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RENDERED: NOVEMBER 9, 2017; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
johnny collins APPELLANT
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NOS. WC-15-00571 & WC-15-00572
PINE BRANCH
MINING, LLC; APPELLEES
HON STEPHANIE L. KINNEY,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS’
COMPENSATION BOARD
OPINION
AFFIRMING
** ** ** ** **
BEFORE: MAZE, STUMBO, AND TAYLOR, JUDGES.
MAZE, JUDGE: Johnny Collins petitions for review of a November 4, 2016,
opinion of the Workers’ Compensation Board (Board) which affirmed an order by
the Administrative Law Judge (ALJ) dismissing his claim for benefits arising
from cumulative trauma allegedly occuring during his employment with Pine
Branch Mining, LLC (Pine Branch). He
argues that the ALJ erroneously relied on the medical reports submitted by Pine
Branch, and on the lack of medical records prior to 2015 which supported his
claim. We agree with the Board that the
ALJ’s decision in favor of Pine Branch was supported by substantial
evidence. Hence, we affirm.
Collins was born in December
1949 and resides in Hazard, Kentucky. Throughout
his career, he worked in surface mining where he operated heavy equipment for
over forty years, with over twenty-one years spent operating a loader for Pine
Branch. While operating a loader, he dug
up rock and loaded it into a truck, which required repetitive use of his upper
extremities and left leg. Collins
alleged his body was constantly jarred and jerked while performing this
job. He also maintained and inspected
the equipment he operated. Collins
worked fifty to fifty-eight hours a week, and continued to work until July 7,
2014. He ceased working due to unrelated
renal failure. Collins testified he did not miss any work prior to his
cessation of employment, other than to attend his monthly doctor visits for his
unrelated condition.
Collins filed a Form 101 on
April 22, 2015, alleging injuries to his neck and back due to repetitive use while
working for Pine Branch. Collins listed
the date of injury as July 7, 2014, his last date of employment. He simultaneously filed a Form 103 alleging
occupational hearing loss due to repetitive exposure to loud noise in the work
place, for which he also provided a July 7, 2014, date of injury. The ALJ consolidated the injury and hearing
loss claims. Subsequently, the ALJ
granted Collins’s motion to amend his Form 101 to include additional injuries
to his shoulders, left knee and bilateral carpal tunnel syndrome, all of which
he alleged was caused by cumulative trauma at work. Pine Branch filed a timely special answer
raising the statute of limitations defense and a Form 111 denying Collins’s
claims.
Collins previously filed a
workers’ compensation claim for bilateral carpal tunnel syndrome in 2006. He underwent carpal tunnel releases and was
off work for thirteen weeks. Subsequent
testing performed in 2007 demonstrated that he still had carpal tunnel
syndrome, but he was able to return to work despite his continuing
symptoms. His workers’ compensation
claim arising from this injury was resolved by settlement on November 20, 2007.
In addition, Collins
testified that he experienced minor injuries during his employment, but he did
not seek any medical treatment or miss any work for these injuries. He further testified he first injured his
neck at work in 2001 when he hit his head on a steering cylinder. Collins notified his supervisor and filed an
injury report. He received treatment and
medication for the injury, but permanent restrictions were not imposed. Collins testified his neck has gradually
worsened since the 2001 incident, and he has been treated regularly for this
condition.
With respect to his current
claim, Collins testified he began experiencing back pain approximately seven to
eight years ago, which he attributes to the constant jarring he endured as a
heavy equipment operator. He also
experiences limited range of motion in his shoulders, as well as knee
pain. In addition, Collins stated that
he has suffered hearing loss. However,
he has not received any medical treatment for his alleged injuries other than
for his neck. Collins does not believe
he can return to his former job due to his back, shoulder, and leg pain.
In support of his claim,
Collins filed records from Dr. Chad Morgan, D.C., a chiropractor, and Dr.
Arthur Hughes, who examined Collins based upon a referral from Dr. Morgan. Dr. Morgan diagnosed tension headache, cervicalgia,
brachial neuritis/radiculitis, NOS, lumbago, sciatica, cervical subluxation,
and lumbar subluxation. He noted Collins
has a history of job related micro-trauma, and job related physical jarring and
trauma from operating heavy equipment.
Dr. Morgan concluded that Collins’s neck and back issues were brought
into disabling reality by the cumulative trauma years during the course of his
job duties with Pine Branch.
Dr. Hughes diagnosed neck
pain, right shoulder pain and limitation of motion, left shoulder pain and
limitation of motion, bilateral carpal tunnel syndrome, status post bilateral
carpal tunnel releases, low back pain with radiculopathy, and left knee
pain. Like Dr. Morgan, Dr. Hughes
concluded that these conditions were caused by cumulative trauma during the
course of his job duties with Pine Branch.
Dr. Hughes assessed a combined 30% impairment rating for the right
shoulder, left shoulder, right carpal tunnel syndrome, left carpal tunnel
syndrome, low back and left knee. He
assessed a 0% impairment rating for the neck.
