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Commonwealth
of Kentucky
Workers’
Compensation Board
OPINION
ENTERED: October 20, 2017
CLAIM NO. 201601849 & 201601848
ROBERT HALE PETITIONER
VS. APPEAL FROM HON. GRANT
S. ROARK,
ADMINISTRATIVE LAW JUDGE
UNITED CENTRAL INDUSTRIAL SUPPLY CO LLC
and HON. GRANT S. ROARK,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
IN PART, REVERSING IN PART,
AND
REMANDING
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* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
STIVERS,
Member.
Robert
Hale (“Hale”) appeals from the April 28, 2017, Opinion and Order and the July
10, 2017, Order ruling on Hale’s petition for reconsideration of Hon. Grant S.
Roark, Administrative Law Judge (“ALJ”). In the April 28, 2017, Opinion and
Order, the ALJ dismissed Hale’s claims for benefits for alleged work-related
cumulative trauma injuries to his neck, lower back, and shoulders and hearing
loss sustained while in the employ of United Central Industrial Supply Co. LLC
(“United Central”). On appeal, Hale asserts the ALJ erred by dismissing his
cumulative trauma claim and hearing loss claim.
The Form
103 asserts that on October 13, 2015, Hale became disabled due to occupational
hearing loss arising out of his employment with United Central. The Form 103
indicates Hale became aware of the condition “[b]y receipt of report from The
Hearing Center/Dr. Nancy Bockway dated February 17, 2016.”
The Form
101 asserts that on October 13, 2015, Hale sustained cumulative trauma injuries
to his neck, back, and left shoulder in the following manner:
Cumulative Trauma/Repetitive Stress Injury; claimant worked many
years performing hard and heavy labor at work: ‘From his history and the nature
of the work and type of work, he has sustained cumulative trauma over the years
which has been brought into reality in the last few years requiring treatment.’
Mr. Hale’s ‘current symptoms are secondary to repetitive injury and cumulative
effects of these injuries.’…
The record contains the November 22,
2016, Form 108 –Hearing Loss report of Drs. Raleigh O. Jones and Persis J.
Ormond of University of Kentucky HealthCare. After performing an examination
and a hearing test on Hale, Drs. Jones and Ormond assigned a 0% whole person
impairment rating pursuant to the 5th Edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment.
In a report attached to the Form 108, Dr. Jones opined as follows regarding the
results of Hale’s hearing test:
His hearing test does reveal a very mild, bilateral sloping,
high-frequency sensorineural hearing loss. I do believe within a reasonable
degree of medical certainty that he suffers from an occupational-related,
noise-induced sensorineural hearing loss, but fortunately, at this point, it is
very mild and located mostly in the high frequencies. Because of this, his 5th
edition AMA disability rating is a 0% hearing impairment and 0% whole person
impairment. I do think he needs to protect his ears around further noise
exposure and I discussed that with him today.
United Central filed the December 7,
2016, Independent Medical Examination report of Dr. Timothy Kriss. After
performing a physical examination and medical records review, Dr. Kriss opined
as follows: “There is literally NO evidence of work-related causation for
Mister Hale’s cervical, lumbar, shoulder, upper extremity or lower extremity
pain, weakness or complaints. None.” Dr. Kriss further opined as follows:
Mister Hale has ZERO medical record evidence
of work-related causation while he was in fact working as a mining equipment
salesperson.
Never mind the additional and far more
discriminating criteria that such work-related evidence must be medically
substantial convincing, and preponderant.
ZERO evidence makes non-work-related
causation the only possible choice, no medical judgment or interpretation
required.
Any ‘cumulative’ trauma injury work injury
must, by definition, ‘accumulate.’
How can Mr. Hale have a cumulative work injury if there is no
evidence of injury to accumulate?
Regarding an impairment rating for the
cervical spine condition, Dr. Kriss opined as follows:
In accordance with the American Medical
Association Guides to the Evaluation of Permanent Impairment, Fifth Edition,
page 392, Table 15-5, DRE cervical category IV, for loss of motion segment due
to successful or unsuccessful attempt at surgical arthrodesis, I would assign a
whole person impairment of 25%.
