*/
Workers’
Compensation Board
OPINION ENTERED: May 18, 2018
CLAIM NO. 201558106
RAY FITCH PETITIONER
VS.
APPEAL
FROM HON. JONATHAN R. WEATHERBY,
ADMINISTRATIVE LAW JUDGE
LARRY MELTON/
CIRCLE T RESTAURANT;
BULAN MEAT;
AND HON. JONATHAN R. WEATHERBY,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
IN PART
VACATING
IN PART
AND
REMANDING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. Ray Fitch
(“Fitch”) appeals from the November 17, 2017 Opinion and Award and the January
9, 2018 Order rendered by Hon. Jonathan R. Weatherby, Administrative Law Judge
(“ALJ”), awarding income and medical benefits for a clavicle and left shoulder
injury. The ALJ dismissed claims for
cervical, thoracic and psychological conditions. Additionally, in a medical dispute, the ALJ
determined prescriptions for Tramadol, a referral to an orthopedic surgeon, and
monthly office visits are not reasonable and necessary. On appeal, Fitch challenges each of these
findings, and also argues he is permanently totally disabled. For the reasons set forth below, we affirm in
part, vacate in part, and remand.
Fitch worked for Larry Melton
(“Melton”) as a garbage collector. On
December 16, 2015, he fell from the side of a truck and fractured his
clavicle. He was taken to Saint Joseph
Hospital, then transported to Pikeville Medical Center and admitted. Dr. John Monsour performed an open reduction
and internal fixation of the left clavicle fracture on December 17, 2015. Fitch was discharged on December 18,
2015. Thereafter, his care was managed
by Harold Primary Care and Dr. Loey Kousa, an internist. Following the surgery, Fitch developed
adhesive capsulitis of the left shoulder.
Dr. Peter Kirsch, who conducted a records review on behalf of Melton’s
worker’s compensation insurance carrier, attributed the adhesive capsulitis to
Fitch’s work injury and post-operative care.
Melton did not deny the
work-relatedness of the injury to Fitch’s clavicle or left shoulder caused by
the adhesive capsulitis. However, Fitch
alleged he also suffered cervical, thoracic and psychological injuries as a
result of the work accident, which Melton disputed. We will address the medical evidence
supporting each injury, beginning with the cervical injury.
When Fitch was first treated at Saint
Joseph Hospital, an x-ray of the cervical spine revealed no acute process. Beginning in January 2016, Fitch complained
of radiating neck pain to physicians at Harold Primary Care and to Dr.
Kousa. Due to this ongoing neck pain, a
CT scan of the cervical spine was taken and revealed no evidence for acute cervical
spinal fracture. However, the CT scan
indicated multilevel degenerative disc and joint disease producing spinal
stenosis with cord compression.
Additionally, a June 7, 2016 MRI revealed central disc herniations at
C4-5 and C5-6. Dr. Kousa referred Fitch
to an orthopedic surgeon and treated Fitch with pain medication. Dr. Kousa’s office note indicates the
orthopedic surgeon did not recommend surgery.
The evidence supporting Fitch’s
thoracic injury claim is minimal. A
February 16, 2016 x-ray of the lower thoracic spine revealed mild degenerative
change with scoliotic curvature. The
report indicates upper levels of the thoracic spine were obscured by the
internal fixtures in Fitch’s shoulder, and pathology could not be
excluded. No proof was submitted
documenting further treatment for the thoracic spine.
Finally, Fitch alleged a psychological
injury and testified he began feeling anxious and depressed within days of the
accident. At the final hearing, Fitch
acknowledged that he experienced anxiety as far back as high school and had
often preferred to be alone, but had never been treated. He testified his anxiety and depression
became worse after the accident at work.
At a March 7, 2016 office visit, three
months after the work accident, Fitch voiced these concerns to Dr. Kousa, who
suggested a psychiatric evaluation. On
March 21, 2016, Fitch treated at Mountain Comprehensive Care Center and
reported anxiety, depression, insomnia and panic attacks. He stated these symptoms began after the work
accident. Fitch continued regular mental
health visits.
