Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED:  May 18, 2018

 

 

CLAIM NO. 201669016

 

 

CTA ACOUSTICS, INC.                            PETITIONER

 

 

 

VS.       APPEAL FROM HON. JONATHAN R. WEATHERBY,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

BARBARA MCDANIEL

and HON. JONATHAN R. WEATHERBY,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

AFFIRMING

                       * * * * * *

 

 

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

 

STIVERS, Member. CTA Acoustics, Inc. (“CTA”) appeals from the January 19, 2018, Opinion and Award and the February 28, 2018, Order ruling on CTA’s Petition for Reconsideration of Hon. Jonathan R. Weatherby, Administrative Law Judge (“ALJ”). The ALJ awarded Barbara McDaniel (“McDaniel”) temporary total disability (“TTD”) benefits, permanent partial disability benefits, and medical benefits. On appeal, CTA puts forth three arguments. First, CTA asserts the ALJ erred by finding a cumulative trauma injury based upon the testimony of Dr. Stephen Autry. Second, CTA asserts the ALJ erred in finding McDaniel did not have a pre-existing active impairment. Finally, CTA asserts it was error for the ALJ to award TTD benefits based upon Dr. Autry’s opinions regarding maximum medical improvement (“MMI”).

          The Form 101 alleges McDaniel sustained work-related injuries to “body systems and multiple body systems” on September 6, 2016, in the following manner: “Plaintiff was struck by forklift which slammed her into a nearby crate and to the ground, causing her injury.” 

          On March 10, 2017, McDaniel moved to amend her Form 101 to include injuries to her low back and left shoulder. McDaniel’s motion was sustained by order dated June 16, 2017.

          McDaniel testified at her March 10, 2017, deposition and at the November 28, 2017, hearing. At her deposition, McDaniel testified she has not returned to work since the September 6, 2016, injury. At the hearing, McDaniel testified that before the injury, she was working four 12-hour shifts per week. She further testified as follows:

Q: When – from, say, the end of 2015 up through 2016 until your injury in September of 2016, how was your back during that time?

 

A: It – it still hurt, but nothing like it’s hurting now.

 

Q: Were you missing work for any reason?

 

A: No.

 

Q: Were you working less than full duty?

 

A: No.

 

Q: Had you ever received complaints from supervisory in that year that you weren’t doing what you were supposed to do?

 

A: No.

 

Q: Okay. And, you were working your twelve hour shifts up until….

 

A: Yes.

 

Q: …September 6^th of 2016?

 

A: Yes.

          McDaniel introduced the May 24, 2017, Form 107 medical report of Dr. Stephen Autry. The “Plaintiff History” section of the Form 107 contains the following language:

Her job required walking twelve hours a day and lifting and inspecting parts weighing approximately 5 pounds. On the date of injury, she was struck by a container on a forklift causing her to hit her head on a crate and knock her down. There was no loss of consciousness but the plaintiff said she ‘hurt all over’ and had an anxiety attack. There was a past back pain history of approximately thirty years. The plaintiff stated that it was made twice as severe by the accident. She also notes that the pain prior to the accident was in the lower back alone and since the industrial accident [sic], has had pain radiating into the right leg with numbness. This will go into the thighs and all the way down to the toes on the left. She states the pain is at an 8/10. She has also had some neck pain but not severe and nonradiating and no increased [sic] with Valsalva maneuvers. Although she did not lose consciousness, she states that she hit her head significantly and, since the accident, has had tinnitus with the right side being worse than the left. This makes it difficult for her to think and get about comfortably. She did see an ear, nose and throat physician in February and is currently still awaiting workup for the tinnitus. She has had a past injury to her left shoulder in 1987, which has resolved. Currently, she can sit for 10 minutes, stand for 10 minutes, walk 30 yards, drive for only 30 minutes before getting out of the car, and lift no more than 10 pounds. She has had [sic] history of hypothyroidism and hypertension. She is on Percocet, blood pressure medication, Klonopin and Norvasc. She has had a previous goiter surgery. She is married with two children. She does not smoke. She has occasional ethanol intake. She has a GED. There is a family history of diabetes and congestive heart disease.

 

(emphasis added).

