January 15, 2016 201285818

Commonwealth of Kentucky 

Workers’ Compensation Board




OPINION ENTERED:  October 20, 2017



CLAIM NO. 201602499



MARVIN DALEY                                  PETITIONER

















                       * * * * * *



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



RECHTER, Member.  Marvin Daley (“Daley”) appeals from the June 24, 2017 Opinion, Award and Order and the July 17, 2017 Order on Reconsideration rendered by Hon. Christina D. Hajjar, Administrative Law Judge (“ALJ”).  The ALJ determined Daley suffered temporary injuries to his cervical spine and left knee, and a permanent injury to his low back.  Daley argues the ALJ erred in selecting a date upon which to terminate temporary total disability (“TTD”) benefits, in her reliance on Dr. Robert Sexton’s medical opinion, and in finding a pre-existing, active low back condition.  For the reasons set forth herein, we vacate and remand this claim to the ALJ.

     Daley worked for Dr. Pepper Snapple Group as a mechanic.  On August 17, 2015, he tripped and rolled down an embankment after locking up a truck for the night.  He injured his left knee, left shoulder and low back.  Because there was only one supervisor on duty that night, Daley agreed to visit a doctor in the morning. 

     The following day, Daley treated at Hardin Memorial Hospital and reported a fall.  He complained of acute cervical and lumbar spine pain.  Daley also reported “chronic intermittent neck and back pain.”  Dr. Robert Berlin attempted to prescribe a muscle relaxer, which Daley declined.  Dr. Berlin also recommended home exercises and prescribed Voltaren.  He released Daley to return to work with lifting restrictions.  At an August 25, 2015 follow up, Dr. Berlin diagnosed cervical strain with left upper extremity radiculopathy and lumbar strain.  Daley asked to be referred to Dr. Thad Jackson, with whom he had previously treated.  

     Daley first visited Dr. Jackson’s practice on September 20, 2015 but was treated by Erica Greenwell, PA-C.  Daley complained of neck and low back pain radiating into his leg.  A physical examination was normal.  PA Greenwell ordered a cervical and lumbar MRI conducted on November 2, 2015.  The cervical MRI revealed disc degeneration.  The lumbar MRI indicated a bilateral chronic L5 pars defect.  At a November 16, 2015 follow-up appointment, Daley had full range of motion in the left shoulder but was tender to palpation over the left paraspinous muscle.  She prescribed Neurontin and ordered physical therapy.  On December 28, 2015, Daley reported no improvement at physical therapy, and continued neck and low back pain.  PA Greenwell then referred him to pain management. 

          Dr. Jackson prepared a Form 107 on October 19, 2016 though he had not personally treated Daley for the work-related injuries.  Dr. Jackson diagnosed low back pain with spondylolisthesis exacerbated by the injury.  He noted Daley suffers from a pars defect in his lumbar spine, and opined this dormant condition was brought into disabling reality by the work accident.  Referencing the American Medical Association, Guides to the Evaluation of Permanent Impairment, 5th Edition (“AMA Guides”), he assessed a 13% whole person impairment.  He concluded Daley reached maximum medical improvement (“MMI”) for the low back injury on August 17, 2016.  Dr. Jackson stated Daley does not retain the physical capacity to continue his pre-injury work. 

     Daley visited Commonwealth Pain Associates on February 9, 2016.  Dr. Jason Lewis took a history of a work injury resulting in neck and low back pain. He prescribed Norco and Ibuprofen.  At an appointment on May 5, 2016, Dr. Jenna Dismore also prescribed Gabapentin. 

     Proof was submitted concerning Daley’s prior medical history.  He has undergone two cervical discectomy and fusion procedures, in 1996 and 2012.  He also received epidural steroid injections in 2011, after lifting a brake drum.  Medical records concerning this treatment were not submitted.  Daley testified the injections were in his neck.  Daley denied receiving any prior treatment for low back pain.  

