OPINION ENTERED: February 10, 2010
CLAIM NO. 08-83306
JOSEPH LAKO PETITIONER
VS. APPEAL FROM HON. HOWARD E. FRASIER,
ADMINISTRATIVE LAW JUDGE
GOLDEN FOODS/GOLDEN BRANDS
and HON. HOWARD E. FRASIER,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION AFFIRMING
* * * * * *
BEFORE: ALVEY, Chairman, COWDEN and STIVERS, Members.
COWDEN, Member. Joseph Lako (“Lako”) appeals from an opinion and award rendered by Hon. Howard E. Frasier, Administrative Law Judge (“ALJ”) who determined Lako failed to meet his burden of proof in showing he sustained a work-related injury on January 2, 2007 while in the employment of Golden Foods/Golden Brands (“Golden”). In the same opinion and award, the ALJ determined Lako also failed to meet his burden of showing he sustained any permanent impairment from an injury sustained on February 7, 2007 and an injury sustained on April 17, 2008. In his opinion, the ALJ found Lako was entitled to a period of temporary total disability benefits and medical expenses for the April 17, 2008 injury from April 17, 2008 until June 4, 2008. Lako also appeals from an order dated August 14, 2009 which denied his petition for reconsideration.
On appeal, Lako argues the ALJ erred in dismissing his claim for occupational disability benefits arising from the February 7, 2007 injury since the evidence compelled a finding that a work-related injury took place on that date and also compelled an award of benefits pursuant to KRS 342.730. In addition, Lako argues the ALJ erred in failing to specify for which injury the stipulated amount of medical benefits in the amount of $11,596.17 were paid by Golden. Finally, Lako argues the ALJ failed to award additional temporary total disability benefits up to and including August 29, 2008 along with corresponding medical expenses for the injury of April 17, 2008.
On June 16, 2008, Lako filed Claim No. 08-00809 alleging an injury to his low back in a fall on January 2, 2007. In the same application, Lako also alleged an injury on April 17, 2008 when he fell down steps re-injuring his low back while working for Golden. Lako filed Claim No. 07-96346 alleging an injury on February 7, 2007 when he slipped and fell down stairs injuring his back, neck and legs. In a third application (Claim No. 08-83306), Lako alleged an additional injury on April 16, 2008 when he fell down stairs while in the employment of Golden, re-injuring his lower back.1 In an order dated April 15, 2009, ALJ Frasier sustained Lako's motion to consolidate and ordered that Claim Nos. 08-83306, 08-00809, 07-96346 be consolidated.
Lako testified that he was born and educated in Sudan. He graduated from high school and completed one year of college. He left Sudan because of heavy fighting and has been living in the United States for five years. He has worked for Golden for five years as a machine operator. He testified that he was involved in a motor vehicle accident (“MVA”) on January 2, 2007 that was not work-related. As a result of the MVA, he sustained injuries to his neck and back. He went to a chiropractor at Evans Chiropractic for treatment and confirmed that the injuries sustained in the MVA were to his cervical, thoracic and lumbar areas. He was taken off work for two days and then returned to work at Golden, at which time he sustained a work injury. As a result of this injury, he took off work for three months and then returned to his regular job as a machine operator.2 He continued to treat with his chiropractor until the end of March 2007.
He alleged he sustained a second work-related injury on April 17, 2008 when he fell down the steps at work, re-injuring his back. He returned to work for one day and then his supervisor sent him to the emergency room. As a result of the second work-related injury, he experienced more pain in his lower back which radiated into his left leg. An MRI of the lumbar spine was eventually performed. He also saw Dr. Shields at the University of Louisville who administered three epidural shots in his back. He has not had any low back surgery performed. He testified, however, his low back still hurts and he is unable to do anything. He has not returned to work. He applied for and received unemployment benefits and is presently looking for work, but has been unsuccessful.