The fact of surgical fusion automatically
places the patient into DRE category IV, regardless of outcome.
The lowest percentage (25%) available within
the DRE category 4 range (25% - 28%) is most appropriate, given the absence of
neck pain, normal cervical neurological examination, absence of radiculopathy,
absence of cervical myelopathy, normal cervical range of motion, and normal
cervical function.
I would attribute all of this cervical whole
person impairment to Mr. Hale’s naturally occurring degenerative processes of
aging, degenerative disc disease, spondylosis, osteoarthritis.
I would not assign any of this cervical whole person impairment
to Mr. Hale’s job.
Regarding an
impairment for the lumbar condition, Dr. Kriss opined as follows:
In
accordance with the American Medical Association Guides to the Evaluation of
Permanent Impairment, Fifth Edition, page 384, table 15-3, DRE lumbar category
II, for non-verifiable radicular complaints, I would assign a whole person
impairment of 5%.
The lowest percentage available within DRE
category two is most appropriate given the absence of any radicular findings,
the normal lumbar neurological examination, the absence of any radicular
complaints below the level of the thighs, and the normal lumbar range of
motion.
I would attribute all of this 5% whole person
lumbar impairment to Mr. Hale’s naturally occurring degenerative processes of
aging, degenerative disc disease, spondylosis and osteoarthritis.
I would not assign any of this lumbar impairment
to Mr. Hale’s job.
Finally, concerning
the presence of a shoulder impairment, Dr. Kriss opined:
Mr. Hale has left shoulder symptoms, but he
has no left shoulder findings and normal shoulder function. Left shoulder
x-rays are completely negative. There is no confirmed structural pathology.
Mr. Hale has some shoulder soreness, but he
retains completely normal shoulder range of motion, completely normal shoulder
strength, completely normal shoulder muscle bulk and tone, and completely
normal shoulder function.
With normal shoulder range of motion, Fifth
Edition AMA Guidelines Figures 16-40, 16-41, 60-43, and 16-46 assign 0% whole
person shoulder impairment.
Hale was deposed on December 8, 2016,
and was questioned as to what aspect of his job at United Central caused his
alleged cumulative trauma injuries to his neck, back, and left shoulder.
A: I think most of it was
just driving. I can’t think of anything else. I hate to say it, but there was
one instance where I bumped into a guardrail, but that was in a company truck.
But I don’t think that was hard enough to do anything.
…
Q: So when you say driving,
are you just talking about having your arms, hands upon the steering wheel,
shifting gears, that kind of thing?
A: Well, that, and looking
left and right constantly.
Q: How big a truck were you
driving?
A: An F-150.
Q: Okay. How about your
back? Would it be the same thing or is it something else?
A: Well, the neck and back
both would be just constantly the driving, the carrying, the walking up and
down the steps with the heavy loads. I mean, bending over, picking stuff up. I
mean, just everything.
Q: So was any of your work
just going around selling stuff, or were there always deliveries, too?
A: Well, it was a
combination.
Q: A combination?
A: I mean, when you’re there
servicing something, unless you’re stupid, you’ve got to sell them something.
Especially when you’re on commission. So sales/service.
…
Q: Okay. How about your left
shoulder? Is it the same kind of things how you injured that or what?
A: I was telling Jonathan. I
mean, I know I’ve had problems with my shoulder for, I don’t know, probably a
couple of years. But in June, I can’t remember, I reported it to my supervisor.
June or July the last of ’15, before I quit work. I was in a parking lot
getting some stuff out of the back of my truck. And I had a box that had a
thousand little, small parts in it that I carried all my parts and my tools in
it, and I guess it weighed probably 30, 35 pounds. So I pulled it out of the
truck, and I had it right here in my left arm, on my hip and my arm (indicating),
and I was trying to close up the tailgate. Well, my hand slipped off the
tailgate, the tailgate came down, knocked the box out of my hand. I didn’t want
to lose the box, so I grabbed it and it jerked me. And I could feel the
shoulder pull even more at that point. So when I got to where I got cell
service, I called my immediate supervisor and told him that I felt like I had
done something to my shoulder, that it was worse than usual.