On August 5, 2016, Fitch was admitted
to Highlands Regional Medical Center for suicidal ideation. He reported multiple social stressors
including the work injury, subsequent inability to work, and financial
concerns. He was diagnosed with major
depression (recurrent), severe and generalized anxiety disorder. After his discharge, Fitch continued to
receive mental health care at Mountain Comprehensive Care Center through July
27, 2017.
A
number of independent medical and psychiatric evaluations were conducted. Dr. Megan Green, a licensed clinical
psychologist, performed an independent psychological examination on December
29, 2016. Dr. Green offered two
diagnosis: moderate depressive disorder with anxious distress, and borderline
intellectual functioning. She indicated
Fitch’s psychological complaints are the direct result of his work injury. She assigned a 25% impairment rating, with 5%
attributed to pre-existing active impairment for borderline intellectual
functioning. She indicated Fitch reached
maximum medical improvement for the psychological condition on December 1,
2016.
Dr. Bruce Guberman conducted an
independent medical evaluation (“IME”) on February 28, 2017. Dr. Guberman diagnosed a clavicle fracture,
status post open reduction internal fixation and persistent range of motion
problems of the left shoulder; chronic post-traumatic strain of the cervical
spine with disc herniation at C4-5 and C5-6; and post-traumatic strain of the
thoracic spine. Dr. Guberman restricted
Fitch from using his left arm overhead, for holding on, or for repeated
activities. He indicated Fitch should
not lift, carry, push or pull more than ten pounds occasionally or more than
five pounds frequently with the left arm.
Fitch does not retain the physical capacity to return to the type of
work performed at the time of the injury.
Dr. Guberman assigned an 11% impairment rating for the shoulder, 6% for
the cervical spine and 5% for the thoracic spine for a combined 20% impairment
rating pursuant to the American Medical Association, Guides to the
Evaluation of Permanent Impairment, 5th Edition (“AMA Guides”). Dr. Guberman found no pre-existing active
condition.
In an April 26, 2017 letter, Dr.
Guberman stated his review of records of Highlands Regional Medical Center and
an EMG/nerve conduction study from Pikeville Medical Center did not change his
findings, impressions, conclusions and impairment rating contained in his IME
report. In an August 1, 2017 letter, Dr.
Guberman was critical of Dr. David Muffly’s July 12, 2017 report. Dr. Guberman reaffirmed the opinions in his
IME report.
Dr. Muffly performed an IME on July
12, 2017. Dr. Muffly diagnosed left
clavicle fracture requiring internal fixation, left shoulder adhesive
capsulitis with decreased motion of the left shoulder, chronic left shoulder
pain, and resolved cervical strain with normal cervical examination. Dr. Muffly indicated Fitch had a normal
thoracic spine examination and normal neurologic examination. He further opined the cervical strain had
completely resolved, and required no further treatment. Dr. Muffly assigned an 8% impairment rating
pursuant to the AMA Guides for reduced range of motion of the shoulder
and 0% impairment for the thoracic and cervical spine. He felt Fitch needs only non-prescription
medications. Dr. Muffly stated
restrictions would include no reaching with the left arm and use of the arm as
an assistive arm only, with a maximum lift from waist to chest of thirty pounds
and no overhead lifting with the left arm.
Dr. Guberman later reviewed Dr. Muffly’s report, and challenged his
findings as unsupported by accurate range of motion testing.
Dr. Timothy Allen performed a
psychiatric evaluation on July 19, 2017.
He diagnosed major depressive disorder (mild to moderate), and
borderline intellectual function. Dr.
Allen opined Fitch developed chronic pain following the clavicle fracture,
which triggered major depressive disorder.
However, he expressed doubt in assessing the severity of Fitch’s
symptoms due to “clear exaggeration on objective measures and in his clinical
impression”. Dr. Allen assigned a 10%
impairment rating, due equally to major depression caused by the work injury
and to pre-existing borderline intellectual function. Dr. Allen recommended Fitch should continue
Zoloft and Buspar prescriptions and should be seen every three months to
monitor his medication, but requires no psychiatric work restrictions.