In a medical report from Evans Chiropractic that is undated and addressed “To Whom It May Concern”, it was noted that Lako was seen on February 1, 2007 with soft tissue injuries to the cervical, thoracic and lumbar areas as result of a MVA. Lako was administered an examination to the affected areas. Radiographic studies to the neck, mid-back and low back areas were also performed. Treatment consisted of massage services, chiropractic adjustments, hot cold packs and therapeutic exercise to the affected areas. Rehabilitation was administered three times a week for a period of six weeks. The report noted the injuries were characteristic of whiplash injuries as well as pain, stiffness and soreness of the thoracic/lumbar areas. The report continued by noting examination findings on February 2, 2007 were consistent with injuries that could have been sustained in a rear-end collision. An examination revealed localized tenderness to the affected areas of the neck, mid-back and low back and decreased range of motion to the neck and back in all planes. The records reflected that Lako showed no indication of radicular pain, numbness or tingling as a result of the accident and did not show any signs/symptoms of radicular pain or numbness which would be consistent with a disc injury. The medical report concluded by noting that Lako did not suffer a disc injury from the MVA.
Evans Chiropractic records dated February 2, 2007, under “Patient Information” reflect that Lako’s problems began on February 1, 2007 as a result of a MVA. On February 2, 2007, Lako complained of headaches, neck pain, mid-back pain and lower back pain with spastic activity. On a scale of 1 to 10, with 10 being the worst pain, Lako reported on February 2, 2007 that his low back pain was rated as 10. These records reflect treatment through March 30, 2007. A record dated February 9, 2007 certified Lako was under the care of Evans Chiropractic for neck, mid-back and low back pain due to a MVA and that he would be able to return to work on March 1, 2007.
In an April 17, 2007 medical report attached to the Form 101 contained in File No. 08-83306, Dr. Dean Collis received a history Lako had complaints of low back pain and some knee pain as a result of a work accident. Although Dr. Collis noted Lako was somewhat of a difficult historian, records reflected Lako sustained a work accident on February 7, 2007 when he slipped on some steps and has had pain ever since. Dr. Collis noted that an MRI scan showed some disc bulging and disc protrusion in the lower two lumbar segments. An impression was made of lumbar herniated disc, lumbar degenerative disc disease and lumbar radiculopathy. The plan was to get Lako set up with a series of lumbar epidural steroid injections. These injections were performed on April 20, 2007, May 11, 2007 and May 18, 2007. Dr. Collis released Lako to return to work on May 21, 2007.
Dr. Michael Salamon indicated in a March 19, 2007 medical report that Lako was a 30-year-old man who worked as a machine operator and reportedly fell down some steps a month prior, injuring his low back. The medical report further noted that Lako had low back pain and mild right-sided radicular symptoms. An impression was made at that time of possible right lumbar herniated disc with mild right-sided radicular symptoms. Dr. Salamon indicated the plan was to get Lako to continue a rehabilitation program and get an MRI scan of the lumbar spine. He noted he would see Lako back in three weeks to review the MRI scan. He placed Lako under restrictions of no heavy lifting, pushing or pulling, and no repetitive bending or twisting.
An MRI scan of the lumbar spine performed on March 27, 2007 revealed a 1 cm right paracentral disc herniation at L5-S1 displacing the right S1 nerve root resulting in right lateral recess stenosis and at L4-5, a 3 mm broad based disc protrusion resulting in mild narrowing to the intervertebral foramina and lateral stenosis.
Concentra Medical Center records reflect an injury date on February 7, 2007 and a service date of February 9, 2007. These records reflect that Lako was a 31-year-old male working at Golden who reported an injury at work on February 7, 2007 when he slipped on some grease and fell down some stairs. As a result of the injury, he landed on his back and right elbow. Medical treatment on that day consisted of a physical therapy evaluation, electrical stimulation, hot and cold packs, a cold gel pack to the area for 15 minutes to decrease pain and inflammation as well as therapeutic exercises. An assessment was made at the time of contusion of the lumbar region, lumbar strain, elbow contusion, concussion with no loss of consciousness and face/scalp contusion.
