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OPINION ENTERED: August 8, 2008
CLAIM NO. 07-00626
MARY ROSE PETITIONER
VS. APPEAL FROM HON. HOWARD E. FRASIER,
ADMINISTRATIVE LAW JUDGE
HOMETOWN CONVENIENCE LLC
and HON. HOWARD E. FRASIER, JR.,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION AFFIRMING
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BEFORE: GARDNER, Chairman, COWDEN and STIVERS, Members.
COWDEN, Member. Mary Rose (“Rose”) appeals from the decision of Hon. Howard E. Frasier, Jr., Administrative Law Judge (“ALJ”) awarding permanent partial disability benefits for a July 16, 2005 hand injury and only a period of medical benefits for an alleged August 30, 2006 injury to Rose’s neck, shoulder and low back. On appeal, Rose argues the ALJ’s decision is not supported by substantial evidence and the evidence compels a finding in her favor.
Rose testified by deposition on July 31, 2007. She indicated on July 16, 2005 the lid of a pizza table fell on her fingers. She treated on only one occasion at Our Lady of the Way Hospital in Martin, Kentucky and was advised to wear splints on her fingers. Rose stated her fingers are now stiff and she has trouble bending them. Rose indicated she had not been treated for arthritis prior to the work injury but has been told she now has arthritis in her hand.
Rose testified she received mental health treatment in the 1980s at the Pikeville Hospital and received counseling and medication at a clinic in Virgie. Rose testified she suffered emotional and physical abuse from her ex-husband in the 1980s. She eventually divorced her husband after thirteen years of marriage.
Rose testified she had an accident on August 30, 2006 when she tripped and fell over a broom, mop and mop bucket, landing on her back. She stated she was not in much pain right after the fall but developed pain later in the day. She was able to finish work and went to Our Lady of the Way Hospital that night. By that time, she was hurting all over, especially in her low back and right hip and leg. She treated at a clinic in Kermit, West Virginia and also saw Dr. Philip R. Simpson, a chiropractor in Prestonsburg. She denied seeing Dr. Simpson prior to this accident. Rose testified she had a lot of pain in her back, right hip, right shoulder and neck. She had pain running down the back of her leg. At times, she had pain in both legs.
Rose injured her shoulder and neck in a car accident in the 1980s. She treated at the Pikeville Medical Center and at a clinic in Virgie. Rose indicated the accident caused a lot of pain in her arm and in the back of her shoulder and neck. She had an ongoing problem with her shoulder and neck flaring up about two or three times a week, mainly when she did heavy lifting. Her pain would last from a few hours to a few days. Rose denied any other injuries to her right shoulder or neck and stated she had not had prior problems or treatment for her right hip or knee. She denied any prior treatment for her low back. Rose believed she started going to Justice Medical a couple of weeks after the 2006 injury. She denied telling Justice Medical she had been having back pain for years but acknowledged problems with her neck for years. Rose was not working at the time of her deposition and had not performed or looked for work since leaving Double Qwik.
At the hearing held January 14, 2008, Rose testified that, following the August 30, 2006 injury, she returned to work on September 2, 2006. She continued to work until October 2006 when her doctors told her to stop working. Rose had not returned to work at the time of the hearing. She did not feel she could perform her work at Hometown Convenience or any of her past work due to her back and neck problems. Rose indicated she had a 9th grade education and had not received a GED. She believed she would need future treatment for her neck and back. Rose indicated she had stiffness in her neck most of the time and pain in her back if she stood, sat or lifted.
Rose stated she felt terrible because her medical bills had not been paid and her children had to help her with payments. She indicated she was taking Lorcet and was taking Xanax for her nerves. She acknowledged having emotional problems in the past as a result of abuse by her ex-husband. Rose stated she had become more nervous since she stopped working. On a typical day, she was stressed and in pain.
