*/
Workers’
Compensation Board
OPINION ENTERED: January 11, 2019
CLAIM
NO. 201772509
TONY
SEXTON PETITIONER
VS. APPEAL FROM HON. MONICA RICE-SMITH,
ADMINISTRATIVE
LAW JUDGE
RESOURCE
MFG. and
HON.
MONICA RICE-SMITH,
ADMINISTRATIVE
LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and
RECHTER, Members.
ALVEY, Chairman. Tony
Sexton (“Sexton”) appeals from the Opinion and Order rendered by Hon. Monica
Rice-Smith, Administrative Law Judge (“ALJ”) on August 27, 2018. The ALJ found Sexton failed to prove he
sustained a work-related left knee injury on June 26, 2017 while working for
Resource, Mfg. (“Resource”), despite the fact he was involved in a work-related
incident on that date. Sexton also
appeals from the September 18, 2018 order denying his petition for
reconsideration.
On
appeal, Sexton argues the ALJ erred in dismissing his claim. He argues Resource bore the burden of proving
his left knee condition was pre-existing active, and he sustained no work
injury. He additionally argues the ALJ
erred in concluding his left knee condition was active, and pre-existed the work-event,
and that he sustained no harmful change due to the work incident. He also argues the ALJ’s determinations are in
direct contravention of the 5th
Edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (“AMA Guides”). We
determine the ALJ appropriately considered the evidence presented, and did not
err in dismissing Sexton’s claim.
Therefore, we affirm.
Sexton filed a Form 101 on January 29,
2018, alleging he injured his left knee on June 26, 2017 in a twisting incident
while working for Resource in Georgetown, Kentucky. Sexton did not file a Form 104 employment
history in support of his claim.
Sexton testified by deposition on March 26,
2018, and again at the hearing held on June 26, 2018. Sexton was born on May 11, 1983. He completed the tenth grade, and has no
specialized or vocational training. He
also testified that he has never previously filed a workers’ compensation
claim. His work history includes operating
forklifts, floor jacks and bobcats while unloading trucks, and working as a
general warehouseman for various employers.
Resource provided employees to work at the Toyota plant in Georgetown,
Kentucky. His job involved loading
parts onto trollies which were used in the assembly process. Part of his job required using an overhead
crane to move batteries for hybrid vehicles.
He was performing this portion of his job at the time of his alleged
injury.
On June 26, 2017, Sexton was utilizing an
overhead crane to move a hybrid battery.
As he was maneuvering the battery with a crane, he turned to move. He testified that the cable utilized to move
the crane became twisted, and something popped, lifting him up and pushing him
backward. When he came down, he twisted
his left knee and experienced pain. He
immediately reported the incident to his supervisor. He testified he experienced left knee
instability after the incident. He
sought medical treatment and underwent a brief course of physical therapy, which
did not improve his condition. Sexton
continued to work on light duty for one to two weeks after the incident, until
Dr. Michael Heilig took him off work. He
testified he has continued to experience symptoms in his left knee since the
incident with some days worse than others.
He testified his symptoms include pain, bruising and swelling, and his
left knee occasionally goes out.
Sexton admitted he had previously
experienced left knee problems in late 2016, which were temporary in nature,
and went away two days after he treated with Dr. Heilig. He testified he had no more left knee
problems until the work incident in June 2017. He stated his left knee symptoms were much
worse after the June 2017 incident than he had previously experienced. He also recalled a previous left knee sprain he
experienced years before. He has not returned
to work since Dr. Heilig took him off, and does not believe he can perform the
full range of his work duties.
In support of his claim, Sexton filed Dr. Heilig’s
July 17, 2017 office note. Dr. Heilig,
an orthopedic surgeon, noted Sexton was well known to his practice. Sexton reported a left knee injury three
weeks prior when an overhead hoist malfunctioned, causing him to fall and twist
his left knee. An MRI showed Sexton has
medial and lateral meniscus tears, an ACL tear, and bone bruising at the base
of the ACL. Dr. Heilig diagnosed Sexton
with left knee medial meniscus, lateral meniscus and ACL tears. He noted Sexton wished to proceed with left
knee arthroscopy, partial medial and lateral meniscectomies, chondroplasty, and
possible ACL reconstruction.
