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May 18, 2018 201595827

Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED:  May 18, 2018

 

 

CLAIM NO. 201595827

 

 

MARY HARRIS AND

JOHNNIE TURNER                                 PETITIONER

 

 

 

VS.       APPEAL FROM HON. JONATHAN R. WEATHERBY,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

HARLAN CITY SCHOOL ASSOC. AND

HON. JONATHAN R. WEATHERBY,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

AFFIRMING IN PART,

VACATING IN PART & REMANDING

 

                       * * * * * *

 

 

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

 

ALVEY, Chairman.   Mary Harris (“Harris”) appeals from the September 15, 2017, Opinion and Order rendered by Hon. Jonathan R. Weatherby, Administrative Law Judge (“ALJ”).  At all times relevant, Harris worked for the Harlan County School Association (“Harlan”).  The ALJ dismissed Harris’ claim for low back, SI joint, legs, ankles, and feet injuries she allegedly sustained when she fell down multiple rows of bleachers after she was pushed on January 15, 2015 during a school assembly.  The ALJ also denied Harris’ petition for reconsideration in an order issued February 1, 2018.

On appeal, Harris essentially argues the ALJ erred in relying upon the opinions of Dr. Russell Travis in dismissing her claim.  She argues Dr. Travis only performed a records review and therefore his opinions cannot constitute substantial evidence supporting the ALJ’s dismissal of the claim.  We determine the ALJ’s dismissal of Harris’ claim for a permanent injury is supported by substantial evidence, and a contrary result is not compelled.  Therefore, we affirm in part.  However, we vacate in part, and remand for a determination of whether Harris sustained a temporary injury entitling her to an award of temporary total disability (“TTD”) benefits and medical benefits.  We additionally remand this claim to the ALJ to address Harlan’s motion to amend its stipulation regarding the correct periods of TTD benefits it voluntarily paid.

Harris filed a Form 101 on June 7, 2016 alleging she was pushed in the back after attending a school assembly on January 15, 2015.  This caused her to fall down bleachers, injuring her back, SI joint, legs, ankles and feet.  She acknowledged she had previously undergone a back surgery by Dr. William Brooks on May 7, 2014, and she was still taking Lortab on the date she fell.  Harris’ work history includes employment as a secretary, census taker, and bookkeeper.

Harris testified by deposition on August 22, 2016, and at the hearing held July 26, 2017.  She was born on September 29, 1956, and is a resident of Wallins, Kentucky.  On January 15, 2015, she was a secretary for Harlan, and maintained medical records for the students in the school system. 

Harris testified she had experienced low back and right leg pain for quite some time, eventually undergoing low back surgery in May 2014.  After the surgery, she had physical therapy, and stated her problems, except for stiffness, had resolved, although she continued to take Lortab for her pain.  On January 15, 2015, she was pushed in the back at a school assembly, and fell down several rows of bleachers or steps.  She landed on her right shoulder, and rolled onto her right hip.  She was taken to the nurse’s office because she had scraped her left shin, and her feet were swelling.  The nurse took her to see Dr. Dahaan[1], and she next treated with Mr. Eric Roberts, PA-C (“Mr. Roberts”) at the Clover Clinic.  Mr. Roberts referred her back to Dr. Brooks.  An MRI was taken in February 2015.  Dr. Brooks ordered injections, which did not provide much relief.  She stated she continues to experience a catch in her right hip and has right leg pain.

Harris attempted to return to work for Harlan from April 27, 2015 through May 12, 2015.  She testified she was unable to work a full day during that period, and that she had to lie down multiple times per day due to her back pain.  She testified she continues to lie down three to four times per day depending upon her activities.  She stated she has difficulty driving due to right leg numbness.  She also continues to take two Lortabs per day.  She subsequently sustained an injury to her left leg in June 2016 when she stepped in an open water pipe, and had surgery in September 2015 for an another unrelated condition.