After performing an examination and a medical records review, Dr. Autry diagnosed the following:

1. Aggravation of cervical spondylosis.

 

2. Aggravation of lumbar spondylosis with radiculopathy.

 

3. Closed head injury with residual tinnitus.

 

          Regarding causation, Dr. Autry opined as follows:

The plaintiff’s history and job description correlate with the specific diagnoses. The plaintiff had a specific injury documented that occurred at work with onset of significant pain in the neck and lower back areas. Despite having a chronic problem in the lower lumbar area, the plaintiff believes that her symptoms became at least double with associated radicular findings on the right side that did not exist prior to the accident.

(emphasis added).

          Dr. Autry opined McDaniel was at MMI and assessed a 7% whole person impairment rating according to the 5^th Edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment. He concluded McDaniel had no active impairment prior to the September 6, 2016, work injury.

          The November 14, 2017, Benefit Review Conference Order and Memorandum lists the following contested issues: work-related injury, TTD benefits paid, 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.

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

Benefits Per KRS 342.730/Pre-existing Active Disability Work Relatedness and Causation/Physical Capacity to Return

 

12. The ALJ is compelled to reference that the Plaintiff presented as an excellent witness and that her testimony is given significant weight herein.

13. The opinion of Dr. Tutt presented by the Defendant concludes that the Plaintiff’s impairment was pre-existing and active because of Dr. Tutt’s conclusion that the Plaintiff’s condition was symptomatic and impairment ratable prior to the 2016 injury. The ALJ finds that this is inconsistent with the testimony of the Plaintiff who testified that she continued to work 12-hour shifts prior to the 2016 work injury but was rendered unable to return to work thereafter.

14. The ALJ acknowledges that the Plaintiff admitted to having some minor hip pain prior to the 2016 work injury, but finds that she has credibly explained how her symptoms thereafter were severe and debilitating. The Plaintiff has convinced the ALJ that the hip pain that she referenced prior to the 2016 injury was a normal consequence of working 12-hour days and did not rise to the level of a prior active condition. The ALJ also finds that this conclusion is supported by the fact that she missed no work time following the prior injury.

15. The ALJ is therefore convinced by the opinion of Dr. Autry that the Plaintiff suffered an aggravation of dormant cervical spondylosis and lumbar spondylosis with radiculopathy, and that the cause of the Plaintiff’s complaints was due to the work injury.

16. The ALJ finds based upon the opinion of Dr. Autry, that the Plaintiff sustained a 7% impairment pursuant to the AMA Guides and that the Plaintiff did not retain the physical capacity to return to the type of work performed at the time of injury.

17. Permanent total disability is defined in KRS 342.0011(11)(c) as the condition of an employee who, due to an injury, has a permanent disability rating and has a complete and permanent inability to perform any type of work as a result of an injury. Hill v. Sextet Mining Corporation, 65 SW3d 503 (KY 2001).

18. “Work” is defined in KRS 342.0011(34) as providing services to another in return for remuneration on a regular and sustained basis in a competitive economy. The statutory definition does not require that a worker be rendered homebound by his injury, but does mandate consideration of whether he will be able to work reliably and whether his physical restrictions will interfere with his vocational capabilities. Ira A. Watson Department Store v. Hamilton, 34 SW3d 48 (KY 2000).

19. Dr. Autry has assessed restrictions upon the Plaintiff including no repetitive bending, lifting, stooping or walking for more than 30 minutes at a time with and [sic] no driving beyond 30 minutes on a routine basis. The ALJ finds that these restrictions do not prevent the Plaintiff from providing services to another in return for remuneration on a regular and sustained basis in a competitive economy.

20. The ALJ finds that the Plaintiff does not retain the ability to return to the same type of work but is not permanently and totally disabled.

Temporary Total Disability

21. Temporary total disability means the condition of an employee who has not reached maximum medical improvement from an injury and has not reached a level of improvement that would permit a return to employment…KRS 342.0011(11)(a).

22. The ALJ is not persuaded by the opinion of Dr. Tutt as he assessed a 5% pre-existing impairment yet found that the Plaintiff had no restrictions and needed no medications. The ALJ finds that this inconsistency is less than credible and is therefore not convinced by his pronouncement of maximum medical improvement.