I don’t know. I guess when you hit 60 some, you start feeling
bad anyway. But when this happened, I mean, I knew it was a little bit more
than wear and tear. It was an actual injury. And I went to the doctor, and they
told me I had to have an MRI. Of course, that was missing work. So I never even
scheduled the MRI because they wanted me to miss work. Like I was telling
Jonathan, I was eating a bottle of aspirin a week over this stuff, but I didn’t
want to miss any work.
Hale also testified at the February
27, 2017, hearing.
The January
10, 2016, Benefit Review Conference
Order and Memorandum reflects the following contested issues: benefits
per KRS 342.730/7305; work-relatedness/causation; notice; average weekly wage;
unpaid or contested medical expenses; injury as defined by the ACT; exclusion
for pre-existing disability/impairment; and TTD.
In the April 28, 2017, Opinion and
Order, regarding the alleged work-related cumulative trauma injuries to Hale’s
neck, lower back, and shoulders, the ALJ set forth the following findings of
fact and conclusions of law:
Causation/Work-Relatedness
As a threshold issue, the defendant
disputes plaintiff suffered any permanent injuries to his neck or shoulders or
lower back as result of the cumulative trauma from his job duties as he
alleges. The defendant does not dispute plaintiff has problems with his neck and
shoulders, but maintains these are not related to his job duties as a salesman
and the record does not show any evidence of how plaintiff's job duties could
have contributed to these conditions. For his part, plaintiff argues Dr.
Nadar’s medical opinion establishing causation due to cumulative trauma is most
accurate and should be credited.
Having reviewed the evidence of record,
and bearing in mind that plaintiff bears the burden of proving every essential
element of this claim, the Administrative Law Judge is simply not persuaded
plaintiff has carried his burden of proof in this case. In reaching this
conclusion, it is noted that only Dr. Nadar provided a causal nexus between
plaintiff's neck, shoulder, and low back conditions and the cumulative trauma
plaintiff alleges. However, as Dr. Kriss points out in some detail, Dr. Nadar
did not explain how plaintiff's job duties could have contributed to his
current problems. Dr. Kriss explained that Dr. Nadar did not provide any
medical analysis; provided no discussion of objective medical evidence; that no
medical principles were cited, applied, or utilized; that no medical literature
or science was cited; that no alternative explanations for plaintiff's problems
were even mentioned, much less considered or analyze [sic]; and that no attempt
was made to medically, anatomically, structurally, biomechanical [sic] he [sic],
or pathophysiologically explore or explain the causal nexus between plaintiff's
physical activities and his physical conditions.
Moreover, as the defendant also points
out, plaintiff's job for the last 20 years has been as a salesman. He did not
perform heavy manual labor on any kind of regular basis for the defendant.
While his job duties may have varied and he may have occasionally carried some
items, his job as a salesman was primarily driving and visiting job sites.
Given plaintiff's actual job duties, it is difficult to accept Dr. Nadar’s
naked conclusion that plaintiff's job duties have caused any cumulative trauma
injuries.
Finally,
Dr. Kriss also explained that plaintiff never complained of back or neck
problems in 24 evaluations after he stopped working for the defendant and that
there was no mention from any medical provider of any possible cumulative
trauma injury during that time. He points out that the first mention of any
neck pain is three months after plaintiff stopped working for the defendant, which
was due to unrelated syncopal problems.
For these reasons, the ALJ is more
persuaded by the opinions of Dr. Kriss and it is determined plaintiff has not
carried his burden of establishing his physical problems are due to the
cumulative trauma he alleges. As such, his claim for benefits for these
conditions must be dismissed.
