OPINION ENTERED: January 16, 2009
CLAIM NOS. 07-00173 & 07-00171
TIMOTHY CECIL PETITIONER
VS. APPEAL FROM HON. CHRIS DAVIS,
ADMINISTRATIVE LAW JUDGE
PIKE COUNTY BOARD OF EDUCATION
and HON. CHRIS DAVIS,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
AFFIRMING
* * * * * *
BEFORE: GARDNER, Chairman; COWDEN and STIVERS, Members.
GARDNER, Chairman. Timothy Cecil (“Cecil”) seeks review of a decision rendered September 5, 2008 by Hon. Chris Davis, Administrative Law Judge (“ALJ”), granting him an award of benefits due to a work-related injury to the right knee sustained on January 6, 2006, against the Pike County Board of Education (“Pike County”). Cecil also appeals from an order issued October 9, 2008, denying his petition for reconsideration.
The ALJ awarded benefits due to Cecil’s knee injury based upon a 4% impairment rating assessed by Dr. James W. Templin under the American Medical Association, Guides to the Evaluation of Functional Impairment, 5th Edition (“AMA Guides”), enhanced by the 3-multiplier pursuant to KRS 342.730(1)(b) and (c)1. In addition, Cecil claimed cumulative trauma injuries involving his neck and low back that allegedly became manifest on November 29, 2006, as well as secondary psychological overlay due specifically to those injuries. Those claims were dismissed by the ALJ.
On appeal, Cecil maintains the record compels a finding in his favor with regard to the additional injuries rejected as not compensable by the ALJ. In making that argument, Cecil generally reargues the conflicting evidence before the ALJ favorable to his case-in-chief. We affirm.
The claimant in a workers’ compensation claim has the burden of proof and the risk of persuasion and, if unsuccessful 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 the claimant’s favor. Wolf Creek Colleries v. Crum, 673 S.W.2d 735 (Ky.App. 1984); REO Mechanical v. Barnes, 691 S.W.2d 224 (Ky.App. 1985); Snawder v. Stice, 576 S.W.2d 276 (Ky.App. 1979). If the record is conflicting with regard to a particular issue and the ALJ’s decision is supported by any substantial evidence, the decision must be upheld. Magic Coal Co. v. Fox, 19 S.W.3d. 88 (Ky. 2000); Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986). In this instance, while Cecil is correct there is testimony of record, both medical and lay, which would have supported an outcome in his favor there is also conflicting testimony from opposing witnesses sufficient to maintain the result arrived at by the ALJ. Whittaker v. Roland, 998 S.W.2d 479 (Ky. 1998); Caudill v. Maloney’s Discount Stores, 560 S.W.2d 15 (Ky. 1977).
Concerning Cecil’s neck and back, the ALJ determined those conditions were the result of an acute traumatic event that occurred at work on August 20, 2003, in combination with the normal progression of degenerative changes in the cervical and lumbar spine unrelated to his occupation, not the collective result of Cecil’s alleged repetitive work activities for Pike County since becoming employed in 1981. Cecil testified that during the initial fourteen years he worked for Pike County, he performed the job duties of a mechanic’s helper at the bus garage and in maintenance, installing and repairing electrical wiring and lighting, HVAC duct work, compressors, air conditioners, and heaters. Thereafter, he transferred to the technology department where he engaged regularly in computer programming and network installation, as well as the hanging of overhead computer cable. As pointed out by the ALJ, even Dr. Templin, the claimant’s independent medical expert, testified the kind of physical changes exhibited by Cecil involving his neck and back, for which he underwent surgeries1 in 2007, only occur in a limited percentage of the general population of persons performing the same type of work.
