OPINION ENTERED: January 16, 2009
CLAIM NO. 05-65514
GLENN BISHOP PETITIONER
VS. APPEAL FROM HON. JOSEPH W. JUSTICE,
ADMINISTRATIVE LAW JUDGE
DEPARTMENT OF TRANSPORTATION
and HON. JOSEPH W. JUSTICE,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
AFFIRMING
* * * * * *
BEFORE: GARDNER, Chairman; COWDEN and STIVERS, Members.
GARDNER, Chairman. Glen Bishop (“Bishop”) appeals from a decision rendered October 3, 2008 by Hon. Joseph W. Justice, Administrative Law Judge (“ALJ”), dismissing his claim for permanent disability benefits against the Commonwealth of Kentucky, Department of Transportation (“DOT”). Bishop did not file a petition for reconsideration before the ALJ prior to seeking review before the Board.
Bishop alleges permanent injuries to his neck, right arm, low back and right leg as a result of a fall from a ladder at work on November 8, 2005. In dismissing Bishop’s case, the ALJ rejected the opinions of Dr. Michael Grefer, Bishop’s treating physician, that the injury aroused underlying preexisting degenerative changes in the neck and lower back resulting in an 18% permanent functional impairment rating under the American Medical Association, Guides to the Evaluation of Permanent Impairment, 5th Edition (“AMA Guides”). Instead, the ALJ was persuaded by the testimony of Dr. Henry Tutt, an independent medical evaluator, that Bishop suffered only temporary injuries due to the fall, after which he recovered and returned to his pre-injury baseline state of health. The ALJ determined, based upon the opinions of Dr. Tutt, that Bishop: 1) sustained no permanent harmful changes due to the fall; 2) experienced a 0% impairment rating in accordance with the AMA Guides as a result of the injury; 3) reached maximum medical improvement (“MMI”) from the effects of the injury as of January 1, 2007; and, 4) required no further medical treatment as a result of the fall beyond August 15, 2006. In dicta contained within the October 3, 2008 decision the ALJ also questioned why Bishop did not provide more detail in his March 27, 2008 Form 101, Application for Resolution of Injury Claim, and Form 105, Chronological Medical History, concerning a prior 1989 work-related injury for which he was awarded benefits in a decision rendered January 27, 1993, based on a 20% occupational disability due to post traumatic stress disorder (“PTSD”). At the time of the earlier claim, Bishop also sought benefits for physical injuries to his neck and back that were dismissed, and was assessed as having a 4% whole person impairment to his cervical spine by at least one expert medical witness.
On appeal, Gibson raises a total of five issues challenging the ALJ’s decision. First, Gibson argues the ALJ’s statements citing to a lack of detail in his Form 101 and Form 105 concerning his prior workers’ compensation claim erroneously suggest he was “hiding information.” In this regard, Gibson maintains “for the ALJ to choose the opinions of Dr. Tutt over those of the longstanding treatment notes of Dr. Grefer, based upon an erroneously conceived belief that the Plaintiff was not forthcoming is . . . an abuse of discretion on the part of the ALJ.” Second, Gibson argues Dr. Grefer’s testimony that the 2005 work event aroused underlying pre-existing dormant conditions in his neck and back is unrebutted and, therefore, compels a finding of permanent injury. Third, Gibson maintains the evidence of record compels an award of permanent partial disability based upon the 18% functional impairment rating assessed by Dr. Grefer. Fourth, Gibson argues that certain medical charges incurred for cervical and lumbar epidural steroid injections performed in June and July 2008 must be held compensable. Finally, Gibson argues that all other medical costs incurred in January, May, June and July 2008 associated with his treatment at Greater Cincinnati Pain Management must also be held compensable. With regard to the last two issues, Gibson maintains the burden of proof to establish the charges at issue were unreasonable or unnecessary, or unrelated to the effects of his work injury rested with DOT. Bishop maintains that since DOT presented no evidence to that end, the medical charges in question must be deemed compensable as a matter of law. We affirm as to all issues.
We begin our analysis by noting Bishop did not file a petition for reconsideration before the ALJ pursuant to KRS 342.281. In the absence of a petition for reconsideration, on questions of fact the Board is limited to a determination of whether there is any substantial evidence contained in the record to support the ALJ’s conclusion. Stated otherwise, where no petition for reconsideration is filed prior to the Board’s review, inadequate, incomplete, or even inaccurate fact finding on the part of an ALJ will not justify reversal or remand if there is identifiable evidence in the record that supports the ALJ’s ultimate conclusion. Eaton Axle Corp. v. Nally, 688 S.W.2d 334 (Ky. 1985); Halls Hardwood Floor Co. v. Stapleton, 16 S.W.3d 327 (Ky.App. 2000).