Sexton also filed the Form 107-I report of
Dr. Anthony McEldowney, who evaluated him on February 6, 2018. Dr. McEldowney noted the history of left knee
injury while using a crane to move a hybrid battery. Sexton related a history of previous left
knee injuries which did not require therapy or an MRI, and noted he continued
to work. Dr. McEldowney diagnosed Sexton
with a left ACL tear/ disruption, caused by the June 26, 2017 work injury. He noted Sexton reported residual pain and
giving way of the left knee. He
determined Sexton had reached maximum medical improvement (“MMI”) by September
26, 2017 because he is not interested in surgery. Dr. McEldowney assessed a 7% impairment
rating pursuant to the AMA Guides.
He noted Sexton is incapable of returning to his previous work. He advised Sexton to avoid activities
requiring frequent cutting movements. He
also advised Sexton to avoid of frequent stair climbing, repetitive leg
bending, frequent stooping, squatting, or kneeling. He additionally advised Sexton to avoid
lifting over sixty pounds on a maximum basis, or greater than one hundred
pounds of pulling.
Sexton filed Dr. McEldowney’s supplemental
May 17, 2018 report criticizing the findings of Dr. Rick Lyon who evaluated him
on Resource’s behalf. Dr. McEldowney
stated there were no objective findings indicating a previous ACL injury, and
Dr. Lyon’s assessment to the contrary is based purely upon speculation. He stated Sexton had 0% impairment to the
left knee prior to the work injury. In
another supplement dated July 10, 2018, Dr. McEldowney stated Sexton was able
to function without a completely functional ACL until the June 2017
incident.
Sexton additionally filed records from Dr. Heilig
for treatment administered on October 3, 2016, October 17, 2016 and July 17,
2017 (previously filed with the Form 101).
On October 3, 2016, Dr. Heilig noted Sexton had a six-year history of
left knee problems, and had been wearing a brace. He noted Sexton complained of persistent
locking, catching, and giving way of the left knee, which had progressively
worsened. Sexton reported his left knee
gave out the week prior as he was picking up a box. Physical examination revealed a large
effusion of the left knee, limited range of motion, and medial joint line
tenderness. He noted the examination of
the ligaments was normal. Dr. Heilig
diagnosed a left knee ACL tear and medial meniscus tear. He prescribed a brace, and recommended an
MRI. He also noted Sexton wished to
proceed with surgery due to the progression of the left knee problem for six
years.
On October 17, 2016, Dr. Heilig noted
Sexton had a positive McMurray’s test. He
also noted Sexton had full range of motion with no effusion. He diagnosed osteoarthritis of the left
knee. The note reflects an MRI was
planned for the underlying meniscal pathology.
Sexton also filed the MRI report from Pro
Scan Imaging dated July 13, 2017 which noted he had sustained medial and
lateral meniscal tears, and incomplete tearing of the ACL. It also revealed a small joint effusion and
edema in the infrapatellar fat pad.
In its Notice of Disclosure and Form 111
Claim Denial, both filed on February 27, 2018, Resource admitted Sexton was
involved in a work event on June 26, 2017, but denied he sustained an
injury.
Dr. Lyon evaluated Sexton at Resource’s
request on December 21, 2017. In his
report dated January 15, 2018, Dr. Lyon noted the June 2017 incident when a
malfunctioning crane at work pushed him backward. He also noted the history of episodes of knee
instability in 2012 and 2016. He noted
that on neither occasion were recommended MRIs performed. In October 2012, Sexton’s left knee gave way
with a loud pop, and he developed an effusion.