Occupational Physician Services’ records reflect that Lako was seen on April 18, 2008 for an injury sustained on April 17, 2008 when he fell from the second floor to the first floor and hurt his back. A diagnosis was made of a lumbar sprain or strain. Lako was again seen on April 30, 2008, at which time, he was cleared to perform all functions associated with his regular job duties.
University of Louisville Hospital records dated April 23, 2008 contain a history of an injury at work when Lako fell down some stairs, injuring his back. A past medical history reflected a previous low back injury at work from a fall a year prior.
An MRI scan performed on May 2, 2008 revealed at L5-S1 a 3 to 4 mm broadbased central and right paracentral disc protrusion which was decreased in size in comparison with a large right paracentral disc herniation seen on the previous exam and at L4-5, there was a stable central disc protrusion approximately 3mm, with mild lateral recess and foraminal encroachment bilaterally.
In a medical entry dated May 29, 2008, Dr. Christopher Shields noted Lako had sustained a low back injury one year prior when he fell down some steps. Lako’s low back symptoms improved with the administration of epidural blocks. Lako then fell again on April 17, 2008, injuring his back. Dr. Shields noted the results of the May 2, 2008 MRI scan. He scheduled Lako to again undergo a series of epidural blocks and prescribed medication. In an August 28, 2008 entry, Dr. Shields pointed out Lako informed him he had to return to work. Therefore, Dr. Shields opined Lako could return to work without restrictions.
Dr. Michael Best conducted an independent medical evaluation on May 19, 2008. Dr. Best received a history that Lako was walking from the breakroom on April 16, 2008 to his machine and that the floor was slick. As a result, Lako slipped and fell onto his buttocks. Dr. Best also received a prior medical history which reflected Lako was involved in a MVA in February 2007 and sustained an identical slip and fall accident in February 2007 at work. He was seen at Evans Chiropractic February 2, 2007 complaining of headaches, neck pain, mid-back pain and lower back pain with spastic activity. Dr. Best noted that an MRI scan performed on May 2, 2008 revealed a 3 to 4 mm broad-based central and right paracentral disc protrusion which was decreased in size in comparison with the large right paracentral disc herniation seen on the previous examination of March 27, 2007. He then pointed out that Lako's complaints were left-sided. However, he stressed the only pathology was right-sided. As a result, Dr. Best opined that there was no correlation between the pathology and the complaints. Moreover, he noted that the MRI scan demonstrated significant improvement within the year from March 27, 2007 to May 2, 2008.
Dr. Best pointed out Lako had a history of low back pain with right-sided disc herniation that occurred a year prior. He opined this was a result of the MVA which occurred on February 1, 2007 and subsequently an identical slip and fall down stairs while working on February 7, 2007. He stressed that from the records, Lako received care and treatment for both injuries. The examination revealed that Lako had no radiation of the pain into either lower leg. He had no numbness or tingling or bowel or bladder dysfunction and no weakness. Dr. Best reported the examination was normal other than self-limiting activities. He opined that Lako was at maximum medical improvement after five days of physical therapy and required no additional form of care or treatment. He assessed Lako with a DRE lumbar category III based upon the Fifth Edition of the AMA Guidelines (“Guides”) which would translate to between 10 and 13% whole body impairment. He opined that Lako met this criteria secondary to the combined injuries from the MVA and the work injury that occurred in February 2007. He stressed that the MRI scan was normal regarding any left-sided pathology but also noted that Lako previously had right-sided symptoms and right-sided pathology. He stressed that Lako met no criteria for long-term permanent impairment secondary to the effects of the work injury of April 17, 2008 and that the only abnormality noted was pre-existing and on the opposite side. He opined that Lako was fully capable of returning to his full and unrestricted work activities. He stressed that MMI would be reached after a five-day course of physical therapy.
