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May 11, 2018 201573950

Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED:  May 11, 2018

 

 

CLAIM NO. 201573950

 

 

EVELYN EAGLE                                   PETITIONER

 

 

 

VS.        APPEAL FROM HON. MONICA RICE-SMITH,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

SOURCEHOV HOLDING, INC.

and HON. MONICA RICE-SMITH,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

AFFIRMING IN PART, VACATING IN PART,

AND REMANDING

                       * * * * * *

 

 

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

 

STIVERS, Member. Evelyn Eagle (“Eagle”) appeals from the January 19, 2018, Opinion and Order of Hon. Monica Rice-Smith, Administrative Law Judge (“ALJ”) in which the ALJ dismissed Eagle’s claim against Sourcehov Holding, Inc. (“Sourcehov”) for failing to establish she sustained an injury as defined by the Act. On appeal, Eagle asserts the ALJ failed to conduct a proper analysis regarding a pre-existing, active condition.

          The Form 101 alleges Eagle sustained work-related injuries to her neck and lower back, as well as bilateral carpal tunnel syndrome on June 11, 2015, in the following manner: “The Plaintiff was lifting boxes weighing 35-40 pounds all day. The Plaintiff attempted to lift a box of similar weight and felt immediate pain in her neck and back; Had numbness and tingling in the upper extremities and hands.”

          Eagle filed a motion to amend her Form 101 to add a psychological injury which was sustained by order dated June 27, 2017.

          The November 20, 2017, Benefit Review Conference Order (“BRC Order”) and Memorandum lists the following contested issues: work-related injury, medical expenses unpaid or contested, physical capacity to return to the type of work performed at time of injury, exclusion for pre-existing impairment, and permanent income benefits per KRS 342.730 including multipliers. Under “other contested matters” is the following: “Injury as defined by the Act. TTD, PPD, PTD. Liability for unpaid and contested medical expense. Duration of benefits, whether all physicians impairments are in conformity with the AMA 5th Guides.”

          Sourcehov introduced the August 21, 2017, Independent Medical Examination (“IME”) report of Dr. John Vaughan. After performing a physical examination and a medical records review, Dr. Vaughan provided the following impression:

My diagnoses for cervical condition are cervical spondylosis (degenerative changes), and status post cervical fusion C6-7 by history.

 

My diagnosis for lumbar condition is lumbar spondylosis (degenerative changes).

 

I do not believe her painful complaints or the diagnosis of cervical spondylosis or lumbar spondylosis are caused by the work incident of 6/11/15. I believe these were active pre-existing conditions as documented in her medical records. I base this on the fact that she had multiple visits immediately before her work incident with Ms. Ruth Ann Combs in which she was having chronic lower back and neck problems. As noted in Review of Medical Records, she had multiple different medications for these chronic problems.

 

I do not believe there is any objective evidence of a harmful change to the human organism caused by the work incident of 6/11/15. At best, the work incident may have caused a temporary exacerbation of a pre-existing active condition in her neck and lower back. Also, the reports of her lumbar and cervical MRIs only showed normal age-related degenerative changes.

          Dr. Vaughan assessed an impairment rating for Eagle’s pre-existing, active condition explaining:

Regardless of causation, I would assign a 25% impairment rating to the cervical spine. This is due to the fact that she has had a cervical fusion. This is a Cervical DRE Category IV according to the Fifth Edition, AMA Guidelines. I would not attribute this to the work incident of 6/11/15. I believe this was a pre-existing active condition. This is demonstrated by her medical records.

 

On my examination today, she had a full range of motion of her lower back. She has a 0% impairment to her lumbar. This is a Lumbar DRE Category I. I base this on no neurologic deficit and a full range of motion. Also, her objective studies of just a bulging disc at L5-S1 is a normal age-related degenerative finding. I do not believe there was any objective change to her lumbar as a result of the work incident of 6/11/15.

 

I do not believe she needs active ongoing medical treatment to her cervical or lumbar as a result of the work incident of 6/11/15. I believe any need for ongoing treatment was pre-existing and active before this work accident. This is demonstrated by medical records of Ms. Ruth Ann Combs which show extensive pre-existing medical treatment. I believe a large part of her remaining symptoms are also associated with her fibromyalgia, which was a pre-existing active condition.

 

I reviewed the opinions of Dr. Warren Bilkey. I would agree that she has a DRE Category IV impairment regarding cervical. Our difference of opinion is causation. I believe this was a pre-existing active condition and not due to the alleged work injury of 6/11/15. Dr. Bilkey also assigned a sacral dysfunction of 8%. I disagree on this and the causation. I base this on the fact that Ms. Ruth Ann Combs noted multiple times, prior to the alleged work injury, that she was having sacroiliac pain and required significant treatment for this. This is all documented in the medical records. She was also noted to have numbness in both hands, and positive Phalen’s and Tinel test before the work injury. This shows her carpal tunnel was a pre-existing active condition.

