Workers’
Compensation Board
OPINION ENTERED: December 15, 2017
CLAIM NO. 201600484
WAYMON BUCKLEY PETITIONER
VS.
APPEAL
FROM HON. JONATHAN R. WEATHERBY,
ADMINISTRATIVE LAW JUDGE
KENNY WAYNE THOMAS D/B/A THOMAS
TRUCKING;
C&J MULCH
AND HON. JONATHAN R. WEATHERBY,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
VACATING
AND REMANDING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. Waymon
Buckley (“Buckley”) appeals from the July 24, 2017 Opinion and Award and the
September 2, 2017 Order on Reconsideration rendered by Hon. Jonathan R.
Weatherby, Administrative Law Judge (“ALJ”).
Buckley argues the ALJ failed to provide sufficient findings of fact and
discussion to permit meaningful review.
We agree.
Buckley worked for Thomas Trucking as a
truck driver. He was required to drive
loads of mulch in an eighteen-wheeler.
On July 16, 2015, Buckley noticed a load of mulch was protruding beyond
the walls of the trailer. He climbed on
the trailer to level the mulch out and lost his balance. Buckley fell from the top of the trailer to
the ground below, hitting his head and low back.[1]
Buckley first treated at Jennie Stuart
Medical Center emergency room. A CT scan
of the lumbar spine revealed right paracentral disk prominence causing mild
encroachment on the right S1 nerve root.
The treating physician requested Buckley be transferred to Skyline
Medical Center in Nashville for “level 2 trauma care.” On the transfer form, Buckley’s diagnosis was
reported as “acute disc herniation.”
Buckley was transferred by ambulance to Skyline Medical Center in
Nashville. A lumbar MRI revealed a focal
annular tear at L5-S1. Buckley reported
low back pain radiating into his right leg, as well as numbness and tingling in
his right leg. He was released and
referred to Dr. Gregory Langford.
Dr. Langford first evaluated Buckley on August
4, 2015 and diagnosed a right paracentral disc protrusion at L5-S1. He prescribed steroids, pain mediciation and
physical therapy. Over the next six
months, Dr. Langford’s office notes indicate Buckley’s symptoms had failed to
improve with conservative treatment. On
January 7, 2016, Dr. Langford recommended surgery. A right L5-S1 hemilaminectomy was performed
on January 20, 2016. Dr. Langford
referred Buckley to physical therapy following surgery and eventually released
him to work on February 29, 2016.
Buckley’s symptoms, however, did not
improve following surgery. He treated
with St. Michael’s Heath Clinic following surgery for continued low back pain
and headaches, which Buckley described as continually worsening through
February and March, 2016. Dr. Langford
referred Buckley to a neurologist, Dr. John Colby, for his headaches and to Dr.
Paresh Sheth for pain management. In an
April 1, 2016 treatment note, Dr. Colby diagnosed post-concussion syndrome,
failed back syndrome and insomnia. However,
Dr. Colby refused to continue treating Buckley.
Buckley declined to continue treatment with Dr. Sheth. Thereafter, he treated at Eclipse Pain
Network and Comprehensive Pain Specialists for pain management.
Dr. Charles Barlow conducted an independent
medical evaluation (“IME”) on May 13, 2016.
Dr. Barlow diagnosed status post disc excision and possible disc
herniation on the left L5-S1 level. He
did not believe Buckley had attained maximum medical improvement (“MMI”) and
declined to assign an impairment rating.
In a supplemental report dated March 14, 2017, Dr. Barlow stated he had
reviewed additional medical records and determined Buckley could have returned
to his prior employment after the initial ruptured disc. However, he developed peripheral neuropathies
and could no longer perform his pre-injury work.
Dr. Thomas O’Brien conducted an IME on
December 28, 2016. Dr. O’Brien diagnosed
a lumbar contusion and mild concussion.
He noted multiple pre-existing conditions and comorbidities including
lumbar degenerative disc disease, obesity, and tobacco use. He also opined Buckley had become habituated
to opioids and narcotic pain medication.
Dr. O’Brien concluded, “the mechanism of the work injury is consistent
with a mild concussion and lumbar contusion.”
