December 1, 2017 201371389

Commonwealth of Kentucky 

Workers’ Compensation Board




OPINION ENTERED: December 1, 2017



CLAIM NO. 201371389




and JOHNNIE L. TURNER                          PETITIONER
















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


STIVERS, Member. Tammy Phillips (“Phillips”) appeals from the May 15, 2017, Opinion, Award, and Order and the September 7, 2017, Order overruling her petition for reconsideration of Hon. Grant Roark, Administrative Law Judge (“ALJ”). In the May 15, 2017, Opinion, Award, and Order, the ALJ awarded temporary total disability (“TTD”) benefits already paid, permanent partial disability (“PPD”) benefits in the amount of $33.56 per week for 425 weeks, and medical benefits for an alleged left wrist injury. The ALJ dismissed Phillips’ claims for right foot and low back injuries. On appeal, Phillips seeks remand to the ALJ for review of his findings regarding the dismissal of her claim for the right foot injury and the denial of her request for vocational rehabilitation benefits.

          The Form 101 alleges on August 9, 2013, Phillips sustained injuries to her left wrist, right foot, and back while in the employ of Aisin Automotive Casting (“Aisin”) in the following manner: “Plaintiff was pulling parts to her line, pulled 2 racks and when [sic] pulled the third rack, she fell on her left wrist.”

          Attached to the Form 101 is the November 6, 2014, orthopedic evaluation report and the Form 107-I of Dr. David Muffly. After performing an examination and medical records review, Dr. Muffly diagnosed the following:

Left distal radius fracture related to the work accident dated 8-9-2013 with residual post-traumatic loss of motion. She has had a stress fracture of the right 3rd metatarsal with full recovery but I don’t think this is a work related injury.



Regarding an impairment rating, Dr. Muffly opined as follows:

Impairment is 7% to the whole person regarding loss of motion of the left wrist using Figures 16-28, 16-29 and 16-37. The 5th Edition AMA Guidelines are used. This 7% impairment is related to the work injury dated 8-9-2013.


The Form 107-I offers no additional opinions.

Dr. Muffly was also deposed on November 11, 2015. During this deposition, Dr. Muffly reiterated that he does not believe the stress fracture of Phillips’ right 3rd metatarsal bone is a work-related injury. However, Dr. Muffly acknowledged he would defer to the treating doctors regarding Phillips’ right foot injury, explaining as follows:

Q: Did you examine her foot at all?


A: No.


Q: In your Assessment you state that she had had a stress fracture of the right 3rd metatarsal with full recovery but you don’t think that that is [sic] work injury. Is that based off of the history you took from her?


A: Yes. She provided all the information and I didn’t have, I didn’t have the backup of records to verify if that was true or not, and actually it was an opinion that I shouldn’t have even put on the report because I didn’t have any, I didn’t examine it, I didn’t have records. I don’t know what else to tell you.


Q: So you are not making any opinion as to her right foot today?


A: No, I am not.

Aisin introduced the December 14, 2015, combined Independent Medical Examination (“IME”) and Functional Capacity Evaluation report of Dr. Michael Best in which he set forth the following answers to assigned questions:

Q1: What is the current diagnosis for the alleged injury date of August 9, 2013, and May 13, 2014?


A1: a. Chronic post-traumatic degenerative arthritis left wrist.


b. Healed third metatarsal ‘stress fracture.’


c. Persistent right foot pain secondary to chronic metatarsalgia (status-post Weil osteotomy fourth digit).


Q2: Is she currently at MMI, and on what date did she reach MMI based on the history?


A2: The patient is clearly at maximum medical improvement. She was at maximum medical improvement regarding the right wrist as of May 14, 2014, when she was returned to full and unrestricted duties by Dr. Beliveau.


The patient is at maximum medical improvement in regard to the stress fracture as of the date of this exam December 1, 2015, (and may have been a number of months ago. However, I did not evaluate the patient at that point.)

Q3: As for causation for the left wrist, back and right foot, has the plaintiff sustained a work-related injury?


A: In regard to the low back, the patient has chronic mid and low back pain dating to numerous additional injuries, including motor vehicle accidents, as well as abuse. This resulted in chronic mid and low back pain treated by pain management prior to the August 9, 2013, slip and fall. The patient admits that the back pain is at its normal, preinjury level.


In regard to the left wrist, obviously the slip and fall resulted in the comminuted intraarticular fracture of the left wrist. Following the surgery, the patient has developed chronic post-traumatic arthritis, work-related conditions.


