*/
Workers’
Compensation Board
OPINION ENTERED: October 12,
2018
CLAIM
NO. 201797241
LEISA
WIREMAN PETITIONER
VS. APPEAL FROM HON. CHRIS DAVIS,
ADMINISTRATIVE
LAW JUDGE
CINTAS
CORPORATION and
HON.
CHRIS DAVIS,
ADMINISTRATIVE
LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and
RECHTER, Members.
ALVEY, Chairman. Leisa
Wireman (“Wireman”) appeals from the May 29, 2018 Opinion, Order and Award
rendered by Hon. Chris Davis, Administrative Law Judge (“ALJ”). The ALJ found Wireman sustained a temporary
injury due to a January 16, 2017 work accident.
The ALJ awarded temporary total disability (“TTD”) benefits, and medical
benefits from January 17, 2017 through August 8, 2017. Wireman also appeals from the June 29, 2018
Order denying her petition for reconsideration.
On appeal, Wireman
argues the ALJ erred in finding she failed to prove she sustained a permanent
work injury, failed to make a determination regarding the presence or absence
of pre-existing active impairment, and failed to make sufficient findings of
fact to apprise the parties of the basis for his decision. She additionally argues the ALJ overlooked or
misconstrued controlling statutes or precedent, and flagrantly erred in
assessing the evidence. Finally, she
argues that pursuant to McNutt Construction/First General Services v. Scott,
40 S.W.3d 854 (Ky. 2001), pre-existing dormant conditions aroused into
disabling reality are compensable. We
determine the ALJ adequately set forth the basis for his decision. We also find substantial evidence supports
the ALJ’s decision, and a contrary result is not compelled. We additionally note the ALJ’s decision does
not overlook or misconstrue controlling statutes or precedent, therefore we
affirm.
Wireman, a resident of
Chillicothe, Ohio, filed a Form 101 on October 26, 2017 alleging she injured
her low back when she lifted a box of gloves on January 16, 2017, while working
for Cintas Corporation (“Cintas”).
Wireman was born on January 26, 1961, and completed the eleventh
grade. She does not have a GED, nor does
she have any specialized training. The
Form 104 indicates Wireman was employed for Cintas from October 2001 through
May 2017. However, she testified she
never returned to work there after the date of her accident. She began working for the Wright Company as
the office manager in September 2017.
Wireman testified by
deposition on August 17, 2017, and again at the hearing held December 4,
2017. She has a varied work history
prior to her employment with Cintas including waitress, clerk/typist (office
work), secretary at a finance company, cashier at the drive-in window of a fast
food restaurant, bank teller, manager of a pizza shop, office manager for a
nursery, sales director for a cosmetics company, garden center worker, and in
advertising sales. While employed by
Cintas, she operated an embroidery machine, and worked as a human resources
clerk, accounts payable/purchasing clerk, and first aid/safety worker. The job she was performing on the date of the
work incident consisted of selling first aid and safety supplies to
businesses. The sales job involved
extensive travel in a company vehicle.
She routinely called on businesses to restock safety supplies. She testified she drove, and thereby sat, for
hours at a time. She also indicated she
walked up to five miles per day, and had to climb stairs and ladders. She explained this involved lifting up to
sixty pounds. She never returned to work
for Cintas after the work incident, and now works as the office manager for a
heating and air conditioning company in Chillicothe, Ohio.
On January 16, 2017,
Wireman was loading boxes of jersey gloves into her work van. She experienced low back pain on the left
side, below the belt line, as she was placing a box of gloves into the back of
the van. She finished her workday,
completed an expense report, and then went home. She had difficulty getting out of bed the
next morning. She reported her condition
to her supervisor who took her to an occupational physician at Cabell
Huntington Hospital Urgent Care. She
then treated with Dr. Justin Swann, D.C.
Dr. Swann referred her to Dr. Matthew Werthammer who saw her on only one
occasion. She also saw Dr. Bruce
Guberman once, solely for an evaluation.
Wireman testified she
sustained injuries in 1997 when she was thrown from a horse, striking her head,
but denied she injured her back or neck.