As part of the medical fee dispute filed
by Melton during the pendency of Fitch’s injury claim, Dr. B. Frank Parker
conducted a physician review on July 6, 2017.
He concluded treatment with APAP/Codeine, Mobic, and Prilosec is
medically reasonable and necessary. He
noted Tramadol has been discontinued and would not be reasonable and necessary
for treatment of the work injury because Fitch is already prescribed a
different opiate. Dr. Parker recommended
office visits with Dr. Kousa should be reduced to once every three to four
months after treatment is stabilized.
Dr. Parker did not opine referral to an orthopedic surgeon for neck pain
is reasonable and necessary for the work injury. However, he concluded a psychological
evaluation referral is reasonable and necessary based upon review of the
records.
Upon review of the evidence, the ALJ
awarded permanent partial disability and medical benefits for the clavicle and
left shoulder injuries. He then
considered the alleged neck, thoracic spine and psychological injuries. Relying on Dr. Muffly’s opinion, the ALJ
concluded Fitch did not suffer a work-related cervical or thoracic spine
injury. The ALJ noted Dr. Muffly had
personally reviewed the diagnostic imagining, and emphasized the fact Fitch had
received no treatment for a thoracic spine injury.
Turning to the psychological
impairment, the ALJ explained:
The ALJ notes that Dr. Allen concluded that the Plaintiff
over-reported emotional, physical and cognitive complaints thus invalidating
the clinical interpretation of the testing conducted. The ALJ also noted that the Plaintiff was
seen at Mountain Comp Care from June 27, 2016, through July 27, 2017, for
depression and anxiety which began long after the alleged work incident. The
Plaintiff listed additional stressors other than the work incident including
his daughter having emergency surgery.
The ALJ is ultimately not persuaded by the evidence provided by
the Plaintiff supporting a work-related psychological claim because the record
is clear that there were psychological issues that preceded the work
incident. Dr. Green’s opinion confirms
this and has convinced the ALJ that the Plaintiff had an active psychological
impairment due to borderline intellectual functioning prior to the work incident.
The ALJ therefore finds that the Plaintiff has not met its
burden to credibly establish a claim for psychological injuries. Said claim is therefore hereby DISMISSED.
Finally, the ALJ turned to the medical
fee dispute. Convinced by Dr. Parker’s
opinion, the ALJ determined that Tramadol is not reasonable and necessary, that
Fitch may be seen every three months by Dr. Kousa, and that the referral to an
orthopedic surgeon is not reasonable and necessary for the work injury.
Fitch filed a petition for
reconsideration regarding the calculation of temporary total disability
benefits and typographical errors. Fitch
also argued the ALJ failed to address the issue of permanent total disability,
erred in dismissing the claims related to the cervical and thoracic spine and
the psychological condition, and in the findings regarding the medical fee
dispute. In his January 9, 2018 order on
reconsideration, the ALJ made corrections concerning the award of temporary
total disability benefits, but denied the remainder of the petition as an
impermissible re-argument of the merits of the claim.
On appeal, Fitch first argues the ALJ
erred in failing to award benefits for the psychological claim. He emphasizes that both Dr. Green and Dr.
Allen assigned an impairment rating for a work-related psychological condition,
even though the level of impairment differed.
According to Fitch, the ALJ is without authority to disregard the
consensus he suffered some degree of permanent psychological impairment.
Fitch cites Mengel v. Hawaiian-Tropic
Northwest & Central Distributors, Inc., 618 S.W.2d 184 (Ky. App. 1981),
for the tenet that the ALJ may not disregard the uncontroverted medical
evidence on a question that properly lies within the province of medical
expertise. While we agree with this
general proposition, case law instructs that this rule is not without
exceptions. The Kentucky Supreme Court
explained in Stocton v. French, 2006-WL-2986491 (Ky. 2006)[1]:
In Bullock
v. Gay, 296 Ky. 489, 177 S.W.2d 883, 885 (1944), the court
discussed the effect of uncontradicted testimony, explaining as follows:
The general rule in respect to the weight to
be accorded uncontradicted testimony is: If the witness is disinterested, and
in no way discredited by other evidence, and the testimony is to a fact not
improbable or in conflict with other evidence, and is within his own knowledge,
such a fact may be taken as conclusive.