On cross-examination, Rose stated she had dizziness that caused her to fall on a couple of occasions after a car accident. She did not continue to experience dizziness and did not have dizziness on the dates of either of her work injuries. She acknowledged hurting her neck and right shoulder in a motor vehicle accident in the 1980s and indicated she still has flare-ups from that, typically two or three times per week. She believed arthritis had “set up in it” and stated weather had a lot to do with her flare-ups. Rose did not recall being treated for anxiety on March 21, 1995. She did recall having medication for anxiety in the 1980s. Rose indicated she could not recall having problems with her lumbar spine prior to the work accident. She denied telling Our Lady of the Way or Justice Medical Center she had low back pain from working over the years.
Hometown submitted records from the Pikeville Medical Center. Rose was seen on February 17, 1981 after she fainted and fell injuring her back and hip. An October 2, 1982 radiology report of the cervical spine noted slight reversal of the normal lordotic curvature of the cervical spine, but otherwise was unremarkable. A September 20, 1984 radiology report of the cervical spine was negative. On March 14, 1985, Rose presented after passing out and falling to the floor. She was unconscious for 20 minutes and complained of pain in the mid-chest and neck. The diagnosis was unexplained syncope.
Records of the Pikeville Methodist Hospital indicate Rose presented on March 5, 1991 after a motor vehicle accident. She complained of pain between her shoulders, lower back pain and left leg numbness. A cervical x-ray showed a small anterior degenerative spur formation C5 with no other abnormalities. Rose was seen on March 21, 1995 after she passed out. She was admitted for chest pain and pain in the left arm and neck. A March 22, 1995 radiology report indicated mild degenerative disc changes at C5-C6. The report noted a mild degree of encroachment along the right neural foramina of C5 from the hypertrophic osteoarthritic changes of the adjacent uncovertebral joints. Rose was noted to have anxiety and atypical chest pain. Rose was seen following a motor vehicle accident on November 10, 1995. X-rays revealed mild degenerative disc changes of the cervical spine. Rose was diagnosed with soft tissue injury to the scalp and neck.
Hometown submitted records from Our Lady of the Way Hospital dated August 24, 2004 through November 2, 2006. On August 24, 2004, Rose presented complaining of dizziness which made her fall. She had a tearing sensation in her right elbow and a bruise to the left upper thigh. On August 30, 2006 after a fall at work, an x-ray of the right shoulder revealed degenerative inferior osteophytes of the acromioclavicular joint, but there was no fracture or dislocation. X-rays of the thoracic spine revealed osteoporosis and change of cervical spondylosis of the lower cervical vertebrae. The x-ray showed cervical spondylosis of the mid-cervical vertebrae with anterior and posterior osteophytes.
Rose filed an August 30, 2006 work slip indicating she was to be off work through September 1, 2006 and should be able to return to work on September 2, 2006.
Rose filed records of Debra Hatfield, CFNP dated from October 3, 2006 through June 7, 2007. On October 3, 2006, Rose was noted to have fallen over a broom and mop bucket three weeks earlier. Rose was having pain from her hips to her knees. Rose presented on January 6, 2007 with back and shoulder pain. On June 7, 2007, Rose stated she hurt her right elbow a couple of days earlier and was still having stiffness and soreness. CFNP Hatfield completed a statement on April 6, 2007 indicating a diagnosis of spondylosis and cervical spine osteoarthritis. She indicated Rose was not at MMI and was temporarily totally disabled and/or permanently totally disabled. She indicated Rose was unable to stand/sit for extended periods of time and limited repetitive lifting to ten pounds. She indicated Rose did not retain the physical capacity to return to the type of work performed at the time of the injury.
Rose submitted a report of Dr. Eric Johnson, a psychologist, who performed a psychological evaluation on March 15, 2007. His impression was adjustment disorder with depressed mood, chronic and somatoform disorder. He indicated Rose might profit from psychiatric consultation and counseling if she remained in treatment for a sufficient period of time to effect changes. He noted Rose reported no psychiatric symptoms or conditions prior to the work injury on August 30, 2006. She reported a recent divorce but denied having problems related to that. Dr. Johnson indicated it would be inappropriate to assign a permanent impairment since she had not had psychiatric treatment. Her current impairment, based on depression and a pain disorder, would be in the mild range at about 10%. Dr. Johnson stated he would expect a reduction of that impairment with successful psychiatric intervention. He recommended a re-evaluation for permanent impairment after she had been in treatment for a period of time.