Dr. Lyon stated this was consistent with an ACL tear. He noted no MRI was performed at that time,
although it was recommended, and there is no documentation of a ligamentous
evaluation.
Dr. Lyon noted that on October 16, 2016,
Sexton was again seen for left knee complaints, including instability. Again, an MRI was recommended, but not
performed, nor is there a record of ligamentous evaluation. Dr. Lyon noted the findings on evaluation
were again consistent with an ACL tear based upon the findings of effusion,
mechanism of injury, instability and recurrent symptoms. Dr. Lyon noted Sexton’s complaints in June
2017, including instability, are consistent with an ACL tear. Dr. Lyon agreed with Dr. Heilig that Sexton
needs an ACL reconstruction, but attributes this to the 2012 injury. He noted, “the natural history of an ACL tear
is typically progressive symptomatology and increased frequency of instability
episodes.”
Dr. Lyon diagnosed Sexton with medial and
lateral meniscus tears, and a left ACL tear, which he determined pre-existed
the June 2017 work incident. Dr. Lyon
stated Sexton has a 10% impairment rating pursuant to the AMA Guides,
however, if he has successful surgery, this would reduce to 4%. He also determined Sexton’s condition has
returned to its pre-injury status.
In a subsequent noted dated February 26,
2018, Dr. Lyon indicated he had reviewed x-rays and an MRI of the left knee,
and his opinions from the previous report remain unaltered. In an April 2, 2108 note, Dr. Lyon stated he
had reviewed Dr. McEldowney’s report, and his opinions again remain unchanged. He stated the June 2017 work incident “was
simply another instability event like those previously experienced by Mr.
Sexton.” Dr. Lyon disagreed with Dr. Heilig,
and stated there is no objective reason requiring Sexton to be off work.
On June 20, 2018, Resource filed an
additional note from Dr. Lyon. Based
upon his review of Dr. Heilig’s notes, he opined Sexton had ACL and meniscus
tears prior to the work incident. He
noted Sexton was a candidate for surgery eight months prior to the work
incident. He did not believe the June
26, 2017 work incident contributed to the need for surgical intervention.
Resource also filed Dr. Heilig’s office
notes from June 18, 2012 and October 17, 2016.
The June 18, 2012 note reflects Sexton turned his left knee, and experienced
pain and swelling with a loud pop two days before the office visit. The diagnosis at that time was questionable
for a meniscus tear of the left knee. An
MRI was discussed, and a knee brace was prescribed.
At the Benefit Review Conference held June
13, 2018, the issues preserved for decision included benefits per KRS 342.730;
work-relatedness/ causation; injury as defined by the Act; exclusion for
pre-existing active disability; TTD; compensability of requested surgery; and
whether the impairment rating was assessed in accordance with the AMA Guides.
The ALJ rendered her decision on August 27,
2018. She determined Sexton failed to
establish he sustained a work-related injury on June 26, 2017, and dismissed
his claim. The ALJ specifically found as
follows:
After careful consideration of the lay testimony and the
medical records summarized above, the ALJ finds Sexton has failed [sic] satisfied[sic]
his burden of proving he sustained a work-related injury to his left knee on
June 26, 2017. Although Sexton experienced a work event on June 26, 2017, he
failed to establish that the event caused a harmful change in the human
organism evidence by objective medical findings. The medical treatment records
show no change in the objective medical findings of Sexton’s left knee
following the event of June 26, 2017. Sexton describes his knee condition as
totally different following the June 26, 2017 work event, however his testimony
is inconsistent with the treatment records. The ALJ is persuaded by the opinion
of Dr. Lyon, which is consistent with the treatment records of Dr. Heilig.
Dr. Heilig’s treatment records indicate treatment for
left knee pain and swelling starting in June 2012. On June 8, 2012, Dr.
