. Bilkey assigned a 9% impairment rating pursuant to the American Medical Association, Guides to the Evaluation of Permanent Impairment, 5th Edition (“AMA Guides”).  Dr. Bilkey also opined Rodriguez suffered no pre-existing active impairment rating. 

          Dr. Gregory T. Snider performed an IME on November 30, 2016.  Dr. Snider diagnosed status post-abdominal hernia repair.  He stated the record does not support an occupationally induced abdominal wall hernia.  The history Rodriguez provided does not match with an occupationally induced hernia and does not appear in the medical record.  The assertion of hernia while lifting did not occur until after detection of the hernia on CT scan.  This type of hernia frequently occurs spontaneously.  He noted she has had a successful repair and reached maximum medical improvement on September 21, 2016.  She can return to full duty work.  He assessed a 0% impairment pursuant to the AMA Guides.  No further medical treatment is reasonable or necessary for the abdominal hernia repair. 

          The ALJ was persuaded by Dr. Snider’s opinion that Rodriguez did not sustain an occupationally induced abdominal wall hernia and sustained no impairment as a result of any work-related event or series of events.  Accordingly, the ALJ dismissed the claim. 

          Rodriguez filed a petition for reconsideration arguing the ALJ misinterpreted the medical and lay evidence concerning the causation/work-relatedness of the injury.  Rodriguez argued she is entitled to at least a period of temporary total disability and medical benefits during the recovery period for a temporary exacerbation. 

          The ALJ denied the petition for reconsideration by order dated May 26, 2017.  He reiterated his reliance on Dr. Snider’s opinion and his interpretation of the history Rodriguez provided to Dr. Benns.  The ALJ further noted the petition for reconsideration failed to point out any patent error appearing upon the face of the Opinion and Order. 

          On appeal, Rodriguez argues the ALJ erred in dismissing the claim in its entirety based upon the work-relatedness issue.  She contends the evidence from Drs. Benns and Bilkey, and her testimony, establish that the work activities are directly responsible for the hernia.  Rodriguez also challenges the ALJ’s interpretation of Dr. Snider’s opinion. 

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

          Dr. Snider’s opinion constitutes substantial evidence supporting the ALJ’s finding that Rodriguez did not sustain a work-related hernia injury.  Dr. Snider reviewed all pertinent treatment records and found the medical records are not consistent with an occupational cause for the hernia.  Dr. Benns likewise opined Rodriguez’ hernia was “possibly” caused by her work.  This statement falls short of establishing causation.  Further, the history recorded at Hardin Memorial Hospital on March 15, 2016 contradicts the occurrence of a specific lifting injury.  Rodriguez reported abdominal pain that started several months prior to presenting for treatment.

          In his report, Dr. Snider stated, “It appears the assertion of hernia while lifting did not occur until after detection on CT scan.”  The statement about when the “assertion of hernia” made is arguably open to varying interpretations.  Rodriguez argues Dr. Snider in some way expected her to self-diagnose a hernia prior to the CT scan.  Another rational interpretation is that Dr. Snider reviewed the medical records and suspected Rodriguez revised the progression of her symptoms to comport with the hernia diagnosis. 

          Regardless, Dr. Snider’s report nonetheless supports the ALJ’s decision to dismiss this claim.  He unequivocally explained that the symptoms and history Rodriguez reported at the time of treatment does not support an occupationally induced history.  He also explained that ventral hernias can occur spontaneously.  Furthermore, even if Dr. Benns believed Rodriguez’ hernia would be exacerbated by her work, even if not caused by it, the ALJ was not compelled to rely upon this statement.  Dr. Snider concluded the hernia is not work-related, and did not opine her work exacerbated the hernia.      

          This proof constitutes the requisite substantial evidence to support the ALJ’s decision.  Dr. Bilkey’s opinion supports a contrary conclusion, but does not compel a finding in Rodriguez’ favor.  The ALJ acted within his discretion to determine Dr. Snider offered the most persuasive opinion, 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).

          Accordingly, the March 27, 2017 Opinion and Order and the May 26, 2017 Order rendered by Hon. Jonathan R. Weatherby, Administrative Law Judge, are hereby AFFIRMED.

          ALL CONCUR.

 

 

 

 

 

 

COUNSEL FOR PETITIONER:

 

HON JOY L BUCHENBERGER

401 W MAIN ST #1910

LOUISVILLE, KY 40202

 

COUNSEL FOR RESPONDENT:

 

HON SHARLOTT HIGDON

PO BOX 995

PADUCAH, KY 42002

 

ADMINISTRATIVE LAW JUDGE:

 

HON JONATHAN R. WEATHERBY

PREVENTION PARK

657 CHAMBERLIN AVENUE

FRANKFORT, KY 40601