In a June 4, 2008 medical entry, Dr. Best opined that Lako was at maximum medical improvement. He then made reference to his earlier recommendation that Lako should perform a core strengthening program of exercise to lessen any chance of re-injury. The core strengthening exercises and work hardening were approved and scheduled. However, Lako did not attend. Therefore, based on Lako's noncompliance with care and treatment, he would place Lako at maximum medical improvement. Dr. Best concluded by stressing that Lako required no addition forms of any medical care or treatment nor did Lako require any medication or pain management.
ALJ Frasier made the following findings of fact and conclusions of law in an opinion dated July 27, 2009 as it applies to the issues raised on appeal:
(1) The unusual procedural nature of this claim requires some explanation for a proper understanding of the findings listed below. The Plaintiff originally filed claim No. 08-00809 on June 16, 2008, alleging work injuries on January 2, 2007, and April 17, 2008, and was originally represented by Edward Mayer. However, while still represented by Mr. Mayer, the Plaintiff filed claim Nos. 07-96346 & 08-83306 on February 9, 2009, alleging work injuries on February 7, 2007, and April 16, 2008, with the representation of attorney Tamara Todd Cotton. After learning of the multiple claims involving the same employer, the undersigned consolidated all pending claims by Order of April 15, 2009.
Both counsel for Mr. Lako moved to withdraw and were permitted to do so by separate Orders of May 1, 2009. The Plaintiff was given 30 days to secure substitute counsel. A BRC was previously conducted in the first-filed claim on November 16, 2008. A final BRC/Hearing was held for the consolidated claims on June 3, 2009. At the final BRC/Hearing, Mr. Mayer appeared on behalf of the Plaintiff and entered his notice of appearance at the hearing.
(2) The Plaintiff bears the burden of proof and the risk of non-persuasion with respect to every essential element of the claim. Caudill v. Maloney’s Discount Store, Ky., 560 S.W.2d 15 (1977). Without question, the Plaintiff is a poor historian and has given conflicting and inconsistent testimony about the dates of his alleged work injuries. Of the two injuries identified in the stipulations, only the date of April 17, 2008 (or late evening of April 16, 2007) coincided with the medical evidence for a work-related injury.
If any injury occurred on January 2, 2007 (or February 1, 2007), such injury was a nonwork-related motor vehicle accident. The undersigned finds that the Plaintiff has not met his burden of proof of a work injury on January 2, 2007. The medical records do reference a work injury on February 7, 2007. The Plaintiff might have been successful in pursuing his claim for an injury of February 7, 2007, if credible medical proof had either determined that that the injury that occurred during the MVA was insignificant, or carved out impairment and medical treatment related to a work event of February 7, 2007.
Unfortunately, the only treating provider who was apparently informed of the preexisting MVA was the chiropractor who was actively treating Mr. Lako BEFORE any work event of February 7, 2007, occurred. By not revealing his prior MVA to his other treating physicians, and in the absence of any medical proof apportioning or carving out [sic] impairment to any injury of February 7, 2007, the Plaintiff has not met his burden of proof to support a finding of any work injury of February 7, 2007, resulting in permanent impairment or the need for continued medical treatment. While the chiropractor has provided an undated letter report stating that the Plaintiff had no disc herniation prior to his work injury, this opinion is simply not credible in the face of substantial evidence from an orthopedic surgeon who has reviewed the diagnostic testing of Mr. Lako that any preexisting impairment was traceable to BOTH the MVA and the work-event of February 7, 2007.
The Plaintiff has shown the existence of a work injury on April 17, 2009, [sic] that resulted in the need for some medical treatment on a least a temporary basis. However, the Plaintiff has not met his burden of proof to show any permanent impairment or the need for medical treatment after the date of the supplemental report of Dr. Best of June 4, 2008.
The Plaintiff’s testimony is simply not credible of any work injury of January 2, 2007, and has not met his burden of showing any impairment for any work event of February 7, 2007, and the second work injury of April 17, 2008.
