January 15, 2016 201285818

Commonwealth of Kentucky 

Workers’ Compensation Board




OPINION ENTERED:  May 18, 2018



CLAIM NO. 201558106



RAY FITCH                                      PETITIONER






















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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.









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[1] Cited pursuant to CR 76.28(4)