She also testified she had a back strain in 2013, which resolved after
she received chiropractic treatment. She
stated she continues to experience back pain, with numbness in both legs, left
worse than right. She indicated her left
foot goes to sleep. She stated she is
unable to return to work at the sales job she held at Cintas, but could perform
her previous office work.
In support of her claim,
Wireman filed multiple records from the Cabell Huntington Hospital Urgent Care
Center dated January 17, 2017, many of which are illegible. She complained of low back pain from lifting
a box of gloves at work. That evening,
she awoke in the middle of the night and could not roll over due to pain. She was placed on light duty, and was
referred for chiropractic treatment. On
January 24, 2017, she reported continued low back pain. She additionally submitted records from Dr.
Swann for seventeen treatment dates between January 27, 2017 and July 10, 2017
for treatment of lumbago/sciatica.
Wireman filed Dr.
Werthammer’s March 16, 2017 note.
Wireman reported low back, neck and mid-back pain, of which she stated
the low back was the worst. She also
reported intermittent pain into both legs, primarily posteriorly, and toe
numbness. Dr. Werthammer diagnosed
lumber intervertebral disc disorder, and indicated she should continue with her
chiropractic treatment. He additionally
stated she needs pain management, and recommended she undergo instruction in
biomechanics and smoking cessation.
Wireman also filed the
Form 107-I medical report completed by Dr. Guberman after he evaluated her on
August 8, 2017. Dr. Guberman noted the
history of low back pain that occurred as she was lifting a box of gloves to
place in her van. Wireman complained to
Dr. Guberman of low back pain into both hips and legs. She reported she has fallen since the
incident due to left leg weakness. He
diagnosed, “posttraumatic sprain/strain, degenerative disc disease and
degenerative joint disease of the lumbosacral spine due to cumulative trauma of
her work aggravated by the injury occurring at work on January 16, 2017.” Dr. Guberman found Wireman had reached
maximum medical improvement (“MMI”) as of August 8, 2017. He assessed a 13% impairment rating pursuant
to the Fifth Edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment.
He additionally found Wireman does not retain the physical capacity to
return to the type of work she performed at the time of her injury. He also recommended restrictions for sitting,
standing, carrying, pushing, pulling and climbing. Dr. Guberman stated he agreed with Dr.
Werthammer.
Wireman additionally
filed the peer review report of Dr. Robert Emig, D.O., dated April 10,
2017. Dr. Emig recommended ten additional
chiropractic treatments over a four-week period.
Dr. William Lester
evaluated Wireman at Cintas’ request on March 27, 2017. Wireman reported a history of low back pain
from lifting the box of gloves. He noted
Wireman complained of pain in the back, both arms, thoracic spine, lumbar
spine, and left leg. He found the
January 16, 2017 incident was a temporary exacerbation of her pre-existing low
back condition. He noted mild bulges on
the MRI, with no evidence of radiculopathy.
He found the complaints on examination were inconsistent with the
objective findings, and noted Wireman exhibited signs of symptom
magnification. Dr. Lester opined Wireman
had reached MMI, and no additional chiropractic treatments were necessary.
In a supplemental report
dated February 16, 2018, Dr. Lester noted he had reviewed additional records,
and his opinions remained unchanged. He
found no evidence of radiculopathy. He
also noted there was no evidence of radiculopathy on EMG/NCV studies. He found the January 16, 2017 injury resulted
in no permanent impairment. He also
stated Wireman needs no treatment other than home exercises.
Cintas also filed
records from King’s Daughters Medical Center.
An MRI dated March 17, 2005 was performed due to Wireman’s complaints of
low back and left hip pain. The report
from that MRI noted diffuse bulges at L4-L5 with no focal disc herniation. A June 17, 2006 MRI report noted bulging
discs at L4-L5 and L5-S1 asymmetric to the left, with an annular tear/radial
fissure at L4-L5. A February 1, 2007 MRI
noted a slight disc bulge at L3-L4, and mild degeneration superimposed on a
disc herniation to the left with mild effacement of the thecal sac. That MRI also noted disc bulges and small
osteophytes at L5-S1. The report from a
June 19, 2008 lumbar MRI indicated a posterior disc bulge/osteophyte complex at
L3-L4 through L5-S1 with mild degenerative disc disease at L4-L5 and
L5-S1. The February 28, 2006 record from
that facility noted Wireman’s complaints of low back and left leg pain stemming
from an injury she sustained several years before. She was diagnosed with subchondral cysts in
the superior and left aspects of the left acetabulum with no evidence of acute
hip pathology. The October 28, 2010 note
from the same facility noted Wireman’s complaints of sharp mid and low back
pain, and left hip pain.