     Dr. Robert Sexton conducted an independent medical evaluation (“IME”) on June 8, 2016.  He examined Daley and reviewed medical records.  Dr. Sexton’s report also indicates he reviewed the following MRIs: 2011 cervical spine MRI, 2012 cervical spine MRI, 2015 cervical spine MRI, 2015 lumbar spine MRI.  Dr. Sexton diagnosed a cervical strain, a lumbar strain, and a left knee contusion, all of which related to the work accident.  He opined Daley had reached MMI from all the work- related injuries by August 17, 2016.  He assigned no impairment rating for any of the injuries, and did not recommend any work restrictions. 

     Dr. Sexton testified at a deposition on April 3, 2017.  He stated that he had reviewed Daley’s 2015 lumbar MRI indicating a pars defect, which he described as a congenital defect unrelated to the work injury.  He expressed his disagreement with Dr. Jackson’s 13% impairment rating of the low back condition.  Dr. Sexton disagreed that Daley should be placed in the DRE Category III because he had no herniated disk or radiculopathy.  He was then asked:

Q: What was your rating of the low back now that you’ve had a chance to revisit your report and review Dr. Jackson’s report?


A: If I revisited my report, I would feel that because of the fact that he does not have an active radiculopathy that – and that he has no indication of ongoing instability and therefore no surgical disease that he would not have an additional rating to his low back or a rating, period.


Q: So still a zero percent impairment rating?


A: Yes.


Q: As far as the lumbar spine is concerned?


A: Yes.


     Shortly thereafter, Dr. Sexton was cross-examined about Daley’s lumbar spine condition.  He stated he considered the “morphology” of the lumbar spine MRI and would assign Daley a 7 or 8% impairment rating for the lumbar spine, with 5 to 6% attributable to the pars defect.  Dr. Sexton acknowledged Daley reported he was “perfectly well” before the work accident.  Thus, he concluded there was some change or aggravation in the lumbar spine due to the work accident but that it would be “hard to say” whether or not it is permanent. 

     Dr. Sexton was also asked if he knew whether Daley’s low back was symptomatic prior to the work accident.  He responded, “the only thing that is suggestive” of a prior active condition is the epidural steroid injections received in 2011.  However, Dr. Sexton admitted he had no records pertaining to the 2011 epidural injections and assumed the injections were in the lumbar spine because it related to a lifting injury.  Dr. Sexton was informed Daley received the injections following a work-related injury to his neck, which ultimately required surgery.  He stated this information “probably would” change his opinion but that he would like to see the medical records first. 

     On re-direct examination, Dr. Sexton clarified that Daley had also reported prior incidents of low back pain, but “nothing persistent.”  Counsel then inquired again about Dr. Sexton’s opinion of Daley’s pre-existing low back condition:

Q: To the extent that you think that he has a 7 to 8 percent impairment now, would you attribute the change in that impairment to the August 2015 work incident or to the effects of aging or other causes?


A: Well, as I indicated, at the time I saw him I didn’t think he was at MMI, so it would be inappropriate to rate him at that time.  And according to the patient’s testimony he never actually saw Dr. Jackson, he saw the nurse practitioner in his office several times so I – that is the reason for the specifications that I have made regarding that.  So I think it’s premature to say that he has had an increase of PPI to his lumbar spine.  If he has, it will turn out to be in that 1 to 2 percent category and it may well be but it has not been finalized yet. 


          The ALJ determined Daley’s work accident resulted in temporary injuries to his cervical spine and left knee, and a permanent injury to his lumbar spine.  She relied on Dr. Sexton’s report and testimony in reaching this conclusion.  She awarded TTD benefits until February 9, 2016, the date Daley reached MMI.  In selecting this date, the ALJ explained:

     By this time, Daley had undergone physical therapy and MRI examinations, no surgery was recommended, and Daley started pain management on this date, to manage, but not necessarily improve, his condition.  The ALJ find that the recovery process at that time was essentially complete, and Daley could return to some work at that time.