It is undisputed that Cecil sustained a specific traumatic event at work on August 20, 2003, while attempting to move a barrel of “sweeping compounds” that had rolled off a dolly. A first report of injury concerning the incident was completed by Pike County on that date. An emergency room record attached to the first report of injury establishes that Cecil initially sought medical treatment for the effects of the traumatic event on August 21, 2003, at which time he complained of pain in his neck, shoulders and back. Medical reports from Dr. Templin, Dr. Douglas Ruth and Dr. Dennis B. Sprague record that Cecil regularly received treatment for his neck, upper extremity, and low back complaints with radiculopathy from Dr. Denes Martonffy, Dr. Naveed Ahmed, Dr. Steven Shockey, Dr. Scott Riley, Dr. Damien Jenson, Dr. Sujata Gutti, Dr. Phillip Tibbs, and, ultimately, Dr. Michael Fletcher from November 26, 2003 (Dr. Martonffy) through February 17, 2006 (Dr. Fletcher). The record further establishes that after August 2003, Cecil underwent a series of medical tests and invasive procedures involving his neck and low back that included pain management, physical therapy, multiple cervical and lumbar MRI’s, EMG/NCV studies, cervical cortisone injections and lumbar nerve root blocks. A cervical MRI performed February 23, 2005 was specifically interpreted as demonstrating evidence of degenerative disc disease with central mild to moderate bilateral foraminal stenosis at C5-C6 and C6-C7. An MRI of the lumbar spine performed February 28, 2007 further demonstrated evidence of degenerative disc disease and disc desiccation at L4-L5 and L5-S1 with a herniated disc at L5-S1 protruding into the ventral canal. Finally, when Cecil began treating with Dr. Robert E. Windsor on September 25, 2006 for complaints of “[n]eck pain, left arm pain, and low back pain with radiation,” he reported having been injured at work “approximately three years ago” at which time the onset of his symptoms arose.
Based upon the above evidence, we believe the ALJ could reasonably reject Dr. Templin’s testimony, even if considered to be uncontradicted, that Cecil’s neck and back complaints were the result of “multiple mini traumas” incurred over the whole course of his employment at Pike County. Mengel v. Hawaiian-Tropic Northwest & Central Distributors, Inc., 618 S.W.2d 184 (Ky.App. 1991). We further believe the ALJ’s decision to attribute those complaints to the single traumatic event superimposed on degenerative changes that occurred on August 20, 2003 is not unreasonable. Square D Company v. Tipton, 862 S.W.2d 308 (Ky. 1993); Miller v. East Kentucky Beverage/Pepsico, Inc., 951 S.W.2d 329 (Ky. 1997). Since Cecil did not file an application for benefits relating to his neck and back complaints until February 2, 2007, any claim he may have had for those conditions is not compensable. See KRS 342.185. Moreover, in that the ALJ’s conclusions are supported by substantial evidence of record and reasonable inferences drawn there from, we may not disturb his decision on appeal. Special Fund v. Francis, supra.
Turning to the psychological portion of Cecil’s claim, we are satisfied, based on the testimony of Dr. Ruth, any depression or anxiety Cecil may be experiencing is not a direct result of his work, and for that reason as determined by the ALJ is non compensable. See KRS 343.0011(1); Lexington Fayette Urban County Government v. West, 52 S.W.3d 564 (Ky. 2001).
Accordingly, the decision rendered September 5, 2008 by Hon. Chris Davis, Administrative Law Judge, is hereby AFFIRMED.
ALL CONCUR.
COUNSEL FOR PETITIONER:
HON STEPHANIE L KINNEY
PO BOX 1109
PIKEVILLE KY 41502
COUNSEL FOR RESPONDENT:
HON BRIAN T REED
PO BOX 1079
PIKEVILLE KY 41502
ADMINISTRATIVE LAW JUDE:
HON CHRIS DAVIS
410 WEST CHESTNUT ST STE 700
LOUISVILLE KY 40202
1 Cecil underwent cervical discectomy and two level fusion surgery at C6-C7 on May 11, 2007, and an L5 hemilaminotomy with L5-S1 discectomy on August 27, 2007.
