January 15, 2016 201285818

Commonwealth of Kentucky 

Workers’ Compensation Board




OPINION ENTERED:  December 15, 2017



CLAIM NO. 201600484



WAYMON BUCKLEY                                 PETITIONER



















                       * * * * * *



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.






PO BOX 655






333 E SHORT ST #110






1011 LEHMAN AVE #101










[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.