(3) When there is a substantial nonwork-related injury such as the MVA for which the Plaintiff was receiving treatment by at least February 2, 2007, and prior to any work injury, it is incumbent upon the claimant to introduce credible medical proof establishing what portion, if any, of his impairment and need for continued medical treatment is related to the work injury. Despite his attempt to limit any symptoms from the MVA to his cervical and thoracic spines, the records of Evan Chiropractic show a level 10 of pain traceable to the low back on February 2, 2007, and treatment for his low back PRIOR to the date of any subsequent alleged work injuries.
Either because he is such a poor historian, or because of a conscious effort to prevent any tracing of impairment or medical treatment to the nonwork-related MVA, Mr. Lako failed to reveal his prior MVA to any treating physician other than his chiropractor who was already providing treatment to him. The undersigned finds the opinion of Dr. Best to be more credible than the opinion provided by Dr. Evans on the significance of the preexisting nonwork-related MVA. The Plaintiff has not met his burden of proving any permanent impairment traceable to any alleged February 7, 2007, work injury or the work event of April 17, 2008.
(4) Although listed as a disputed issue, notice has not been argued by the Defendant in its brief. In any event, the undersigned finds that since TTD was paid after the first injury, and it appears that at least a portion of the treatment sought for second injury was submitted to the Defendant within a fairly short time after the second injury, the Plaintiff provided timely notice of his alleged work related injuries of February 7, 2007, and April 17, 2008.
(5) In regard to causation, the undersigned finds that the Plaintiff has not met his burden of identifying which portion of his medical treatment for any injury event of February 7, 2007, is traceable to any work events, and which portion is traceable to the MVA that occurred at an earlier point in time. When he was initially seen by the chiropractor on February 2, 2007, Mr. Lako reported severe back pain at a level 10 after his motor vehicle accident. No credible proof has shown that the back pain resolved prior to February 7, 2007.
As to the second injury of April 17, 2008, the undersigned finds that the Plaintiff has shown the existence of at least a temporary exacerbation for which reasonable and necessary, and timely submitted, medical expenses are compensable through the date that Dr. Best found that the Plaintiff reached MMI on June 4, 2008. In his original report, Dr. Best found that the Plaintiff was entitled to some work hardening for his April 17, 2008, injury. Yet, because of his non-compliance for such work-hardening, Dr. Best found that he had reached MMI.
The later off work releases provided by Dr. Shields are not dispositive for purposes of determining MMI or necessity of medical treatment because Dr. Shields was not informed of the prior MVA, and his report only references the two alleged work injuries. However, despite the substantial complaints of Mr. Lako, Dr. Shields provided a work release and return to former duty on August 28, 2008, even before the administration of another series of epidural blocks in October and November 2008.
The undersigned finds the opinion of Dr. Best to be more credible of no additional medical treatment needed in regard to the work-related injury as of June 4, 2008.
. . . .
(7) Temporary total disability is statutorily defined as "the condition of an employee who has not reached maximum medical improvement from an injury and has not reached a level of improvement that would permit a return to employment." KRS 342.0011(11)(a). Although somewhat confusing, recent cases have stated that a two-part analysis must be applied before awarding TTD as follows: 1) maximum medical improvement has not been reached, and 2) the injury has not reached a level of improvement that would permit a return to employment. Magellan Behavioral Health v. Helms, Ky. App., 140 S.W.3d 579, 580-581 (2004).
In regard to the first prong, the Kentucky Court of Appeals has provided some additional definition to MMI as “the medical evidence establishes the recovery process, including any treatment reasonably rendered in an effort to improve the claimant’s condition, is over.” Halls Hardwood Floor Co. v. Stapleton, Ky. App., 16 S.W.3d 327, 329 (2000) (emphasis added) (citing W. L. Harper Construction Co. v. Baker, 858 S.W.2d 202, 205 (1993)). A definition of MMI is also contained in the 5th Edition AMA Guides as follows: “A condition or state that is well stabilized and unlikely to change substantially in the next year, with or without medical treatment. Over time, there may be some change; however, further recovery or deterioration is not anticipated.” AMA Guides, 5th Ed. at p. 601.