In Osborne
v. Pepsi-Cola, 816 S.W.2d 643 (Ky. 1991), the court cited
that explanation when rejecting the notion that an ALJ lacks the authority
reject an uncontradicted medical opinion that the ALJ finds to be unreliable.
Subsequently, in Cepero v.
Fabricated Metals Corp., 132 S.W.3d 839 (Ky. 2004), the court
explained that a medical opinion based upon a substantially inaccurate or
largely incomplete medical history and unsupported by other credible evidence
is not substantial evidence.
KRS 342.285 designates the ALJ as the finder
of fact in workers' compensation claims. Even in matters requiring medical
expertise, it is the ALJ's function to consider all of the evidence, to draw
reasonable inferences, and to determine the character, quality, and substance
of a physician's testimony. An ALJ may reject even an uncontradicted medical
opinion if there is a reasonable basis for doing so. In Mengel, supra, there was no
conflict between the medical experts and no other evidence that called the
reliability of their opinions into question; therefore, to reject their
opinions was unreasonable.
With these principles in mind, we
first consider what portion of the medical evidence was uncontroverted. Drs. Allen and Green agreed Fitch suffers a
5% impairment rating attributable to borderline intellectual functioning. Both also agree Fitch suffers depressive
disorder attributable to the work-injury.
Dr. Green assigned a 20% impairment rating for the work-related
depressive disorder, while Dr. Allen assigned a 5% rating.
The ALJ offered several reasons for
dismissing Fitch’s psychological claim.
He concluded Fitch’s psychological symptoms began “long after” the work
accident, referencing his care at Mountain Comprehensive Care beginning June
27, 2016. In fact, Fitch’s mental health
visits at Mountain Comprehensive began on March 16, 2016, three months after
the accident. Fitch reported anxiety and
depression a week earlier to Dr. Kousa on March 7, 2016.
The ALJ also referenced Fitch’s
additional stressors other than the work accident, and evidence his
psychological issues “preceded the work incident.” The ALJ went on to explain Dr. Green’s
opinion confirms Fitch “had an active psychological impairment due to
borderline intellectual functioning prior to the work incident.” In fact, Dr.
Green listed two distinct diagnoses of borderline intellectual functioning and
depressive disorder, and assigned impairment ratings for both. We are compelled to emphasize Dr. Green’s
report makes no indication the impairment rating for depression is attributable
or in any way related to the impairment rating for borderline intellectual
functioning. Furthermore, Dr. Green’s opinion
does not confirm there were other “psychological issues” prior to the work
injury, as the ALJ concluded. In fact,
in the Form 107, Dr. Green expressly stated, “[t]here is no indication of
anxiety or depression that preceded the work injury.”
Finally, we consider the ALJ’s
emphasis on Dr. Allen’s report: “Dr. Allen concluded that the Plaintiff
over-reported emotional, physical and cognitive complaints thus invalidating
the clinical interpretation of the testing conducted.” Dr. Allen made this statement with respect to
one of the five testing instruments administered to Fitch, but did not state
Fitch’s performance on that single test invalidated the entire assessment. To be sure, in a statement not directly cited
by the ALJ, Dr. Allen expressed the following reservation: “The severity of Mr.
Fitch’s symptoms currently is difficult to assess due to his clear exaggeration
on objective measures and in his clinical presentation.”
Of course, an ALJ might consider such
a statement of reservation in assessing a physician’s opinion. However, in the context of this claim, Dr.
