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Commonwealth
of Kentucky
Workers’
Compensation Board
OPINION
ENTERED: October 6, 2017
CLAIM NO. 201590249
TERESA HALL PETITIONER
VS. APPEAL FROM HON. GRANT S. ROARK,
ADMINISTRATIVE LAW JUDGE
COMMONWEALTH OF KENTUCKY
and HON. GRANT S. ROARK,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
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BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
STIVERS,
Member.
Teresa
Hall (“Hall”) appeals from the May 15, 2017, Opinion and Order and the June 14,
2017, Order denying Hall’s petition for reconsideration of Hon. Grant S. Roark,
Administrative Law Judge (“ALJ”). In the May 15, 2017, Opinion and Order, the
ALJ dismissed Hall’s claim for income and medical benefits and resolved a
medical fee dispute, filed by the defendant employer, Commonwealth of Kentucky
(“Commonwealth”), in the Commonwealth’s favor. On appeal, Hall asserts the ALJ
erred by finding she did not sustain work-related injuries to her back, hips,
and lower extremities, as well as a worsening of her psychological problems.
The Form 101 alleges Hall sustained
work-related injuries to her back, hips, and lower extremities on March 24,
2015, in the following manner: “Plaintiff was walking into her place of
employment and tripped where the parking lot meets the entrance door.”
The Commonwealth filed the September
16, 2015, Independent Medical Examination (“IME”) report of Dr. Timothy Kriss.
After performing an examination and medical records review, Dr. Kriss diagnosed
a “bone bruise” to the sacrum. He opined as follows:
The key to making this diagnosis is the
mechanism of injury; Ms. Hall fell backwards striking her tailbone forcefully
on a hard surface. The subsequent focal pain and tenderness at the contact
point (tailbone) confirms the diagnosis of bone bruise of the tailbone.
I can assure the reader that a severe bone
bruise of the tailbone is a most unpleasant experience, one I have gone through
myself. The periosteal lining of the bone is exquisitely sensitive to pain, and
there is little or no ‘padding’ (subcutaneous fat, overlaying muscles) to
cushion a direct, forceful, blunt blow to the tailbone in humans. The pain is
always surprisingly severe, and appears markedly out of proportion to the
mechanism of injury. The pain also tends to both resist treatment and persist
for several frustrating months. It is not uncommon at all for there to be no noticeable
improvement for the first few months after striking the tailbone, and this
greatly frustrates the patient. This has happened in Ms. Hall’s case.
The long-term prognosis for a bruise of the
tailbone, however, is actually excellent, but there is always an unavoidable,
disproportionately painful and disabling initial phase that lasts for several
months, and makes the patient wonder if the condition will ever get better.
This condition simply takes time, and eventually heals completely. In Ms. Hall,
it is taking a bit longer than usual to heal, and the pain is amplified by her
pre-existing active anxiety and depression, and further aggravated by switching
from the well-tolerated and effective Lexapro to the ineffective Viibryd and
all its side effects.
Initially Ms. Hall also complained of
bilateral buttock and lumbar pain, which may have obscured the tailbone
diagnosis. The buttock pain is easily explained by direct contusion, since Ms.
Hall landed on both buttocks, not just her tailbone. The lumbar pain is also
easily explained by either strain or contusion from the fall.
Ms. Hall does not have ANY neurologic
pathology or injury. This is very clear. She has been neurologically intact at
every single medical evaluation, has never complained of any radicular or
peripheral nerve distribution neurologic symptoms, and has a completely
negative, age-appropriate lumbar MRI scan.
Ms. Hall unequivocally does not have lumbar
facet, sacroiliac, or trochanteric bursal pathology. She does not localize pain
to these specific anatomic locations, nor are any of these structures focally
tender on examination. Completely normal bone scan is reassuring.
I concur with Doctor D’Angelo that the left
hip MRI ‘findings’ neither explain nor correlate with any of Ms. Hall’s
symptoms. Most likely, the radiologist has simply ‘over read’ the hip studies.
