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Workers’
Compensation Board
OPINION ENTERED: April 20, 2018
CLAIM NOS. 201700182 & 201700181
JIMMY DUNN PETITIONER
VS.
APPEAL
FROM HON. CHRISTINA HAJJAR,
ADMINISTRATIVE LAW JUDGE
BLUE DIAMOND COAL COMPANY
AND HON. CHRISTINA HAJJAR,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
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BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER, Member. Jimmy Dunn (“Dunn”) appeals from
the October 30, 2018 Opinion, Award and Order and the December 6, 2017 Order on
Reconsideration rendered by Hon. Christina D. Hajjar, Administrative Law Judge
(“ALJ”). The ALJ determined Dunn
suffered work-related hearing loss and awarded medical benefits, but dismissed
his claim for cumulative trauma injuries to the low back, left hip, neck and
right wrist. On appeal, Dunn argues the
evidence compels a finding he suffered work-related cumulative trauma injuries. We affirm.
Dunn testified he worked for 22 years in
the coal mining industry. At Blue
Diamond Coal Company, he worked as an equipment operator. This position required him to hunch over in
low coal, and to crawl and bend over. The heavy equipment was jarring and required
him to constantly twist his neck and back.
The operator’s seats of the machines rocked and vibrated, and caused
daily low back pain. When Dunn was in
the mine, he often had to bend roof bolts with his hands up to 100 times per
day.
Dunn testified he had suffered a previous
work-related injury to his right wrist.
Also, he was off work for three months following an injury while
operating a ram car during which he was jarred violently. He testified his wrist still causes him pain
when he puts pressure on it.
Dunn was laid off on November 19, 2015 and
has not worked since, though he has applied for jobs. Dunn testified he suffers from constant, dull
low back pain. This pain impairs his
ability to sit or stand for extended periods of time. His neck does not cause him pain, but cracks
and “crunches” when he turns.
Dunn treated with Dr. Van Breeding on June
9, 2017 for back and left leg pain. Dr.
Breeding ordered x-rays which were normal.
Dunn also treated with Dr. Makut Sharma on
July 17, 2017 for low back, left hip and left leg pain. Straight leg raising tests on the right and
left were positive. Dr. Sharma ordered a
lumbar spine MRI and x-rays of the hips and knees. The MRI revealed degenerative disc disease at
L4, L5 and S1. He diagnosed lumbar disc
degeneration at L4-5, but offered no opinion as to causation.
Dr. Stephen Autry conducted an independent
medical evaluation (“IME”) on March 8, 2017.
He diagnosed aggravation of cervical spondylosis and lumbar spondylosis
with radiculopathy. He attributed these
conditions to Dunn’s work in the coal mines, and assigned a 6% impairment
rating pursuant to the American Medical Association, Guides to the
Evaluation of Permanent Impairment, 5th Edition, for the lumbar
condition. He assigned no impairment
rating for the cervical condition.
Dr. Leyton Childers, DC, submitted a report
dated November 2, 2016. Dr. Childers
diagnosed lumbalgia with radiculopathy, moderate degeneration of the lumbar spine,
mild anterior osteophytes at L2-L5, right wrist pain, dizziness, and moderate
degeneration of the cervical spine with anterior osteophytes at C4-C6. He attributed all of Dunn’s conditions to his
work in the mining industry.
Dr. Daniel Primm conducted an IME on May
12, 2017. Dunn provided a history of
ongoing low back pain, which occasionally radiates into his left leg. In addition to Dunn’s more recent treatment
records from Drs. Sharma and Breeding, Dr. Primm also was provided a 2008 lumbar
x-ray, which was taken after a lifting accident.
Upon examination, Dr. Primm concluded
Dunn’s lumbar and cervical spine are normal for his age. Dr. Primm noted the small osteophyte at L4
and L5, but no other evidence of spondylolisthesis. He concluded Dunn’s lumbar complaints are
age-related and found no evidence of radiculopathy. Dr. Primm found no work-related lumbar or
cervical spine injury, and assessed a 0% impairment rating.
Dr. Primm also commented on Dr. Autry’s
evaluation. He noted Dr. Autry’s
positive straight-leg raising exam was incomplete, and the results were inconsistent. He interpreted Dr. Autry’s evaluation as
normal.