23. The ALJ therefore finds based upon the conclusion of Dr. Autry, that the Plaintiff reached maximum medical improvement on May 24, 2017.

Unpaid or Contested Medical Expenses

24. It is the employer’s responsibility to pay for the cure and relief from the effects of an injury or occupational disease the medical, surgical, hospital treatment, including nursing, medical and surgical supplies and appliances as may reasonably be required at the time of injury and thereafter during disability…KRS 342.020.

25. The ALJ finds, in accordance with the opinion of Dr. Autry that the Plaintiff is entitled the reasonable and necessary expenses related to the work related lumbar spine injury and closed head injury with residual tinnitus found herein.

Calculation

26. The Plaintiff’s permanent partial disability award shall therefore be calculated as follows: $751.04 x 66⅔ x 7% x .85 x 3.4 = $101.29.

 

          CTA filed a petition for reconsideration, and in the February 12, 2018, Order, the ALJ held as follows:

This matter is before the ALJ upon the Petition for Reconsideration filed by the Defendant seeking a redetermination of the finding that there was no preexisting active condition and the finding that the Plaintiff is entitled to medical benefits for a closed head injury and tinnitus. After an additional review of the evidence the ALJ declines to disturb the ruling regarding any pre-existing condition but with respect to the medical benefits for the closed head injury and tinnitus finds that the closed head injury and tinnitus were caused by the prior explosion incident and do not relate to the injury at issue in the current matter.

The Defendant is therefore hereby relieved of any responsibility for the closed head injury or tinnitus condition with respect to this claim.

          CTA first asserts the ALJ erroneously relied upon Dr. Autry’s opinions because he attributed McDaniel’s injuries to cumulative trauma instead of the acute traumatic event of September 6, 2016, alleged by McDaniel. CTA asserts this incorrect understanding of how the injury occurred implicates Cepero v. Fabricated Metals Corp., 132 S.W.3d 839 (Ky. 2004). We disagree and affirm on this issue.

          As an initial matter, we acknowledge the language in Dr. Autry’s May 24, 2017, report, particularly the language in the “Explanation of Causal Relationship” section to which CTA cites, is confusing, as it insinuates McDaniel only sustained “recurrent stress loading to the disc, ligament, and facet anatomy” in her cervical and lumbar spine and not an acute injury on September 6, 2016. However, in reviewing Dr. Autry’s entire report, we are convinced Dr. Autry was fully aware of the traumatic event involving the forklift that occurred on September 6, 2016. We note in the “Plaintiff History” section, Dr. Autry describes the September 6, 2016, event and, in several places throughout the report, refers to McDaniel’s “accident” and “specific injury,” indicating he not only received an accurate history but also fully understood the sequence of events. We conclude Dr. Autry’s report demonstrates he ultimately believed the September 6, 2016, forklift injury aggravated pre-existing dormant conditions in McDaniel’s cervical and lumbar spine. In the May 24, 2017, report, Dr. Autry opined McDaniel did not have an active impairment prior to the September 6, 2016, injury. Dr. Autry’s “incident related diagnoses” is aggravation of cervical spondylosis, aggravation of lumbar spondylosis with radiculopathy, and a closed head injury with residual tinnitus, which the ALJ could reasonably infer was caused by the September 6, 2016, injury.

          We find no merit in CTA’s argument Dr. Autry’s May 24, 2017, report is encompassed by the holding in Cepero. Cepero was an unusual case involving not only a complete failure to disclose, but affirmative efforts by the employee to cover up a significant injury to the left knee only two and a half years prior to the alleged work-related injury to the same knee.  The prior, non-work-related injury had left Cepero confined to a wheelchair for more than a month. The physician upon whom the ALJ relied in awarding benefits was not informed of this prior history by the employee and had no other apparent means of becoming so informed.  Every physician who was adequately informed of this prior history opined Cepero’s left knee impairment was not work-related but, instead, was attributable to the non-work-related injury two and a half years previous. We find nothing akin to Cepero in the case sub judice, therefore the ALJ’s reliance upon Dr. Autry will not be disturbed.

          CTA next asserts the ALJ erred by not apportioning part of McDaniel’s impairment to a pre-existing active condition. We disagree and affirm on this issue.