Ms. Hall’s hip examination is stone cold normal, as are her hip plain films.
Most obviously, Ms. Hall does not have any hip joint complaints today; she does
have tailbone pain, and some mild pain in the lateral proximal thighs, well
outside the hip joint, but she offers no symptoms or findings attributable to
the hip joint or its muscle attachments.
Ms. Hall has a long history of generalized
anxiety and depression, requiring pharmacologic treatment for many years prior
to March 24, 2015. Both of these conditions are, in part, medically defined by
significant symptoms magnification and completely psychosomatic subjective
complaints that are perceived as physically disabling, but nonetheless have no
physical basis. That is, Ms. Hall is highly predisposed to symptom
magnification, and I have no doubt that her pre-existing active anxiety and
depression are emotionally ramping up her symptoms. I think the lower extremity
complaints (non-anatomic numbness, vague diffuse weakness) are likely
factitious; there is certainly no neurologic or physical explanation for those
complaints.
I explained to Ms. Hall how chronic anxiety
and depression can subconsciously amplify physical symptoms, and that this is
occurring in her case. I do think she understands this now. I emphasized to her
that this is not malingering – she is not knowingly or purposefully magnifying
symptoms; the symptom magnification occurs at a subconscious level, a direct
consequence of her pre-existing active anxiety and depression.
I believe the recent switch from Lexapro to Viibryd may have
inadvertently aggravated the symptom magnification. Ms. Hall is adamant today
that she did fairly well on the Lexapro for many years, and switching to
Viibryd has caused very bothersome side effects, appears to have worsened her
baseline anxiety and depression, and also seems to coincide with an increase in
her symptoms.
Regarding maximum medical improvement
(“MMI”) and the assessment of an impairment rating, Dr. Kriss opined as
follows:
It is a bit ‘too early’ to formally assign
any spinal impairment to Ms. Hall.
Ms. Hall should get much better with a little
bit more time to heal and treatment more appropriately tailored to the specific
anatomic problem of chronic coccydynia. Ms. Hall should also get much better in
general with treatment of her non-work-related depression and generalized
anxiety disorder.
Statistically, the most likely impairment
outcome for Ms. Hall would be DRE category one, or 0% whole person lumbar
spinal impairment. Bruising the tailbone is not a permanent injury. It is a
very painful and frustrating experience, one that seems to last ‘forever’ to
the patient, but it is almost always temporary. My own coccydynia from falling
on my tailbone lasted six months; I was frustrated during that time, but kept
telling myself that medically and scientifically, this condition will get
better and it will eventually go away. Complete resolution eventually did
transpire, but the excellent long-term prognosis seemed to be of little comfort
while I was laboriously tolerating the unavoidable but temporary painful phase.
Ms. Hall does not have any objective medical
evidence of permanent harmful change. There is no permanent damage to the
tailbone. There are no acute or traumatic changes on the lumbar MRI scan, total
body bone scan, or plain film x-rays. The fact that her bone scan is completely
normal at the sacrum provides exceptionally strong evidence against any
permanent, harmful, or structural change. All of Ms. Hall’s nerves, muscles and
tendons are working normally. There is no neurologic compression or injury.
CRE category one is clearly most appropriate,
but should not be formally assigned at this time because Ms. Hall has not yet
reached maximum medical improvement.
There is no evidence of any hip or lower extremity impairment.
The hip MRI ‘findings’ are incidental, asymptomatic, and non-correlating.
Dr. Kriss opined that, in the absence
of any bone scan findings in the tailbone, and in the absence of any sacral
fracture, Hall would achieve MMI on December 24, 2015.
The Commonwealth also filed the May 4,
2016, IME report of Dr. Kriss. After performing another examination of Hall and
medical records review, Dr. Kriss opined Hall’s bone bruise of the tailbone has
completely resolved. He concluded:
Unfortunately, even though the painful
tailbone bone bruise has completely resolved, Ms. Hall has gone on to develop
completely ‘new,’ extremely diffuse left lumbar pain and left sciatica which
were not present when I last
evaluated Ms. Hall in September, 2015.