 

Dr. El-Kalliny also assigned a DRE Category of impairment for cervical. I believe this is reasonable, but a pre-existing active condition not related to the work incident. I believe the carpal tunnel and lumbar spine impairments were also pre-existing and active as documented by the medical records.

          Dr. Vaughan concluded Eagle can return to light and medium duty job activities. 

          Sourcehov also introduced the October 20, 2015, IME report of Dr. Ellen Ballard. After performing an examination and medical records review, Dr. Ballard set forth the following diagnosis: “History of diffuse spinal complaints with no objective findings.” Dr. Ballard then answered the following questions:

1.      What is the current diagnosis as relates to work injury?

 

See above.

 

2.      Is this diagnosis a direct result of his/her employment and consistent with the described mechanism of injury? If so, please provide rationale.

 

No, in my opinion, her present complaints cannot be related to a specific work injury. She does have a history of fibromyalgia.

 

3.      Are further diagnostics indicated? If yes, then please specify.

 

No, she does not require further diagnostics.

 

4.      What is the recommended treatment plan? Please be specific in terms of duration and frequency.

 

She does not require any further treatment as regards a [sic] June 11, 2015, incident.

 

5.      Are there any medical restrictions? If so, please specify, along with their anticipated duration.

 

She has no medical restrictions as regards a [sic] June 11, 2015, incident.

 

6.      Has maximum medical improvement been obtained? If not, what is the anticipated time frame to achieve maximum medical improvement?

 

In my opinion, she is at maximum medical improvement.

 

7.      Is there a PPI rating for the work injury of 6/11/15?

 

There is no evidence that she has an impairment rating for the work injury of June 11, 2015, other than 0% per the Fifth Edition of the AMA Guides.

          In the January 19, 2018, Opinion and Order, the ALJ set forth the following findings of fact and conclusions of law:

1. The facts as stipulated by the parties.

2. Injury as defined by the Act - Work-relatedness/Causation.

     “Injury” is statutorily defined in KRS 342.0011(1) as a work-related traumatic event or series of traumatic events, including cumulative trauma, arising out of and in the course of employment, which proximally causes a harmful change in the human organism evidenced by objective medical findings. “Objective medical findings” is defined by KRS 342.0011(33) as information gained through direct observation and testing of the patient, applying objective or standardized methods. In Gibbs v. Premier Scale Co./Indiana 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 upon symptoms which are documented by means of direct observation and/or testing applying objective or standardized methods. See also Staples, Inc. v. Konvelski, 56 S.W.3d 412 (Ky. 2001), in which the Court held that while objective medical evidence must support a harmful change diagnosis, it is unnecessary to prove causation of any injury through objective medical findings.

     Based on Eagles [sic] treatment records, the ALJ finds that Eagle has failed to prove she sustained a harmful change in the human organism as a result of the work-related injury on June 11, 2015. The treatment records of Ruth Combs, APRN establish Eagle had the same complaints and received treatment for the same complaints prior to the work injury. Further, Eagle’s testimony regarding this prior treatment is inconsistent with the medical treatment records.

     Eagle treated with Ruth Combs, APRN, at Dr. Lester’s office from April 8, 2013 through April 27, 2015. When Eagle began treatment on April 8, 2013, she complained of right leg, lower back and neck pain. She described the pain as constant. She reported numbness and tingling in her hands, legs and feet. Throughout her treatment with Ms. Combs, she continued to have these complaints. On August 28, 2014, she complained of increased hip and right leg pain, as well as neck pain and tingling in her left upper extremity to her fingers. On that date, Ms. Combs noted positive Tinel’s and Phalen’s tests. She also noted tenderness from the L4-S1 and the lumbar paraspinal muscles and right SI and Gluteal paraformis muscles. Eagle was diagnosed with fibromyalgia and diffuse muscle pain. On multiple occasions, Ms. Combs noted sacroiliac pain. Ms. Combs treated Eagle for these complaints and diagnoses through April 27, 2015.

     When Eagle presented to Dr. Rowe on June 26, 2015 following the work injury, she report [sic] constant low back pain radiating down both legs. She also complained of neck pain with some numbness and paresthesia in the hands. When she initiated treatment with Dr. El-Kalliny, she described the same symptoms. She reported low back pain radiating to the lower extremities and neck pain that radiates into the upper extremity worse on the left with paresthesias in all fingers.

