OPINION ENTERED:  October 26, 2007

CLAIM NO. 03-77053

TERRI METZGER                                  PETITIONER

VS.         APPEAL FROM HON. JOHN B. COLEMAN,

                 ADMINISTRATIVE LAW JUDGE

O’CHARLEY’S, INC.

and HON. JOHN B. COLEMAN,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

AFFIRMING

                       * * * * * *

BEFORE:  GARDNER, Chairman; COWDEN and STIVERS, Members. 

GARDNER, Chairman.  Terri Metzger (“Metzger”) seeks review of a decision rendered June 6, 2007, by Hon. John B. Coleman, Administrative Law Judge (“ALJ”), dismissing her claim for benefits against the respondent, O’Charley’s, Inc. (“O’Charley’s”). In so ruling, the ALJ determined based on the medical reports of Dr. Gregory T. Snider that Metzger’s complaints are not causally related to the subject work incident at O’Charley’s.  Metzger also appeals from an order issued July 3, 2007 by the ALJ denying her petition for reconsideration.

        On appeal, Metzger argues the ALJ’s stated reliance on Dr. Snider’s opinions as the basis for dismissing her claim is inconsistent with Dr. Snider’s own findings.  Metzger contends that Dr. Snider in fact assigned a 2% impairment rating secondary to her injury at O’Charley’s.  Specifically, Metzger maintains:

     If the Administrative Law Judge is going to rely upon Dr. Snider’s reports, and rely upon his testimony . . . the final conclusion of Dr. Snider was that in fact that the Plaintiff suffered from a 2% impairment as a result of the slip and fall.

     The ultimate conclusion of Dr. Snider was in fact that the claimant had sustained a work related injury and such to the extent that she had an impairment. The ALJ cannot believe and rule on one portion of the report, when the subsequent contradicts those findings. The final decision was a work related disability impairment of 2%.

          Metzger filed a claim for workers’ compensation benefits against O’Charley’s on June 24, 2005, alleging she sustained injuries during the course and scope of her employment on July 23, 2003.  Metzger testified that on the day of her injury she was on her way to the front of the restaurant to deal with an irate customer when she slipped and fell on a wet floor in the kitchen area.  As a result of the fall, Metzger claimed injury to her head, neck, and the left side of her body. 

           Dr. Snider performed an independent medical evaluation of Metzger on August 3, 2006, at O’Charley’s request.  At that time, Dr. Snider took a detailed history from Metzger and performed an extensive review of Metzger’s past medical records.  Dr. Snider garnered that Metzger had suffered a number of injuries over the years, which he listed as follows:

• ~2000, concussion after being thrown from a golf cart

• ~January 2002, neck, shoulder and low back pain after a fall at work

• ~February 2002, ran car into ditch, “black ice”

• ~December 2002, hit by drunk driver

• ~July 2003, the current alleged work injury

• ~January 2005, motor vehicle accident described by Dr. Cassaro

          Medical records reviewed by Dr. Snider revealed that in August 2001, Metzger was seen by Dr. Elmer Dunbar of the “Pain Control Network” for complaints of severe neck and low back pain dating back to 1990.  Dr. Dunbar diagnosed cervical strain and right sacroiliitis.  Over the next eight months, Dr. Dunbar performed at least six cervical epidural injections. 

          Dr. Snider recorded that in January 2002, Dr. Dunbar documented Metzger fell down at work injuring her neck, shoulder and low back.  In February 2002, Dr. Dunbar documented that Metzger was involved in a motor vehicle accident when she ran her car into a ditch after hitting a patch of “black ice.”  Metzger complained of exacerbation of her neck and low back pain following that incident.  In March and April 2002, Dr. Dunbar performed facet blocks and trigger point injections.

          Dr. Snider recorded that in March 2003, Metzger treated with Dr. Jeffery Berg of the Audubon Pain Management Center.  At that time, Metzger reported a one and one-half year history of neck and low back pain “without apparent cause.”  He noted that Metzger’s symptoms had been exacerbated by an accident in early 2002.  Metzger had another motor vehicle accident in December 2002, when she was struck by a drunk driver.  Metzger complained of a worsening of her baseline symptoms, as well as right-sided neck and shoulder pain due to that incident.

