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January 15, 2016 201285818

Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED:  May 4, 2018

 

 

CLAIM NOS. 201602800 & 201602798

 

 

STEVEN GRUNBAUM                                PETITIONER

 

 

 

VS.                         

APPEAL FROM HON. TANYA PULLIN,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

WALSH-VINCI

AND HON. TANYA PULLIN,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

AFFIRMING

 

                       * * * * * *

 

 

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

 

 

RECHTER, Member.  Steven Grunbaum (“Grunbaum”) appeals from the November 27, 2017 Opinion and Order and the January 3, 2018 Order rendered by Hon. Tanya Pullin, Administrative Law Judge (“ALJ”), dismissing his claims for alleged left shoulder and elbow injuries.  On appeal, Grunbaum argues the ALJ misinterpreted the report of Dr. Warren Bilkey, erred in dismissing his claims, and erred in failing to award, at a minimum, temporary total disability (“TTD”) and medical benefits for the left shoulder injury.  For the reasons set forth herein, we affirm.

          Grunbaum began working as a laborer for Walsh-Vinci (“Walsh”) in June 2015.  He indicated he was responsible for “the entire aspect of concrete work from rebar to forms to finish.”  His work also included loading and unloading trucks, performing carpentry tasks, and controlling traffic.  In his deposition, Grunbaum testified he began having problems with his left shoulder in January or February 2016 while using a heavy drill.  However, at the hearing he indicated the initial onset was in March 2016.  He testified his left elbow symptoms developed in July 2016, which he attributed to resting his body weight on his elbow to compensate for the shoulder condition.  Where the shoulder condition had developed gradually, Grunbaum testified to a specific event around August 10, 2016 when he was resting his weight on his elbow while kneeling to lay rebar.     

          On April 1, 2016, Grunbaum treated with Dr. Ryan Modlinski.  Grunbaum gave a history of an onset of left shoulder pain with gradual progression over the past 4 to 5 months.  He reported his pain was aggravated by his work, which involved heavy lifting, pulling, swinging hammers, and movement above shoulder height.  X-rays of the left shoulder were normal.  Dr. Modlinski diagnosed left shoulder pain, left subacromial bursitis, and left shoulder impingement syndrome with possible rotator cuff tear.  X-rays of the shoulder were normal.  Dr. Modlinski treated Grunbaum conservatively and administered an injection.  He also ordered an MRI, which was performed on April 27, 2016.  The MRI revealed mild bursitis with subtle tearing, but no tendon perforation or deep surface tear. 

          Grunbaum next sought treatment with Dr. Daniel Rueff of Ellis & Badenhausen Orthopaedics, PSC on June 20, 2016.  Grunbaum reported his left shoulder pain began in March 2016, which radiated down his arm and into his elbow.  Dr. Rueff reviewed the MRI and diagnosed left shoulder rotator cuff tendonitis and subacromial bursitis.  He ordered physical therapy and performed injections.  Grunbaum returned on July 18, 2016 and reported little improvement.

          At an August 12, 2016 appointment at Ellis & Badenhausen, Grunbaum was evaluated by Dr. Akbar Nawab.  He reported left elbow pain for the past week.  Grunbaum indicated his elbow had swelled a week earlier after he hit it on the panel of a car, but the pain increased three days prior while he was working on his hands and knees.  His left shoulder pain also persisted.  Dr. Nawab ordered x-rays of the left elbow, which were normal except for some soft tissue swelling.  Dr. Nawab provided a compression wrap for the left elbow. 

          On August 31, 2016, Grunbaum returned for a follow-up of his left elbow pain, which persisted.  Grunbaum reported there was a lot of fluid in the elbow, and a friend who is a nurse had aspirated his elbow at his home.  He was concerned because the elbow was swelling, and he had suffered several MRSA infections in the past.  Dr. Nawab confirmed the presence of MRSA and, the following week, performed an irrigation, debridement and bursectomy of the left elbow. 

          At follow-up visits through December 2016, Grunbaum reported improvement of his elbow pain but no improvement of his left shoulder pain.  Dr. Nawab eventually performed shoulder surgery on March 23, 2017 to repair a full tear of the rotator cuff.   

          Dr. Bilkey performed an independent medical evaluation (“IME”) on May 1, 2017.  He reviewed medical records from Drs. Modlinski, Rueff, and Nawab, as well as MRI reports.  Grunbaum gave a history of a gradual onset of shoulder pain in April 2016.  He also reported elbow pain after attempting to compensate for the shoulder condition.  Dr. Bilkey noted, “Mr. Grunbaum understands from Dr. Nawab that indeed there was a massive rotator cuff tear that somehow the MRI scan did not show.” 