Heilig’s objective findings included medial joint line tenderness, lateral
joint line tenderness, effusion, patella tenderness and positive McMurray’s
test. Dr. Heilig diagnosed a possible meniscus tear and recommended an MRI at
that time. In October 2012, Dr. Heilig noted the same objective findings and again
recommended an MRI. On October 3, 2016, Dr. Heilig’s objective findings
included effusion, decreased range of motion, medial joint line tenderness,
positive McMurray’s, positive Lachman and drawer testing. He diagnosed left
knee ACL tear and medical[sic] meniscus tear. Following the June 26, 2017
event, Dr. Heilig’s objective findings include positive Lachman and positive
McMurray’s. Dr. Heilig diagnosed left knee medial meniscal tear, lateral
meniscal tear and ACL tear. The objective medical findings after the June 26,
2017 work event were present prior to the work event.
In addition, despite Sexton’s insistence that his knee
condition was totally different after June 26, 2017, Dr. Heilig’s records
establish his complaints were unchanged after June 26, 2017. On October 3,
2016, Sexton complained of persistent locking, catching and giving away in the
left knee. Sexton also reported his left knee problem had progressively gotten
worse. He advises Dr. Heilig that he wants his knee surgically repaired because
he has had progressive problems for over six years. On June 17, 2017, Sexton’s [sic]
reports pain and feelings of instability and locking in the left knee.
Instability was not a new symptom following the June 26, 2017 event, in fact,
Sexton made the same complaints in October 2016.
The opinion of Dr. Lyon is consistent with the medical
treatment records and most persuasive. Dr. Lyon opines the ACL tear and
meniscus tears were present prior to June 26, 2017. He explains the work event
of June 26, 2017 did not cause objective worsening of Sexton’s existing knee
condition. He explains the October 3, 2016 treatment note of Dr. Heilig
confirms a positive Lachman and drawer test, as well as joint line tenderness.
These findings confirm Sexton had an ACL tear and meniscus tears prior to the
June work event. Dr. Heilig also noted Sexton had a six year history of
progressive symptoms, consistent with the 2012 injury. Sexton report[sic] to
Dr. Heilig a history of left knee problems progressively worsening. Dr. Lyon
opines Sexton’s knee conditions were active and pre-existed the June 26, 2017
work event. He advised Sexton was a candidate for ACL reconstruction and medial
meniscectomy/repair in October 2016. In fact, the October 3, 2016 Heilig
treatment note indicates surgery was discussed as it notes Sexton advised Dr.
Heilig he wanted his knee surgically repaired.
Although Dr. McEldowney initially opined Sexton’s knee
condition was completely related to the work event on June 26, 2017, he did not
initially have the complete treatment records of Dr. Heilig. After reviewing
specifically the October 3, 2016 record, Dr. McEldowney acknowledges that
Sexton has had some form of anterior cruciate ligament dysfunction since
approximately 2010. He does not provide any opinion as to how that information
or acknowledgement effects his prior opinion.
Clearly, Sexton has tears in his left knee that require
surgical intervention, but based on the foregoing, the ALJ finds that Sexton
failed to satisfy his burden of proving he sustained any harmful changes
related to the June 26, 2017 work event.
Sexton filed a Petition for Reconsideration
requesting additional findings from the ALJ to support her conclusions regarding
whether he had ACL and meniscus tears prior to June 2017. He also requested the ALJ provide additional
findings regarding her determination that he sustained no harmful change to the
left knee due to the June 26, 2017 incident.
Sexton also requested additional findings from the ALJ regarding whether
his left knee condition was symptomatic prior to June 26, 2017, and following
that incident. The ALJ issued an order
denying the petition on September 18, 2018.
The ALJ specifically found as follows:
IT IS HEREBY ORDERED the Petition for
Reconsideration is OVERRULED. As fact finder, the ALJ has the authority
to determine the quality, character and substance of the evidence. Square D
Company v. Tipton, 862 S.W.2d 308 (KY 1993). The ALJ had the right to believe
part of the evidence and disbelieve other parts of the evidence whether it came
from the same witness or the same adversary party’s total proof. Caudill v.