     Further, Eagle’s testimony regarding her treatment prior to the work injury is inconsistent with what she reported in the treatment records from Dr. Lester’s office. At her deposition and hearing, she testified she had minor pain in her neck and low back before the work injury. However, her intake form from Dr. Lester’s office describes her low back and neck pain very differently. She described the pain as constant. She reported the pain was affecting her ability to sit. She could only stand for minutes. She could walk very little. She indicated her activities were affected by her current problems. She advised she could only safely lift 20 pounds. Eagle’s testimony downplays the pain she described at the time of her treatment with Ms. Combs at Dr. Lester’s office. She testified she did not remember having any pain in her arms prior to the work injury. Yet the notes from Dr. Lester’s office document pain and paresthesias in her arms and fingers. Her intake form completed in 2013 describes the same problems she reported having after the work injury.

     Although Dr. El-Kalliny and Dr. Bilkey opined Eagle’s low back, neck and carpal tunnel conditions and her treatments including the surgeries were related to her work injury, neither had the prior treatment records from Dr. Lester’s office. Further, despite having performed the cervical surgery, Dr. El-Kalliny on multiple occasions advised Eagle’s was not a surgical case. He noted on March 24, 2016 that the MRI did not reveal anything surgical. Following the updated MRI of July 11, 2016, he noted the MRI revealed no cord compression and no change. Again, on August 4, 2016, Dr. El-Kalliny advised he would not recommend Eagle for surgical procedure on the cervical or lumbar spines. It is then strange and concerning to this ALJ that Dr. El-Kalliny three months later with no additional imaging studies or objective changes does a “complete 180” and performs a cervical fusion on Eagle.

     Based on the forgoing, the ALJ is persuaded by the opinion of Dr. Vaughn [sic]. Dr. Vaughn [sic] opined there is no objective evidence of a harmful change to the human organism caused by the work injury on June 11, 2015. He opined there was no need for permanent restrictions due to the work injury. He further opined any ongoing treatment is due to the pre-existing and active conditions. He felt a large part of Eagles [sic] symptoms are related to her pre-existing fibromyalgia.

     Similarly, Dr. Ballard opined Eagle’s complaints were not related to the specific work injury. She performed nerve conduction testing which revealed no evidence of nerve entrapment or cervical or lumbar radiculopathy. She found Eagle [sic] MMI as of October 20, 2015. She imposed no restrictions on Eagle. She opined there is no need for further diagnostics or treatment with regard to the work injury.

     Based on the foregoing, Eagle has failed to prove she sustained any work related injury as defined by the Act on June 11, 2015.

          No petition for reconsideration was filed.

          On appeal, Eagle asserts the ALJ failed to conduct the proper analysis regarding a pre-existing, active condition pursuant to Finley v. DBM  Technologies, 217 S.W.3d 261 (Ky. App. 2007). Eagle further asserts that, had a proper analysis been conducted, the record compels a finding in favor of no pre-existing, active condition. We disagree and affirm.

          We begin by noting Eagle did not file a petition for reconsideration from the January 19, 2018, Opinion and Order dismissing her claim. In the absence of a petition for reconsideration, on questions of fact, the Board is limited to a determination of whether there is any substantial evidence in the record to support the ALJ’s conclusion. Stated otherwise, where no petition for reconsideration was filed prior to the Board’s review, inadequate, incomplete, or even inaccurate fact-finding on the part of an ALJ will not justify reversal or remand if there is substantial evidence in the record supporting the ALJ’s ultimate conclusion. Eaton Axle Corp. v. Nally, 688 S.W.2d 334 (Ky. 1985); Halls Hardwood Floor Co. v. Stapleton, 16 S.W.3d 327 (Ky. App. 2000). Thus, our sole task on appeal is to determine whether substantial evidence supports the ALJ’s decision. We conclude it does.

          As the claimant in a workers’ compensation proceeding, Eagle had the burden of proving each of the essential elements of her cause of action, including injury as defined by the Act. Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979). Since Eagle 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 that they must be reversed as a matter of law. Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000).

          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 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). 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).

          We reject Eagle’s argument concerning the sufficiency of the ALJ’s analysis regarding the presence of pre-existing active disability. Here, the ALJ dismissed Eagle’s claim for failure to prove she sustained an injury as defined by the Act.  Even though the ALJ stated she was persuaded by Dr. Vaughan’s opinion, we believe she relied upon the opinions of Drs. Vaughan and Ballard in finding Eagle did not sustain a physical work injury. Thus, despite Eagle’s arguments to the contrary, the ALJ was not required to set forth any analysis regarding pre-existing, active disability. This is not a case where the ALJ was apportioning impairment between the work-related injury and a pre-existing active condition. Finley v. DBM Technologies, supra. Based upon the opinions of Drs. Vaughan and Ballard, the ALJ dismissed Eagle’s claim for benefits due to a failure to prove she sustained any work-related injury as defined by the Act on June 11, 2015. Therefore, any analysis of pre-existing, active disability pursuant to Finley, is unnecessary.      

          We also reject Eagle’s contention the parties stipulated in the BRC Order that a traumatic event happened during the course and scope of the employment. The BRC Order specifically notes the claim was contested because there was a “question of whether [sic] is an injury as defined by the Act.” Under the heading “Contested Issues,” “work-related injury” and “injury as defined by the Act” were listed as contested issues.

