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January 15, 2016 201285818

Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED:  April 27, 2018

 

 

CLAIM NO. 201401537

 

 

CHARLES C. MORROW                              PETITIONER

 

 

 

VS.                         

APPEAL FROM HON. STEPHANIE L. KINNEY,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

PGT TRUCKING

AND HON. STEPHANIE L. KINNEY,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

AFFIRMING

 

                       * * * * * *

 

 

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

 

 

RECHTER, Member.  Charles Morrow (“Morrow”) appeals from the July 24, 2017 Opinion and Order, and the December 15, 2017 Order on Reconsideration rendered by Hon. Stephanie L. Kinney, Administrative Law Judge (“ALJ”).  The ALJ dismissed Morrow’s claim alleging an occupational disease.  Morrow argues the ALJ improperly disregarded the opinion of the university evaluator.  We disagree and affirm.

     In the Form 102 filed July 21, 2015, Morrow alleged he developed an occupational disease as a result to dust fumes and chemicals, manifesting on March 20, 2013.  No evidence was filed to support the claim.  Later, on September 20, 2016, Morrow amended the claim to allege a caustic inhalation injury occurring “in March 2013.” 

     Morrow worked as a truck driver for PGT Trucking, and testified he was frequently exposed to dust, fumes and chemicals.  He testified he was loading a generator on March 20, 2013 when fluid leaked from the machinery.  He subsequently developed shortness of breath.  Three days later, he lost his balance while tarping a trailer and fell.  According to Morrow, he visited Southern Ohio Medical Center and reported the fall, as well as breathing problems.  Morrow testified he was referred to Dr. Bjorn Thorarinsson, a pulmonologist, with whom he continues to treat. 

     The records of Southern Ohio Medical Center conflict with Morrow’s testimony somewhat.  Records indicate Morrow presented on March 17, 2013, with complaints of chest pain for the prior two weeks.  A chest examination revealed no respiratory distress and Morrow was prescribed medication for acid reflux.  The records do not indicate Morrow complained of a chemical exposure incident at work.  A March 20, 2014 stress echocardiogram was normal. 

     Morrow visited King’s Daughters’ Medical Center on June 17, 2013 with complaints of coughing, wheezing and abdominal swelling for several weeks.  The emergency room records note “onset undetermined/no pertinent past medical history” although Morrow reported he often inhaled chemicals at work.  The emergency room records further indicate a history of symptoms going back to 2000.  Dr. Maria Domingo diagnosed chronic obstructive pulmonary disease (“COPD”) and referred Morrow to Dr. Thorarinsson, whom he visited on June 18, 2013.  Dr. Thorarinsson’s notes indicate Morrow reported shortness of breath “since 2005 at least.”     

     Morrow returned to Southern Ohio Medical Center on July 3, 2013 with complaints of shortness of breath, wheezing and abdominal swelling.  He treated with Nurse Practitioner Anna Bayes.  The records indicate he was referred by King’s Daughters’ Medical Center for COPD.  Nurse Bayes’ notes refer to spirometry completed “a few years ago” which confirmed COPD.  Morrow reported a thirty-year history of smoking.  Nurse Bayes diagnosed COPD and prescribed Advair. 

     Morrow returned to Southern Ohio Medical Center on August 2, 2013 with complaints of abdominal bloating, but denied chest pain or shortness of breath.  He reported daily smoking and prior asbestos exposure.    

     Dr. George Zaldivar evaluated Morrow on January 28, 2015 but was not provided any medical records.  Morrow reported to Dr. Zaldivar that he developed shortness of breath in 2013 and never had any trouble with breathing prior. Morrow further reported a history of smoking from ages 15 to 21.  Dr. Zaldivar found this history inconsistent with Morrow’s blood carbon monoxide level.  He diagnosed COPD and attributed the condition to smoking, which he noted is the leading cause of the disease. 

     Dr. Fred Rosenblum conducted a university evaluation for occupational disease on July 8, 2016.  Dr. Rosenblum reviewed medical records and physically examined Morrow, emphasizing Morrow was a poor historian whose explanation of the work events did not make sense.  Morrow reported an incident in March 2013 wherein he removed a hose from a generator causing fluid to spill around him.  He reported he developed breathing problems later that evening.  Morrow indicated he was hospitalized two weeks later and diagnosed with COPD.  Dr. Rosenblum diagnosed COPD with bronchitis due to the alleged inhalation injury of March 2013.  He assessed a Class 3, 50% whole person impairment pursuant to the American Medical Association, Guides to the Evaluation of Permanent Impairment, 5th Edition.