Cintas additionally
filed the treatment records of Dr. Deidra Brumfield, D.C., for treatment
administered from May 9, 2013 through June 3, 2013. Those records, although somewhat illegible,
reflect treatment for complaints of low back pain and left leg numbness of two
months duration. Dr. Brumfield noted
Wireman reported an injury occurring in 1997 involving a horse, resulting in low
back and left leg pain.
A Benefit Review
Conference (“BRC”) was held on March 14, 2018.
The BRC order and memorandum reflects the issues preserved for
determination included whether Wireman sustained a work-related injury or
exacerbation, her capacity to return to the type of work performed at the time
of the incident, TTD, medical benefits, exclusion for pre-existing active
disability, permanent income benefits pursuant to KRS 342.730 with multipliers,
and credit for short term or long term disability benefits.
The ALJ rendered the
Opinion, Order and Award on May 29, 2018.
He first dismissed Wireman’s allegation of a cumulative trauma
injury. The ALJ stated it is undisputed
that Wireman had a long-standing history of pre-existing back problems. He cited to her previous treatment, physical
examination, chiropractic care, temporary restrictions, and the multiple MRIs
performed long prior to January 16, 2017.
In dismissing Wireman’s claim for a permanent, work-related low back
injury, the ALJ found as follows:
I find the entirety of the
Plaintiff’s permanent condition to not be work-related. I do not think she has nerve root
impingement. Dr. Swann is an outlier on
this point. There is no objective
evidence of a permanent change to the human organism.
Note, this claim is not being
dismissed on permanency because her condition was pre-existing, active. It is being dismissed on permanency because
there is no change to the human organism.
The ALJ also determined
Wireman is entitled to the payment of additional TTD benefits. Although he believed she suffered only a
temporary exacerbation, he found Dr. Lester’s determination regarding when she
attained MMI was premature. Instead, he
found Dr. Guberman’s assessment of MMI as of August 8, 2017 was more accurate,
and awarded TTD benefits through that date.
He also determined she was entitled to medical treatment through the
period of exacerbation, and awarded medical benefits only through August 8,
2017.
Both Wireman and Cintas
filed petitions for reconsideration.
Cintas argued the ALJ erred by including January 16, 2017 in the award
of TTD benefits, and that the period should begin on January 17, 2017. The ALJ agreed, and corrected the award of
TTD benefits. Wireman listed eleven different
errors, which she argued were committed by the ALJ. Although arguably Wireman did not
specifically request additional findings of fact by the ALJ, his order denying
her petition for reconsideration adequately addressed the listed concerns.
On appeal, Wireman
argues the ALJ failed to make sufficient findings of fact to apprise the
parties of the basis for his decision to permit an informed review on
appeal. She also argues the ALJ
overlooked or misconstrued controlling statutes or precedent, and inaccurately
assessed the evidence thereby causing an injustice. She additionally argues the ALJ’s
determination that she did not suffer a harmful change to the human organism is
flawed, and should be reversed. Wireman
also argues that dormant, pre-existing conditions aroused into disabling reality
are compensable. We disagree.
As the claimant in a
workers’ compensation proceeding, Wireman had the burden of proving each of the
essential elements of her cause of action, including causation, and extent and
duration of disability. Snawder
v. Stice, 576 S.W.2d 276 (Ky. App. 1979). Because Wireman was unsuccessful in her
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 that which 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). The function of the
Board in reviewing the ALJ’s decision is limited to a determination of whether
the findings made by the ALJ are so unreasonable based on 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).
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 sole authority to
judge 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); Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999). Mere evidence contrary to the ALJ’s decision
is not adequate to require reversal on appeal.
Id.