The ALJ summarized the evidence and
concluded Dunn failed to establish causation:
After careful review of the
evidence, this ALJ finds Plaintiff has not met his burden of proving
work-related cumulative trauma to his low back and neck. This ALJ finds Dr. Primm’s report convincing
based upon his normal examination of the lumbar and cervical spine, and the
x-rays that Dr. Primm stated looked completely normal for a man in this age
range, and slightly better than average x-rays he has reviewed over the
years. Dr. Primm stated that there was a
very small anterior osteophyte at L4 and L5, but otherwise, the disk spaces
were well preserved and no evidence of spondylolisthesis at any level. He stated that the x-rays showed no
significant degenerative changes at any level, and very minimal slight
narrowing at L5-S1. Dr. Primm stated
that Plaintiff had age-related mechanical low back pain symptoms and absolutely
no evidence of lumbar radiculopathy. Dr.
Primm stated that there is nothing to suggest Plaintiff’s lumbar spine
complaints are in any way related to, or aggravated by his past work. He stated that plaintiff only has very mild
or minimal age-related degenerative changes in the lumbar spine and cervical
spine.
The ALJ considered Dr.
Autry’s report in which he attributed Plaintiff’s low back and neck complaints
to cumulative trauma and assessed a 0% impairment rating for the cervical spine
and 6% for the lumbar spine. The ALJ
considered Dr. Sharma’s and Dr. Childers’ records and report. However, Dr. Sharma released Plaintiff to
full duty activities. Dr. Sharma
attributed Plaintiff’s complaints to work activities and injuries occurring at
home. The ALJ also acknowledges Plaintiff’s
testimony and found him to be credible concerning his complaints and his
description of his work activities. However,
the ALJ found Dr. Primm’s report to be more convincing concerning the medical
question as to whether Plaintiff sustained cumulative trauma given the minimal
degenerative findings in the lumbar and cervical spine x-rays.
Plaintiff filed the report
of Dr. Childers who documented Plaintiff’s complaints of left hip and right
wrist pain. Dr. Childers noted that
Plaintiff’s wrist pain began three months before the examination, but Plaintiff
had been off work for over one year prior to the exam. The ALJ concludes that there is insufficient
evidence to conclude that Plaintiff sustained cumulative trauma to his right
wrist or left hip. Dr. Primm reviewed
x-rays of both hips and the right wrist and found that the hip joints were
normal, that the right hand and wrist x-rays were also normal. Plaintiff presented no evidence of permanent
impairment to either the right wrist or left hip. Thus, the ALJ also finds that the Plaintiff
has not met his burden to prove that he sustained cumulative trauma to his hip
or wrist.
Dunn filed a petition for reconsideration,
which was denied. On appeal, he argues
the evidence compels a finding he suffered work-related cumulative trauma
injuries to his low back, neck, right wrist and left hip. He especially disagrees with the ALJ’s
statement that he provided “insufficient evidence” to establish causation, as
Dr. Autry’s medical opinion constitutes sufficient evidence.
As the claimant in a workers’ compensation
proceeding, Dunn bore the burden of proving each of the
essential elements of his cause of action. Snawder v. Stice, 576
S.W.2d 276 (Ky. App. 1979). Because he 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). The function of the 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 they must be reversed as a matter of
law. Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky.
2000).
The ALJ provided a thorough review of the
evidence and was most persuaded by Dr. Primm’s medical opinion. Contrary to Dunn’s assertions, we find no
indication the ALJ misinterpreted or failed to understand Dr. Autry’s medical
report. Her summary of his IME report is
accurate and relays the pertinent conclusions of his evaluation.
Dunn claims the ALJ failed to understand
the proof, as indicated by her statement that, “there is insufficient evidence
to conclude that [Dunn] sustained cumulative trauma to his right wrist or left
hip.” We do not interpret this statement as indication of a misunderstanding of
the evidence. The ALJ explained her
reliance on Dr. Primm’s evaluation, which revealed no hip or wrist
pathology. She also cited the lack of an
impairment rating for either body part.
We find no error.
The ALJ’s summary and discussion evinces an
understanding of and weighing of the proof.
She acknowledged Dr. Autry’s report, but was ultimately more persuaded
by Dr. Primm’s opinion, which constitutes the requisite substantial evidence to
support her conclusions. Under such
circumstances, this Board is not at liberty to disturb the award.
As such, the October 30, 2018 Opinion,
Award and Order and the December 6, 2017 Order on Reconsideration rendered by
Hon. Christina D. Hajjar, Administrative Law Judge, are hereby AFFIRMED.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON MCKINNLEY MORGAN
921 S MAIN ST
LONDON, KY 40741
COUNSEL
FOR RESPONDENT:
HON HENRY LIST
3292 EAGLE VIEW LN #350
LEXINGTON, KY 40509
ADMINISTRATIVE
LAW JUDGE:
HON CHRISTINA HAJJAR
ADMINISTRATIVE LAW JUDGE
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601