In support of her claim, Harris submitted multiple office notes from Dr. Brooks outlining treatment he provided from May 2014 through June 2015.  In his operative note dated May 7, 2014, Dr. Brooks stated he performed a discectomy at L4-5 on the right, a foraminotomy at L4-5, and an exploration of the axilla on the right at L4-5.  In his note dated February 24, 2015, Dr. Brooks noted Harris complained of radiating pain after she fell down some stairs.  He also noted she had continued to complain of intermittent pain since her May 2014 surgery, with right hip pain on rotation.  He diagnosed a musculoligamentous injury to the lumbar spine and left ankle.  He reviewed an MRI and noted surgery was not indicated.  He ordered physical therapy.  On April 23, 2015, he released Harris to return to work six hours per day with no lifting greater than ten pounds.

Dr. David Muffly, an orthopedic surgeon, evaluated Harris at her attorney’s request on July 27, 2016.  He noted the history of Harris falling down the bleachers on January 15, 2015, injuring her low back, SI joint and sustaining left leg contusions.  He also noted her history of low back pain for years prior to the incident, increasing in 2013.  He also noted the surgery performed by Dr. Brooks in 2014.  Harris complained of low back pain radiating into both her left and right legs, tingling in her toes, after the January 2015 fall. 

In his report dated July 27, 2016, Dr. Muffly stated as follows:

Assessment:  I have concern for recurrent disc herniation L4-5 after injury on 1-25-2015 as documented by MRI performed after her injury.  She has chronic right sacroiliac pain after the 1-15-2015 injury.  She has chronic low back pain with exacerbation by the 1-15-2015 injury.

 

Impairment is 16% to the whole person.  There is 13% impairment lumbar spine Category DRE III.  There is 3% impairment right sacroiliac joint using Chapter 18.  The 5th Edition AMA Guidelines are used.  I would consider the lumbar spine to have 10% pre-existing active impairment prior the 1-15-2015 injury but no restrictions were present.  There is 6% impairment directly related to the 1/15/2015 injury and restrictions are required after this injury.

 

Permanent restrictions are 10 pounds of lifting.  Can only work 6 hours per 8 hour day.  Must be able to change position as needed.  I do not think she can return to her prior occupation.  Additional spine surgery may be necessary.

 

Dr. Muffly testified by deposition on April 26, 2017.  He stated he had reviewed the reports of Dr. Travis and Dr. Henry Tutt who evaluated Harris at Harlan’s request.  He stated he disagreed with their conclusions.  He stated Harris has a 6% impairment rating due to the January 15, 2015 work injury.  He agreed she had some sacroiliac problems prior to January 15, 2015.  Dr. Muffly admitted he did not actually review the MRIs taken in either 2014 or 2015, nor did he review the x-rays.  He stated he relied upon the interpretations provided by the radiologists in their reports.  Dr. Muffly stated Harris had problems with spondylosis and retrolisthesis prior to January 15, 2015, and she had taken Lortab for her back from the time she returned to work in September 2014 through the January 15, 2015 incident.

Harlan filed Dr. Brooks’ treatment records from February 6, 2014 through August 5, 2014, outlining Harris’ treatment and recovery from her previous low back condition and surgery.  The June 2, 2014 and July 31, 2014 notes reflect Harris continued to have problems with some radiating right leg and right hip pain.  The August 5, 2014 note reflects she continued to experience sacroiliac pain and right hip pain with rotation. 

Dr. Tutt evaluated Harris at Harlan’s request on February 5, 2016.  He noted she complained of low back, right hip and right leg pain.  She also complained of tingling and numbness in her right foot.  She reported she spontaneously developed low back pain radiating to her right hip for which Dr. Brooks performed surgery in May 2014.  She provided the history of falling down four to five steps/bleachers on January 15, 2015.  She reported she subsequently developed moderately severe low back pain radiating into her right leg and hip.  She returned to Dr. Brooks who referred her to Dr. Sanjov Dubal for pain management treatment. 