That having been said, it is well-established that the claimant in a workers’ compensation claim bears the burden of proving each of the essential elements of his cause of action. Burton v. Foster Wheeler Corp., 72 S.W.3d 925 (Ky. 2002). Among those elements are the extent, duration and permanency of any harmful changes to the human organism alleged due to an injury. See KRS 342.0011(1). In addition, the burden of proof with regard to whether medical treatment in a workers’ compensation case is reasonable and necessary rests statutorily with the employee pre-award and only shifts to the employer post-award. See KRS 342.735(3): Square D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993); National Pizza Co. v. Curry, 802 S.W.2d 949 (Ky.App. 1991). The burden to prove the work-relatedness of medical treatment never shifts to the employer and is always with the employee. R.J. Corman R.R. Construction v. Haddix, 864 S.W.2d 915 (Ky. 1993).
Since Bishop was unsuccessful with regard to his burden, the question on appeal is whether the evidence compels a finding in his 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. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985). Similarly, the ALJ has the sole discretion 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). Mere evidence contrary to the ALJ’s decision is not adequate to require reversal on appeal. Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999). In order to reverse the decision of the ALJ, there must be no substantial evidence to support his decision. Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986).
Following the November 8, 2005 fall at work, Bishop eventually came under the care of Dr. Grefer on December 13, 2005. On January 19, 2006, pursuant to Dr. Grefer’s instructions, Bishop underwent a cervical MRI that was interpreted as showing a disc bulge and spondylosis leftward at C4-C5. On February 3, 2006, Bishop submitted to a lumbar MRI that was interpreted as demonstrating degenerative changes at L3 through S1, with disc bulging at L3-L4 and L4-L5, with a small central and right paracentral disc protrusion at L5-S1 compressing the thecal sac and potentially compressing the right S1 nerve root.
In light of these findings, Dr. Grefer elected to treat Bishop with a series of epidural steroid injections. On April 4, 2006; May 8, 2006; and, June 21, 2006, Bishop underwent epidural injections to the lumbar spine. On July 17, 2006, and on or about August 14, 2006, Bishop was administered epidural injections to the cervical spine.
On September 11, 2006, Dr. Grefer recorded that Bishop “is doing okay,” and released him to sedentary and light duty work. Dr. Grefer pronounced Bishop to be at MMI at that time. On November 13, 2006, Dr. Grefer listed Bishop’s function as stable and described his neurovascular status as intact. Dr. Grefer stated surgery was not an option in Bishop’s treatment.
It is undisputed that Bishop returned to work for DOT, performing his regular job duties earning the same or greater wage, in October 2006. It is also undisputed that at all times relevant to Bishop’s claim, he has been employed as an administrative specialist, Drive Smart coordinator and child passenger safety coordinator. Bishop testified he is responsible for regularly traveling a twelve county district in northeast Kentucky. His job consists of presenting courses on child safety seat installation and use, and drunk driving and drug abuse to parents, children and the elderly at schools, hospitals, rest homes and senior citizen centers. During the winter months he is also charged with conducting a charitable campaign in his district sponsored by DOT, which involves traveling to local businesses and holding auctions.
Bishop stated that, as a rule, he drives more than other DOT employees in his district. At the time of the final hearing held August 29, 2008, Bishop testified he was continuing to successfully perform his assigned job duties, albeit with pain and discomfort. The parties stipulated that DOT voluntarily paid Bishop temporary total disability benefits from and after November 8, 2005 at the rate of $607.23 per week for a period of 28.7 weeks totaling $17,420.26.
It is also undisputed that on January 16, 2007, Bishop was involved in an intervening non work-related automobile accident, after which he remained off work until April 7, 2008. Bishop testified that as a result of the accident, he sustained injuries involving his left shoulder and hip and was again treated by Dr. Grefer.
Bishop testified that following the automobile accident, he underwent another MRI and an additional series of epidural steroid injections involving his shoulder and hip. The operative reports and medical notes concerning that treatment are not of record. Bishop testified he also underwent surgery for removal of his prostate during that same time period.
At the final hearing, Bishop submitted into evidence medical bills from Greater Cincinnati Pain Management, setting out a summary of charges incurred as a result of a lumbar epidural steroid injection administered on June 14, 2008 and a cervical epidural steroid injection administered on July 10, 2008. The corresponding medical notes relative to those charges are not of record. Similarly, the medical bills and treatment notes for Bishop’s other associated treatment at Greater Cincinnati Pain Management for January, May, June, and July 2008 were never submitted into evidence.