Rose filed records from Dr. Philip Simpson. Dr. Simpson saw Rose on March 14, 2007 with complaints of pain in her low back, SI, sacrum, neck and shoulder. Dr. Simpson hand wrote his impressions of the x-ray taken on that date as “loss of lordotic cervical curve; cervical subluxation; George’s line broken DDD throughout C spine; osteophytes-on ant. (illegible) bodies; pelvic unleveling; (illegible), SI, (illegible), thoracic (illegible).” A March 14, 2007 workers’ compensation questionnaire indicates the injury occurred on August 30, 2006. In response to a question of whether Rose had treated previously with a chiropractor, the form indicated “yes” and “this office”. The doctor’s note indicated a date last seen as “first visit”.
Dr. Joseph Rapier performed an independent medical evaluation on April 5, 2007. He diagnosed cervical and lumbar strains aggravating pre-existing dormant degenerative disc disease without radiculopathy. He also diagnosed degenerative osteoarthritis of the finger joints. He assigned a 10% impairment for the right hand and stated Rose should avoid repetitive use of the right hand with no frequent bending, lifting, turning or twisting. Dr. Rapier assigned an 8% impairment for the neck and 17% impairment for the lower back. Based upon the medical records he reviewed and by history, Dr. Rapier counted at least seven injuries to the cervical spine and stated he would apportion the cervical spine impairment equally among the seven injuries. He noted three separate injuries to the lower back and indicated he would apportion the 17% impairment equally among the three injuries.
Rose introduced the April 26, 2007 report of Dr. W.R. Stauffer. Dr. Stauffer diagnosed chronic low back pain of uncertain etiology without evidence of radiculopathy and chronic neck pain with decreased range of motion. He reported Rose’s main problem was with her neck and back with some decreased range of motion. He indicated her right hand seemed to be okay. He believed she could occasionally lift twenty pounds and frequently lift ten pounds. She could stand or walk six hours in an eight hour day, sit six hours a day and would be unlimited in pushing or pulling. She might have difficulty with frequent stooping, kneeling, crouching or crawling. He indicated she might have difficulty reaching overhead repetitively.
Rose submitted the report of Dwight L. McMillion, who performed a vocational evaluation. He opined Rose was not capable of engaging in substantial gainful employment and was not a candidate for vocational rehabilitation. He stated Rose was significantly limited vocationally due to her impairments, lack of transferable work skills, limited education, depression and intellectual capacity. He stated the restrictions placed on her by Dr. Rapier would preclude her from performing any work for which she was qualified or capable of performing based upon her age, education, work history and other limitations.
Dr. Douglas D. Ruth, a psychiatrist, performed a psychiatric evaluation on July 25, 2007. He diagnosed anxiety disorder, NOS. He noted the history Rose provided was not consistent, was implausible and did not comport with testing results. Test results were compatible with her endorsing symptoms more often found among those feigning psychiatric disorders than among genuine patients reporting only bonafide symptoms. Dr. Ruth stated there were no objective findings to indicate a psychiatric disorder or a psychiatric impairment arose as a direct result of either of the work events. Dr. Ruth noted her records did not document any worsening of symptoms or prescription of psychotropic medications at a point approximating 2 – 3 months following the work incident. Records did document the clinical assessment of anxiety and depression and a recommendation to add a medication used to treat anxiety or depression or to augment pain relief on February 6, 2007. He noted Rose reported a more striking aggravation of her pre-existing symptoms of anxiety and depression as occurring about 6 – 7 months prior to Dr. Ruth’s examination when her son suffered severe injuries. During his examination he noted Rose’s affect showed an abrupt change as she discussed that incident compatible with its having had a clear impact upon her emotional state. Dr. Ruth stated her history was compatible with both cognitive and emotional psychiatric symptoms arising prior to the work injuries and psychiatric symptoms aggravated by the unfortunate injury to her son. Dr. Ruth indicated Rose had a pre-existing active condition. From a psychiatric perspective, Rose should be capable of resuming the work she performed at the time of the work injury. Dr. Ruth noted it did not appear Rose advised Dr. Johnson of her past history of psychiatric complaints. He noted Dr. Johnson’s report indicated no history of a preceding psychiatric condition and no history of prior treatment for psychiatric complaints. Dr. Ruth noted Dr. Johnson did not document the history of the serious injury to Rose’s son which, by her account, preceded Dr. Johnson’s evaluation by a month or two.
