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Workers’
Compensation Board
OPINION
ENTERED: March 23, 2018
CLAIM NO. 201679678
DARRELL FIGHTMASTER PETITIONER
VS. APPEAL FROM HON. JONATHAN
R. WEATHERBY,
ADMINISTRATIVE LAW JUDGE
XPO LOGISTICS
and HON. JONATHAN R. WEATHERBY,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
IN PART AND REMANDING
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BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
STIVERS,
Member.
Darrell
Fightmaster (“Fightmaster”) appeals from the August 7, 2017, Opinion and Award
and the October 31, 2017, Order on Petition for Reconsideration of Hon.
Jonathan R. Weatherby, Administrative Law Judge (“ALJ”). The ALJ awarded
temporary total disability (“TTD”) benefits from March 2, 2016, through May 26,
2016, and medical benefits for a temporary work-related injury.
On appeal,
Fightmaster argues the ALJ failed to make adequate findings regarding his alleged
June 8, 2016, work injury. Fightmaster also argues the ALJ erred by relying
upon the medical opinions of Dr. Richard DuBou in concluding Fightmaster did
not suffer from a permanent work-related injury.
The Form 101 alleges Fightmaster,
while in the employ of XPO Logistics (“XPO”), sustained injuries to his right
forearm and wrist on March 2, 2016, in the following manner: “restacking
freight and felt a pip [sic] in right forearm.”
On November 10, 2016, Fightmaster
filed a “Notice of Clarification of Injury Date” in which he states, in
relevant part, as follows:
Plaintiff states that he sustained the
original work related injury on March 2, 2016 while employed with the
Defendant/Employer, XPO Logistics.
Plaintiff further states that he had returned
to work for the Defendant/Employer and on or about June 8, 2016 while
performing his customary duties, Plaintiff experienced an exacerbation of his
original March 2, 2016, work related injury.
XPO introduced the May 25, 2016,
Independent Medical Examination report of Dr. Ellen Ballard. After performing
an examination and a medical records review, Dr. Ballard answered a series of
questions as follows:
1. The
diagnosis as relates to the work event.
The patient may have initially had a strain.
2. Do
you recommend any additional treatment for the work-related diagnosis? If so,
what treatment do you recommend?
He
does not require any additional treatment.
3. If
no additional treatment is recommended for the work-related diagnosis, has Mr.
Fightmaster reached MMI? If not, when do you anticipate he will?
He is
at maximum medical improvement.
4. Are
any work restrictions – temporary or permanent – required as a result of the
work-related diagnosis?
He does not require restrictions.
5. If
Mr. Fightmaster has reached MMI, is there any permanent partial disability
associated with the work-related diagnosis?
He is at maximum medical improvement and has a 0% permanent
partial disability associated with his work diagnosis.
XPO filed the
March 7, 2017, report of Dr. DuBou. After performing an examination and a
medical records review, Dr. DuBou answered a series of questions as follows:
Question 1: What is your diagnosis of Mr.
Fightmaster’s condition in connection with the alleged work accident on March
2, 2016 and the alleged event of June 8, 2016.
Answer: I believe it would have been a sprain
which would have resolved by this time.
Question 2: Kentucky Worker’s Compensation
Law defines an 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 of producing a harmful change to the
human organism as evidenced by objective findings. Under this definition, has
Mr. Fightmaster sustain [sic] a permanent injury due to the alleged work
accident?
Answer: No. The only possible finding would
be a very abnormal RSD/CRPS. He does not have the findings to support that. A
strain would have shown up on the MRI and certainly the benign cyst of the
lunate would not produce any changes and is not related.
Question 3: What is your opinion within
reasonable medical probability as to whether Mr. Fightmaster has CRPS type 1
(Reflex Sympathetic Dystrophy) due to the effects of either or both work
accidents? Please explain your answer in detail.
Answer: Mr. Fightmaster does not have CRPS
type 1 (Reflex Sympathetic Dystrophy) from the effects of either one or both of
the accidents he reports. He does not have the findings for RSD. RSD does not
cause numbness or indeed anesthesia in the hand nor does it cause the marked
pain without findings that he complains of.
Question 4: Is Mr. Fightmaster at maximum
medical improvement due to the effects of the alleged work accident? If so,
when did he reach that point? If not, when will he reach MMI and what
additional treatment or testing is required?
Answer: I believe he reached MMI when Dr.
Ballard stated he reached MMI. Nothing has changed since that time, all tests
have been negative, and I believe many of his complaints are not within the
realm of normal medical findings.
Question 5: If Mr. Fightmaster has reached
maximum medical improvement, what if any permanent functional impairment does
he have under the 5th Edition AMA Guides due to the work accidents?
Please apportion any impairment between which were among work accidents and
other nonwork-related conditions.