Dr. Tutt performed an independent medical evaluation of Bishop on August 15, 2006. At that time, Dr. Tutt reviewed medical records, and received an appropriate history of Bishop’s November 8, 2005 work injury and subsequent medical treatment. Bishop also informed Dr. Tutt of the 1989 injury that resulted in his affliction with PTSD. According to Dr. Tutt, Bishop related he was continuing to suffer from the effects of that condition, manifested by anxiety and nightmares, which he described as the “biggest problem” in his life.
On physical examination, Dr. Tutt found that Bishop exhibited no sensory deficits, atrophic changes or nerve tenderness in the upper or lower extremities. Upper and lower strength testing demonstrated full power of all muscle groups. Bishop’s cervical and lumbar paraspinal muscles were described as soft, supple and unguarded. In light of these findings, Dr. Tutt concluded Bishop’s ongoing physical complaints “are considered inexplicable and not based on physiological principles.” Dr. Tutt felt that based on a lack of objective medical evidence, Bishop’s continued complaints of physical symptoms involving his cervical and lumbar spine was likely “a result of his psychiatric disorder” dating back to 1989.
Dr. Tutt diagnosed Bishop with “lumbar and/or cervical strains/sprains, on the background of some long-standing cervical and lumbar degenerative osteoarthritic changes,” which the doctor characterized as “pre-existing.” Dr. Tutt opined Bishop had reached MMI from the effects of the injury on January 1, 2006. Dr. Tutt indicated that, from a physical standpoint, Bishop was capable of performing his full work duties. Based on the results of the evaluation, Dr. Tutt did not believe Bishop required “any further medical treatment” secondary to the injury.
Dr. Tutt subsequently testified by deposition on July 21, 2008. He noted that according to medical records, three days following the injury of November 8, 2005, Bishop was admitted to River Park Hospital for a period of ten days for treatment of a bipolar disorder with psychotic features. According to Dr. Tutt, at the time of that admission, Bishop expressly denied any symptoms involving physical pain. In addition, Dr. Tutt testified that during the entire ten-day hospitalization no mention was made in the medical records “of any neck or back complaints.”
Dr. Tutt further stated that during his physical examination in August 2006, Bishop exhibited positive Waddell’s signs and inconsistent non-physiological results on range of motion testing. Dr. Tutt confirmed that as part of his evaluation, he personally reviewed the films from Bishop’s February 3, 2006 lumbar MRI. According to Dr. Tutt, the films revealed “some longstanding preexisting osteoarthritic changes” consistent with natural aging. Dr. Tutt stated, however, he saw no evidence of disc herniation or nerve root compression.
Dr. Tutt testified that in his opinion, within reasonable medical probability, Bishop did not qualify for a permanent impairment rating under the AMA Guides. Dr. Tutt further testified that based on the results of Bishop’s physical examination, he would place Bishop under no restrictions with regard to his ability to engage in physical activity. Dr. Tutt felt, on the basis of Bishop’s examination findings, he could perform any type of job for which he was qualified and had training. Finally, Dr. Tutt reiterated his opinion that Bishop required no further medical treatment due to the effects of the November 8, 2005 work-related event as of the date of his medical evaluation.
Given the above testimony, we find ample evidence to support the ALJ’s ruling that Bishop suffered only temporary harmful changes as a result of his work-related fall on November 8, 2005 and, as such, is not entitled to an award of indemnity or medical benefits beyond the limits imposed in the October 3, 2008 decision.
In Robertson v. United Parcel Service, 64 S.W.3d 284 (Ky. 2001), the Kentucky Supreme Court acknowledged it is possible for a claimant to submit evidence of a temporary injury for which temporary income and medical benefits may be awarded, yet fail in his burden to prove a permanent harmful change to the human organism for which permanent indemnity and medical benefits are appropriate. In this instance Dr. Tutt stated in his expert medical opinion that due to the November 8, 2005 injury, Bishop suffered cervical and lumbar strains/sprains resulting in no permanent impairment after January 1, 2006. We believe the ALJ could reasonably infer from that testimony that despite any underlying degenerative changes, the overall effects of Bishop’s injury were temporary and he has since returned to his pre-injury baseline state of health. Such reasonable inferences are fundamental to the ALJ’s role as fact-finder, and the ALJ is vested with broad authority to decide such matters. Dravo Lime Co., v. Eakins, 156 S.W.3d 283 (Ky. 2003); Jackson v. General Refractories Co., 581 S.W.2d 10 (Ky. 1979).