          The employer bears the burden of proving the existence of a pre-existing, active disability, and to be characterized as active, an underlying pre-existing condition must be symptomatic and impairment ratable prior to the occurrence of the work-related injury. See Finley v. DBM Technologies, 217 S.W.3d 261 (Ky. App. 2007). Since CTA 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).

          In rendering a decision, KRS 342.285 grants an ALJ as fact-finder the sole discretion to determine the quality, character, and substance of evidence. Square D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993). An ALJ may draw reasonable inferences from the evidence, 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. Jackson v. General Refractories Co., 581 S.W.2d 10 (Ky. 1979); Caudill v. Maloney’s Discount Stores, 560 S.W.2d 15 (Ky. 1977). In that regard, an ALJ is vested with broad authority to decide questions involving causation. Dravo Lime Co. v. Eakins, 156 S.W.3d 283 (Ky. 2003).

          The function of the Board in reviewing an ALJ’s decision is limited to a determination of whether the findings made 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). The Board, as an appellate tribunal, may not usurp the ALJ's role as fact-finder by superimposing its own appraisals as to weight and credibility or by noting other conclusions or reasonable inferences that otherwise could have been drawn from the evidence. Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999).

          Here, the ALJ relied upon the opinions of Dr. Autry who unequivocally opined, in the May 24, 2017, report, McDaniel did not have a pre-existing active impairment at the time of the September 6, 2016, work injury. While there may be conflicting medical testimony in the record, and a party may note evidence supporting a different outcome than that reached by an ALJ, such proof does not serve as an adequate basis to reverse on appeal. McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974).^[1] Rather, it must be shown there was no evidence of substantial probative value to support the decision.  Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986). As Dr. Autry’s opinions constitute substantial evidence in support of the ALJ’s decision that no portion of the impairment rating is attributable to an alleged pre-existing active condition or disability, we may not disturb the ALJ’s decision on this issue.

          The ALJ also relied upon McDaniel’s testimony indicating “she continued to work 12-hour shifts prior to the 2016 work injury but was rendered unable to return to work thereafter” in making his determination that she did not suffer from pre-existing, active impairment at the time of her injury. This testimony firmly supports the ALJ’s finding McDaniel did not suffer from a pre-existing active impairment.

          Finally, CTA asserts the ALJ erred by awarding TTD benefits through May 24, 2017, by relying upon Dr. Autry’s medical opinions “[g]iven the flaws in the testimony of Dr. Autry.” Significantly, CTA does not raise any other deficiency pertaining to the award of TTD benefits. We disagree and affirm on this issue.

          In the January 19, 2018, Opinion and Award, the ALJ awarded TTD benefits from September 6, 2016, the date of the injury and the date McDaniel ceased working at CTA, through the date Dr. Autry deemed McDaniel to have reached MMI on May 24, 2017. For the reasons stated herein, Dr. Autry’s medical opinions can indeed be relied upon. Therefore, Dr. Autry’s determination of MMI on May 24, 2017, constitutes substantial evidence in support of the ALJ’s award of TTD benefits through May 24, 2017.

Dr. Tutt’s opinion regarding when MMI was attained differs from Dr. Autry’s, however, his opinion merely constitutes conflicting evidence the ALJ was free to reject.^[2] The sole ground CTA puts forth on appeal for reversal of the award of TTD benefits is the ALJ’s reliance upon Dr. Autry’s opinion as to when McDaniel attained MMI. Since Dr. Autry’s opinion regarding when McDaniel attained MMI constitutes substantial evidence, the award of TTD benefits must be affirmed. 

           Accordingly, the January 19, 2018, Opinion and Award and the February 28, 2018, Order ruling on CTA’s Petition for Reconsideration are hereby AFFIRMED.

          ALL CONCUR.

COUNSEL FOR PETITIONER:

HON MCKINNLEY MORGAN

921 S MAIN ST

LONDON KY 40741

COUNSEL FOR RESPONDENT:

HON MARCUS ROLAND

P O BOX 910454

LEXINGTON KY 40591

ADMINISTRATIVE LAW JUDGE:

HON JONATHAN R WEATHERBY

657 CHAMBERLIN AVE

FRANKFORT KY 40601