Dr. Tutt determined Harris does not have gluteal tendonitis involving either hip.  He stated her complaints correlate with longstanding lumbar degenerative changes.  He particularly found she has significant foraminal stenosis, actively symptomatic prior to the work event, not exacerbated by it.  He also found her lumbar spondylosis without myelopathy or radiculopathy is longstanding, pre-existing, and was actively symptomatic prior to the January 15, 2015 work event.  He opined there is no evidence her conditions were exaggerated in any way relative to the January 15, 2015 work event.

Harlan filed a supplement to Dr. Tutt’s report.  He noted Harris had reached maximum medical improvement from any lower extremity contusions four to six weeks after work event.  He found she needs no additional treatment for that condition, and there is no evidence she sustained a permanent injury due to the January 15, 2015 fall.  He opined she has a 10-13% impairment rating pursuant to the 5th Edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (“AMA Guides”), all of which is due to her pre-existing active lumbar condition.  He additionally stated he would impose no restrictions due to her lower extremity contusions.

Dr. Travis performed a records review, and prepared a report dated November 25, 2016.  In addition to her medical records and Dr. Muffly’s report, Dr. Travis reviewed Harris’ 2014 and 2015 MRIs.  He opined she sustained no additional lumbar or sacroiliac injury when she fell on January 15, 2015.  He stated she has a 10% impairment rating pursuant to the AMA Guides due to her pre-existing active condition stemming from her 2014 surgery, with no new impairment from the January 15, 2015 incident.  Dr. Travis noted Dr. Muffly did not actually review the MRI scans.  He also opined any treatment rendered by Dr. Dubal is unrelated to the January 15, 2015 incident.

Harlan also filed a Form 112 medical dispute asserting Dr. Dubal’s treatment was not medically necessary for the January 15, 2015 incident.  In support of this dispute, Harlan filed the utilization review report of Dr. John Rademaker.  Dr. Rademaker specifically stated right sacroiliac joint injections are not medically necessary.

A Benefit Review Conference was held on July 13, 2017.  The issues preserved were whether Harris sustained a work-related injury on January 15, 2015; capacity to return to the type of work performed at the time of the injury; benefits per KRS 342.730; unpaid or contested medical expenses; work-relatedness/causation; exclusion for pre-existing disability/impairment; and Harris’ entitlement to vocational rehabilitation benefits.

The ALJ issued an Opinion and Order on September 25, 2017, dismissing Harris’ claim.  The ALJ relied upon the opinions of Drs. Tutt and Travis in support of his decision.  He stated he found Dr. Tutt was persuasive and convincing in his opinion Harris suffered from a longstanding, pre-existing lumbar condition, which he determined was not exaggerated by the January 15, 2015 incident.  He noted Dr. Travis echoed this opinion, and determined Harris had severe degenerative conditions in her lumbar spine at L4-5 and L3-4 prior to the incident.  He stated he also found convincing Dr. Travis’ criticism of Dr. Muffly who was unable to review the August 5, 2014 MRI.  The ALJ determined Harris did not suffer any permanent structural alteration of the human organism due to the work injury.  He also determined her pre-existing active conditions were not affected by the work incident.

Harris filed a petition for reconsideration, arguing the ALJ referenced an incorrect employer in his decision.  She also argued the ALJ erred in relying on Dr. Travis’ opinions because he performed only a records review.  Finally, Harris argued the evidence overwhelmingly establishes she sustained a work-related injury for which she is entitled to income and medical benefits.  The ALJ denied the petition for reconsideration in an order dated February 1, 2018.  The ALJ determined Harris had no permanent structural alteration of the human organism.

On appeal, Harris argues the ALJ’s decision is not supported by substantial evidence.  She essentially argues a contrary result is compelled, and she is entitled to income and medical benefits.

          As the claimant in a workers’ compensation proceeding, Harris had the burden of proving each of the essential elements of her cause of action.  Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979).  Since she 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 supporting a different outcome than 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 which 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).