Answer: Mr. Fightmaster is at maximum medical
improvement and his PPI is zero.
Question 6: Would you recommend any
restrictions due to the effects of the work accident? If so, specify the
restrictions you would recommend.
Answer: I would recommend no restrictions.
Question 7: Are Mr. Fightmaster’s subjective
complaints consistent with the objective findings? Please explain your answer.
Answer: No. If he has the severe amount of
pain that he has, there would be some objective findings. He has normal
calluses on his fingers indicating that he is using that hand. There is no
atrophy or osteoporosis. A patient with a totally numb hand would have the
appearance of a totally numb hand and nonuse. He does not.
Question 8: Please provide any comments you
believe would be helpful to our assessment of the claim.
Answer: I would be concerned about the second injury that
occurred shortly after the IME by Dr. Ballard. He is a very sympathetic young
man, though. Without true abnormal findings, it would be unusual for him to
have CRPS or RSD.
XPO filed another report of Dr. DuBou
dated March 28, 2017, in which he states as follows:
Thank you very much for the additional
information on Mr. Fightmaster. Usually stellate ganglion blocks are given in a
series of three. The doctor who did the stellate ganglion blocks himself noted
that the stellate ganglion block was not a success. The lack of success for
stellate ganglion block indicates one more reason why he does not have
RSD/CRPS. As I mentioned before, the basic history of RSD the medical community
notes today is the following: 1. There is an injury somewhere distal on the
extremity, toes, fingers not even major injury and the first thing that happens
is that the last arterial with a muscular coat clamps down under direction from
the sympathetic nervous system to cut off or slow down the blood loss. This
enables the platelets, the coagulating material in the blood, to do their job
and the clot is formed. The precapillary arterials then relax and everything
goes back to normal.
In RSD, however, something goes awry and even though the clot
has formed and the danger has passed, the sympathetic nervous system keeps
telling those precapillary arterials to remain clamped down. When they are
clamped down, they cause pain because of the lack of oxygen and lack of blood,
and this sends messages back to the spinal cord saying, hey there is more
trouble down here and send more sympathetic nervous system impluses [sic], and
that is what it does. That is why it is both insidious and dangerous. If one
has reflex sympathetic dystrophy and the reflex has been cut, there should be a
marked decrease in pain. Both Mr. Fightmaster and his doctor felt that was not
effective.
The June 8,
2017, Benefit Review Conference Order and Memorandum listed the contested
issues as follows: benefits per KRS 342.730, work-relatedness/causation,
unpaid or contested medical expenses, injury as defined by the Act, and TTD.
Under “other” is: “suspension of benefits for IME attendance failure” and
“proper rating per AMA Guides.”
In the August 7, 2017, Opinion and
Award, the ALJ set forth the following findings of fact and conclusions of law:
Benefits Per KRS 342.730/Injury as Defined by the Act Unpaid
or Contested Medical/TTD/Credit Against TTD
15. The ALJ is persuaded by the statements attributed to the
Plaintiff that indicate that there was no specific incident that caused his
alleged symptoms but rather that there was a gradual onset over time.
Specifically, this was noted by Dr. Burgess and Dr. Napolitano.
16. These statements lend credence and credibility to the
opinion of Dr. Dubou [sic] who has convincingly opined, in agreement with Dr.
Ballard, that the Plaintiff suffered a sprain that has resolved and that if the
Plaintiff had severe pain as alleged, there would be some objective findings.
17. Dr. Dubou [sic] was also persuasive in his opinion that
the Plaintiff had not sustained a permanent injury and does not have CRPS again
due to a lack of supportive objective findings.
18. Dr. Bubou [sic] has convinced the ALJ that the Plaintiff
has sustained a 0% impairment pursuant to the AMA Guides, that he reached
maximum medical improvement on May 26, 2016, and that he needs no restrictions.
19. The ALJ further finds that medical benefits shall be
limited to the temporary treatment of the sprain diagnosed by Dr. Dubou [sic]
that resolved as of the date of Dr. Ballard pronouncement of maximum medical
improvement, May 26, 2016.
The ALJ further finds
tha [sic] the Plaintiff is entitled to temporary total disability benefits from
the date of injury until the date that maximum medical improvement was reached,
May 26, 2016. The Defendant shall be entitled to a credit for the amounts paid
to the Plaintiff during that time.
Fightmaster filed a petition for
reconsideration that was overruled by order dated October 31, 2017.
Fightmaster first asserts the ALJ
failed to make adequate findings related to the alleged June 8, 2016,
exacerbation. We agree and remand for additional findings.