In order to reverse the decision of the ALJ, it must be shown there was
no substantial evidence of probative value to support his decision. Special Fund v. Francis, 708 S.W.2d
641 (Ky. 1986).
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, supra. 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, supra.
Wireman
has essentially asked this Board to re-weigh the evidence, and determine she
sustained a permanent work injury while working for Cintas on January 16,
2017. It is not the function of this
Board to re-weigh the evidence. Whittaker v. Rowland, supra. If “the physicians in a case genuinely
express medically sound, but differing opinions as to the severity of a
claimant's injury, the ALJ has the discretion to choose which physician's opinion
to believe.” Jones v. Brasch-Barry General Contractors, 189 S.W.3d 149,
153 (Ky. App. 2006). Although a party
may point to evidence supporting a different outcome than reached by an ALJ,
such proof is not an adequate basis to reverse on appeal as long as substantial
evidence supports the ALJ’s ultimate determination. McCloud v. Beth-Elkhorn Corp.,
514 S.W.2d 46 (Ky. 1974).
The
ALJ provided thorough summaries of the medical records and opinions, and
articulated his reasoning in finding Wireman sustained only a temporary
exacerbation of her low back condition.
The evidence clearly establishes she has a longstanding issue with her
low back, as evidenced by the numerous MRIs she underwent prior to her work
injury. The ALJ noted her history, and
appropriately summarized the evidence. He
clearly articulated his reasons for finding Wireman sustained only a temporary
injury. We do not believe the ALJ erred
in his determination as argued by Wireman.
We note Dr. Lester’s opinion, relied upon by the ALJ, except for the
determination of when she reached MMI, constitutes substantial evidence
supporting his findings, and a contrary result is not compelled. Based upon the foregoing,
the ALJ’s determination Wireman did not sustain a permanent injury due to the January 16, 2017 work incident will not be disturbed. While
we agree with Wireman that the arousal of pre-existing, dormant conditions into
disabling reality may be compensable, in this instance, the ALJ determined she
did not sustain a permanent injury.
Therefore, the principles set forth in McNutt Construction/First General Services v. Scott, supra, are inapplicable.
We next
note that in FEI Installation, Inc. v. Williams, 214 S.W.3d 313 (Ky. 2007), the Supreme Court instructed KRS 342.020(1) does
not require proof of an impairment rating to obtain future medical
benefits, and the absence of a functional impairment rating does not
necessarily preclude such an award.
Therefore, the absence of an impairment rating does not prevent an ALJ
from awarding future medical benefits. However, that case likewise does not compel
an award of future medical benefits.
Here, the ALJ dismissed Wireman’s claim for permanent benefits and specifically
limited the award of medical benefits to August 8, 2017, the date he determined
she reached MMI, consistent with Dr. Guberman’s opinion.
The ALJ found Wireman’s injury, or
exacerbation was limited to a closed period.
He specifically noted her condition had returned to baseline as of
August 8, 2017. In more than one instance,
the ALJ clearly noted Wireman’s condition was only temporary. He limited Wireman’s recovery to a limited
period because he found she did not sustain a permanent injury. He determined Wireman sustained only
temporary injuries, which resolved by August 8, 2017, and she is not entitled
to future medical benefits after that date.
That determination satisfies the
requirement of an analysis pursuant to FEI Installation,
Inc. v. Williams, supra. The ALJ’s decision is supported by
substantial evidence, and a contrary result is not compelled.
Accordingly, the May 29,
2018 Opinion,
Award and Order, and the June 29, 2018 Order on petition for reconsideration
rendered by Hon. Chris Davis, Administrative Law Judge, are hereby AFFIRMED.
ALL
CONCUR.
DISTRIBUTION:
COUNSEL FOR PETITIONER: LMS
HON
WILLIAM C O REAVES
PO
BOX 2557
ASHLAND,
KY 41105
COUNSEL FOR RESPONDENT: LMS
HON
KIMBERLY D NEWMAN
505
WELLINGTON WAY, STE 225
LEXINGTON,
KY 40503
ADMINISTRATIVE LAW JUDGE: LMS
HON
CHRIS DAVIS
657
CHAMBERLIN AVE
FRANKFORT,
KY 40601