          Dr. Snider recorded that Metzger also treated with Dr. John Nehil during 2002 and 2003.  Metzger voiced consistent and repeated complaints of neck and left shoulder pain.  Dr. Nehil prescribed Hydrocodone and later OxyCodone.  Pursuant to Dr. Nehil’s direction, Metzger underwent an MRI of the cervical spine on February 25, 2002, which was normal.  Dr. Nehil documented Metzger had been to the emergency room on July 21, 2003, with complaints of pain and emesis, at which time she received an injection of Demerol.  Concerning the work injury of July 23, 2003, Dr. Nehil recorded Metzger “fell at work . . . in the kitchen, and sustained some bruises about her left calf and apparently landed on her left shoulder.”  Metzger subsequently underwent an MRI of the cervical spine on August 7, 2003, at Dr. Nehil’s request.  The MRI revealed a very small midline protrusion at C5-6, new since the February 2002 study.  The results of a bone scan ordered by Dr. Nehil were normal.  Electrodiagnostic studies of the left upper extremity were performed on August 18, 2003, the findings of which were normal. 

          Dr. Snider recorded that on October 3, 2003, Metzger began treating with Dr. Michael Cassaro with Louisville Pain Treatment Physicians.  Dr. Cassaro recorded that Metzger’s pain began two years prior, following a car accident in early 2002.  He noted that Metzger’s symptoms had worsened when a drunk driver hit her later that same year.  Dr. Cassaro also noted another more remote injury in 2000 when she was thrown from a golf cart and had a concussion.  Dr. Cassaro referenced the work-related injury of July 23, 2003, when Metzger “fell on a wet floor and landed on her left side.”  Dr. Cassaro recorded that Metzger had “banged her self up and had to quit work after that period.” 

          Dr. Snider further noted that Dr. Cassaro received a history of a relatively violent motor vehicle accident that occurred on January 14, 2004, when “she was the restrained driver of a car that was hit broadside, in the right front fender.”  Dr. Cassaro recorded that the car was traveling at a high rate of speed and upon impact Metzger’s vehicle spun 360° and slammed into a brick building.  Metzger reported striking the left side of her body against the door and having to be extracted from the wrecked vehicle “by breaking the driver’s side seat.”  After that time, Metzger reported having severe headaches “worse than any of her previous headaches” and pain and swelling on the left side of her face.

          Dr. Snider recorded that during 2005, Metzger was treated by Dr. Cassaro on at least forty-three different occasions.  During that time, Dr. Cassaro performed nearly weekly injections, including bilateral suprascapular blocks, bilateral cluneal nerve blocks, interscalene blocks, cervical supraspinous ligament injections, cervical epidural injections, occipital nerve blocks, cervical facet blocks, iliolumbar ligament injections, trapezius trigger point injections, lumbar epidural injections, left pectoral trigger point injections, and other trigger point injections.  Metzger was also placed on methadone therapy. 

          Dr. Snider recorded that in June 2005, Dr. Cassaro made the following diagnosis: “acute whiplash secondary to MVA, alar ligament sprain, lumbago, lumbar whiplash, left sciatica, post-concussion syndrome, cervicalgia, upper cervical myelopathy, cervical dystonia, probable cervical instability, carbohydrate abuse, adrenal fatigue, hypothyroidism, [and] depression.”

          At the time of Dr. Snider’s physical evaluation, Metzger conveyed a wide array of musculoskeletal complaints.  Metgzer reported aching and pressure in her head, constant throbbing and loss of motion in her neck, pain affecting the whole left side of her body “all the time,” intermittent sharp pains in her left leg and foot, intermittent sharp pains in her left arm, neck pain with overhead movement of her arms, back pain, adrenal/pituitary problems and asthma.  She related all of her complaints to her fall at work. 