Dr. Ronald C. Burgess performed an IME on August 3, 2007. He stated Rose had no evidence of radiculopathy in her right upper extremity with complaints of neck pain. Examination of her hand showed osteoarthritic changes, particularly of the index and middle fingers. Dr. Burgess stated Rose had mild limitation of range of motion of her digits from the osteoarthritis. He assigned a 1% whole body impairment for her right hand.
Hometown submitted the report of Dr. Timothy C. Kriss, who performed an IME on October 22, 2007. Dr. Kriss stated Rose suffered a cervical and lumbar musculoskeletal strain/contusion on August 30, 2006. He found no evidence of cervical or lumbar radiculopathy and stated Rose had no neurologic deficit. He stated there was no fracture as a result of the July 16, 2005 hand injury. Rose had obvious and ongoing degenerative arthritis in the fingers and hands. Dr. Kriss stated Rose reached MMI after the August 2006 injury by December 30, 2006. He found no significant clinical findings, no neurological impairment and no documented significant alteration in structural integrity with regard to the cervical condition. He assigned a 0% impairment. Dr. Kriss noted Rose was a terrible medical historian. With regard to the lumbar condition, he placed her in DRE category I for no significant clinical findings with no neurologic impairment and no documented significant alteration and structural integrity and assigned a 0% impairment. He stated Rose had non objective medical evidence of permanent harmful change in her lumbar spine. X-rays showed chronic degenerative changes with no acute changes. Dr. Kriss noted that, contrary to the history he obtained from Rose, medical records indicated her back and neck pain were actually pre-existing active and chronic, and symptomatic long before she slipped and fell on August 30, 2006. Dr. Kriss stated that in the complete absence of any objective medical evidence indicating a permanent harmful change specifically attributable to the slip and fall on August 30, 2006, there was no alternative but to construe the events of that date as a temporary muscular/skeletal strain/contusion. Since there was no permanent work-related physical harmful change, Dr. Kriss stated there was no need for permanent work-related physical restrictions. He stated there was no work-related reason why Rose could not return to her previous work duties as performed at the time of the alleged injury. Dr. Kriss opined chiropractic treatment from August 30, 2006 to October 30, 2006 was appropriate. He stated chiropractic manipulation is of no additional medical benefit if carried on for more than 6 – 8 weeks after a traumatic event. Thus, chiropractic treatment for the slip and fall of August 30, 2006 was not indicated past October 30, 2006. After that date, it would be neither medically reasonable nor necessary. Dr. Kriss noted the history Rose provided to Dr. Rapier was substantially inaccurate and largely incomplete. Therefore, through no fault of his own, Dr. Rapier’s medical conclusions were not within a reasonableness degree of medical probability.
Hometown submitted the report of Shari Deogracias, who performed a vocational assessment on October 11, 2007. She noted Dr. Rapier did not remove Rose from the workforce, but only limited her activities. In the absence of a specific weight restriction, Ms. Deogracias stated one could assume Rose would be functionally able to perform in the sedentary and light physical demand classifications. She identified alternative employment options such as surveillance system monitor, gate guard, security guard, bench assembly/production, light industrial positions within the functional limitations outlined and food service management. She noted a number of job openings in Rose’s surrounding area in those categories. She indicated Rose was functionally able to pursue these occupational classifications given the medical opinion of Dr. Rapier. Should Rose desire to engage in employment, Ms. Deogracias recommended she seek job placement assistance from the Kentucky Department of Vocational Rehabilitation and her local employment office.