          Dr. Bilkey concluded Grunbaum sustained a left shoulder strain due to repetitive work/cumulative trauma.  He diagnosed impingement, bursitis, and rotator cuff tear.  Dr. Bilkey also accepted Grunbaum’s report of compensating for the shoulder injury by leaning on his elbow when kneeling.  Consequently, Dr. Bilkey concluded Grunbaum sustained a work-related left elbow strain/contusion and related MRSA septic olecranon bursitis.  Dr. Bilkey determined Grunbaum did not have an active impairment prior to the August 12, 2016 injury. 

          Dr. Bilkey placed Grunbaum at maximum medical improvement (“MMI”) for the elbow condition with no impairment rating pursuant to the American Medical Association, Guides to the Evaluation of Permanent Impairment, 5th Edition (“AMA Guides”).  He indicated Grunbaum is not at MMI for the left shoulder injury, but likely will have an impairment rating pursuant to the AMA Guides.  Dr. Bilkey noted the MRI performed post-injury was relatively benign.  Dr. Bilkey recommended Grunbaum remain off work until released by Dr. Nawab.  

          Dr. Ronald Burgess performed an IME on May 17, 2017.  Dr. Burgess noted Grunbaum initially stated he “had hit his elbow while working on a car, but in retrospect decided that that could not have been the problem, that it must have been work.”  Grunbaum denied having MRSA infections in the past.  He also denied having bursitis in his right elbow, and denied having his nurse friend aspirate his elbow.  Dr. Burgess placed Grunbaum at MMI for the elbow condition with a 0% impairment rating pursuant to the AMA Guides.  Dr. Burgess opined Grunbaum’s rotator cuff tear would have to have occurred after the first MRI of the shoulder, which showed only mild tendinopathy.  

          In a June 15, 2017 supplemental report, Dr. Burgess indicated Grunbaum is not at MMI for the shoulder.  Grunbaum likely disrupted his rotator cuff repair and needs evaluation with possible revision.  Dr. Burgess further explained his belief Grunbaum’s left elbow injury is unrelated to the left shoulder condition.  He challenged Dr. Bilkey’s opinion regarding the cause of the elbow condition, noting, “… you do not bear weight on your left elbow to take pressure off your left shoulder – you would put pressure on your right elbow.”  He added, “This statement is totally illogical and I do not feel that this [sic] his left olecranon bursitis is in any way related to his left shoulder.”  He noted placing weight on the elbow or the hand would transmit the same amount of force to the shoulder.  Dr. Burgess stated, within medical probability, Grunbaum’s olecranon bursitis occurred from a direct blow to the tip of the elbow while working on a car.  Dr. Burgess felt the aspiration of the elbow performed at Grunbaum’s house was the source of the infection.  Dr. Burgess indicated Grunbaum’s initial shoulder discomfort was related to work at Walsh, but a subsequent incident produced a massive rotator cuff tear after the April 27, 2016 MRI of the shoulder.  Grunbaum’s April 27, 2016 MRI showed only tendinitis.  Dr. Burgess did not have information as to the cause of the massive rotator cuff tear.

          Walsh submitted the May 15, 2017 deposition of Matt Williams, Grunbaum’s supervisor at Walsh.  Williams stated Grunbaum had not reported a work-related shoulder injury.  Rather, Grunbaum had indicated his shoulder complaints were due to his age and arthritis.  Grunbaum had never claimed a work-related elbow injury while employed by Walsh.    

          Yonna Heath, a project nurse with Walsh, testified by deposition on May 15, 2017.  She noted Grunbaum had asked for Ibuprofen on one occasion.  Heath asked Grunbaum if there was anything that needed to be reported.  Grunbaum replied the condition was “something I done [sic] prior to coming to work here, and it’s not Walsh’s problem.”  Grunbaum told her his elbow was injured when he struck it while working on a car.

          In the Opinion and Order, the ALJ discussed the conflicting opinions of Drs. Bilkey and Burgess regarding the cause of the elbow condition and found Dr. Burgess more persuasive, noting his opinion was more consistent with the treatment records.  The ALJ concluded Grunbaum failed to meet his burden of proving a work-related injury to the elbow. 