          The ALJ also determined Daley suffered a pre-existing and active impairment to his low back prior to the work accident:

In regard to the low back, the ALJ finds that Plaintiff did have a pre-existing and active impairment to his low back based upon the opinion of Dr. Sexton, who opined that Plaintiff had a pre-existing impairment rating of 5-6% to his lumbar spine prior to the injury, based upon the “morphology” of the MRI.  Plaintiff denied having prior low back problems.  However, the ALJ relies upon the August 18, 2015, medical records from Dr. Robert Berlin at Workwell who stated that Plaintiff “states that he has a history of chronic intermittent neck and back pain and occasional left knee pain, but his pain is worse than his usual discomfort” (emphasis added).  Those records indicate that Plaintiff’s current medications were ibuprofen and Hydrocodone at the time of the injury.  Thus, the ALJ finds that Plaintiff was symptomatic immediately prior to the work injury, and that his pre-existing impairment was 5%.


The ALJ also chooses to rely upon Dr. Sexton to find that Plaintiff has an 8% impairment rating.  The ALJ finds that Plaintiff did not sustain his burden to prove that he has a 13% impairment rating.  It should be noted that Dr. Jackson was not actually Plaintiff’s treating doctor.  Rather, someone else in his office was treating Plaintiff.  Further, there have been no recommendations for surgery to Plaintiff’s low back.  Dr. Sexton stated that he did not observe any verifiable radicular complaints, and the ALJ finds Dr. Sexton’s opinion credible.  The ALJ relies upon Dr. Sexton to award an 8% impairment rating minus the 5% pre-existing impairment rating, for a total of 3% as a result of the injury.  Although Dr. Sexton gave a 5-6% pre-existing and 7-8% current impairment rating, the ALJ chooses to award the 3% rating to give Plaintiff the benefit of the doubt, given Dr. Sexton’s inability to pin down an exact impairment.


     Daley petitioned for reconsideration, requesting the ALJ correct the date of MMI and provide further findings of fact regarding the pre-existing lumbar condition.  The ALJ restated her conclusion that MMI was reached on February 9, 2016 because the recovery process was complete and Daley was sent to pain management with no further treatment recommendations.  Regarding the pre-existing lumbar condition, the ALJ explained: 

The Petition is an attempt to reargue the merits of the claim. Dr. Sexton’s report contains his medical opinion of a current permanent impairment rating and a pre-existing active impairment rating. Dr. Sexton’s medical opinion was based on his clinical examination of claimant, review of medical records, and review of a prior lumbar MRI. This is substantial evidence upon which these findings can be based.


     On appeal, Daley again argues the ALJ’s chosen MMI date is not based upon substantial evidence.  A person has reached MMI when the condition is well stabilized and unlikely to change substantially in the next year with or without medical treatment.  Hall v. Hospitality Res., Inc., 276 S.W.3d 775,780 (Ky. 2008).  Stated otherwise, MMI “refers to a date from which further recovery or deterioration is not anticipated, although over time there may be some expected change.”  AMA Guides, p. 19. 

          In the Form 107, Dr. Jackson stated Daley reached MMI on August 17, 2016.  He assigned impairment ratings on October 19, 2016, from which it may be inferred MMI had been reached.  Dr. Sexton prepared his report on June 8, 2016, but did not assign an impairment rating.  He stated Daley had reached MMI for the neck, low back and left knee injuries.  However, at his deposition on April 3, 2017, Dr. Sexton stated Daley was not at MMI for the low back condition as of the date of his exam.  The ALJ selected February 9, 2016 as the date of MMI, because Daley had been referred to pain management on this date and was no longer actively treating the condition.