After a thorough review of the evidence, the ALJ found Rose’s description of her injuries on July 16, 2005 and August 30, 2006 to be credible. However, the ALJ agreed with Dr. Kriss that Rose had been an “absolutely terrible historian.” The ALJ found Rose was not credible in her insistence that all of her present medical problems and inability to return to work were a result of the two work-related events. The ALJ found Rose had a permanent injury to her right hand that did not prevent her from returning to the workforce or performing her previous position and the slip and fall in 2006 was merely a temporary exacerbation of a pre-existing active condition in her cervical and lumbar spines. The ALJ noted Rose’s primary complaints were in her cervical and lumbar spines. Despite her denial of pre-existing active symptoms, the ALJ noted even Dr. Rapier conceded in his second report Rose had at least six previous injuries to her cervical spine and two prior injuries in her lumbar spine. The ALJ noted Rose’s omission regarding her prior medical history and pre-existing complaints caused Dr. Rapier to completely redo his report and attempt to allocate impairment to each injury event. The ALJ then made the following findings regarding pre-existing active impairment, arousal of a dormant condition and the permanence of any harmful change or impairment.
The undersigned finds that Ms. Rose had preexisting, active impairment prior to her fall of August 30, 2006. Further, the undersigned finds that the Plaintiff has not met her burden of proof to show that she had a permanent harmful change to her cervical and lumbar spines as a result of the injury of August 30, 2006. No physician has identified any structural changes to her lumbar or cervical spines that were caused by her slip and fall that were not present and causing active symptoms, prior to the fall. Although her treatment with a chiropractor did not result in much improvement, no subsequent examination and evaluation by a medical doctor has identified any new objective findings that would support new impairment, over and above, the impairment that existed prior to the injury
While it might be possible for a claimant to have a number of prior minor injuries to the cervical and lumbar spines for which a new, more significant injury has resulted in a new harmful change over and above what existed previously, such is not the case here. Treatment and diagnostic tests close in time after the alleged injury of August 30, 2006, did not reveal any new condition. At best, the undersigned finds that the fall of August 30, 2006, resulted in a temporary exacerbation of symptoms for which treatment was appropriate until she reached MMI as opined by Dr. Kriss on December 30, 2006.
The attempt by Dr. Rapier to just equally divide impairment between the various injuries is not credible when he cannot point to anything that occurred during the latest injury to cause a harmful change or need for future treatment that did not exist prior to the most recent injury. Under the doctrine of a preexisting dormant condition identified by the Kentucky Supreme Court, a claimant is allowed to be compensated on a permanent basis when a preexisting condition was not active and already resulting in treatment and impairment. However, once this condition has been brought to light, and is no longer dormant, and is already resulting in active symptoms, the undersigned does not believe that a minor cervical or lumbar strain somehow results in the permanent apportioning of new liability upon the last employer.
To the extent that a slip and fall, resulting in a minor strain, may cause the need for increased treatment for a temporary period of time, such increased treatment is compensable. Here, Dr. Kriss does not criticize the chiropractic treatment that Ms. Rose received through December 30, 2006, as work-related. This is a credible opinion. On the other hand, nothing in the medical records supports an endless period of chiropractic treatment, or any other treatment beyond December 30, 2006, for the lumbar and cervical spines. Although Ms. Rose clearly has continuing complaints, no credible medical evidence ties such complaints and treatment to the minor slip and fall that occurred on August 30, 2006.
The undersigned finds that the Plaintiff has no permanent impairment as a result of her slip and fall of August 30, 2006, and has not proven any need for medical treatment for such temporary exacerbation of her preexisting active condition to her lumber and cervical spines beyond the date she reached MMI on December 30, 2006.
With regard to the psychological condition, the ALJ found the opinion of Dr. Ruth, a psychiatrist, of no work-related impairment more credible than the opinion of the psychologist, Dr. Johnson. The ALJ noted Dr. Johnson gave his opinion without the benefit of reviewing the reports of Drs. Rapier, Kriss and Burgess, who identified significant pre-existing active medical conditions that were unrelated to the work injuries. The ALJ further noted Rose admitted to Dr. Ruth she had no anxiety or depression as a result of the injury to her hand. The ALJ noted Dr. Ruth identified a pre-existing psychiatric condition and a number of previous stressors including a 13 year marriage to an abusive spouse, a lifelong history of claustrophobia, and a more recent severe injury to her son. When these stressors were considered with her pre-existing active lumbar and cervical conditions the ALJ found Dr. Ruth’s opinion of no work-related causation for any psychiatric condition and no psychiatric impairment to be more credible.