Finally, the right foot is certainly a puzzle. Typically, stress fractures are transversely oriented fractures without displacement. This was an oblique fracture, which is a bit atypical. Nevertheless, this condition healed about the third digit of the right foot. The podiatrist, however, found what he considered to be pathology about the fourth digit of the right foot that he described as a ‘clinically subluxed fourth metatarsal head.’ Clearly, for the fourth metatarsal head to have subluxed, the patient would have been required to have had a traumatic fracture of the foot (and not a stress fracture). Therefore, either the patient has had a stress fracture of the right third metatarsal – work related, or she had a nonwork-related traumatic fracture of the right third digit, resulting in the metatarsal head subluxation, a nonwork-related condition.


Q4: Using The Fifth Edition AMA Guides, what is the patient’s permanent whole body impairment?


A4: In regard to the lumbar spine, the patient is a Lumbosacral DRE Category I. She has low back pain only. She has no findings of even a ‘nonverifiable radiculopathy’ and has no objective abnormality on physical examination, and previous MRI showed no evidence of disc herniation, stenosis or nerve root impingement. As such, she meets no criteria for permanent impairment – 0% to the lumbar spine.


According to The Fifth Edition AMA Guides, pages 467 through 469, Figures 16-28 and 16-31, the patient’s impairment rating for loss of range of motion to the left wrist is 6% to the upper extremity, which is equal to a 4% whole person impairment rating.


If the patient indeed sustained a stress fracture of the right third metatarsal, she meets criteria for a 1% whole person impairment by Table 17-33, page 546.


If the patient were to be rated for her clinical metatarsal head subluxation, then this would not be a work-related condition. Therefore, the patient’s total impairment by Table 604 is equal to a 5% whole person impairment rating.


Q5: What continuing ongoing medical treatment does the plaintiff require as a result of the work injuries and/or any resulting residuals?


A5: I am unable to adequately answer this question without x-rays of the left wrist. The left wrist x-ray of June 23, 2014, showed significant ‘post-traumatic changes’ and, therefore, a new plain x-ray of the wrist would be appropriate to assess the interval worsening of the condition.


Q6: What restrictions, if any, would you place on the patient?


A6: The patient has been returned to full and unrestricted work activities. She performs these on a daily basis. I would not limit her employability by placing restrictions. This would not be medically reasonable or supported by the literature.


Dr. Best was also deposed on December 18, 2015. Regarding the alleged stress fracture of the right foot and its cause, Dr. Best testified as follows:

Q: Okay. Given that, then, and the history that she gave you, that she had worked light duty up until May 14th, 2014, and on that day, after going back to regular duty for one day, not even a full day, she noticed the pain in her right foot, is it medically likely that that stress fracture occurred from that work activity?


A: When you say ‘medically likely,’ what percent are we talking about? Are we saying more likely than not, 51 to 49, or what are we talking about?


Q: Yes, more likely than not that a stress fracture would occur within one day of walking in a factory.


A: Indeed that would be very unlikely, so more likely than not that this was not a symptomatic stress fracture caused by one day of walking.



Q: Okay. Is there anything that was corrected in that surgery that you felt was related in any way to either her initial fall or walking that one day or related to the stress fracture itself?


A: No.

The March 15, 2017, Benefit Review Conference  Order and Memorandum lists the following contested issues: “benefits per KRS 342.730; work-relatedness/causation (back/foot); average weekly wage (2014); unpaid or contested medical expenses; injury as defined by the ACT (back/foot); TTD; vocational rehabilitation; and date of injury. The parties stipulate to a work-related injury occurring on August 9, 2013, but dispute the occurrence of a work-related injury on May 14, 2014.”

In the May 15, 2017, Opinion, Award, and Order, the ALJ set forth the following findings of fact and conclusions of law:

Causation/Work Relatedness/Injury under the Act

     As a threshold issue, the defendant disputes whether plaintiff's right foot stress fracture and any lower back problems are causally related to either work injury alleged. It acknowledges and accepts a left wrist injury which occurred on August 9, 2013. Plaintiff relies on the opinions of her treating physician, Dr. Ball, who concluded her stress fracture was caused by standing and twisting on her right leg on the day she returned to work on May 14, 2014. For its part, the defendant relies on its expert, Dr. Best and the plaintiff's expert, Dr. Muffly, who each concluded plaintiff's right foot fracture was not due to the original work injury or to any activities on May 14, 2014.

