January 15, 2016 201285818

Commonwealth of Kentucky 

Workers’ Compensation Board




OPINION ENTERED:  February 2, 2018



CLAIM NO. 201491598



LISA BAUNACH                                  PETITIONER


















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



RECHTER, Member.  Lisa Baunach (“Baunach”) appeals from the August 23, 2017 Opinion, Award and Order and the October 17, 2017 Order rendered by Hon. Jeanie Owen Miller, Administrative Law Judge (“ALJ”) awarding permanent partial disability benefits based upon a 12% impairment rating resulting from a right ankle injury and increased headaches.  On appeal, Baunach argues that conditions in her back, shoulders, legs, and hips are compensable and she is entitled to benefits based upon either a 22 or 20% impairment rating.  We affirm.

          Baunach testified by deposition on March 14, 2016 and at the hearing held June 26, 2017.  Baunach has been employed by the University of Louisville (“U of L”) since 1987.  She alleges she sustained injuries to her head, shoulders, low back, left leg, and right ankle on February 26, 2014 when she fell from a chair she was standing on into a filing cabinet and struck the floor.  Following the injury, she initially treated at the Jewish Hospital emergency room.  Subsequently, she treated with Occupational Physician Services, Dr. David Seligson, Baptist Hospital East emergency room, Dr. Sanjiv Mehta, and Norton Neuroscience Institute.  She returned to work on July 21, 2014 in a data entry position, and now works as an administrative assistant.  She continues to treat with Dr. Mehta for right ankle pain that now radiates to her knee.  Baunach stated she continues to have problems with her shoulders, low back, and knees.  She also treats with Norton Neuroscience Institute for headaches, dizziness, and memory problems.  She currently has no work restrictions.  Baunach had previously settled a claim for an August 30, 1994 work injury to her neck and back. 

          Baunach and U of L submitted treatment records and reports of Dr. Mehta and other physicians at Louisville Bone & Joint Specialists, PSC.  Dr. Mehta performed an independent medical evaluation (“IME”) on April 1, 2015.  He diagnosed a healed fracture of the right ankle and assigned a 9% impairment based upon the American Medical Association, Guides to the Evaluation of Permanent Impairment, 5th Edition (“AMA Guides”). 

          U of L submitted medical questionnaires to Dr. Mehta concerning the February 26, 2014 work injury.  On April 27, 2016, Dr. Mehta indicated the work injury caused a harmful change to the human organism evidenced by objective medical findings to the right ankle, as well as the headaches addressed by Dr. Joseph Zerga, but no harmful changes to the low back, shoulders, or left leg.  Acknowledging an error in his prior assessment, he now assessed a 7% impairment rating instead of the previously outlined 9% impairment rating.  He opined Baunach had the capacity to return to her previous employment.  A January 20, 2016 note stated she was released to her regular duties, but needed to keep her ankle propped up to prevent swelling by the end of the day.  In a November 1, 2016 note, Dr. Mehta stated, “It appears to me that we are dealing with osteoarthritis of the knee, which has been present all along, but became more active and a disabling reality since the right elbow [sic] fracture.”

     Baunach saw Dr. Joseph Werner on November 29, 2016 for her lumbar and cervical spine complaints.  Dr. Werner thought she had lumbar pain and possible radiculopathy contributing to her chronic residual right ankle problems.  He doubted that her back was injured in the fall.  He suspected the back pain resulted from the gait and weight bearing alteration of the last couple of years.  He recommended an MRI of the lumbar spine to confirm his diagnosis, and recommended physical therapy.  On June 21, 2017, Dr. Mehta noted Baunach was still having trouble walking.  She had multiple issues with her lower extremities and her lumbar spine.  Baunach was not a surgical candidate for her low back condition.  However, he strongly recommended a pain management and rehabilitation specialist referral, which had previously been denied.  He felt Baunach needs long-term care from a musculoskeletal perspective because of issues with her low back pain, knees and right ankle.

          Dr. Zerga performed an IME on April 9, 2015.  Dr. Zerga diagnosed a healed fibula fracture, some vestibular dysfunction, and headaches as a result of the head trauma.  Dr. Zerga opined Baunach retains the physical capacity to return to her regular job.  He assigned a 5% impairment rating pursuant to the AMA Guides related to headaches.  

