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Workers’
Compensation Board
OPINION ENTERED: February 2, 2018
CLAIM NO. 201491598
LISA BAUNACH PETITIONER
VS.
APPEAL
FROM HON. JEANIE OWEN MILLER,
ADMINISTRATIVE LAW JUDGE
UNIVERSITY OF LOUISVILLE
AND HON. JEANIE OWEN MILLER,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
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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.
COUNSEL
FOR PETITIONER:
HON WAYNE C DAUB
600 W MAIN ST #300
LOUISVILLE, KY 40202
COUNSEL
FOR RESPONDENT:
HON BRIAN WIMSATT
303 N HURSTBOURNE PKWY #110
LOUISVILLE, KY 40222
ADMINISTRATIVE
LAW JUDGE:
HON JEANIE OWEN MILLER
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601