     Having reviewed the evidence of record, the administrative law judge is simply not persuaded plaintiff has carried her burden of proving her right foot stress fracture was caused by her work. In reaching this conclusion, Dr. Best’s opinion seems to make the most sense. He concluded it is highly unlikely plaintiff would develop a stress fracture due to the activities after just one day of returning to work. This opinion is further corroborated by plaintiff's own expert, Dr. Muffly. Conversely, Dr. Ball's opinion in favor of causation is simply not found persuasive. For these reasons, it is determined plaintiff's right foot injury is not work related or compensable.

     Similarly, it is noted that plaintiff did not initially report lower back pain after the August 9, 2013 fall at work. Dr. Best noted plaintiff had a long history of intermittent back problems. He ultimately concluded plaintiff's back problems were not work related. Based on the evidence available, Dr. Best's opinion in this regard is found persuasive. It is therefore determined plaintiff's back claim must also be dismissed.

Extent & Duration

     The next issue becomes the extent of plaintiff's impairment for her compensable left wrist injury. On this issue, it is noted that Dr. Muffly assigned a 7% impairment rating, while Dr. Best assigned a 4% impairment rating. As between these ratings, Dr. Muffly's is found to more completely account for plaintiff's injury, treatment, and ongoing symptoms. It is therefore determined plaintiff has a 7% impairment rating. Moreover, given the fact that plaintiff has returned to her former job and that Dr. Best assigned no permanent restrictions, it is determined plaintiff retains the physical ability to return to her former job, thereby precluding application of the 3x multiplier in KRS 342.0011(1). Instead, her award of benefits is calculated as follows:

$946.06 x 2/3 = $630.71 → 564.02 (maximum 2013 PPD rate) x .07 x .85 = $33.56 per week.

TTD Benefits

     The plaintiff also seeks an award of additional TTD benefits. It is noted that plaintiff was paid TTD benefits until she returned to regular duty. It is also noted that she only ceased working when she was terminated for failing a drug test. Therefore, it is determined plaintiff is not entitled to any additional TTD benefits because she did not cease working due to her injury.

Vocational Rehabilitation Benefits

     Plaintiff also seeks an award of vocational rehabilitation benefits under KRS 342.710. However, having concluded plaintiff retains the physical ability to return to the job she held at the time of her injury, she remains capable of returning to work for which he [sic] has prior training and experience and, as such, is not entitled to vocational rehabilitation.

     The remaining issues regarding date of injury and/or unpaid medical expenses are therefore rendered moot. Plaintiff is entitled to payment of reasonable and necessary medical expenses for the cure or relief of the effects of her left wrist injury.

Phillips filed a petition for reconsideration requesting additional findings on the same issues she now raises on appeal. In the September 7, 2017, Order overruling Phillips’ petition for reconsideration, the ALJ set forth the following additional findings:


     Having reviewed the plaintiff’s petition, the Administrative Law Judge is not persuaded plaintiff has pointed out any patent errors to justify altering the findings set forth in the May 15, 2017 Opinion. With respect to plaintiff's argument that the ALJ incorrectly noted that Dr. Muffly reported that plaintiff's right foot injury was not work related because Dr. Muffly did not even examine the right foot, the ALJ is not persuaded by this argument. While Dr. Muffly testified he did not examined [sic] plaintiff's right foot and did not have all of her records regarding that, he did, in fact, originally conclude plaintiff's right foot condition was not work-related. At no point in his deposition testimony did he conclude otherwise. Moreover, the Opinion only referred to Dr. Muffly as corroborating Dr. Best's own conclusion that plaintiff did not develop a right foot stress fracture injury at work. Dr. Best's opinion that plaintiff did not develop the stress fracture from repetitive use after only one day of work when she had returned to regular duty is simply found more believable then Dr. Ball's contrary opinion.

     Plaintiff also argued in her petition that her right foot was actually hurting before she returned to regular duty for the one day and so it was not accurate to conclude her stress fracture was not caused by one day of work. However, none of the treatment records prior to plaintiff returning to regular duty work for one day show any evidence that she complained of right foot problems before that date, despite her testimony that she did report pain previously. Quite simply, plaintiff's testimony is not found credible on this point.

     Finding that plaintiff's petition otherwise raises no arguments which have not already been addressed and finding no patent errors to justify the remedy plaintiff seeks, plaintiff's petition for reconsideration is overruled.