          After reviewing the opinions of the same physicians concerning the shoulder injury, the ALJ specifically noted Grunbaum was not credible, and the history Grunbaum provided to Dr. Bilkey was not a reliable basis for his diagnosis or medical opinion.  Therefore, the ALJ determined Grunbaum had not provided persuasive medical testimony to establish a work-related cumulative trauma injury to his left shoulder.  Accordingly, the ALJ dismissed the claims.   

          Grunbaum filed a petition for reconsideration making the same arguments he raises on appeal.  By order dated January 3, 2018, the ALJ overruled Grunbaum’s petition for reconsideration finding as follows:

     Dr. Burgess opined that Plaintiff’s rotator cuff tear “would have to have occurred after his MRI of the shoulder, which showed only mild tendinopathy. I do not know at what stage following that MRI and prior to the surgical procedure of March 17 that the massive rotator cuff tear occurred.” Consequently, Dr. Burgess attributed causation to a cause other than work.  While Dr. Bilkey said he reviewed copies of medical records from Dr. Griffin, Dr. Modlinsky [sic], Dr. Ponggruangporn, Dr. Rueff, Dr. Nawab, MRI scan results, an operative report and physical therapy treatment records, Dr. Bilkey specifically stated that his last treatment record from Dr. Nawab was March 2017, prior to Plaintiff’s shoulder surgery. In that last treatment record reviewed by Dr. Bilkey, Dr. Nawab stated that he felt Plaintiff continued to suffer from AC joint arthritis as well as a potentially small rotator cuff tear. Dr. Bilkey said that the operative report was not available for his review. As a result, Dr. Bilkey’s diagnosis of Plaintiff’s shoulder condition rested largely on the history given to him by Plaintiff including “Mr. Grunbaum understands from Dr. Nawab that indeed there was a massive rotator cuff tear with full detachment of the rotator cuff that somehow the MRI scan did not show.” In contrast, Dr. Burgess reported in more detail the medical records that he reviewed and Dr. Burgess did not rely upon the reports of Plaintiff to the extent that Dr. Bilkey did so. The ALJ reiterates that due to significant inconsistencies in Plaintiff’s sworn testimony and his reports to doctors compared to medical treatment records, for one example as to whether Plaintiff had ever had MRSA, the ALJ did not find Plaintiff’s testimony to be credible. Likewise, the ALJ found Dr. Bilkey’s opinion to be less persuasive than that of Dr. Burgess because Dr. Bilkey relied to a greater extent on Plaintiff’s reporting and history to come to his conclusions. While Dr. Bilkey did not rely solely upon Plaintiff’s history, he did so in large measure.  Therefore, as in Osborne v. Pepsi-Cola, 816 S.W. 2d 643 (Ky. 1991), the ALJ took into account other evidence and found Plaintiff’s testimony to be contradictory and an insufficient basis, therefore, for a medical opinion.  Rather than dismissing Dr. Bilkey’s medical opinion, the ALJ considered it and the medical opinion of Dr. Burgess and found the opinion of Dr. Burgess to be more persuasive as it was more consistent with the medical treatment records and did not rely on Plaintiff’s reports.

 

          On appeal, Grunbaum argues the ALJ erred in her interpretation of Dr. Bilkey’s opinions by finding his opinions and diagnoses were based solely on the history he received from Grunbaum.  Grunbaum notes Dr. Bilkey reviewed the medical evidence of record and specifically referenced that review in his IME report.  Grunbaum contends the ALJ failed to give adequate weight to Dr. Bilkey’s report.  Next, Grunbaum argues the ALJ erred in dismissing the claims because the entirety of the lay and medical evidence compels a finding he met his burden of establishing compensable work injuries to his elbow and shoulder.  He notes his work as a laborer was strenuous, and no other contributing factor is mentioned or suggested other than speculation that he injured his elbow by striking it in a car.  He further notes he had no previous injuries or symptoms that required him to seek medical attention.  Finally, Grunbaum argues he is entitled to at least a period of TTD and medical benefits.  Grunbaum bases the argument on the following statement in the Opinion and Order:

The course of treatment records from Drs. Modlinski and Nawab, consistently show that Plaintiff had left shoulder bursitis and left shoulder impingement syndrome and left shoulder pain. These are temporary, not permanent conditions, and do not constitute a “harmful change to the human organism” as required by the definition of “injury” in KRS 342.0011(1).