          It is undisputed Harris had unrelated lumbar surgery 2014 for which she continued to have some symptoms, and for which she continued to treat with Lortab through the time of the January 15, 2015 incident.  Likewise, it is undisputed she was pushed in the back while leaving a school assembly on January 15, 2015 which caused her to fall down four to five bleachers or steps, suffering at a minimum some leg scrapes, contusions and abrasions.   

          Harris essentially requests this Board to re-weigh the evidence, and substitute its opinion for that of the ALJ, which we cannot do.  Whittaker v. Rowland, supra.  Regarding the dismissal of Harris’ claim for permanent injuries stemming from the January 15, 2015 incident, we determine it was the ALJ’s prerogative to rely upon the opinions of Drs. Tutt and Travis.  Harris merely points to conflicting evidence supporting a more favorable outcome, and argues why the ALJ should not have relied upon the opinions of Dr. Travis.  These arguments go to the weight of the evidence, and do not constitute an adequate basis to reverse on appeal.  McCloud v. Beth-Elkhorn Corp., supra.  Therefore, we affirm the ALJ’s dismissal of Harris’ claim for permanent injuries stemming from the January 15, 2015 incident.

          However, since the rendition of Robertson v. United Parcel Service, 64 S.W.3d 284 (Ky. 2001), this Board has consistently held it is possible for an injured worker to establish a temporary injury for which temporary benefits may be paid, but fail to prove a permanent harmful change to the human organism for which permanent benefits are payable.  In Robertson, the ALJ determined the claimant failed to prove more than a temporary exacerbation and sustained no permanent disability because of his injury.  Therefore, the ALJ found the worker was entitled to only medical expenses the employer had paid for the treatment of the temporary flare-up of symptoms.  The Kentucky Supreme Court noted the ALJ concluded Robertson suffered a work-related injury, but its effect was only transient and resulted in no permanent disability or change in the claimant's pre-existing spondylolisthesis.  The Court stated:

Thus, the claimant was not entitled to income benefits for permanent partial disability or entitled to future medical expenses, but he was entitled to be compensated for the medical expenses that were incurred in treating the temporary flare-up of symptoms that resulted from the incident.  Id. at 286.

 

          The ALJ determined Harris did not sustain permanent injuries due to the January 15, 2015 fall.  However, he did not address whether she sustained temporary injures.  We note Harlan paid some medical bills, and multiple periods of TTD benefits.  Therefore, we must remand for an additional  determination regarding whether Harris sustained a temporary injury due to the January 15, 2015 work incident, and whether she is entitled TTD benefits and medical benefits, either temporary or permanent, for a temporary injury.  The ALJ may make any determination he deems appropriate as long as it is supported by the evidence.  We direct no particular result.

          We additionally note that on August 22, 2017, Harlan filed a motion to amend its stipulation regarding the correct periods it had paid TTD benefits.  The amendment reflects it paid TTD benefits from January 15, 2015 through January 19, 2015; January 22, 2015 through April 26, 2015; and from May 6, 2015 through February 22, 2016.  However, the ALJ did not address this motion, and reflected the incorrect dates in his opinion.  Therefore, on remand, the ALJ must make a determination regarding Harlan’s motion.

          Accordingly, the September 25, 2017 Opinion and Order, and the February 1, 2018 order ruling on Harris’ petition for reconsideration are AFFIRMED to the extent her claims for permanent injuries to her low back are dismissed. We VACATE the decision and order, in part, and REMAND for a determination regarding whether Harris sustained temporary injuries due to the January 15, 2015 incident, and to reflect the correct dates of TTD benefits Harlan voluntarily paid, consistent with the views set forth herein.

          ALL CONCUR.

 

 

COUNSEL FOR PETITIONER:

 

HON JOHNNIE L TURNER

PO BOX 351

HARLAN, KY 40831

 

COUNSEL FOR RESPONDENT:

 

HON W BARRY LEWIS

PO BOX 800

HAZARD, KY 41702

 

ADMINISTRATIVE LAW JUDGE:

 

HON JONATHAN R WEATHERBY

657 CHAMBERLIN AVE

FRANKFORT, KY 40601

 



[1]  No first name provided.