As the claimant in a workers’ compensation proceeding, Phillips had the burden of proving each of the essential elements of her cause of action, including proving she sustained a work-related injury to her right foot. See KRS 342.0011(1); Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979); and Eck Miller Transportation Corp. v. Wagers, 833 S.W.2d 854, 858 (Ky. App. 1992). Since Phillips 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). 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). 

          In rendering a decision, KRS 342.285 grants an ALJ as fact-finder the sole discretion to determine the quality, character, and substance of evidence. Square D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993).  An ALJ may draw reasonable inferences from the evidence, 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. Jackson v. General Refractories Co., 581 S.W.2d 10 (Ky. 1979); Caudill v. Maloney’s Discount Stores, 560 S.W.2d 15 (Ky. 1977). Magic Coal Co. v. Fox, 19 S.W.3d 88 (Ky. 2000).  Although a party may note evidence supporting a different outcome than 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). Rather, it must be shown there is no evidence of substantial probative value to support the decision. Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986). 

          The function of the Board in reviewing an ALJ’s decision is limited to a determination of whether the findings made 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 weight and credibility or by noting other conclusions or reasonable inferences that otherwise could have been drawn from the evidence. Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999).

The ALJ relied upon the opinions of Dr. Best in concluding Phillips did not meet her burden of proving she sustained a work-related injury to her right foot. A reading of Dr. Best’s December 14, 2015, IME report reveals some equivocation on this issue. Dr. Best stated, “either the patient has had a stress fracture of the right third metatarsal – work related, or she had a nonwork-related traumatic fracture of the right third digit, resulting in the metatarsal head subluxation, a nonwork-related condition.” However, in his December 18, 2015, deposition, Dr. Best unequivocally opined that, more likely than not, Phillips did not sustain a work-related stress fracture after only one day of walking in a factory. The opinions offered by Dr. Best, as presented in both the IME report and his deposition, constitute substantial evidence amply supporting the ALJ’s conclusion Phillips did not carry her burden of proving she sustained a work-related injury to her right foot. Further, the only opinion offered by Dr. Muffly on this issue was that the right foot fracture is not work-related. As a contrary result is not compelled, the ALJ’s decision will not be disturbed.

            We next address Phillips’ argument concerning the ALJ’s refusal to award vocational rehabilitation benefits. Entitlement to vocational rehabilitation benefits is governed by KRS 342.710(3) which states, in relevant part, as follows:

When as a result of the injury he is unable to perform work for which he has previous training and experience, he shall be entitled to such vocational rehabilitation services, including retraining and job placement, as may be reasonably necessary to restore him to suitable employment. In all such instances, the administrative law judge shall inquire whether such services have been voluntarily offered and accepted.  The administrative law judge on his own motion, or upon application of any party or carrier, after affording the parties an opportunity to be heard, may refer the employee to a qualified physician or facility for evaluation of the practicability of, need for, and kind of service, treatment, or training necessary and appropriate to render him fit for a remunerative occupation.  Upon receipt of such report, the administrative law judge may order that the services and treatment recommended in the report, or such other rehabilitation treatment or service likely to return the employee to suitable, gainful employment, be provided at the expense of the employer or his insurance carrier.  Vocational rehabilitation training, treatment, or service shall not extend for a period of more than fifty-two (52) weeks….


(emphasis added.)


          Use of the word "may" in KRS 342.710(3) indicates the issue of vocational rehabilitation benefits is entirely within the discretion of the ALJ. Alexander v. S & M Motors, Inc., 28 S.W.3d 303 (Ky. 2000). In this instance, the ALJ clearly outlined the reasons he declined to award such benefits, including his determination Phillips remains capable of returning to the type of work she performed at the time of the injury. Thus, the subject injury did not create an inability to perform work for which Phillips had previous training and experience. Consequently, Phillips did not qualify for vocational rehabilitation services.  The ALJ’s determination is fully supported by the opinions of Dr. Best. Because the ALJ’s decision regarding entitlement to vocational rehabilitation benefits is supported by substantial evidence and a contrary result is not compelled, his decision concerning this issue will not be disturbed.

          Accordingly, the May 15, 2017, Opinion, Award, and Order and the September 7, 2017, Order overruling Phillips’ petition for reconsideration are hereby AFFIRMED.

          ALL CONCUR.



P O BOX 351