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November 22, 2017 201688748

Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED:  November 22, 2017

 

 

CLAIM NO. 201688748

 

 

SCH REALTY                                     PETITIONER

 

 

 

VS.         APPEAL FROM HON. RICHARD E. NEAL,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

TODD HARDIN and

HON. RICHARD E. NEAL,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

AFFIRMING

 

                       * * * * * *

 

 

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

 

ALVEY, Chairman.  SCH Realty (“SCH”) appeals from the June 15, 2017 Opinion and Order rendered by Hon. Richard E. Neal, Administrative Law Judge (“ALJ”) awarding Todd Hardin (“Hardin”) permanent partial disability (“PPD”) benefits and medical benefits for a cervical injury he sustained on April 4, 2016 when he fell down stairs at work while carrying a printer.  The ALJ dismissed Hardin’s lumbar injury claim.  SCH also appeals from the August 2, 2017 order denying its petition for reconsideration.

     On appeal, SCH argues the ALJ erred in finding Hardin sustained a compensable work-related cervical injury.  It also argues the ALJ erred in awarding PPD benefits based upon the 6% impairment rating assessed by Dr. Robert Sexton for Hardin’s cervical injury.  Because the ALJ properly exercised his discretion by inferring Hardin sustained a cervical injury based upon the totality of the evidence, and his determination is supported by substantial evidence, we affirm.

     Hardin filed a Form 101 on October 25, 2016 alleging he sustained multiple injuries on April 4, 2016 when he slipped/fell as he was carrying a printer up some stairs at work.  Hardin was taken to the emergency room by ambulance after he fell.   He began working for SCH in 2004, and has not returned to work since the April 4, 2016 accident. 

     SCH filed a Form 111 on November 17, 2016.  In the Form 111, SCH denied Hardin sustained work-related cervical or lumbar injuries. 

     Hardin testified by deposition on December 20, 2016, and again on April 25, 2017.  He also testified at the hearing held May 2, 2017.  Hardin was born on April 15, 1965, and resides in Louisville, Kentucky.  Hardin completed the tenth grade, and later obtained a GED.  He subsequently took classes at Jefferson Community College. 

     Hardin began working for SCH as a maintenance technician in 2004.  He was later promoted to maintenance supervisor in 2010.  SCH owns multiple apartment complexes in Louisville.  As supervisor, he was responsible for maintenance at all of the properties.  His duties included hiring and firing of maintenance technicians.  He was also authorized to hire external vendors to perform various tasks at the properties.  In early 2016, Hardin was demoted to maintenance technician and was responsible for maintaining only one apartment complex.  His annual salary was reduced at that time.

     On the date of the accident, Hardin was carrying a printer up a flight of stairs at work.  He testified he believed he fell when he stepped on the printer cord.  There was some testimony from the owners of SCH regarding whether the accident occurred, but the ALJ ultimately determined Hardin did in fact fall.

     Records from multiple medical providers/evaluators were introduced as evidence.  In support of the claim, Hardin filed records from Dr. Paul McKee.  Included in those records was the report of a CT-scan taken at Sts. Mary & Elizabeth Hospital on April 4, 2016.  The CT-scan revealed, “mild-to-moderate multilevel degenerative and hypertrophic changes primarily from C4-5 to C6-7”.  Also included with Dr. McKee’s records are physical therapy notes from the Frazier Rehab Institute for lumbar and cervical treatment Hardin received from April 19, 2016 through June 19, 2016.  Dr. McKee’s records from April 14, 2016 through September 23, 2016 reflect continued treatment and diagnoses for lumbar and cervical conditions.  In his note dated June 24, 2016, Dr. McKee opined Hardin’s neck pain, back pain, and upper and lower extremity radiculopathy all stemmed from his fall at work on April 4, 2016.

     Hardin later filed additional office notes from Dr. McKee for treatment dates of November 29, 2016 and January 13, 2017.   Those records also reflect ongoing treatment for Hardin’s cervical and lumbar complaints.

     Hardin also submitted the report of Dr. Jeffrey Fadel who evaluated him on February 23, 2017.  That report only addresses Hardin’s alleged lumbar injury, which is not subject of this appeal and will not be discussed further.

