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Workers’
Compensation Board
OPINION ENTERED: March 23, 2018
CLAIM NOS. 201566529 & 201700486
PREMIER ELKHORN COAL PETITIONER
VS.
APPEAL
FROM HON. JONATHAN R. WEATHERBY,
ADMINISTRATIVE LAW JUDGE
DARRIN RATLIFF
AND HON. JONATHAN R. WEATHERBY,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
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BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. Premier Elkhorn Coal (“Premier
Elkhorn”) appeals from the October 23, 2017 Opinion, Award and Order and the
December 8, 2017 Order on Reconsideration rendered by Hon. Jonathan R.
Weatherby, Administrative Law Judge (“ALJ”).
The ALJ determined Darrin Ratliff (“Ratliff”) suffered a low back injury
after a fall at work, and did not have a pre-existing active condition at the
time of the injury. Premier Elkhorn
appeals from the determination Ratliff’s impairment rating is wholly
attributable to the work accident. For
the reasons set forth herein, we affirm.
Ratliff worked as a
coal miner for 28 years. Three months
before the work accident, he began working for Premier Elkhorn, primarily as a
repairman. On September 29, 2015, he was
spraying screens and fell approximately fifteen feet into a rock crusher. He was taken to the emergency room for
injuries to his hips, neck, right shoulder, arm, and low back.
Premier Elkhorn
conceded a work-related accident occurred, but disputed whether Ratliff
suffered a pre-existing low back condition.
It submitted the medical records of Dr. Larry Coleman, who previously
had treated Ratliff on February 6, 2007 for complaints of back pain. Ratliff returned on February 26, 2007 with
complaints of neuropathy. There are no
additional medical records from Dr. Coleman until January 29, 2015, when
Ratliff complained of vertigo and was diagnosed with Miniere’s disease.
On March 6, 2015, Dr.
Coleman treated Ratliff for back pain and right leg pain. Dr. Coleman suspected nerve compression in
his low back, and ordered an MRI. The
April 15, 2015 MRI revealed a small posterior central herniation and degenerative
change of the facet joints at L5-S1.
Ratliff returned to Dr. Coleman on April 28, 2015 for continued back
pain, and was diagnosed with diffuse degenerative joint disease. There are no additional medical records pre-dating
to the work accident on September 29, 2015.
Immediately after the
work accident, Dr. Coleman treated Ratliff conservatively but
unsuccessfully. A lumbar CT scan dated
September 29, 2015 revealed Schmorl nodules with no compression fracture, and
mild disc bulging at L5-S1. The impression
of an MRI on October 19, 2015 was degenerative disk and joint disease with
herniation and stenosis at L5-S1.
In a letter dated
October 28, 2015, Dr. Coleman referred Ratliff to Drs. Densler and Mayer for
treatment of low back pain and radiculopathy into the right leg. Dr. Coleman explained he had treated Ratliff
conservatively, and an October 19, 2015 MRI revealed “degenerative disc disease
in his lumbar spine from L1-S1, [and] worsening disease with bilateral facet
arthritis and a central herniated disc at L5-S1.” He attached the MRI report, which also
indicated degenerative change of the facet joints at L2-L3, L3-L4 and
L4-L5. Ratliff thereafter visited Dr.
Mayer, who recommended physical therapy.
Three physicians
evaluated Ratliff and provided an opinion on the issue of a pre-existing
condition. Dr. Anbu Nadar conducted an
independent medical evaluation (“IME”) on June 15, 2016. Dr. Nadar diagnosed cervical, thoracic and
lumbosacral strains with radiculopathy.
He found no evidence of a pre-existing condition. In a July 13, 2016 letter, Dr. Nadar assessed
a 10% whole person impairment rating pursuant to the American Medical
Association, Guides to the Evaluation of Permanent Impairment, 5th
Edition (“AMA Guides”), wholly attributable to the work accident.
Dr. Brandon Akers
conducted an IME on October 24, 2016 and diagnosed L5-S1 central disc
herniation with radiculopathy, which he causally related to the work
injury. Dr. Akers recommended permanent
lifting restrictions, and opined Ratliff could not return to his pre-injury
work. He assessed a 13% whole person
impairment rating pursuant to the AMA Guides, all of which he attributed
to the work accident.
Dr. Thomas Loeb
conducted an IME on February 21, 2017.
He reviewed and summarized Ratliff’s prior back complaints, and compared
his April 2015 MRI to the post-injury MRI.
Dr. Loeb assigned a 13% impairment for the low back pursuant to the AMA Guides,
but apportioned 95% of the impairment rating to pre-existing, active low back
condition. Dr. Loeb was later deposed,
and did not change his diagnosis or impairment rating.
In the October 23, 2017
Opinion, Order and Award, the ALJ awarded Ratliff permanent partial disability
benefits. He explained his reliance upon
the opinions of Drs. Coleman, Akers and Nadar:
The
ALJ is most persuaded in this matter by the comprehensive and thorough opinion
of Dr. Coleman that the Plaintiff’s chronic pain dates back to the work injury
and finds that this opinion lends credence to the opinions of both Drs. Akers
and Nadar.