In reaching a determination, while
an ALJ is not required to set out the minute details of his
reasoning in reaching her conclusion, the
ALJ must provide
findings sufficient to inform the parties of the
basis for the decision to allow for meaningful review. See Shields v. Pittsburgh and Midway Coal Mining Co., 634
S.W.2d 440 (Ky. App. 1982); See also Big
Sandy Community Action Program v. Chafins, 502 S.W.2d 526 (Ky. 1973). Here,
the ALJ has not done so. In reviewing the August 7, 2017, Opinion and Award
and the October 31, 2017, Order on Petition for Reconsideration, we note the
ALJ failed to set forth any findings resolving the alleged June 8, 2016,
exacerbation. In fact, the alleged June 8, 2016, exacerbation is not addressed
at all. Therefore, on remand and in an amended opinion,
the significance of the alleged exacerbation of June 8, 2016, must be addressed.
We note even Dr. DuBou in his March 7, 2017, report alludes to “the second
injury.”
We are aware
Fightmaster did not formally amend his Form 101 and, instead, filed a “Notice
of Clarification of Injury Date” to add the June 8, 2016, exacerbation. However,
the record clearly indicates the alleged June 8, 2016, exacerbation was tried
by consent by all parties. Kroger Co. v.
Jones, 125 S.W.3d 241, 246 (Ky.
2004).
Fightmaster
also asserts the ALJ erred by relying on Dr. DuBou’s opinions in concluding
Fightmaster did not suffer a permanent work-related injury on March 2, 2016. We
disagree and affirm on this issue.
As the claimant in a workers’
compensation proceeding, Fightmaster had the burden of
proving each of the essential elements of his cause of action, including
proving he sustained a permanent
injury as defined by the Act. Snawder v. Stice, 576 S.W.2d 276 (Ky. App.
1979). Since Fightmaster was unsuccessful in that burden, 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).
As fact-finder, the ALJ has the sole authority to determine the weight,
credibility and substance of the evidence. Square D Co. v. Tipton, 862
S.W.2d 308 (Ky. 1993). Similarly, the ALJ has the discretion to determine all reasonable
inferences to be drawn from the evidence. Miller v. East Kentucky
Beverage/Pepsico, Inc., 951 S.W.2d 329 (Ky. 1997); Jackson v. General
Refractories Co., 581 S.W.2d 10 (Ky. 1979). The ALJ may reject any
testimony and believe or disbelieve various parts of the evidence, regardless
of whether it comes from the same witness or the same adversary party’s total
proof. Magic Coal Co. v. Fox, 19 S.W.3d 88 (Ky. 2000). Although a party
may note evidence that would have supported a different outcome than that
reached by an ALJ, such proof is not an adequate basis to reverse on appeal. McCloud v.
Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974).
The function of this Board in reviewing
the ALJ’s decision is limited to a determination of whether the findings made
by the ALJ are so unreasonable under the evidence that they must be reversed as
a matter of law. Ira A. Watson
Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000). The Board, as an
appellate tribunal, may not usurp the ALJ’s role as fact-finder by
superimposing its own appraisals as to the weight and credibility to be
afforded the evidence or by noting reasonable inferences that otherwise could have been drawn from the
record. Whittaker v. Rowland, 998 S.W.2d 479, 481 (Ky. 1999).
As long as the ALJ’s ruling with regard to an issue is supported by substantial
evidence, it may not be disturbed on appeal. Special
Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986).
Dr. DuBou’s opinions constitute
substantial evidence upon which the ALJ is entitled to rely. Dr. DuBou opined
that, on March 2, 2016, Fightmaster sustained a sprain and not a permanent
injury. His opinions, as stated clearly in the March 7, 2017, report, were
“made within medical probability.” We are cognizant there is medical testimony
in the record which supports a finding of a permanent injury on March 2, 2016;
however, the ALJ is free to pick and choose the evidence upon which he wishes
to rely. When “the physicians in a case
genuinely express medically sound, but differing opinions as to the severity of
a claimant's injury, the ALJ has the discretion to choose which physician's
opinion to believe.” Jones v. Brasch-Barry General Contractors, 189
S.W.3d 149, 153 (Ky. App. 2006). As Dr. DuBou’s opinions constitute substantial
evidence upon which the ALJ can rely and the record does not compel a contrary
result, the ALJ’s decision regarding the March 2, 2016, injury will not be
disturbed.
Accordingly, to the
extent the ALJ determined the March 2, 2016, injury is temporary, the August 7,
2017, Opinion and Award and the October 31, 2017, Order on Petition for
Reconsideration are AFFIRMED. This claim
is REMANDED to the ALJ for
additional findings consistent with the views set forth herein.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON WILLIAM E BROWN II
2224 REGENCY RD
LEXINGTON KY 40503
COUNSEL
FOR RESPONDENT:
HON JUDSON F DEVLIN
1315 HERR LN STE 210
LOUISVILLE KY 40222
ADMINISTRATIVE
LAW JUDGE:
HON JONATHAN R WEATHERBY
657 CHAMBERLIN AVE
FRANKFORT KY 40601