These ‘new’ pains developed spontaneously and
atraumatically, somewhere between eight months and 14 months AFTER March 24,
2015, and therefore cannot possibly be attributed to the original March 24,
2015 slip and fall.
They instead represent a combination of deconditioning and
components of somatization (the subconscious transformation of unresolved
psychological stress into subjectively disabling symptoms which nonetheless
have no physical basis).
Dr. Kriss assessed a 0% whole person
impairment explaining as follows:
Ms. Hall does not have any objective medical evidence of
permanent harmful change. There is no permanent damage to the tailbone. There
are no acute or traumatic changes on the lumbar MRI scan, total body bone scan,
or plain film x-rays. The fact that even the hyper-sensitive bone scan is completely
normal at the sacrum provides exceptionally strong evidence against any
permanent, harmful, or structural change. All of Ms. Hall’s nerves, muscles and
tendons are working normally. There is no neurologic compression or injury.
On October
26, 2015, the Commonwealth filed a Form 112 Medical Fee Dispute describing the
nature of the dispute as follows:
The Respondent allegedly sustained a
work-related injury to her back, bilateral hips, and bilateral lower
extremities on March 24, 2015. She has been treated by an orthopedic specialist
and neurosurgeon for her complaints. There has now been a referral to another
orthopedic specialist, Dr. Michael R. Heilig, for a second opinion. A
prospective Utilization Review was performed by Dr. Ronald Podoll on October 2,
2015. In Dr. Podoll’s opinion, a referral to another orthopedic specialist is
not medically necessary or appropriate. Dr. Podoll explained as follows:
Ms. Hall sustained an injury after a fall at work landing on her
buttocks and low back. She has consulted her personal physician and two
orthopedists for her persistent symptoms and complaints. Both her treating
orthopedist and independent medical examiner did not find abnormalities on
examination of her hips and could not explain her left hip abnormalities
described on her MRI. Since Ms. Hall has been recently examined by both her
orthopedist and a neurosurgeon and her bilateral hip examinations have been
reported as normal and do not correlate with her symptoms and complaints, I do
not believe that the referral to another orthopedist is medically necessary and
appropriate as it relates to the 03/24/15 work injury.
Therefore, the Movant is seeking to be
relieved from responsibility for payment of the referral to another orthopedic
specialist for a second opinion.
The
Commonwealth also filed the August 3, 2016, IME report of Dr. David Shraberg.
After performing a mental health examination and a medical records review, Dr.
Shraberg set forth the following diagnoses:
AXIS I Long-standing
history of chronic dysthymia (depression) with major depressive episodes.
Long-standing history of somatization
disorder with history of chronic pain complaints, headaches, variety of other
somatic complaints, nondisabling, tobacco dependency, chronic up to present.
AXIS II Features
of a self-defeating personality disorder, nondisabling.
AXIS III Past
and present history of chronic obesity status post lap band placement five to
six years ago.
Status post right carpal tunnel release,
recovered, status post cholecystectomy, recovered.
Status post Cesarean section x2, recovered.
History of chronic pain complaints including
some elements of lumbar complaints prior to March 24, 2015, as well as chronic
depression as documented both in the records and reports of both Dr. Evensen
and this examiner.
Status post slip and fall at work March 24,
2015 with lumbar sprain, recovered, with marked symptom magnification both on
psychological testing in this office and Dr. Evensen’s.
AXIS IV Stressors:
Usual and customary stressors of balancing work and family.
AXIS V GAF (baseline)
70.
Dr.
Shraberg believed Hall was at MMI for her psychiatric condition and assessed a
0% permanent psychiatric impairment rating related to the injuries of March 24,
2015.
The May 31,
2016, Benefit Review Conference (“BRC”) Order and Memorandum lists the
following contested issues: benefits per KRS 342.730/multipliers,
work-relatedness/causation, unpaid or contested medical expenses, and TTD. We
note that the parties stipulated the injuries occurring on March 24, 2015, are
work-related.