The Kentucky Supreme Court has clarified the meaning of the second prong in Wise v. Central Kentucky Steel, Ky., 19 S.W.3d 657 (2000). In Wise, the employer argued that whenever a worker was released to return to work, even with restrictions, TTD should be terminated. However, the Supreme Court rejected this argument and found that “It would not be reasonable to terminate the benefits of an employee when he is released to perform minimal work but not the type that is customary or that he was performing at the time of his injury.” Wise at 659 (emphasis added). Thus, the Supreme Court narrowly defined return to employment as customary work for that particular employee or the type of work he was performing prior to being injured.
The undersigned finds for the same reasons stated above that the Plaintiff has failed to meet its [sic] burden of proof for the tracing of any failure to perform customary work or not being at MMI to any alleged work injury of January 2, 2007, or February 7, 2007. Mr. Lako failed to reveal the MVA that was shown to have been causing significant symptoms on February 2, 2007, prior to any alleged fall at work on February 7, 2007. While he did miss work, and was paid some TTD by the Defendant as stipulated by the Defendant on June 4, 2009, this TTD was apparently paid before the Defendant learned about the prior MVA.
As to the second injury of April 17, 2008, the undersigned finds that the Plaintiff was not at MMI, and was unable to perform his customary work from April 19, 2008, and until he reached MMI on June 4, 2008. By his testimony, he did return to work for one day and then went back to the emergency room where he was released under modified duty restrictions. The undersigned finds that at no point after April 19, 2008, and before June 4, 2008, was Mr. Lako released to perform his customary work of machine operator.
The undersigned finds that the Plaintiff is entitled to TTD as a result of his injury of April 17, 2008, at the weekly rate of $319.47 from April 17, 2008, until June 4, 2008.
. . . .
Lako filed a petition for reconsideration arguing the same issues he now raised on appeal to this Board. In an order dated August 14, 2009, the ALJ denied Lako’s petition for reconsideration.
On appeal, Lako argues the ALJ erred in failing to find that a work-related injury occurred on or about February 7, 2007. Lako argues the evidence compelled such a finding and that the ALJ was compelled to make an award pursuant to KRS 342.730 as applies to this injury. It is Lako's position that Dr. Best assigned an impairment rating of 10 to 13% for the low back injury occurring in February 2007 and that this was consistent with the positive findings on MRI scan following that injury. Lako then cites to the payment of TTD by the employer and the limitations that were imposed upon Lako by his physicians as a result of that injury. Lako points out the evidence was well documented that following the February 7, 2007 injury, he was treated medically and was paid temporary total disability benefits and the employer also paid for medical expenses including an MRI scan. Lako then points to the chiropractic records from Evans Chiropractic which clearly distinguish between the non work-related automobile accident and the work injury. Lako stresses these chiropractic records confirm the injury from the automobile accident was primarily cervical in nature and there was no form of radiculopathy into the lower extremities as a result of that injury.
Lako also argues the ALJ erred in finding there was no evidence in the record which separated the work injury from the injuries sustained in a MVA. Lako cites to Dr. Evans’ chiropractic report and argues this report is unequivocal in establishing the injuries he sustained in the MVA were primarily of a whiplash nature and he had no signs or symptoms of lower back injury particularly numbness, tingling or radiculopathy. Lako also argues the ALJ failed to state specifically what injury produced the need to pay medical expenses totaling $11,596.17.
Finally, Lako argues as it applies to the injury of April 16, 2008, the ALJ erred in failing to award additional temporary total disability benefits through at least August 29, 2008, as well as medical expenses through the same period of time based on the medical report of Dr. Shields.