     Dr. Zaldivar completed an addendum report dated January 16, 2017, after having reviewed all relevant medical records and reports.  Dr. Zaldivar disagreed with Dr. Rosenblum’s analysis for several reasons.  He concluded Dr. Rosenblum did not take into account Morrow’s history of smoking for over thirty years.  He also emphasized Morrow’s airway obstruction is minimal and disagreed with Dr. Rosenblum’s impairment rating on this basis. 

     PGT Trucking submitted additional proof refuting Morrow’s claim of an inhalation injury in March 2013.  Paul Vargo is a director of risk management for PGT Trucking.  He testified Morrow was driving loads of metal pieces between November 2012 and March 2013 and was not exposed to any asbestos.  He likewise refuted Morrow’s claim he cleaned out a tanker filled with gasoline, explaining PGT Trucking does not own any tanker trucks. 

     PGT Trucking submitted a report generated by the Kentucky Labor Cabinet indicating no work-related chemical spill incidents were reported in March 2013.  It also submitted surveillance footage purporting to show Morrow smoking cigarettes on two days in October, 2015. 

          The claim was submitted and the ALJ first considered Morrow’s burden to establish causation:

However, when a causal relationship between trauma and an injury is not readily apparent to laymen, the question is to be put before the medical experts. Mengel v. Hawaiian-Tropic Ne. & Cent. Distrib., Inc., 618 S.W.2d 184 (Ky. App. 1981).  Medical causation must be proved to a reasonable medical probability with expert testimony… [however] [i]t is the quality and substance of a physician’s testimony, not the use of particular ‘magic words,’ that determines whether it rises to the level of reasonable medical probability, i.e. to the level necessary to prove a particular medical fact.” Brown-Forman Corp. v. Upchurch, 127 S.W.3d 615, 621 (Ky. 2004).

 

     “Objective medical findings” are defined by KRS 342.0011(33) as being information gained through direct observation and testing of a patient, applying objective or standardized methods. In Gibbs v. Premier Scale Co., 50 S.W. 3d 754 (Ky. 2001), the Kentucky Supreme Court held that a diagnosis of a harmful change may comply with the requirements of KRS 342.0011(1) and (33) if it is based on symptoms which are documented by means of direct observation and/or testing applying objective or standardized methods.  The Court in Staples, Inc. v. Konvelski, 56 S.W.3d 412 (Ky. 2001), concluded though that while objective medical evidence must support a diagnosis of a harmful change, it is not necessary to prove causation of an injury through objective medical findings.

 

     After a careful review of the evidence, this ALJ finds Plaintiff’s COPD and chronic bronchitis extremity are not related to his alleged occupational exposure to either chemical fumes or dust or an alleged acute event in March 2013. In making this determination, this ALJ found Plaintiff’s treatment records and respiratory studies to be thoroughly dispositive.

 

     From the outset, this ALJ notes Plaintiff is a poor historian, as noted by evaluating experts. This ALJ had considerable difficulty determining the actual onset of Plaintiff’s symptoms and respiratory difficulties. Plaintiff claims he did not have any respiratory difficulties/symptoms prior to March 2013; however, Plaintiff’s testimony is at odds with the treatment records. On June 17, 2013, Plaintiff presented to the emergency room at Kings’ Daughters’ Medical Center and reported coughing and wheezing with an undetermined onset. Dr. Thorrarinsson suspected an exacerbation of COPD. Dr. Thorrarinsson noted a history of shortness of breath since 2005. On July 3, 2013, Plaintiff presented to Kings’ Daughters’ Medical Center for Pulmonary Medicine. Dr. Thorrarinsson noted Plaintiff was diagnosed with COPD a few years ago, and had spirometry testing completed which showed very severe obstructive lung disease. Physicians diagnosed severe COPD, tobacco abuse, and abdominal swelling.