A second
BRC Order dated February 1, 2017, duplicates the contested issues listed in the
May 31, 2016, BRC Order.
On February
2, 2017, the Commonwealth filed stipulations stating as follows:
1. TTD
was paid in this claim from March 25, 2015 through December 30, 2015 at the
rate of $394.47 per week for a total of $15,243.38.
2.
Medical expenses have been paid in the total amount of $11,861.57.
In the May 15, 2017, Opinion and Order, the ALJ
set forward the following analysis, findings of fact, and conclusions of law:
Causation/Work-Relatedness
As a threshold issue, the defendant
disputes that plaintiff's current physical and psychological complaints are due
to her work injury of March 24, 2015. The defendant relies on the opinions of
its expert, Dr. Kriss, who concluded plaintiff has no permanent injury causally
related to the fall at work. For her part, plaintiff points out she was having
no hip or lower back problems prior to March, 2015 and she has disabling pain
in those areas since the accident. She therefore argues the opinions of her
treating physician, Dr. Heilig, and her evaluating physician, Dr. Hughes are
most credible.
Having reviewed the evidence of record,
the Administrative Law Judge is simply not persuaded plaintiff has carried her
burden of proving she has any permanent injuries causally related to the March,
2015 work accident. In reaching this conclusion, Dr. Kriss' opinions are
considered most credible. He examined plaintiff twice and noted that the first
time she complained primarily of pain in her tailbone which he expected at that
time to fully resolve. He noted after his second examination that the tailbone
pain had fully resolved but that she was presenting new complaints of lower
back pain. He indicated plaintiff's primary problem was her pre-existing,
active anxiety and depression which he concluded manifested as psychosomatic
physical complaints which could not be explained by any physical abnormality in
plaintiff's lower back or hips. Dr. Kriss thoroughly explained that plaintiff
had no abnormal lumbar objective findings and no abnormalities of her bilateral
hips. He pointed out that the prior bilateral hip MRI performed was misread by
the radiologist and, in any event, the reported findings did not correlate with
the symptoms she claimed. The ALJ is persuaded plaintiff's complaints have not
been consistent and, more broadly, are not supported by any objective findings.
For these reasons, it is concluded plaintiff's current lumbar and hip
complaints are not causally related to the March, 2015 work injury. Her claim
for benefits for these injuries must therefore be dismissed.
Similarly, with respect to plaintiff's
claim for psychological injury, the ALJ is more persuaded by the opinions of
Dr. Shraberg. There is no dispute plaintiff had prior psychological problems.
Despite her claim that the effects of her physical injury worsened her
psychological condition, the ALJ is not so persuaded. Instead, the ALJ is more
persuaded by Dr. Kriss' and Dr. Shraberg’s opinions that the plaintiff is
significantly overmedicated and that her over medication is contributing to her
psychological impairment and her physical ailments. Based on Dr. Shraberg’s
opinions, it is determined plaintiff does not have any psychological condition
causally related to the March 24, 2015 work accident, and that portion of her
claim must also be dismissed.
TTD Benefits
Plaintiff also requests the award of
additional TTD benefits. However, it is noted that plaintiff was paid TTD
benefits through December 30, 2015. The ALJ is persuaded again by Dr. Kriss'
explanations that plaintiff reached maximum medical improvement from her work
injury as of December 24, 2015. He explained that plaintiff's work-related injury
was a bruised elbow [sic] which can take months to heal, but that she had
healed to the point of MMI as of December 24, 2015. Based on the lack of any
objective abnormalities after that date, Dr. Kriss' opinions are considered
most persuasive. It is therefore determined plaintiff reached MMI as of
December 24, 2015 and, as such, is not entitled to any additional TTD benefits.
Medical Fee Dispute
The defendant filed a form 112 medical fee
dispute challenging the referral to Dr. Heilig and his subsequent treatment.