According to Dr. O’Brien, the lumbar disc herniation was not caused by
the work injury. He further stated the
MRI and CT scan performed immediately after the injury did not support a
finding of significant permanent musculoskeletal injury. To further support this conclusion, Dr.
O’Brien emphasized the treatment records from Jennie Stuart Medical Center
immediately following the accident. Dr.
O’Brien believed the injury was appropriately diagnosed and treated as a lumbar
strain at Jennie Stuart Medical Center.
On this basis, Dr. O’Brien concluded Buckley suffered a lumbar strain as
a result of the work injury and would have reached MMI three weeks later. There was no permanent injury as a result of
the work accident. However, Dr. O’Brien
also acknowledged the micro-discectomy would result in a 10% whole person impairment
rating pursuant to the American Medical Association, Guides to the
Evaluation of Permanent Impairment, 5th Edition (“AMA Guides”). He characterized the surgery as
“well-intentioned but ill advised.”
The ALJ first provided a summary of
Buckley’s testimony and a review of the IME reports submitted by Drs. O’Brien
and Barlow. Buckley submitted a 234-page
collection of documents entitled “Chronological Medical Records.” This filing contained treatment records from
Jennie Stuart Medical Center, Skyline Medical Center, and Dr. Langford’s
medical records from his first encounter with Buckley through the surgery. The ALJ provided the following summary of
these documents:
The Plaintiff’s medical bill summary, documentation
of collateral source payments and adjustments and chronological medical records
were introduced into evidence on behalf of the Plaintiff. These records were reviewed and considered
into evidence. The Plaintiff required no
permanent restrictions. The Plaintiff
was at MMI as of November 11, 2016 when the EMG/NCV studies were abnormal with
peripheral neuropathy with no evidence of radiculopathy. The lumbar MRI revealed only postoperative
fibrosis. Dr. Barlow assessed a DRE
Category III and 12% whole person impairment pursuant to the AMA Guides.”
The ALJ then stated he was most persuaded
by Dr. O’Brien’s opinion. He explained,
[H]is opinion is definitively expressed and is based
upon the objective medical evidence available.
Dr. O’Brien diagnosed a lumbar contusion and a mild concussion but cited
multiple pre-existing conditions and added that the mechanism of the work
injury is consistent with a mild concussion and lumbar contusion….Dr. O’Brien
credibly opined that the Plaintiff did not sustain a traumatic lumbar disc
herniation due to the work injury and that the MRI and CAT scan performed the
day of the injury did not support a significant permanent musculoskeletal or
intracranial injury. The ALJ was also
persuaded by Dr. O’Brien that the soft tissue injury and contusions sustained
in the work injury were appropriately diagnosed and treated and that the
Plaintiff would have reached MMI as of August 7, 2015. Dr. O’Brien found that the Plaintiff had a 0%
impairment for the work injury of July 16, 2015.
Buckley petitioned for reconsideration,
requesting additional findings of fact and discussion concerning his lumbar
injury. Buckley specifically requested a
more detailed discussion of his treatment from the date of injury until the
date of his surgery. The ALJ denied the
petition as a re-argument of the merits of the case. He added, “The ALJ reiterates the reliance
upon the convincing opinion of Dr. O’Brien and finds specifically that the
credibility of Dr. O’Brien’s opinion outweighs the chronological medical
records referred to in the plaintiff’s petition that were reviewed and
considered in drafting the Opinion and Award.”
On appeal, Buckley again argues the ALJ
failed to provide a meaningful analysis of the evidence, or a detailed
explanation of his reasoning. He
emphasizes the ALJ failed to provide any discussion of his treatment from the
date of injury through surgery. He
further claims the ALJ’s opinion fails to demonstrate a meaningful
consideration of the records contained in the Chronological Medical
Records.