     SCH submitted records from Dr. Lawrence Peters who treated Hardin for chronic low back pain, and a remote brief period of left shoulder problems prior to the accident.  The records reflect Hardin first treated with Dr. Peters for low back pain in November 2007, and he continued to actively treat for that condition prior to the work accident through March 10, 2016.  At the time of the accident, Hardin was continuing to take Oxycodone, Norco and Xanax for low and mid back pain, and left leg pain.

     SCH submitted the report of Dr. Robert Sexton who evaluated Hardin at its request on January 19, 2017.  Dr. Sexton noted the history of Hardin falling down stairs while carrying office equipment.  He diagnosed Hardin with multi-level degenerative disk disease at C4-C5 through C6-C7, multilevel cervical compression, small lumbar canal – marked stenosis at L3-L4, and chronic iatrogenic substance abuse.  He found all of these conditions pre-existed and were active prior to April 4, 2016 due to unrelated injuries Hardin sustained in 2004, 2007, 2011, and 2014.  Dr. Sexton stated Hardin had reached maximum medical improvement, and the lumbar surgery he underwent in August 2016 was unrelated to his fall at work.

     SCH additionally submitted Dr. Sexton’s March 8, 2017 report prepared after he had the opportunity to review Dr. Fadel’s report.  Dr. Sexton assessed a 12% impairment rating pursuant American Medical Association, Guides to the Evaluation of Permanent Impairment, 5th Edition.  Of this rating, he found half or 6% attributable to the cervical spine and the remainder to the lumbar spine.  He opined the entire impairment rating was due to pre-existing, active conditions.

          A benefit review conference was held on March 6, 2017.  The parties stipulated Hardin had received some temporary total disability (“TTD”) benefits, and medical benefits due to his accident.  The issues preserved for determination included whether Hardin could return to the job he was performing at the time of the injury, benefits per KRS 342.730, work-relatedness/causation, unpaid/contested medical bills, injury as defined by the Kentucky Workers’ Compensation Act, exclusion for pre-existing active disability, entitlement to TTD benefits and vocational rehabilitation benefits.

          In his decision rendered June 15, 2017, the ALJ determined Hardin fell down stairs at work on April 4, 2016.  However, he determined Hardin did not sustain a compensable lumbar injury based upon the history of multiple previous lumbar injuries and ongoing active treatment for that condition with medications since 2007.  He additionally noted Hardin was continuing to take Hydrocodone, Xanax and Oxycodone for his lumbar condition at the time of the accident.  Relying upon Dr. Sexton’s reports, the ALJ determined Hardin’s ongoing low back condition, along with the need for surgery performed in August 2016 was pre-existing, active and not work-related.

          The ALJ determined Hardin sustained a compensable cervical injury in the April 4, 2016 fall.  He noted the medical records documenting Hardin’s treatment prior to April 4, 2016 do not outline any treatment for the cervical spine.  He also noted Hardin’s testimony and the records for treatment after April 4, 2016 establish continuous ongoing cervical complaints and treatment.  The ALJ noted that while Dr. Sexton indicated Hardin’s cervical condition was pre-existing and active prior to the injury, “there is absolutely no proof in the record that it was ‘active’ for the purposes of statute and case law.  As such, his opinion on causation of the neck is not persuasive.”  Based upon the totality of the circumstances, the ALJ determined Hardin sustained a compensable work-related cervical injury.  The ALJ found Hardin failed to establish entitlement to an award of TTD benefits. 

          Relying upon Dr. Sexton’s opinion, the ALJ awarded PPD benefits based upon the 6% impairment rating assessed for the cervical spine.  The ALJ found that based upon the cervical condition alone, Hardin retains the physical capacity to return to the job he performed at the time of the accident, and is not entitled to an enhancement of his award pursuant to either KRS 342.730(1)(c)1, or KRS 342.730(1)(c)2.  Likewise, he determined Hardin is not totally disabled.

          Both Hardin and SCH filed petitions for reconsideration.  Because Hardin did not appeal from the ALJ’s decision, his petition for reconsideration will not be discussed.  SCH argued the ALJ erred when he found Hardin sustained a work-related cervical injury.  It argued the ALJ erred in inferring causation of Hardin’s cervical condition based upon the “totality of the circumstances”.  It also argued the ALJ erred in relying upon the 6% impairment rating assessed by Dr. Sexton. 