Allen’s statement underscores the ALJ’s duty to articulate specific,
evidentiary-based reasons for rejecting uncontroverted medical proof. Dr. Allen expressed doubt as to the severity
of Fitch’s current symptoms. Notwithstanding
these doubts, he diagnosed Fitch with work-related depression and assessed an
impairment rating. It was incumbent upon
the ALJ to engage in a more nuanced discussion of Dr. Allen’s report and, for
that matter, Dr. Green’s report. While this Board lacks
fact-finding authority, it is our function to assess the evidence supporting
the ALJ’s conclusions. This task
necessarily involves an analysis of the proof.
In this claim, there is a medical consensus that Fitch suffered an
impairment-ratable, work-related psychological injury. The ALJ enjoys the discretion to reject this
uncontroverted evidence but must state a legally sufficient reason for doing
so. The ALJ misstated the date when
Fitch began reporting psychological symptoms, cited “psychological issues”
preceding the work incident that are not documented in Dr. Green’s report, and
drew an unsubstantiated and troublesome correlation between Fitch’s borderline
intellectual functioning and the diagnosis of depression. Therefore, we must remand this claim for
further consideration of Fitch’s allegation of a psychological injury. If the ALJ is again persuaded to reject the
uncontroverted medical proof of Fitch’s work-related depression, he must
articulate a legally sufficient reason based on accurate facts within the
record.
Fitch next argues the ALJ erred in
dismissing the claims for the cervical and thoracic conditions. He contends Dr. Guberman’s opinions are the
most consistent with the medical evidence and compel a result in his favor. We disagree.
As the claimant in a workers’
compensation proceeding, Fitch 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).
The record contained conflicting
evidence regarding cervical and thoracic injuries. Dr. Muffly, upon whom the ALJ relied, concluded
the shoulder was the only body part for which there is objective evidence of a
harmful change. He diagnosed a resolved
cervical strain and found no objective evidence of a harmful change to the
cervical or thoracic spine. His opinions
are substantial evidence supporting the ALJ’s dismissal of the claims for
injury to the cervical and thoracic spine.
Moreover, when sound though conflicting medical evidence is presented,
we cannot conclude the evidence compels a particular result. Ira A. Watson
Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000).
Fitch next argues the ALJ erred in resolving
the medical fee dispute in Melton’s favor.
He contends Melton failed to submit substantial evidence that the
prescription for Tramadol, the need for monthly office visits, and the referral
to an orthopedic surgeon for neck pain are unreasonable and unnecessary. We disagree.
The ALJ’s findings regarding the
medical dispute are supported by substantial evidence. Dr. Parker indicated Fitch should not be
prescribed more than one narcotic medication, and Tramadol should not be
combined with APAP/Codeine. He also
recommended treatment with Dr. Kousa every three or four months, not monthly,
is reasonable. Dr. Muffly indicated
Fitch had a normal thoracic spine examination and normal neurologic examination,
and referral to an orthopedic surgeon is unnecessary because Fitch has only age
related changes with no traumatic injury caused by the work injury. Dr. Parker reached a similar conclusion. Because the ALJ’s findings regarding the
medical dispute are supported by substantial evidence, they may not be
disturbed on appeal.
Finally, Fitch argues the ALJ failed
to consider if he is permanently totally disabled due to the work injury. We have remanded this claim for
reconsideration of Fitch’s psychological injury claim, and the ALJ must
determine whether he suffered a work-related psychological injury. If the ALJ so finds, he must include consideration of the impairment rating from the
work-related depression in determining whether the work injuries have rendered
Fitch permanently totally disabled.
Accordingly, the November 17, 2017 Opinion
and Award and the January 9, 2018 Order rendered by Hon. Jonathan R. Weatherby,
Administrative Law Judge, are hereby AFFIRMED
IN PART, VACATED IN PART AND REMANDED to the ALJ for entry of an amended
award in accordance with the views expressed herein.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON JOHN EARL HUNT
PO BOX 960
ALLEN, KY 41601
COUNSEL
FOR RESPONDENT:
HON TERRI SMITH WALTERS
PO BOX 1167
PIKEVILLE, KY 41502
ADMINISTRATIVE
LAW JUDGE:
HON JONATHAN R WEATHERBY
ADMINISTRATIVE LAW JUDGE
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601