          Dr. Warren Bilkey conducted an IME on April 12, 2016.  He stated the February 26, 2014 work injury produced a fracture of the right ankle at the distal fibula.  Baunach received conservative treatment.  She has residual right ankle loss of motion, loss of normal control of ankle musculature and chronic pain.  Dr. Bilkey diagnosed head trauma with post-concussion syndrome and post-concussion headache, and residual vertigo complaints.  He also diagnosed a lumbar strain, chronic low back pain, and myofascial pain affecting scapular musculature.  He opined the diagnoses were due to the work injury and that Baunach was at maximum medical improvement.  Dr. Bilkey did not think there was any evidence that a 2014 motor vehicle accident had any impact on her ongoing work-related problems, and recommended treatment consisting of vestibular therapy, neuropsychological evaluation, and psychiatric treatment.  He assigned a 22% impairment rating, combining impairments of 5% for headaches, 9% for the right ankle, 5% for the lumbar spine and 5% for vestibular problems. 

          Dr. Zerga reviewed Dr. Bilkey’s April 12, 2016 IME report.  He disagreed with Dr. Bilkey’s assessment of impairment regarding vestibular function, noting the physical examination ruled out vestibular problems.  He did not see any reason for further therapy or evaluation for her vertigo, nor did he see any reason for neuropsychological testing or cognitive therapy.

          Dr. Thomas Loeb conducted an IME on February 14, 2017.  Baunach complained of difficulty walking due to low back and right ankle pain.  Dr. Loeb diagnosed a non-displaced distal fibular fracture on the right, contusion of the head with no intracranial damage, and transient strains of the cervical and lumbar spine.  Baunach had normal physical examinations of the upper and lower extremities, low back, and neck, but reduced motion in plantar flexion and dorsiflexion of the right ankle.  Dr. Loeb did not believe the work accident resulted in injuries as defined by the Act to the shoulders, left leg, hip, or knees.  He placed Baunach at maximum medical improvement as of March 4, 2015 and assessed a 7% impairment based upon a mild antalgic gait.  He assigned restrictions of no prolonged standing, walking, or climbing. 

          U of L filed medical records from Baptist Health concerning treatment following a December 19, 2014 motor vehicle accident.  Baunach was diagnosed with lumbar and cervical strains and a head contusion.  A CT scan of the head was negative.  Cervical and lumbar MRIs revealed degenerative changes with no acute osseous abnormality.  Baunach was discharged and directed to follow up with her family physician. 

          After reviewing the evidence, the ALJ made the following findings:

     It is admitted that Ms. Baunach injured her right ankle and had increased headaches. However, the injuries the plaintiff claims as a sequela of the original injury to her back, shoulders, leg, hip and knees I find are not compensable. I further find that the injury regarding her vestibular problems was a temporary injury which did not result in a permanent impairment rating, but did require medical treatment and to that end the medical treatment for the vestibular problems shall be compensable.


     Ultimately the undersigned finds the opinions of the treating physicians to be the most persuasive. Dr. Mehta certainly is in a unique position, having treated and observed the plaintiff since this work injury. Additionally, Dr. Mehta has a duty to treat and render care for the effects of this work injury that is in the best interest of his patient. Those duties, as well as the ongoing observation of the plaintiff, convinces the undersigned that his opinion regarding impairment is the most persuasive and probative. I find Ms. Baunach retains 7% impairment pursuant to the AMA Guides, 5th edition, to her right ankle, as a result of the work injury.


     With regard to Ms. Baunach’s headaches, I find Dr. Zerga’s opinion regarding impairment to be persuasive. Also, I adopt Dr. Zerga’s opinion regarding the impairment of the vestibular condition. I find that Ms. Baunach did sustain a work injury that temporarily required medical treatment but agree with Dr. Zerga that any formal vestibular rehabilitation, formal speech therapy or memory therapy was not appropriate. I adopt Dr. Zerga’s opinion regarding the prescription Amitriptyline for sleep. I find the prescription is reasonable, necessary and related to Plaintiff’s work injury. In finding the plaintiff has sustained 5% permanent impairment pursuant to the AMA Guides, 5th Edition, for her headaches as a result of her work injury.