 

Grunbaum notes temporary injuries are compensable pursuant to Robertson v. UPS, 64 S.W. 3d 284 (Ky. 2001).

          As the claimant in a workers’ compensation proceeding, Grunbaum had 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) superseded by statute on other grounds as stated in Haddock v. Hopkinsville Coating Corp., 62 S.W.3d 387 (Ky. 2001).

          Causation is a factual issue to be determined within the sound discretion of the ALJ as fact-finder.  Union Underwear Co. v. Scearce, 896 S.W.2d 7 (Ky. 1995); Hudson v. Owens, 439 S.W. 2d 565 (Ky. 1969).  An ALJ is vested with broad authority to decide questions involving causation.  Dravo Lime Co. v. Eakins, 156 S.W. 3d 283 (Ky. 2003).  Where the evidence is conflicting, the ALJ, as fact-finder, has the discretion to pick and choose whom and what to believe.  Caudill v. Maloney’s Discount Stores, 560 S.W.2d 15 (Ky. 1977).  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 which otherwise could have been drawn from the record.  Whittaker v. Rowland, 998 S.W.2d 479, 481 (Ky. 1999).  So 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).

          Grunbaum’s argument on appeal is essentially an attempt to have the Board re-weigh the evidence, which we may not do.  The ALJ was well within her authority in finding the opinion of Dr. Burgess more persuasive than the opinion of Dr. Bilkey.  Because the record contained conflicting medical proof, it cannot be said the evidence compels a finding Grunbaum’s conditions are causally related to his employment with Walsh.  Because Walsh failed to meet his burden of proof on this threshold issue, the ALJ was within her discretion to dismiss the claim for cumulative trauma injuries.  Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000).

          We are convinced the ALJ properly understood and carefully considered Dr. Bilkey’s report.  Simply put, the ALJ weighed the contrasting opinions of Dr. Bilkey and Dr. Burgess and, as was her prerogative, found Dr. Burgess more persuasive.  The ALJ noted Grunbaum had communicated to Dr. Bilkey that Dr. Nawab felt the full tear was present after the work injury and did not show up on the first MRI.  However, Dr. Nawab’s records contain no such statement.  Dr. Burgess clearly stated the massive rotator cuff tear would have to have been the result of an incident after the first MRI, and it was not the result of the work injury.  Contrary to Grunbaum’s assertion, the ALJ on reconsideration specifically indicated Dr. Bilkey did not base his opinions solely on the history provided by Grunbaum.  The ALJ explained her rejection of Dr. Bilkey’s opinion was based in part on the history Grunbaum provided, but also upon her conclusion that Dr. Burgess’ opinions were more consistent with the medical treatment records.  The ALJ was well within her role as fact-finder in choosing the weight to be given the opinions of the physicians.  

          The evidence does not compel a finding that Grunbaum sustained a temporary cumulative trauma injury.  While the ALJ noted Grunbaum was diagnosed with temporary conditions of the shoulder, the ALJ did not find the temporarily symptomatic condition was work-related.  The mere fact that a worker experiences symptoms at work does not compel a finding that the work caused the symptoms or produced an injury.  The ALJ determined Grunbaum failed to produce any credible evidence of a work-related cumulative trauma injury.  The ALJ did not limit the finding to the question of whether Grunbaum had proven a permanent injury.  The record contains differing medical opinions addressing the cause of Grunbaum’s conditions.  The opinions of Dr. Burgess constitute substantial evidence supporting the ALJ’s determination that Grunbaum’s complaints and conditions are not casually related to his work activities at Walsh, and no contrary result is compelled.

          While Grunbaum has identified evidence supporting a different conclusion, there was substantial evidence presented to the contrary.  The ALJ acted within her discretion to determine which 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).

          Accordingly, the November 27, 2017 Opinion and Order and the January 3, 2018 Order rendered by Hon. Tanya Pullin, Administrative Law Judge, are hereby AFFIRMED.

          ALL CONCUR.

 

COUNSEL FOR PETITIONER:

 

HON CHED JENNINGS

401 W MAIN ST #1910

LOUISVILLE, KY 40202

 

COUNSEL FOR RESPONDENT:

 

HON MARK BUSH

250 GRANDVIEW DR #550

FT. MITCHELL, KY 41017

 

ADMINISTRATIVE LAW JUDGE:

 

HON TANYA PULLIN

ADMINISTRATIVE LAW JUDGE

PREVENTION PARK

657 CHAMBERLIN AVENUE

FRANKFORT, KY 40601