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January 15, 2016 201285818

Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED:  May 25, 2018

 

 

CLAIM NOS. 201602196 & 201601842

 

 

MARTY MINIARD                                  PETITIONER

AND JOHNNIE L. TURNER                                   

 

 

 

VS.                         

APPEAL FROM HON. GRANT S. ROARK,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

NALLY & HAMILTON

AND HON. GRANT S. ROARK,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

AFFIRMING

 

                       * * * * * *

 

 

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

 

 

RECHTER, Member.  Marty Miniard (“Miniard”) appeals from the October 23, 2017 Opinion, Order and Award and the February 8, 2018 Order on Reconsideration rendered by Hon. Grant S. Roark, Administrative Law Judge (“ALJ”).  The ALJ awarded Miniard medical benefits for work-related hearing loss, but concluded he had not suffered a work-related low back injury.  On appeal, Miniard challenges the ALJ’s dismissal of his low back injury claim.  Finding no error, we affirm.

     Miniard worked as a heavy equipment operator for Nally and Hamilton since 1978.  He alleged the equipment produced substantial jarring which resulted in a cumulative trauma injury to his low back.  Miniard resigned from his position at Nally and Hamilton on July 1, 2016, due partly to his low back pain, but also due to diabetes, neuropathy in his feet, and hearing and vision loss.  Though his Form 101 alleged a cumulative trauma injury, Miniard testified at the final hearing that his low back pain began after a fall at work in 2015. 

     The ALJ’s award of medical benefits for Miniard’s work-related hearing loss has not been appealed.  Therefore, we will not further discuss the proof related to that claim.  Miniard did not submit medical records documenting any treatment for his lumbar complaints, and the medical proof related to this injury claim consist solely of independent medical evaluation (“IME”) reports. 

     Dr. Daniel Primm conducted an IME on January 27, 2017.  Dr. Primm reviewed medical records and performed an examination, noting Miniard’s normal range of motion in the lumbar spine.  He found no indication of lumbar degenerative changes in excess of normal age-related degeneration.  He characterized Miniard’s lumbar symptoms as mild, and concluded they were not related to his work activites.

     Dr. David Muffly conducted an IME on March 28, 2017, which included a medical records review and physical examination.  Dr. Muffly also took an x-ray of Miniard’s lumbar spine and found advanced L5-S1 disc space narrowing consistent with advanced degenerative disease.  He diagnosed multilevel advanced lumbar degenerative disc disease at L1-2 and L5-S1.  Dr. Muffly assigned a 5% impairment rating pursuant to the American Medical Association, Guides to the Evaluation of Permanent Impairment, 5th Edition and related the lumbar condition to Miniard’s occupation. 

     Dr. Russell Travis conducted an IME on May 10, 2017 based on a review of Miniard’s medical records.  Dr. Travis found no objective evidence of lumbar spine pathology, noting the absence of low back complaints in medical records prior to Miniard’s visit with Dr. Muffly.  Dr. Travis concluded Miniard had not suffered any work-related cumulative trauma injury to his lumbar spine.  He assigned no impairment rating.

     The ALJ concluded Miniard had not proven he established a work-related lumbar injury.  In reaching this conclusion, he relied upon the opinions of Drs. Travis and Primm, as well as the fact Miniard had not complained of or received any treatment for low back pain prior to his visit with Dr. Muffly.  The ALJ also stated Miniard’s claim of a work-related fall in 2015 lacked credibility. 

     Miniard petitioned for reconsideration.  The ALJ denied the petition as an impermissible re-argument of the merits of the claim.  On appeal, Miniard claims the ALJ did not adequately consider the medical proof and his testimony that he ceased working due, in part, to low back pain. 

     Miniard’s argument is simply a request for this Board to re-weigh the proof and enter a finding in his favor.  We are not at liberty to do so.  Whittaker v. Rowland, 998 S.W.2d 479, 481 (Ky. 1999).  Because Miniard failed in his burden of proving every element of his claim, the sole issue for our review is whether the findings made by the ALJ are so unreasonable under the evidence they must be reversed as a matter of law.  Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000).

     In this claim, the medical opinions of Drs. Primm and Travis constitute the requisite substantial evidence to support the ALJ’s conclusions.  Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986).  Both physicians determined Miniard had not suffered a work-related cumulative trauma injury to his back.  The ALJ also noted the fact Miniard had not complained of low back pain at physician visits pre-dating his visit with Dr. Muffly, nor had he received any treatment for low back pain.  The ALJ articulated his reasoning, and supported his conclusions with specific evidence in the record.  The fact Miniard is able to point to evidence supporting a different outcome than reached by an ALJ is not an adequate basis to reverse on appeal.  McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974).  Therefore, we may not disturb the ALJ’s order. 

     Accordingly, the October 23, 2017 Opinion, Order and Award and the February 8, 2018 Order on Reconsideration rendered by Hon. Grant S. Roark, Administrative Law Judge, are hereby AFFIRMED.              

          ALL CONCUR.

 


 

COUNSEL FOR PETITIONER:

 

HON JOHNNIE L TURNER

PO BOX 351

HARLAN, KY 40831

 

COUNSEL FOR RESPONDENT:

 

HON W BARRY LEWIS

151 EAST MAIN STREET, SUITE 100

PO BOX 800

HAZARD, KY 41702

 

ADMINISTRATIVE LAW JUDGE:

 

HON GRANT S. ROARK

ADMINISTRATIVE LAW JUDGE

PREVENTION PARK

657 CHAMBERLIN AVENUE

FRANKFORT, KY 40601