 

     Dr. Rosenblum was adamant that Plaintiff’s breathing problems started in March 2013 and persisted; however, as set forth above, that is not what the treatment records indicate. There is evidence of a COPD diagnosis in 2005 with accompanying respiratory symptoms. Understandably, this did not make sense to Dr. Rosenblum because there were pieces of the puzzle he was not privy to (i.e. Plaintiff’s prior COPD diagnosis). Upon further questioning, Dr. Rosenblum obtained a history of a fluid spill when a hose was removed from a generator. Plaintiff continued working but reported breathing difficulties that night. However, Plaintiff sought treatment on numerous occasions and failed to disclose this work event. This incident was not reported on March 17, 2013, March 20, 2013, June 17, 2013, August 2, 2013, and December 8, 2013. The first notation regarding this spill was made on July 8, 2016, when Plaintiff presented to Dr. Rosenblum.

 

     KRS 342.315(2) provides the clinical findings and opinions of the designated evaluator shall be afforded presumptive weight by Administrative Law Judges and the burden to overcome such findings and opinions shall fall on the opponent of that evidence. After a careful review of record and consideration of the totality of the evidence, this ALJ finds cause to reject Dr. Rosenblum’s causation opinion. As noted above, Dr. Rosenblum failed to note or address Plaintiff’s previous diagnosis of COPD in 2005. Importantly, Plaintiff reported significant symptoms in 2005 including coughing fits, which caused him to pass out and only being able to walk approximately 100 feet. Dr. Rosenblum’s causation opinion is largely based upon the history Plaintiff’s provided, which is not corroborated by the treatment records. Plaintiff’s failure to disclose a history of an acute chemical spill is a dubious event that casts dispersion upon the veracity of his alleged injury. As such, this ALJ finds reason to doubt the history Plaintiff provided to Dr. Rosenblum, as the chemical spill was never documented prior to July 2016.

 

     Plaintiff has a history of cigarette smoking which he denies. Plaintiff claims he stopped smoking cigarettes in his early 20s; however, the treatment records simply do not support this claim. On numerous occasions, medical personnel and/or physicians noted Plaintiff reported a history of cigarette use. On June 17, 2013, Plaintiff reported to Kings’ Daughters’ that he was an everyday smoker for 20 years. Likewise, on July 3, 2014, Plaintiff reported a long-standing history of cigarette use to personnel at Kings’ Daughters. Dr. Rosenblum failed to address Plaintiff’s long-standing cigarette use; however, Dr. Zaldivar noted objective findings during his evaluation consistent with ongoing cigarette smoking after measuring carbon monoxide levels in Plaintiff’s blood. Dr. Rosenblum’s failure to address Plaintiff’s long-standing cigarette use is further grounds to reject his causation opinion.

 

     This ALJ is fully cognizant of Dr. Thorrarinsson’s diagnosis of industrial chronic bronchitis; however, as set forth above this ALJ is convinced Plaintiff’s was diagnosed with COPD in 2005. This ALJ is not convinced Plaintiff sustained an aggravation/exacerbation of this condition as a result of any alleged occupational exposure based upon Plaintiff’s benign respiratory studies.

 

     Dr. Zaldivar’s ultimate diagnosis was COPD, which resulted from Plaintiff’s chronic cigarette smoking. This ALJ adopts Dr. Zaldivar’s causation opinion on this issue. Moreover, Dr. Zaldivar noted only mild airway obstruction, which is consistent with Plaintiff’s objective diagnostic respiratory studies. Thus, Plaintiff’s claim for benefits resulting from alleged exposure to chemical fumes and dust, as well as, Plaintiff’s alleged March 2013 injury, is dismissed with prejudice.

 

     Morrow petitioned for reconsideration, arguing he had no previous diagnosis of COPD and that Dr. Rosenblum was not afforded presumptive weight as the university evaluator. The ALJ provided the following additional analysis:

     This ALJ notes Plaintiff had significant breathing abnormalities prior to his onset of an alleged occupational disease or allegation of a specific injury. On July 3, 2013, Plaintiff presented to Nurse Practitioner Anna Bayes upon referral from King's Daughters Medical Center for COPD. Plaintiff’s symptoms included shortness of breath, occasional wheezing and abdominal swelling. Plaintiff described a dry hacky cough with sputum and several COPD exacerbations per year. It was noted Plaintiff underwent spirometry testing a few years ago which indicated very obstructive lung disease. This treatment note clearly indicates Plaintiff reported a previous history of COPD and significant symptoms. These symptoms occurred prior to Plaintiff’s alleged occupational disease. Moreover, Plaintiff denied treatment for breathing or lung problems prior to the alleged work accident. Plaintiff’s denial is in stark contrast to the history obtained by medical professionals on July 3, 2013. In order for Plaintiff to prevail in this claim, this ALJ must find his testimony regarding the onset of symptoms to be credible. After reviewing the evidence, this ALJ noted evidence, which did not support Plaintiff’s testimony.