          Dr. Vaughan’s report constitutes substantial evidence supporting the dismissal of Eagle’s claim for physical injuries. In his report, Dr. Vaughan stated there was no objective evidence of a harmful change to the human organism caused by the work incident of June 11, 2015. Dr. Vaughan concluded Eagle did not sustain an injury on that date. Although he stated “at best” a work incident may have caused a temporary exacerbation of a pre-existing active condition in the neck and lower back, Dr. Vaughan also noted the reports of the lumbar and cervical MRI only showed normal age-related degenerative changes. Dr. Vaughan did not definitely opine the incident of June 11, 2015, caused a temporary exacerbation of a pre-existing active condition. More importantly, he did not attribute the 25% impairment rating he assessed due to the cervical fusion surgery to the work incident of June 11, 2015. In the same vein, since Eagle had a full range of motion in her lower back, Dr. Vaughan concluded she had a zero impairment rating to the lumbar spine. That fact combined with a finding of no neurological deficit led Dr. Vaughan to conclude there was no objective change to the lumbar region as a result of the work incident of June 11, 2015. Dr. Vaughan also concluded the bilateral carpal tunnel syndrome was not work-related, since Ruth Ann Combs’ medical records reveal Eagle had numbness in both hands and positive Phalen’s and Tinel tests before the work injury demonstrating the bilateral carpal tunnel syndrome was a pre-existing active condition.           

          Further, Dr. Ballard’s October 20, 2015, report alone constitutes substantial evidence in support of the ALJ’s decision to dismiss Eagle’s claim for failure to prove an injury as defined by the Act.      In her report, Dr. Ballard took a history and performed an examination on the cervical and lumbar spine. She specifically measured the right and left hand grip strength. As a result, she concluded Eagle’s complaints could not be related to a specific work injury. She also concluded there was no evidence Eagle had an impairment rating due to the June 11, 2015, work injury. Those opinions constitute substantial evidence supporting the ALJ’s determination Eagle did not sustain work-related injuries to her cervical and lumbar regions as well as work-related bilateral carpal tunnel syndrome.

          As substantial evidence supports the ALJ’s dismissal of Eagle’s claim for work-related physical injuries occurring on June 11, 2015, and the record does not compel a contrary result, we affirm the dismissal of Eagle’s claim for physical injuries.

          That said, Eagle asserts in her brief as follows:

     After directing the finding of a compensable work injury noted above, the Board must direct the ALJ to also make appropriate findings regarding any psychological component to her work injury. Eagle concedes this is not compelled at this point until the appropriate finding of a physical work injury is made. After this is accomplished, the ALJ must then also provide an award of appropriate benefits with the appropriate multiplier pursuant to KRS 342.730.

          Even though we are affirming the ALJ’s determination Eagle did not sustain work-related physical injuries, the claim must be remanded for disposition of Eagle’s claim for a psychological injury. Both parties introduced evidence concerning the alleged psychological injury and the ALJ failed to address the psychological injury claim.

          Sourcehov introduced the report of Dr. Timothy Allen who concluded Eagle has a 10% whole body impairment due to psychological causes. Dr. Allen attributed one-half to “pre-existing” and one-half “to the exacerbation caused by neck and wrist pain which is possibly (as determined by others) related to the injury of June 11, 2015.” Similarly, Dr. Dennis Sprague assessed a 20% impairment rating based on the 5th Edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment, which he attributed to the event of June 11, 2015. Since the ALJ permitted Eagle to assert a claim for a psychological injury, but did not address it in her decision, the claim must be remanded for entry of an amended opinion addressing Eagle’s claim for a psychological injury. Because we have no fact-finding authority, it is the ALJ who must resolve Eagle’s claim for a psychological injury and not this Board.

          Accordingly, the January 19, 2018, Opinion and Order finding Eagle failed to prove she sustained work-related cervical and lumbar injuries as well as work-related bilateral carpal tunnel syndrome as a result of the incident of June 11, 2015, is AFFIRMED. However, the dismissal in total of Eagle’s claim is VACATED. This claim is REMANDED to the ALJ for entry of an amended opinion resolving Eagle’s claim of a psychological injury due to the alleged injury of June 11, 2015.

          ALL CONCUR.

COUNSEL FOR PETITIONER:

HON LARRY ASHLOCK

236 W DIXIE AVE

ELIZABETHTOWN KY 42701

COUNSEL FOR RESPONDENT:

HON LYN POWERS

1315 HERR LN STE 210

LOUISVILLE KY 40222

ADMINISTRATIVE LAW JUDGE:

HON MONICA RICE-SMITH

657 CHAMBERLIN AVE

FRANKFORT KY 40601