We begin by noting it is within the ALJ’s
discretion to assess the proof and select the evidence upon which he will base
his findings. Square D Co. v. Tipton, 862 S.W.2d
308 (Ky. 1993). Dr. O’Brien’s
opinion constitutes substantial evidence upon which the ALJ was entitled to
rely. However, the parties are also
entitled to findings sufficient to inform them of the basis for the ALJ’s
decision and to allow for meaningful review. Kentland Elkhorn Coal
Corp. v. Yates, 743 S.W.2d 47 (Ky. App. 1988); Shields v. Pittsburgh and
Midway Coal Mining Co., 634 S.W.2d 440 (Ky. App. 1982). It is the ALJ’s duty to provide a sufficient
basis to support his determinations and to demonstrate he has reviewed the
evidence and exercised his discretion.
Under the circumstances of this case, we
believe the ALJ was required to provide a more detailed explanation of the
evidence and his reasoning. Aside from a
summary of treatment Buckley received at a primary care clinic four months
after the work injury, the ALJ failed to engage in a summary or discussion of
Buckley’s treatment from the date of the injury through his surgery. The summary of the Chronological Medical
Records filing contains no discussion of the treatment Buckley received and, on
its face, appears to be a summary of Dr. Barlow’s medical opinion.
In the context of a different claim, an
excessively cursory review of the medical proof may be overlooked. Under the circumstances of this claim, however,
it creates several ambiguities. First,
the ALJ stated that Dr. O’Brien found “multiple pre-existing conditions”. In fact, Dr. O’Brien noted several comorbidities
such as age, obesity and tobacco addiction, but only identified one
pre-existing condition: mild lumbar degenerative disc disease. In his Opinion and Award, the ALJ repeated
Dr. O’Brien’s belief Buckley suffered a pre-existing condition.
Dr. O’Brien’s reference to a pre-existing
condition is a statement of his medical opinion. The legal import of a pre-existing condition
in a workers’ compensation claim is a different matter. If the ALJ accepted Dr. O’Brien’s opinion
that Buckley suffered a pre-existing condition, he was obligated to determine
the nature of that condition, and whether it was active and impairment ratable
prior to the work accident. Finley v.
DBM Technologies, 217 S.W.3d 261, 265 (Ky. App. 2007). On remand, the ALJ is asked to clarify his
findings with respect to any pre-existing condition.
Additionally, it is unclear whether the ALJ
considered Dr. O’Brien’s medical opinion in the context of Buckley’s entire
treatment history. Dr. O’Brien expressed
his belief Buckley suffered only a lumbar contusion, then became habituated to
pain medication which caused him to magnify his symptoms. It was also Dr. O’Brien’s belief that Jennie
Stuart Medical Center appropriately diagnosed and treated Buckley’s injury as a
soft tissue injury immediately after the accident. However, the only record from Jennie Stuart
Medical Center that was submitted in this claim is a transfer request to
Skyline Medical Center. In that
document, Buckley’s diagnosis is an “acute disc herniation” requiring “level 2
trauma care.” Buckley is entitled to
understand how the ALJ considered Dr. O’Brien’s medical opinion in the context
of his treatment immediately following the injury. This requires a more detailed summary of the
treatment he received than what was provided by the ALJ. For these reasons, we conclude the ALJ’s
discussion is inadequate.
Therefore, the July 24, 2017 Opinion and
Award and the September 2, 2017 Order on Reconsideration rendered by Hon.
Jonathan R. Weatherby, Administrative Law Judge, are hereby VACATED. This claim is REMANDED to the Administrative Law Judge for further findings of
fact as explained herein.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON LUCIUS P HAWES JR
PO BOX 655
HOPKINSVILLE, KY 42241
COUNSEL
FOR RESPONDENT:
HON FELICIA SNYDER
333 E SHORT ST #110
LEXINGTON, KY 40507
COUNSEL
FOR RESPONDENT:
HON CHRISTOPHER MINIX
1011 LEHMAN AVE #101
BOWLING GREEN, KY 42103
ADMINISTRATIVE
LAW JUDGE:
HON JONATHAN R. WEATHERBY
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601
[1] Buckley alleged head and psychological injuries, in addition to
a lumbar spine injury. Also, the
litigation of this claim involved up-the-ladder liability. Significant proof was taken concerning these
issues. We do not summarize this
evidence because it does not relate to the issues on appeal.