It is axiomatic that a claimant in a workers’ compensation claim bears the burden of proving each essential element of his cause of action. Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979). Lako has the burden of proof to demonstrate that the injury of February 7, 2007 produced a permanent impairment rating and whether the injury of April 17, 2008 generated any additional temporary total disability benefits and medical expenses beyond the period of which the ALJ ordered. Since Lako, the party with the burden of proof on these issues was unsuccessful before the ALJ, the issue on appeal is whether the evidence compels a contrary conclusion. 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). So long as any evidence of substance supports the ALJ’s opinion, it cannot be said the evidence compels a different result. Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986). It is not enough for Lako to merely show that some evidence supports his position. See McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974). As long as the ALJ’s opinion is supported by evidence of substance, the Board may not reverse. Special Fund v. Francis, supra.
As the fact finder, the ALJ has the sole authority to determine the weight, credibility, substance and inferences to be drawn from 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). Where the evidence is conflicting, the ALJ may choose whom or what to believe. Pruitt v. Bugg Brothers, Ky., 547 S.W.2d 123 (1977). The ALJ has the discretion to reject any testimony and believe or disbelieve parts of the evidence, regardless of whether it comes from the same witness or the same party’s total proof. Caudill v. Maloney's Discount Stores, 560 S.W.2d 15 (Ky. 1977). The Board may not substitute its judgment for that of the ALJ as to the weight of evidence on questions of fact. See KRS 342.285(2).
In this case, the ALJ found it significant that when there was proof of a substantial non work-related injury such as the MVA for which Lako was receiving treatment prior to any work injury, it was incumbent upon Lako to introduce credible medical proof establishing what portion, if any of his impairment and need for continued medical treatment was related to the work injury. The ALJ then noted that notwithstanding Lako’s attempt to limit any symptoms from the MVA to the cervical and thoracic spines, records from Evans Chiropractic showed a level of 10 for pain traceable to the low back on February 2, 2007 and treatment of the low back prior to the date of any subsequent alleged work injury.
The ALJ’s findings are supported by the evidence of record. Evans Chiropractic records dated February 2, 2007 reflect Lako was seen on that day complaining of mid-back pain with leg pain and numbness for an injury sustained in a MVA that occurred on February 1, 2007. An initial examination reflected Lako was seen on that day complaining of headaches, neck, mid-back, low back pain, and spastic activity. Lako indicated his discomfort was the result of the MVA occurring on February 1, 2007. On that day, Evans Chiropractic records reflect Lako was reporting 6 on a pain scale of 1 to 10 with 10 being the worst pain as it applies to the neck. The records also reflect Lako was complaining of pain of 8 on a scale of 1 to 10 as it applies to mid-back pain. However, these same records reflect that Lako was complaining of pain of 10 on a scale of 1 to 10 as it applies to the low back when seen on February 2, 2007. An assessment was then made of tenderness at the L4-L5 level, fixation and spasms at the L5 level.
In a February 9, 2007 entry from Evans Chiropractic, (two days after the alleged February 7, 2007 injury occurred at Golden), it was noted that Lako was being treated for neck, mid-back and low back pain due to a MVA and he would be able to return to work on March 1, 2007. Conspicuously absent from this chiropractic report, or for that matter any of the subsequent treatment records from Evans Chiropractic, was any reference to the intervening work-related injury of February 7, 2007. In addition, on February 9, 2007, Evans Chiropractic treatment records asked Lako to initial if he had been involved in a MVA, work injury, or other new injury since his last visit. Lako failed to initial this question and also failed to initial this question on subsequent chiropractic treatment records.
The ALJ also found significant that the only treating physician who was informed of the pre-existing MVA was the chiropractor who was actively treating Lako before the alleged work event of February 7, 2007. The ALJ also found significant the fact that Lako failed to reveal the prior MVA to any subsequent treating physician. In fact, an initial physical therapy evaluation from Concentra dated February 9, 2007 reflected that Lako was working at his regular duty prior to the February 7, 2007 injury with no history of injuries or impairments to the affected area. The ALJ also noted that an undated report from Evans Chiropractic stating that Lako had no disc herniation prior to the February 7, 2007 work injury was not credible in the face of substantial evidence from an orthopedic surgeon who reviewed both the diagnostic testing and who opined that any pre-existing impairment would be traceable to both the MVA and the February 7, 2007 work injury.