Dr. Hughes stated Collins had reached maximum medical improvement as of
the date of his report if no additional treatments were approved. Dr. Hughes did not believe Collins could
return to his former job and he assigned permanent restrictions.
In support of his
hearing-loss claim, Collins filed the January 23, 2015, audiological evaluation
performed at Beltone Hearing Center.
Audiometric results demonstrated moderate to high frequency hearing
loss. Collins was recommended to use
hearing aids. The ALJ also considered
the December 14, 2015, university evaluation report of Dr. Brittany Brose. Dr. Brose concluded that Collins has greater
hearing loss than would be expected for a person of his age, and that his
hearing loss pattern was consistent with long-term noise exposure in the
workplace. However, Dr. Brose assessed a
0% impairment rating, and recommended that Collins use hearing aids.
In response, Pine Branch
filed the reports of Dr. Daniel Primm and Dr. Russell Travis. Dr. Primm diagnosed degenerative changes
consistent with age and no evidence of cervical or lumbar radiculopathy. Dr. Primm found no objective evidence of
permanent impairment to Collins’s low back, left knee, right upper extremity or
left upper extremity based upon the AMA Guides.
Dr. Primm also stated his belief that, except for the unrelated renal
condition, Collins could return to work as an equipment operator without
restriction.
In his report, Dr. Travis
found no evidence of low back or shoulder pain, and no basis for an impairment
rating for either condition. Dr. Travis
noted that Collins quit working due to his renal failure, and did not claim any
cumulative trauma until bringing this claim.
Dr. Travis further stated that he found that none of the imaging studies
supported a finding of more than expected lumbar or shoulder degenerative
changes.
After reviewing the
evidence, the ALJ concluded that Collins failed to meet his burden of proving a
work-related injury, evidenced by objective findings, to his back, shoulders,
neck, or left knee. The ALJ found the
reports of Dr. Primm and Dr. Travis to be most persuasive on these issues. The ALJ also noted that Collins’s medical
records do not show any complaints of low-back symptoms until 2015, and no
complaints related to the carpal tunnel syndrome following the settlement of
his 2006 claim. The ALJ accepted Dr.
Brose’s opinion regarding the occupational hearing loss. Based on these findings, the ALJ dismissed
Collins’s claim for benefits related to his alleged cumulative trauma injuries,
and awarded medical benefits for the hearing loss.
The ALJ subsequently denied
Collins’s petition for reconsideration.
On appeal, the Board affirmed, concluding that the ALJ properly relied
on the opinions of Drs. Primm and Travis.
Collins now petitions for review to this Court.
It is well-established that
a claimant in a workers’ compensation claim bears the burden of proving each
essential element of his claim. Burton v. Foster Wheeler Corp., 72
S.W.3d 925, 928 (Ky. 2002). Where the
party that bears the burden of proof is unsuccessful before the ALJ, the
question on appeal is whether the evidence is so overwhelming upon
consideration of the record as a whole as to compel a finding in claimant’s
favor. Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984). In order to reverse the decision of the ALJ,
it must be shown there was no substantial evidence of probative value to
support his decision. Special Fund v.
Francis, 708 S.W.2d 641 (Ky. 1986).
The function of this Court’s review of the Board is to correct the Board
only where the Court perceives that the Board has overlooked or misconstrued
controlling statutes or precedent, or committed an error in assessing the
evidence so flagrant as to cause gross injustice. Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).
Collins argues that the ALJ
erred in relying on the reports of Drs. Primm and Travis over those of his
experts. He also argues that the ALJ
could reasonably infer cumulative trauma from the nature of his injuries and
his prior work. Consequently, he
contends that the ALJ should not have discounted his claim of cumulative trauma
based on the lack of medical records prior to 2015.
However, the ALJ has the
sole authority to judge the weight to be accorded to and inferences to be drawn
from the evidence. Square D Co. v. Tipton, 862 S.W.2d 308, 309 (Ky. 1993). Where the evidence is conflicting, the ALJ
has the discretion to pick and choose what to believe. Caudill
v. Maloney’s Discount Stores, 560 S.W.2d 15 (Ky. 1977). Furthermore, an ALJ is vested with broad
authority to decide questions involving causation. Dravo
Lime Co. v. Eakins, 156 S.W.3d 283, 290 (Ky. 2005).
Collins does not argue that
Drs. Primm and Travis failed to rely on objective medical evidence in reaching
their conclusions. He simply disagrees
with those conclusions, and argues that the ALJ should have accepted the
conclusions of Drs. Morgan and Hughes instead.
In the absence of a showing the ALJ committed a flagrant error in
assessing the evidence, we have no basis to disturb the ALJ’s findings.
Accordingly, we affirm the
opinion of the Workers’ Compensation Board.
ALL CONCUR.
|
BRIEF FOR APPELLANT: McKinnley Morgan London, Kentucky |
BRIEF FOR APPELLEE: Pine Branch Mining, LLC W. Barry Lewis Hazard, Kentucky |