     The date a person attains MMI is a medical question to be answered by medical experts.  Arnold v. Toyota Motor Mfg., 375 S.W.3d 56, 61 (Ky. 2012).  The ALJ provided specific reasons why she concluded Daley attained MMI on February 9, 2016: he had finished active treatment for the low back injuries and had been referred to pain management.  However, the ALJ cannot reject the medical proof in favor of independent conclusions based on the course of Daley’s treatment. 

     Therefore, this claim must be remanded to the ALJ.  TTD is the condition of an employee who has not reached MMI from an injury and has not reached a level of improvement that would permit a return to employment.  KRS 342.0011(11)(a).  On remand, the ALJ must identify a date of MMI that is supported by an expert medical opinion, or the date upon which Daley reached a level of improvement that would permit a return to employment. 

     In two related arguments, Daley claims Dr. Sexton’s report and testimony are insufficient to establish impairment rating and pre-existing condition for the low back injury.  We agree the ALJ’s reliance on Dr. Sexton’s opinion is problematic.  Dr. Sexton’s report directly conflicts with his deposition testimony, which is itself contradictory.  In his written report, Dr. Sexton assigned no impairment rating for the low back condition and stated Daley was at MMI as of August 17, 2016.  In his testimony, Dr. Sexton at one point testified Daley suffered no impairment for a low back condition, and at another point testified he suffered a 7-8% impairment.  He also equivocated as to whether Daley was at MMI on the date of his exam.  In light of the unavoidable inconsistencies in Dr. Sexton’s testimony, it was incumbent upon the ALJ to fully explain her rationale in relying upon his opinion. 

     With respect to any pre-existing active condition, Daley’s pars defect was verified by MRI imaging.  However, the condition must be symptomatic and impairment ratable pursuant to the AMA Guides in order to be characterized as active.  Finley v. DBM Technologies, 217 S.W.3d 261, 265 (Ky. App. 2007).  The employer bears the burden of establishing a pre-existing active condition.  

     In the Opinion, the ALJ stated she relied upon Dr. Berlin’s records to conclude Daley’s lumbar condition was active at the time of the accident.  Daley had reported “intermittent” low back pain.  He also acknowledged he took hydrocodone and ibuprofen regularly for pain.  However, the medical records are unclear as to whether these medications were for low back pain or neck pain. 

     In the Order on Reconsideration, the ALJ stated she relied upon Dr. Sexton’s opinion to find a pre-existing active condition.  She explained Dr. Sexton’s opinion was based on his review of the medical records and comparison with a prior lumbar MRI.  Dr. Sexton’s written report does not identify a prior lumbar MRI, and he does not refer to a prior lumbar MRI in his deposition testimony.  Dr. Sexton also assumed Daley had received epidural steroid injections in his lumbar spine, but had no medical record to substantiate this assumption.  No medical records documenting lumbar steroid injections were submitted, and Daley testified the injections were in his cervical spine following his 2011 work-related cervical injury.  Daley acknowledged intermittent back pain, but denied any prior treatment for low back pain. 

          Similar problems exist with Dr. Sexton’s assigned impairment rating.  Dr. Sexton’s IME report indicates a date of MMI of August 17, 2016 and no impairment rating.  He stated in his deposition that Daley was not yet at MMI at the time of his exam, but suggested an impairment rating of 7-8%. 

     Upon remand, the ALJ is requested to revisit Dr. Sexton’s report and testimony.  If she chooses to again rely upon his opinion, it is necessary to address these inconsistencies and identify specific evidence in the record which supports a finding Daley’s lumbar condition was symptomatic and impairment ratable at the time of the work accident.  In addition to revisiting the issue of MMI, the ALJ is also asked to identify which portion of Dr. Sexton’s opinion she relies upon (if any) to establish an impairment rating. 

For the foregoing reasons, the June 24, 2017 Opinion, Award and Order and the July 17, 2017 Order on Reconsideration rendered by Hon. Christina D. Hajjar, Administrative Law Judge are hereby VACATED and this claim is REMANDED for further proceedings consistent with this opinion. 

          ALL CONCUR.