          Following a physical examination, Dr. Snider diagnosed Metzger with: 1) multiple myalgias and arthralgias; 2) probable fibromyalgia; 3) multiple MVAs; 4) narcotic addiction; 5) adrenal insufficiency; and, 6) asthma.  Concerning causation of Metzger’s various complaints, Dr. Snider opined as follows:

In my opinion, it is difficult to assign virtually any of Ms. Metzger’s current complaints specifically to the alleged work injury of 7/23/03.  Her chronic pain complaints involving her neck, arms, back, and legs pre-date the 07/23/03 injury by at least two, perhaps a dozen, years.  She has been involved in at least three motor vehicle accidents, two in the year prior to the alleged work injury and another in 2005, that contributed substantially to her accumulated complaints.  By her own estimation, the January 2005 motor vehicle accident made her symptoms ‘ten times worse.’  There is little documentation in the medical record of any objective measure or documentation of injury at the time of the alleged work injury.  It is not clear that her leaving the employment of O’Charley’s was justifiable on the basis of physical injuries.  The nature of her complaints and the nature of her treatment have been continuous and uninterrupted since well before the alleged work injury.  It is hard for me to imagine how Dr. Cassaro can assign all the causation for her current complaints to the isolated work injury.  In my opinion, there is little validity in this assertion in the setting of a contemplative, organized, and thorough review of the medical record.

In addition, there is absolutely no indication that Ms. Metzger’s endocrinopathy or hormonal pathology has any relationship to the alleged work injury (Ms. Metzger asserted this during today’s evaluation, but I have not seen documentation that the specialists have actually opined that this is so).  There is no documentation of an injury mechanism that might induce this sort of problem.  Dr. Cassaro’s own documentation at the time of Ms. Metzger’s initial visit indicates that a year and a half prior to the work injury, her periods became irregular, she developed fatigue, and had multiple other complaints that suggest endocrine imbalance.  If the assertion that head injury is related to this problem, then certainly being thrown from a golf cart and having a concussion three years prior to the work injury would be a more likely etiology.  In addition, there is absolutely no indication that any pulmonary pathology did or could have arisen from this work injury.  There are simply no objective findings of any kind that suggest that her hormonal or pulmonary complaints are in any way related to the work injury.

Furthermore, there are only tenuous objective findings of any type of permanent or significant trauma-related anatomic pathology, whether it is from the motor vehicle accidents, at least two slip-and-fall injuries, or other traumas.  In essence, there are virtually no objective findings that are not consistent with anatomic variations or age-related degenerative changes.  In my opinion, Ms. Metzger’s treatment has, over the years, been excessive.  In recent months, it has been particularly questionable in its excess, in my opinion.  I have seen no objective findings that reveal any indication for any type of injection therapy, spinal cord stimulators, or other invasive therapies.  I have seen no indication for chronic use of narcotics based on objective pathology.  In my opinion, Ms. Metzger has developed an iatrogenic dependence on the treatment process itself.

Ms. Metzger simply has a long history of multiple myalgias and arthralgias throughout the years.  These complaints are, in general, consistent with fibromyalgia, which obviously is not a trauma-related diagnosis.  Her complaints are largely unsubstantiated by any significant objective pathology.  This is in the setting of excessive and ineffective invasive treatment that has resulted in a treatment process-dependant lifestyle.  Her treatment appears to have been based on tenuous assumptions of pathology without unequivocal documentation of injury.  I cannot identify any obvious benefit that Ms. Metzger has gleaned through her current course of treatment.  She remains addicted to narcotics.  She has been subjected to countless ineffective injections.  She remains unemployed.  She has thoroughly embraced a disabled mindset.  Her medication regimen has been ineffective and complex.  She has made no assertions of, and there has been no documentation of, any significant or progressive improvement, and she now apparently believes that her peripheral medical problems are integrally related to this relatively minor work injury.

          Dr. Snider recommended immediate cessation of any further injections or other invasive treatment.  He believed Metzger was in desperate need of being weaned entirely from narcotics, which he described as “a long-term addiction that pre-dates her work injury by years.”  Dr. Snider felt no further medical treatment was “reasonable or necessary” for the cure and/or relief from the effects of the July 23, 2003 incident.  He opined there was no objective pathology that would dictate work restrictions precluding Metzger from returning to work as an assistant restaurant manager.  Dr. Snider stated that though Metzger may indeed have other disabilities, these are likely behavioral in nature and unrelated to the July 2003 work event.  Finally, Dr. Snider opined that “although some of Ms. Metzger’s conditions may be ratable per the AMA Guides,[[1]] 5th Edition, there is no identifiable impairment for the alleged work injury – 0% whole person impairment.”