Similarly, the fact that Dr. Grefer assessed an 18% permanent functional impairment rating attributed to the effects of the November 8, 2005 work event does not compel a particular result other than that reached by the ALJ. Rather, the evidence concerning impairment was conflicting between the medical experts. Where evidence is conflicting with regard to an issue, the ALJ as fact finder has wide discretion to pick and choose whom and what to believe. Pruitt v. Bugg Brothers, Ky., 547 S.W.2d 123 (1977).
We likewise find no error concerning the lack of compensability of the medical charges incurred by Bishop in January, May, June and July 2008, associated with his treatment at Greater Cincinnati Pain Management. Dr. Tutt testified that as of August 15, 2006, Bishop required no further medical treatment for the effects of the injury. What is more, it is undisputed that Bishop suffered an intervening automobile accident in January 2007 for which he testified he received treatment similar to the charges at issue. As set out above, the burden of proof to establish the compensability of the medical treatment at issue rested with Bishop. R.J. Corman R.R. Construction v. Haddix, supra. Bishop, however, presented no evidence whatsoever concerning the reasonableness and necessity/work-relatedness of those charges. Indeed, the record is wholly devoid of any medical testimony, or for that matter, the corresponding medical notes relative to those charges establishing their basis.
Finally, we find no abuse of discretion concerning the ALJ’s statements citing to a lack of detail in Bishop’s Form 101 and Form 105 concerning his prior workers’ compensation claim and intervening automobile accident in January 2007. Specifically, the ALJ stated as follows:
Other questions the Administrative Law Judge has in regard to this claim, is why Plaintiff did not fully complete his Form 105 with his Form 101. He did not mention the previous auto accident, from which he was off work for nearly a year. He did not list the prior claim for injury to his neck, for which he was assigned a WPI of 4%; nor did he list the workers’ claim of 1989, in which he claimed neck and back injuries, from which he failed to recover. The incidents were too many to have just forgotten.
. . . .
The Administrative Law Judge finds the report and opinions of Dr. Henry Tutt most credible and accepts his opinion of a 0% impairment; that Plaintiff suffered a temporary arousal of pre-existing conditions; that he reached MMI on January 1, 2007, and did not need further medical treatment for these injuries as of August 15, 2006.
Even a cursory review of Bishop’s application for benefits, filed March 27, 2008, confirms the ALJ’s summary of the Form 101 and Form 105 to be accurate. Neither document contains a reference to the intervening January 2008 automobile accident or makes reference to the fact that at the time of Bishop’s prior 1989 claim he alleged injuries to his neck and back, as well as for PTSD.
Abuse of discretion by definition “implies arbitrary action or capricious disposition under the circumstances, at least an unreasonable and unfair decision.” Kentucky National Park Commission v. Russell, 301 Ky. 187, 191 S.W.2d 214 (1945). Here, we find nothing arbitrary or capricious concerning the ALJ’s observations regarding Bishop’s candor in his initial application, nor do we find the conclusions drawn there from to be unreasonable or unfair. The ALJ, as fact finder, has the wide ranging authority to judge the credibility of the evidence, including the claimant’s application with regard to its completeness. Moreover, the ALJ may weigh such matters as he sees fit in assessing a claimant’s overall potential for veracity. Paramount Foods, Inc. v. Burkhardt, supra.
In any event, the ALJ’s observations do not detract from the fact that ultimately he relied on substantial evidence in the form of Dr. Tutt’s opinions. In the absence of a petition for reconsideration and because the outcome reached by the ALJ was supported by substantial evidence, we are precluded from either reversing or remanding for additional findings. Eaton Axle Corp. v. Nally, supra.
Accordingly, the decision rendered October 3, 2008 by Hon. Joseph W. Justice, Administrative Law Judge, is hereby AFFIRMED.
ALL CONCUR.
COUNSEL FOR PETITIONER:
HON WILLIAM KNOEBEL
6170 FIRST FINANCIAL DR STE 203
BURLINGTON KY 41005
COUNSEL FOR RESPONDENT:
HON J LOGAN GRIFFITH
327 MAIN ST
PO DRAWER 1767
PAINTSVILLE KY 41240
ADMINISTRATIVE LAW JUDGE:
HON JOSEPH W JUSTICE
107 COAL HOLLOW RD STE 100
PIKEVILLE KY 41501