The ALJ determined Rose did not meet her burden of proof to show a work-related injury prevented a return to her former work. The ALJ noted Dr. Burgess opined Rose had only a mild limitation of range of motion due to her osteoarthritis. When the right hand condition was considered in isolation, the ALJ determined the medical evidence did not support a finding of lack of physical capacity to return to her former position. The ALJ noted Rose returned to work after the hand injury and continued to work until sometime in 2006. After noting Rose’s age and education were factors supporting a finding of total disability, the ALJ found the 1% impairment to the right hand and lack of any credible restrictions that would prevent her from returning to work were factors that would not support the inability to return to work. The ALJ found Rose had not met her burden of proof to show that she was incapable of providing services on a regular and sustained basis in a competitive economy. The ALJ noted the vocational experts’ reports were of little value since they were not decided in the context of the right hand being the only injury that resulted in permanent impairment. Based on the foregoing, the ALJ limited Rose’s medical expenses for the cervical and lumbar condition to a period from the date of injury until December 30, 2006.
With regard to temporary total disability, the ALJ noted the only off work slip was for August 30, 2006. Rose returned to work on September 2, 2006 until quitting in October 2006. The ALJ noted no forms were produced between October 1, 2006 and December 30, 2006. Since Rose had the burden of proof on TTD, the ALJ found she had not borne her burden to prove she was not capable of performing her customary employment for a sufficient period to support an award of TTD from August 30, 2006 to December 30, 2006 as a result of her work-related injuries.
Rose filed a petition for reconsideration challenging a number of the ALJ’s findings and identifying evidence which she believed supported a contrary result. By order dated March 14, 2008, the ALJ denied the petition noting many of the alleged errors were based on opinions of a nurse practitioner the ALJ rejected in favor of evidence from medical doctors the ALJ found more credible. The ALJ noted there were genuine disputes in the medical evidence and found Rose’s evidence less credible. The ALJ noted Dr. Rapier completely changed his prior opinion when shown substantial evidence of prior injuries and pre-existing active impairment. The ALJ specifically stated he was not persuaded Dr. Rapier’s division of impairment equally between the various injuries was credible in the absence of any showing that the most recent cervical and lumbar spine injuries resulted in any permanent harmful change beyond that existing at the time of the injury.
On appeal, Rose argues the ALJ did not remain in the role of fact finder and the Board should reweigh the evidence and substitute its judgment for that of the ALJ. Rose notes disability resulting from the arousal of a dormant condition by a work injury is compensable. She argues her physical conditions were substantially altered and increased by chronic pain from the work related injuries and she developed physical and psychological work-related symptoms that are now a “disabling reality.” She argues the credible evidence in the entire file shows she suffered significant physical and mental injuries. Rose argues the finding she sustained an injury entitles her to reasonable and necessary medical benefits without regard to whether the injury caused a permanent impairment. Rose argues the ALJ erred in finding only a temporary exacerbation of a pre-existing active condition in her cervical and lumbar spine. She contends the ALJ erred in finding Dr. Simpson’s office records indicated she treated there before the work injury and she stated she had not. Rose notes that March 14, 2007 office note states “date last seen: first visit.” Rose notes the carrier did not pay TTD benefits or medical treatment and contends this forced her to keep working. Rose, therefore, contends the ALJ erred in not awarding TTD benefits from October 2006 until the date of Dr. Rapier’s evaluation on April 5, 2007. She contends the carrier throughout the claim has refused to allow her to reach MMI. She notes the nurse practitioner requested an MRI and opined on April 6, 2007 that she had not yet reached maximum medical improvement. Rose argues the ALJ erred in failing to award at least permanent partial disability benefits. She argues the opinions of Drs. Simpson, Rapier and the nurse practitioner establish she sustained a permanent injury and the opinion of Dr. Johnson establishes she sustained a permanent psychological injury. Rose argues the credible evidence in the entire file supports a determination she suffered significant physical and mental injuries resulting in a permanent total occupational disability, or alternatively, the combination of impairments assessed by Drs. Johnson and Rapier support an award based upon an 18% impairment. She argues her testimony coupled with the medical opinions of record establish she required ongoing treatment for her conditions after the time the ALJ awarded temporary medical benefits.