However, from the totality of evidence available, the ALJ is persuaded
plaintiff initially had ongoing symptoms at the base of her spine/tailbone and
the referral to Dr. Heilig, a surgeon, was reasonable and necessary. Similarly,
his treatment, other than any prescription medications, up to the point
plaintiff reached maximum medical improvement as of December 24, 2015 is
considered reasonable as an attempt to ensure plaintiff has no surgical
pathology. Yet the ALJ is also persuaded by Dr. Kriss' opinion that plaintiff
is significantly overmedicated and, as such, any medication prescribed by Dr.
Heilig is not considered reasonable and necessary. Accordingly, such
medications are not compensable. The defendant is not responsible for paying such
expenses, but shall be responsible for payment of any weaning program as
recommended by Dr. Kriss.
Hall filed a
petition for reconsideration which was denied by order dated June 14, 2017.
On appeal, Hall asserts the ALJ erred
by dismissing her claim for income and medical benefits based on alleged
work-related permanent injuries to her back, hips, and lower extremities with a
psychological overlay. We affirm.
As the claimant in a
workers’ compensation proceeding, Hall 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 Hall 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).
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 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). 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 May 15, 2017, Opinion and Order firmly
establishes the ALJ was persuaded by the opinions of Drs. Kriss and Shraberg.
Dr. Kriss’ medical opinions, set forth in both IME reports, summarized herein,
comprise substantial evidence in support of the ALJ’s dismissal of Hall’s claim
for permanent income and medical benefits based on an allegation of permanent injuries to her back, hips,
and lower extremities sustained during her fall at work on March 24, 2015. Dr.
Kriss ultimately concluded Hall sustained a temporary
bruise of her tailbone which has resolved, and assigned a 0% whole person
impairment rating. As pointed out by the ALJ, the Commonwealth paid TTD
benefits from March 25, 2015, through December 30, 2015, at the rate of $394.47
per week for a total of $15,243.38 which spans the period of time from the date
of Hall’s fall and the MMI date assigned by Dr. Kriss and subsequently relied upon
by the ALJ. Additionally, stipulations filed in the record indicate medical
expenses were paid in the amount of $11,861.57. Dr. Kriss’ medical opinions
constitute substantial evidence which support the ALJ’s dismissal of Hall’s
claim for income and medical benefits for alleged permanent physical injuries
occurring on March 24, 2015.
Similarly, Dr. Shraberg’s opinions
concerning Hall’s alleged psychological overlay comprise substantial evidence
in support of the ALJ’s dismissal of Hall’s claim for permanent income and
medical benefits based on an alleged psychological injury. In his IME report,
Dr. Shraberg opined Hall had 0% permanent psychiatric impairment associated
with the events of March 24, 2015. Notably, Dr. Kriss is in full agreement. As
substantial evidence supports the dismissal of Hall’s claim for permanent income
and medical benefits for a psychological injury stemming from the events of
March 24, 2015, and the record does not compel a different result, we must
affirm the ALJ’s decision on this issue.
Since the record contains substantial
evidence in support of the ALJ’s dismissal of Hall’s claim for income and
medical benefits for alleged physical injuries occurring on March 24, 2015, and
the record does not compel a different result, we must also affirm on this
issue.
Accordingly, the May 15, 2017, Opinion
and Order and the June 14, 2017, Order denying Hall’s petition for
reconsideration are AFFIRMED.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON MCKINNLEY MORGAN
921 S MAIN ST
LONDON KY 40741
COUNSEL
FOR RESPONDENT:
|
HON ROBERT
FERRERI 614 W MAIN ST STE 5500 |
RESPONDENT:
COMMONWEALTH OF KENTUCKY
501 HIGH ST/ST OFF BLDG/3RD FL
FRANKFORT KY 40601
ADMINISTRATIVE
LAW JUDGE:
HON GRANT S ROARK
657 CHAMBERLIN AVE
FRANKFORT KY 40601