          In response to additional inquiries by O’Charley’s, Dr. Snider issued supplemental reports on September 21, 2006; November 17, 2006; December 19, 2006; and, January 12, 2007.  In the report dated December 19, 2006, Dr. Snider stated as follows:

I received your letter of 12/08/06.  At your request, as below, I have performed a calculation of impairment based on the premise that Ms. Metzger suffered actual pathology in the work injury of 07/23/03.  I have, again, carefully reviewed the medical records and my examination findings.

Ms. Metzger’s impairment would be performed based on the Range of Motion Method.  Three elements are assessed in the ROM Method, one, range of motion; two, diagnoses; three, radiculopathy.  Ms. Metzger’s injury appears to have amounted to an exacerbation or aggravation of cervical spine complaints.  As you are aware Ms. Metzger has a wide array of other complaints, however, this appears to be the portion of the complaints that applies most directly to the work injury in question.

Using my goniometric measurements and Table 15-12, -13 and -14, I arrive at 5% whole-person impairment for loss of motion.

For diagnoses I referred to Table 15-7 ‘specific spine disorders’ II C on operated on disk without radiculopathy cervical spine 6% whole-person impairment.  (This refers to the findings of the 08/07/03 cervical MRI where a ‘new’ midline C5-6 protrusion was noted.  This was compared to February 2002 MRI, predating the injury in question.)

I found no evidence of radiculopathy with normal reflexes, sensation and strength, 0% whole-person impairment.

Using the Combined Values Chart Ms. Metzger has, in theory an 11% whole-person impairment for her overall cervical complaints.

In reviewing the medical record it appears that Ms. Metzger’s neck complaints began no later than a January 2002 work-related injury.  She complained not only of neck pain, but also of shoulder and back pain.  Baseline impairment for this injury would have fit into DRE Cervical Category II or 5% impairment.  Ms. Metzger complained of exacerbation of neck and back pain in a February 2002 injury when she ran her car into a ditch.  In theory this would have aggravated the condition, adding approximately 1% impairment.  She was also injured in an accident where she was struck by a drunk driver in December 2002. She also complained of neck and back pain in that accident.  This would have added approximately 5% impairment.  Therefore, in my opinion, it is reasonable to assume Ms. Metzger would have had 7% impairment for the cervical spine predating this alleged work injury.

Since that time Ms. Metzger has had two incidences.  The first, obviously, is the work injury in question on 07/23/03.  She also had a subsequent motor vehicle accident in January of 2005 with multiple complaints.  This accident is described as violent by Dr. Cassaro.  In my opinion, the remaining 4% of Ms. Metzger[’s] current impairment could be apportioned equally to these two accidents, assuming there is some veracity to her complaints.

Therefore, I would attribute approximately 2% whole-person impairment to Ms. Metzger’s slip and fall accident of 07/23/03.

                   In the decision on the merits, the ALJ dismissed Metzger’s claim in its entirety. In so ruling, the ALJ reasoned as follows:

This is a claim wherein the plaintiff alleges a multitude of injuries during a slip and fall which occurred on July 23, 2003. However, as is pointed out by the defendant-employer in its brief, the plaintiff has had numerous similar complaints throughout her medical history for the years leading up to the work related injury. In fact, the plaintiff was under active treatment with a pain management physician wherein she received medications at the time of the event and, in fact, had an appointment scheduled with that pain management physician a week after the alleged incident occurred on Thursday. Not only did the plaintiff not report the injury on Thursday (although she was in a management position herself) she did not report the slip and fall as part of the medical history when she did attend treatment with the pain management physician the following week. The plaintiff has presented medical proof from Dr. Cassaro who has given a 58% impairment, and despite acknowledging the plaintiff’s active treatment at the time of the injury and her multiple incidents of injury, ascribes all of the impairment to the slip and fall incident alleged by the plaintiff.  The plaintiff bears the burden of proof and risk of non-persuasion to convince the trier of fact as to each and every element of her claim.  Snawder v. Stice, [576 S.W.2d 276 (Ky.App. 1979)].  In this particular instance, the Administrative Law Judge does believe the plaintiff has a multitude of physical injuries and conditions which hinder her ability to labor and earn money. However, after reviewing the thorough medical reports and supplements of Dr. Snider, I am convinced by that physician, for whom I have great respect, that the plaintiff’s conditions are not causally related to the work incident of July 23, 2003. Therefore, the plaintiff’s claim for medical and income benefits for a July 23, 2003 work injury while employed by the defendant-employer, O’Charley’s, Inc., must be and is dismissed.