Rose had the burden of proving each of the essential elements of her cause of action. Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979). Since she was unsuccessful before the ALJ, the question on appeal is whether the evidence compels 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 Company v. Tipton, 862 S.W.2d 308 (Ky. 1993); Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985). The ALJ has the sole authority to determine the weight and inferences to be drawn from the evidence. Miller v. East Kentucky Beverage/Pepsico, Inc., 951 S.W.2d 329 (Ky. 1997). 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 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. To reverse the decision of the ALJ, there must be no substantial evidence to support the decision. Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986).
We believe the ALJ’s decision is supported by substantial evidence and affirm. Rose’s arguments on appeal are essentially an attempt to reargue the merits of the claim. The ALJ was faced with conflicting medical opinions regarding whether Rose sustained a permanent harmful change as a result of the 2006 injury and whether the injuries produced any disability. Unfortunately for Rose, the ALJ found only a permanent partial disability as a result of the 2005 injury to Rose’s hand and no permanent injury as a result of the 2006 accident.
Although Rose has identified some evidence of record that could have supported a finding in her favor, the record contained ample substantial evidence supporting the ALJ’s conclusions. As noted by the ALJ, Rose sustained numerous prior injuries to her cervical and lumbar spines. Medical evidence did not establish any structural change or acute injury to the spine. Dr. Kriss opined that only a limited period of medical treatment was related to the 2006 injury. His opinions are substantial evidence supporting the award of only a period of medical benefits.
The ALJ’s analysis in this case was thorough. It is apparent the ALJ considered the issues raised by Rose at the time he rendered his opinion and following the petition for reconsideration. The ALJ was well aware that a dormant condition aroused by a work injury is compensable. The ALJ was not persuaded that was the case with Rose’s injuries. The ALJ was clearly persuaded Rose’s conditions in her lumbar and cervical spine were active prior to the work injury and the work injury only produced a temporary exacerbation of that active condition. Further, it is apparent the ALJ was aware he could award medical benefits even in the absence of an impairment rating if the work injury produced disability. The mere fact that an injury is proven does not automatically entitle a claimant to ongoing medical benefits if the injury has not produced a permanent harmful change. The Kentucky Supreme Court held in Robertson v. United Parcel Service, 64 S.W.3d 284 (Ky. 2001) that it is possible for a claimant to submit evidence of a temporary injury for which temporary income and/or medical benefits may be awarded, yet fail in the burden to prove a permanent harmful change to the human organism for which permanent benefits are appropriate. The claimant in Robertson failed to prove more than a temporary harmful change as a result of the work injury. Thus, the court ruled the claimant was not entitled to income benefits or future medical expenses, but was limited to being compensated for only those medical expenses incurred in treating the temporary symptoms that resulted from the work-related incident. Dr. Kriss’ testimony regarding the temporary nature of the need for medical treatment causally related to the 2006 injury is clear and unequivocal. In view of Dr. Kriss’ opinions, we cannot say the ALJ erred in holding Rose failed in her burden of proof. Again, relying on Dr. Kriss’ medical report and the fact that no off work slips were introduced pertaining to the August 2006 injury beyond August 30, 2006, substantial evidence also supports the ALJ’s finding that no TTD benefits were warranted from August 30, 2006 to December 30, 2006. The record simply does not compel a finding of entitlement to any additional benefits, medical or otherwise, beyond the date the ALJ determined Rose reached MMI.
Accordingly, the decision of Hon. Howard E. Frasier, Jr., Administrative Law Judge, is hereby AFFIRMED.
ALL CONCUR.
COUNSEL FOR PETITIONER
HON JOHN EARL HUNT
PO BOX 308
STANVILLE KY 41659
COUNSEL FOR RESPONDENT
HON SCOTT BROWN
300 E MAIN ST STE 400
LEXINGTON KY 40507
ADMINISTRATIVE LAW JUDGE
HON HOWARD E FRASIER JR
400 EAST MAIN ST STE 300
BOWLING GREEN KY 42101