Regarding Hale’s alleged work-related
hearing loss claim, the ALJ held as follows:
Injury Under the Act
With respect to
plaintiff's hearing loss claim, the administrative law judge relies upon the
opinions of the University evaluator, who concluded plaintiff has a 0%
impairment rating and requires no medical treatment for his claimed hearing
loss. Accordingly, plaintiff's claim for benefits for his hearing loss is also
dismissed.
Hale filed a petition for
reconsideration which was ultimately overruled.
On appeal,
Hale asserts the ALJ erred by dismissing his cumulative trauma and hearing loss
claims.
As the claimant in a workers’
compensation proceeding, Hale 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).
Since Hale 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 April 28, 2017, Opinion and Order
firmly demonstrates the ALJ was persuaded by the opinions of Dr. Kriss in
dismissing Hale’s cumulative trauma claim and Drs. Jones and Ormond in
dismissing Hale’s hearing loss claim. Dr. Kriss’ report, summarized herein,
comprises substantial evidence in support of the ALJ’s dismissal of Hale’s
claim for alleged cumulative trauma injuries to his neck, back, and left
shoulder. After examining Hale and performing an exhaustive medical records
review, Dr. Kriss ultimately concluded there is no causal connection between
Hale’s work at United Central and his cervical and lumbar spine symptoms and
impairment. Dr. Kriss also opined Hale’s left shoulder symptoms are not
causally related to his work at United Central and he has a 0% impairment
rating. This constitutes substantial evidence fully supporting the ALJ’s
dismissal of the cumulative trauma injury claims. Thus, the record does not
compel a different result.
Concerning Hale’s
hearing loss claim, the Form 108 report of University Evaluators, Drs. Jones
and Ormond, in which they assessed a 0% whole person impairment rating for
Hale’s hearing loss constitutes substantial evidence in support of the ALJ’s
dismissal of Hale’s claim for income benefits. That said, we vacate the ALJ’s
dismissal of Hale’s hearing loss claim and remand for a finding Hale has
work-related hearing loss and is entitled to future medical benefits.
In FEI Installation,
Inc. v. Williams, 214 S.W.3d 313
(Ky. 2007), the Kentucky Supreme Court instructed KRS
342.020(1) does not require proof of an impairment rating to obtain future medical benefits, and the absence of a functional
impairment rating does not necessarily preclude such an award. Significantly, the Form 108 and attached
report of Drs. Jones and Ormond support an award of future medical
benefits, as the doctors determined Hale sustained work-related hearing loss
but just not to the level warranting an impairment rating. Also, the Form 108
and attached report impose restrictions of hearing protection around further
noise exposure. Therefore, as a
matter of law, because the ALJ relied upon Drs. Jones and Ormond to dismiss
Hale’s claim for income benefits and because both doctors opined Hale sustained
work-related hearing loss and imposed restrictions of hearing protection around
further noise exposure, the ALJ must award medical benefits for Hale’s
work-related hearing loss.
The function of this 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). As
substantial evidence supports the dismissal of Hale’s claim for cumulative
trauma injuries and his claim for income benefits for work-related hearing
loss, this Board must affirm. We reverse the dismissal of Hale’s hearing loss
claim and remand for entry of an amended opinion finding Hale sustained
work-related hearing loss and an award of medical benefits for the hearing
loss.
The April 28, 2017, Opinion and Order
and the July 10, 2017, Order ruling on Hale’s petition for reconsideration are AFFIRMED to the extent Hale’s claim for
cumulative trauma injuries and for income benefits for work-related hearing
loss were dismissed. We REVERSE the
dismissal of Hale’s hearing loss claim and REMAND
for a finding Hale sustained work-related hearing loss and an award of future
medical benefits.
ALL CONCUR.
COUNSEL FOR PETITIONER:
HON JONATHAN C MASTERS
28531 US HWY 119 STE 2
SOUTH WILLIAMSON KY 41503
COUNSEL FOR RESPONDENT:
HON JEFFREY D DAMRON
P O BOX 351
PIKEVILLE KY 41502
ADMINISTRATIVE LAW JUDGE:
HON GRANT S ROARK
657 CHAMBERLIN AVE
FRANKFORT KY 40601