          In his order denying SCH’s petition for reconsideration issued August 2, 2017, the ALJ noted the lack of evidence that Hardin experienced neck problems at any time prior to the April 4, 2016 work injury.  He therefore found Hardin’s pre-existing degenerative cervical condition was dormant.  He noted the diagnoses of cervical strain after the accident, and the evidence of degenerative conditions demonstrated on films and imaging studies taken after the accident.  Regarding the 6% impairment rating assessed by Dr. Sexton, the ALJ found that based upon the lack of evidence of active cervical problems prior to the date of the accident, Dr. Sexton’s rationale was “flawed”.  The ALJ specifically stated as follows:

As such, it follows, and the ALJ finds, that the Plaintiff’s current 6% impairment is related to the work injury.  The ALJ has the sole authority to judge 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); Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999).  The ALJ has done just that in the instant claim.

 

 

          On appeal, SCH argues the ALJ erred in finding Hardin sustained a work-related cervical injury, and in awarding PPD benefits based upon the 6% impairment rating assessed by Dr. Sexton. 

          As the claimant in a workers’ compensation proceeding, Hardin 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).  However, SCH had the burden of establishing Hardin’s cervical condition was pre-existing and active. Finley v. DBM Technologies, 217 S.W.3d 261 (Ky. App. 2007).  Since SCH was unsuccessful in that burden, the question on appeal is whether upon consideration of the whole record, the evidence compels a finding in its favor. Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984).  Compelling evidence is defined as evidence 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 sole authority to judge 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). (Emphasis added).

          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); Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999).  Mere evidence contrary to the ALJ’s decision is not adequate to require reversal on appeal.  Id.  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 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 which otherwise could have been drawn from the record.  Whittaker v. Rowland, supra.  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, supra.

          We find the ALJ did not err in determining Hardin sustained a work-related cervical condition.  While causation usually requires proof from a medical expert, an ALJ may properly infer causation, or a lack thereof, from the totality of the circumstances, as evidenced by the lay and expert testimony of record.  See Mengel v. Hawaiian-Tropic Northwest & Central Distributors, Inc., 618 S.W.2d 184 (Ky. App. 1981); Cf. Union Underwear v. Scearce, 896 S.W.2d 7 (Ky. 1995).  In this instance, the ALJ clearly outlined the basis for his determination Hardin sustained a cervical injury.  He outlined the evidence establishing the existence of objective degenerative cervical changes, the lack of evidence of any complaints or treatment for neck pain prior to the date of the accident, and the treatment required for that condition since April 4, 2016.  Based upon the totality of the evidence, we determine the ALJ did not err in finding the cervical condition causally work-related.

          Regarding whether the ALJ erred in basing the award of PPD benefits upon the 6% impairment rating assessed by Dr. Sexton, again we find no error.  To succeed in establishing a pre-existing active condition, SCH was required to prove it was both symptomatic and impairment ratable prior to the date of the accident.  Finley v. DBM Technologies, supra.  SCH argues Dr. Sexton determined the 6% impairment rating for the cervical spine was due to a pre-existing active condition.  However, the ALJ determined there is no evidence of record supporting Dr. Sexton’s assessment of the cervical impairment as pre-existing and active.

The record is completely devoid of any evidence establishing Hardin had an active problem with his cervical spine prior to April 4, 2016.  There is absolutely no evidence supporting Dr. Sexton’s finding Hardin suffered from a pre-existing active cervical condition.  The ALJ acted well within the authority afforded to him in adopting the impairment rating assessed by Dr. Sexton, and in determining Hardin did not suffer from a pre-existing active cervical condition.  The evidence does not compel a finding Hardin had a pre-existing active cervical condition prior to the date of injury and the ALJ’s determinations are hereby affirmed.

          Accordingly, the June 15, 2017 Opinion and Order and the August 2, 2017 Order denying SCH’s petition for reconsideration rendered by Hon. Richard E. Neal, Administrative Law Judge, are hereby AFFIRMED.

          ALL CONCUR.

 

 

 

COUNSEL FOR PETITIONER:

 

HON THOMAS M EDELEN

1315 HERR LANE, STE 210

LOUISVILLE, KY 40222

 

COUNSEL FOR RESPONDENT:

 

HON JOHN W SPIES

420 WEST LIBERTY ST, STE 260

LOUISVILLE, KY 40202

 

ADMINISTRATIVE LAW JUDGE:

 

HON RICHARD E NEAL

657 CHAMBERLIN AVE

FRANKFORT, KY 40601