 

     This ALJ considered the opinions of Dr. Rosenblum and notes the opinions of a university evaluator are entitled to presumptive weight pursuant to KRS 342.315 and 342.316. Dr. Rosenblum noted Plaintiff’s breathing problems began in March 2013; however, this is not consistent with Plaintiff’s treatment records. Dr. Rosenblum’s causation opinion was based heavily on the history provided by Plaintiff. As set forth above, Plaintiff’s testimony is at odds with the treatment records. This ALJ found reason and cause to doubt the history Plaintiff provided to Dr. Rosenblum and rejected Dr. Rosenblum’s causation opinion.

 

     On appeal, Morrow argues the ALJ failed to afford Dr. Rosenblum’s opinion presumptive weight as the university evaluator.  He additionally challenges the ALJ’s statement that he was diagnosed with COPD in 2005, arguing there is not documentation of such diagnosis in the record.

     Morrow’s claim for occupational disease was referred to Dr. Rosenblum for a university evaluation.  A university evaluation is, “afforded presumptive weight by administrative law judges and the burden to overcome such findings and opinions shall fall on the opponent of that evidence.” KRS 342.315(2).  The ALJ must state with specificity the reason a university evaluation is rejected. Id.  Therefore, the presumption afforded the university evaluator is rebuttable.  

     After a thorough review of the proof submitted, we conclude the ALJ acted within her discretion to reject Dr. Rosenblum’s opinion.  Further, the ALJ’s opinion demonstrates a very thorough understanding of the proof, and a sufficiently detailed explanation of her reasoning.

     The ALJ set forth several shortcomings she discerned in Dr. Rosenblum’s report, primarily centering on the history provided by Morrow concerning the onset of his symptoms.  She noted the history he received contradicted medical histories provided to other providers.  There is no documentation or evidence of a chemical spill, which Morrow reported to Dr. Rosenblum.  Morrow’s statements to other medical providers, as well as his blood carbon monoxide levels, support longer and higher levels of tobacco use than he reported to Dr. Rosenblum.  The chest x-rays and CT scans performed in 2013 were negative for pulmonary disease, a fact Dr. Rosenblum did not acknowledge in his report. Morrow denied treatment for shortness of breath to Dr. Rosenblum, which belies the medical records submitted.

     The fact there is no proof in the record documenting a prior diagnosis of COPD does not render the ALJ’s conclusions invalid.  The ALJ identified several reasons she was convinced Morrow’s COPD pre-dated the alleged work incident, including statements from Dr. Thorarinsson, Nurse Bayes, and Morrow’s own statements to Dr. Rosenblum.  Contrary to Morrow’s assertions on appeal, the ALJ did not rely on a prior COPD diagnosis to reject Dr. Rosenblum’s opinion.  Rather, these circumstances serve as the basis for the ALJ’s conclusion Morrow’s symptoms began earlier than 2013, and support her conclusion that he was diagnosed with COPD earlier than he acknowledged.     

     Dr. Zaldivar’s medical opinion constitutes substantial evidence sufficient to rebut the presumption afforded to Dr. Rosenblum’s opinion.  The ALJ enjoys the discretion to conclude Dr. Zaldivar’s opinion sufficiently rebutted that of Dr. Rosenblum, and it is not the province of this Board to reweigh the evidence. 

     For the foregoing reasons, the July 24, 2017 Opinion and Order, and the December 15, 2017 Order on Reconsideration rendered by Hon. Stephanie L. Kinney, Administrative Law Judge, are hereby AFFIRMED.    

          ALL CONCUR.

COUNSEL FOR PETITIONER:

 

HON KENNETH C SMITH, III

1416 WINCHESTER AVE

ASHLAND, KY 41101

 

COUNSEL FOR RESPONDENT:

 

HON WALTER WARD

333 W VINE ST

SUITE 1100

LEXINGTON, KY 40507

 

ADMINISTRATIVE LAW JUDGE:

 

HON STEPHANIE L. KINNEY

ADMINISTRATIVE LAW JUDGE

PREVENTION PARK

657 CHAMBERLIN AVENUE

FRANKFORT, KY 40601