                   It is well established that a claimant in a workers’ compensation claim bears the burden of proving each of the essential elements of the cause of action.  Burton v. Foster Wheeler Corp., 72 S.W.3d 925 (Ky. 2002).  Since Metzger was unsuccessful in her burden of proof before the ALJ, the question on appeal is whether the evidence is so overwhelming, upon consideration of the whole record, as to compel a finding in her favor.  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).     As fact-finder, the ALJ has the sole authority to determine the quality, character, and substance of the evidence.  Square D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993); Paramount Foods Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985).   Similarly, the ALJ has the sole authority to judge the weight and inferences to be drawn from the evidence.  Miller v. East Kentucky Beverage/Pepsico, Inc., 951 S.W.2d 329 (Ky. 1997); Luttrell v. Cardinal Aluminum Co., 909 S.W.2d 334 (Ky.App. 1995).  The ALJ, as fact-finder, 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 v. Fox, 19 S.W.3d 88 (Ky. 2000); Halls Hardwood Floor Co. v. Stapleton, 16 S.W.3d 327 (Ky.App. 2000).  Mere evidence contrary to the ALJ’s decision is not adequate to require reversal on appeal.  Whittaker v. Rowland, supra.  In order to reverse the decision of the ALJ, it must be shown there was no evidence of substantial probative value to support his decision.  Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986). 

          That having been said, we find no merit in Metzger’s argument on appeal.  In Dr. Snider’s initial report, he declared it “difficult to assign any of [Metzger’s] current complaints specifically to the alleged work injury” of July 23, 2003. He noted the nature of Metzger’s complaints and treatment had been continuous and uninterrupted since before the alleged work event at O’Charley’s.  Dr. Snider stressed that Metzger’s chronic complaints of pain involving her neck, arms, back and legs predated that event by at least two and as many as twelve years.  Dr. Snider further noted that on July 21, 2003, two days before the slip and fall, Metzger sought treatment for pain at the emergency room at which time she was given “a shot of Demerol.”  What is more, when Metzger was treated initially following the alleged incident she reported no neck pain.  Dr. Snider also underscored that by Metzger’s own account, the January 2005 motor vehicle accident made her symptoms “ten times worse.”    In light of these facts, Dr. Snider concluded he could not identify “any objective measure of permanent anatomic injury or alteration” attributable to the July 23, 2003 injury. Dr. Snider further stated he found “no identifiable impairment for the alleged work injury — 0% whole person impairment.”

          Only later when requested in correspondence from counsel for O’Charley’s to calculate impairment “based on the premise that [Metzger] suffered actual pathology in the work injury,” did Dr. Snider estimate 2% impairment attributable to the alleged slip and fall.  Under the circumstances, we believe the ALJ in his role of fact finder was free to disbelieve and reject Dr. Snider’s December 19, 2006 report as conjectural and in response to hypothetical questioning, and accept as more reasonable Dr. Snider’s opinions regarding causation and impairment as set out in his initial August 3, 2006 report.  Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999).  As a consequence and because the ALJ’s decision is supported by substantial evidence of record, we find no error.  Special Fund v. Francis, supra.

          Accordingly, the decision rendered June 6, 2007, by Hon. John B. Coleman, Administrative Law Judge, is hereby AFFIRMED.

          ALL CONCUR. 

COUNSEL FOR PETITIONER:

HON EDWARD A MAYER

2811 BARDSTOWN RD STE 202

LOUISVILLE KY 40205

COUNSEL FOR RESPONDENT:

HON PATRICK J MURPHY II

3151 BEAUMONT CENTRE CIRCLE

STE 200

LEXINGTON KY 40513

ADMINISTRATIVE LAW JUDGE:

HON JOHN B COLEMAN

107 COAL HOLLOW RD STE 100

PIKEVILLE KY 41501