The
ALJ is not persuaded by the opinion of Dr. Loeb regarding the supposed
pre-existing condition. The ALJ finds
that this opinion is significantly outweighed by the determinations of Drs.
Coleman and Akers that the Plaintiff’s current symptoms stem from the work
injury.
The
ALJ finds that the opinion of Dr. Akers is credible and convincing because it
is the most consistent with the opinion of Dr. Coleman. Dr. Akers diagnosed L5-S1 central disc
herniation with radiculopathy. He
further found that the cause of the Plaintiff’s complaints was due to the work
injury. Dr. Akers assessed a 13%
impairment to the lumbar spine and determined that the Plaintiff did not retain
the physical capacity to return to his prior employment.
The
opinion of Dr. Akers has convinced the ALJ and the ALJ therefore finds that the
Plaintiff has sustained a 13% impairment and does not retain the physical
capacity to return to the same type of work.
Premier Elkhorn
petitioned for reconsideration, arguing the ALJ’s findings of fact are
inconsistent and requesting discussion of a pre-existing, active lumbar
condition. In the December 8, 2017
Order, the ALJ further explained:
The ALJ reiterates the reliance upon the
opinion of Dr. Akers as supported by that of Dr. Coleman. While it is true that
Dr. Coleman did not assess an impairment or opine specifically regarding
causation, the ALJ finds that Dr. Coleman meticulously documented the onset of
the Plaintiff's pain as primarily occurring as of the date of the work injury
herein. The ALJ therefore finds that the opinion and records of Dr. Coleman
lend credence to the findings made by Dr. Akers in this matter that the work
injury was the cause of the Plaintiff's symptoms and consequently his
impairment.
On appeal, Premier Elkhorn argues Dr.
Akers’ opinion is unreliable because he did not review Ratliff’s low back
treatment in early 2015. It also claims
Dr. Coleman’s records do not corroborate Dr. Akers’ conclusions because he did
not specifically address any pre-existing condition or offer an opinion as to
causation. Premier Elkhorn further
claims the evidence compels a finding Ratliff suffered an active, pre-existing
low back condition.
Ratliff successfully bore his burden
on establishing each element of his claim, including the impairment rating
associated with his work injury.
Therefore, the question on appeal is whether substantial evidence
supports the ALJ’s decision. Wolf
Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984). “Substantial evidence” is defined as evidence
of relevant consequence having the fitness to induce conviction in the minds of
reasonable persons. Smyzer v. B. F.
Goodrich Chemical Co., 474 S.W.2d 367 (Ky. 1971).
Premier Elkhorn emphasizes Dr. Akers’
failure to specifically discuss Ratliff’s prior low back pain and treatment in
early 2015. Dr. Akers also appears to
have erroneously documented a prior fusion procedure, which Ratliff denies
undergoing. However, these circumstances
were brought to the ALJ’s attention. Dr.
Loeb was deposed, and explained his disagreement with Dr. Akers’ medical
opinion. Additionally, Ratliff did not
receive treatment for five months prior to the work accident. He was working full-time, under no
restrictions.
Furthermore, the ALJ noted Dr. Nadar’s
opinion supports those of Drs. Coleman and Akers. In the Order on Reconsideration, the ALJ
acknowledged Dr. Coleman did not provide a specific opinion as to
causation. However, the ALJ is free to
consider the context of Dr. Coleman’s medical records and letter to Dr. Mayer,
in which he details Ratliff’s work injury and the progression of his symptoms
since the accident. Also, Premier
Elkhorn offered no evidence Ratliff was working under restrictions or was being
actively treated for back pain immediately prior to his fall.
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). The opinions of Drs. Nadar and Akers provide
the necessary substantial proof to support the ALJ’s ultimate conclusions,
particularly when combined with Dr. Coleman’s treatment notes and the fact
Ratliff was working and was asymptomatic at the time of the accident. Dr. Loeb offered a competing opinion, and
emphasized Dr. Akers’ failure to expressly acknowledge the prior treatment for
low back pain. The ALJ may have chosen
to rely upon this proof, but instead was more persuaded by the opinions of Drs.
Akers and Nadar. It is not the function
of this Board to re-weigh the evidence and reach an alternate conclusion. While persuasive proof was submitted by both
parties, it cannot be said the totality of the evidence compelled a particular
result.
For the foregoing reasons, the October
23, 2017 Opinion, Award and Order and the December 8, 2017 Order on
Reconsideration rendered by Hon. Jonathan R. Weatherby, Administrative Law
Judge, are hereby AFFIRMED.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON STEVEN L KIMBLER
3292 EAGLE VIEW LANE, SUITE 350
LEXINGTON, KY 40509
COUNSEL
FOR RESPONDENT:
HON RON DIDDLE
PO BOX 330
PIKEVILLE, KY 41502
ADMINISTRATIVE
LAW JUDGE:
HON JONATHAN R. WEATHERBY
ADMINISTRATIVE LAW JUDGE
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601