          Baunach filed a petition for reconsideration requesting additional findings regarding the compensability of the alleged back, shoulders, legs, hips and knee conditions.  In her October 17, 2017 order on reconsideration, the ALJ provided the following additional findings:

The Opinion and Award (Opinion) reviews the entire evidence of record, including the opinions from Dr. Loeb, Dr. Mehta, Dr. Borden, and Dr. Werner and Dr. Bilkey. Specifically on page 6, Dr. Mehta’s opinion, via a questionnaire, is reiterated.  Specifically noted is that there are no objective findings concerning the Plaintiff’s low back, right shoulder, left shoulder and left leg.  On page 8, Dr. Loeb’s opinion, that the work injury resulted in a “transient strain of the lumbar spine but no injury to the left shoulder, the right shoulder, the left leg, the hip or the right knee”, is specifically discussed. The contrary opinions are also noted on pages 9 and 10. The opinions of Dr. Borden and Dr. Werner are discussed. Those opinions causally connected the work injury to plaintiff's extremity aches and pains including back pain, bilateral knee pain and left ankle pain.


After reviewing the evidence in the record, the undersigned found the Plaintiff’s claims to her back, shoulders, left leg, hip and knees were not compensable (see page 12 of the Opinion). To the extent that there was not a statement upon which medical opinion I relied, I clarify that I relied upon the medical reports of Dr. Mehta and Dr. Loeb in making that determination of noncompensability.  That portion of the Petition for Reconsideration is GRANTED.  The medical opinions of Dr. Mehta and Dr. Loeb constitute substantial medical evidence supporting the undersigned’s findings and accordingly the remainder of the plaintiff’s Petition for Reconsideration is DENIED.


          On appeal, Baunach argues the ALJ erred in not finding she suffered compensable injuries to her back, shoulders, legs, hips and knees.  Baunach notes that, while Dr. Mehta opined in the April 27, 2016 questionnaire that she did not sustain any harmful change to the low back, right shoulder, left shoulder or left leg, he did not specifically deny she sustained injuries to those areas.  Dr. Mehta also stated Baunach’s osteoarthritis of the knee had been present all along but became more active and disabling since the right ankle fracture, which caused an altered gait.  In a November 14, 2016 note, he stated it was reasonable that the extremity aches and pains, including back pain, bilateral knee pain, and left ankle pain, all occurred as a result of her original fall and were magnified by the gait abnormality caused by chronic right ankle pain.  Finally, Baunach observes Dr. Werner suspected the back pain resulted from gait and weight bearing alteration over the last couple of years.  

          As the claimant in a workers’ compensation proceeding, Baunach bore the burden of proving each of the essential elements of her cause of action.  Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979).  Because she was unsuccessful in convincing the ALJ that she had more than a 12% impairment rating or that the conditions in her back, shoulders, legs and hips were compensable, 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) superseded by statute on other grounds as stated in Haddock v. Hopkinsville Coating Corp., 62 S.W.3d 387 (Ky. 2001).

          KRS 342.0011(1) defines injury as “any work related traumatic event or series of traumatic events, including cumulative trauma arising out of and in the course of employment which is the proximate cause producing a harmful change to the human organism evidenced by objective medical findings.”  Here, Dr. Mehta indicated in the April 27, 2016 questionnaire that the work injury did not produce a harmful change in the human organism as evidenced by objective medical findings regarding the low back, shoulders, or left leg, and he stated his opinion within a reasonable degree of medical probability.  His responses to the questionnaires do not reference any temporary harmful change.  Additionally, Dr. Loeb opined the work incident did not result in a harmful change to the human organism based upon objective findings regarding the shoulders, hip, or knees. 

          The ALJ was well within her authority as fact-finder in choosing to rely upon Dr. Mehta’s April 27, 2016 statement and Dr. Loeb’s opinions in finding that the only harmful changes resulting from the work injury were to the right ankle and the increase in headaches.  The ALJ was well aware that the injury could have produced temporary injuries for which medical benefits could be awarded as evidenced by the ALJ’s finding that Baunach’s vestibular problems constituted a temporary injury for which she was entitled to medical treatment.  The ALJ was simply not persuaded that Baunach sustained any compensable injuries in addition to the right ankle injury and increased headaches. 

          While Baunach has identified certain portions of Dr. Mehta’s opinion that might support a different conclusion, this ALJ enjoys the discretion to interpret the proof.  As such, the ALJ acted within her discretion to determine which portions of the evidence to rely upon, and it cannot be said the ALJ’s conclusions are so unreasonable as to compel a different result.  Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000).  Furthermore, we note that Dr. Loeb’s opinion alone is sufficient evidence to support the ALJ’s conclusions.  There being substantial evidence supporting the ALJ’s conclusion, we may not reverse.  

          Accordingly, the August 23, 2017 Opinion, Award and Order and the October 17, 2017 Order rendered by Hon. Jeanie Owen Miller, Administrative Law Judge, are hereby AFFIRMED.

          ALL CONCUR.





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