Maloney’s Discount Stores, 560 S.W.2d 15 (KY 1977). The ALJ chose to rely
on the opinion of Dr. Lyon. Dr. Lyon opined on pages 4, 5, and 6 of his initial
report and in his supplemental report that Sexton’s ACL tear and meniscus tear
where present prior to June 26, 2017. Sexton reported the same symptoms prior
to June 26, 2017. In October 2016, Sexton reported to Dr. Heilig his left knee
was getting progressively worse. Even Dr. McEldowney in his last supplemental
report acknowledged Sexton had anterior cruciate ligament dysfunction prior to
June 26, 2017. The ALJ finds no error on the face of the Opinion, Order and
Award.
As the claimant in a workers’ compensation proceeding, Sexton 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 his 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 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 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 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).
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 discretion to determine all reasonable inferences 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).
Although a party may note evidence supporting a different outcome than
reached by an ALJ, this is not an adequate basis to reverse on appeal. McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974).
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 that otherwise could have been drawn from the
record. Whittaker v. Rowland, 998 S.W.2d 479, 481 (Ky. 1999).
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, 708 S.W.2d 641, 643 (Ky. 1986).
We find
substantial evidence supports the ALJ’s determination Sexton did not sustain a
work-related left knee injury stemming from the June 26, 2017 work incident. When the question of causation involves a
medical relationship not apparent to a layperson, the issue is properly within
the province of medical experts, and an ALJ is not justified in disregarding
the medical evidence. Mengel v.
Hawaiian-Tropic Northwest and Central Distributors, Inc., 618 S.W.2d 184
(Ky. App. 1981).
Sexton
complained of left knee pain, which he stated had worsened since the June 26,
2017 work incident. However, the ALJ
noted he had longstanding issues with his left knee. Dr. Lyon, as noted by the ALJ, specifically
determined that although Sexton is a surgical candidate for both ACL and
meniscal tears, this is not due to the work incident. Dr. Lyon specifically noted Sexton’s problems
stem from an incident, which occurred in 2012, and that Dr. Heilig’s records
from 2012 and 2016 support this determination.
As
explained by the ALJ, it is not disputed that Sexton was involved in a
work-related incident on June 26, 2017. However,
she determined that he suffered no harmful change to the left knee due to that
incident. While evidence exists
supporting Sexton’s allegation that his left knee problem was caused by the
work incident, it does not compel a decision in his favor. The ALJ clearly reviewed all evidence of
record, and adequately provided a basis for her decision. The ALJ acted within her discretion in
relying upon Dr. Lyon’s opinions.
Sexton
essentially requests this Board to re-weigh the evidence, and substitute its
opinion for that of the ALJ, which we cannot do. Whittaker
v. Rowland, supra. It was the ALJ’s prerogative to rely upon Dr.
Lyon’s opinion in determining Sexton did not sustain a compensable left knee
injury. Sexton
merely points to conflicting evidence supporting a more favorable outcome,
which is not an adequate basis to reverse on appeal. McCloud
v. Beth-Elkhorn Corp., supra. Because substantial evidence supports the
ALJ’s determination and no contrary result is compelled, her decision shall
remain undisturbed.
For the
foregoing reasons, the August 27, 2018 decision, and the September 18, 2018
Order on Petition for Reconsideration rendered by Hon. Monica Rice-Smith,
Administrative Law Judge, are hereby AFFIRMED.
ALL CONCUR.
DISTRIBUTION:
COUNSEL FOR PETITIONER: LMS
HON
JAMES D HOWES
5438
NEW CUT RD, STE 201
LOUISVILLE,
KY 40214
COUNSEL FOR RESPONDENT: LMS
HON
JOHANNA F ELLISON
300
WEST VINE ST, STE 600
LEXINGTON,
KY 40507
ADMINISTRATIVE LAW JUDGE: LMS
HON
MONICA RICE-SMITH
657
CHAMBERLIN AVE
FRANKFORT,
KY 40601