In his opinion, the ALJ noted that either because Lako was a poor historian or because of a conscious effort to prevent any trace of impairment or medical treatment to the non work-related MVA, Lako failed to reveal his prior MVA to any treating physician other than his chiropractor who was already providing treatment. The treatment and evaluation records bear this out. The ALJ found Dr. Best’s opinion to be more credible than the opinion by Dr. Evans on the significance of the pre-existing non work-related MVA by finding that Lako failed to meet his burden of proving a permanent impairment traceable to the alleged February 7, 2007 work event. The ALJ additionally determined that Lako failed to identify which portion of his medical treatment was attributable to the MVA which occurred on February 1, 2007 and which was attributed to the alleged injury of February 7, 2007. This is the ALJ’s prerogative as fact finder. Caudill v. Maloney's Discount Stores, 560 S.W.2d 15 (Ky. 1977). Substantial evidence supports these findings which cannot be disturbed on appeal. Special Fund v. Francis, supra.
The ALJ’s ruling pertaining to Lako’s entitlement to temporary total disability benefits as a result of the April 17, 2008 injuries also does not compel a contrary finding. Temporary total disability benefits is defined in KRS 342.0011(11)(a) as “the condition of an employee who has not reached maximum medical improvement from an injury and has not reached a level of improvement that would permit a return to employment.” From the above, it is clear that a two part analysis must be applied before temporary total disability benefits are awarded which is 1) maximum medical improvement has not been reached; and 2) the employee has not reached the level of improvement that permit a return to employment. See Magellan Behavioral Health v. Helms, 140 S.W.2d 579 (Ky. App. 2004).
As to the first prong, Kentucky courts have noted that MMI is reached when medical evidence establishes that the recovery process, including any treatment reasonably rendered in an effort to improve the claimant’s condition is over. See Halls Hardwood Floor Co. v. Stapleton, 16 S.W.3d 327 (Ky. App. 2000). Citing W.L. Harper Construction Company vs. Baker, 658 S.W.2d 202, 204 (Ky. App. 1993). As to the second prong, the Kentucky Supreme Court clarified the meaning in Central Kentucky Steel v. Wise, 19 S.W.3d 657 (Ky. 2000), where the court found “It would not be reasonable to terminate the benefits of an employee when he is released to perform manual work and not the type that is customary or that he was performing at the time of the injury.”
In a medical report dated June 4, 2008, Dr. Best noted that Lako had been scheduled for two hours of work hardening five days a week and that his appointment was scheduled at Frasier Rehabilitation and was to begin on June 2, 2008. He then pointed out that Lako did not keep his appointment and did not call to cancel. He therefore opined that Lako was at MMI as of June 4, 2008 due to non-compliance with care and treatment. Dr. Best further opined due to his non-compliance, Lako was “. . . now returned to his full and unrestricted duties”. Dr. Best’s report provides substantial evidence to support the ALJ’s ruling. Therefore, the ALJ’s finding that Lako was entitled to TTD benefits to and including June 4, 2008, does not compel a contrary result.
Likewise, the ALJ’s finding that no additional medical treatment was needed in regard to the work injury as of April 17, 2008 is also supported by substantial evidence. Dr. Best determined that Lako had no long-term or permanent impairment directly and causally related to the effects of the work injury of April 17, 2008. He further stressed that all the pathology on the MRI was pre-existing and there was no acute process from the examination. He also found no radiculopathy or myelopathy and therefore assessed a 0% impairment rating attributable to that injury. He further noted that Lako could return to full and unrestricted duties and required no additional forms of any medical care or treatment and required no medication or pain management.
In Robertson v. United Parcel Service, 64 S.W.3d 284 (Ky. 2001), the Kentucky Supreme Court noted that in cases where the evidence dictated that the only harmful change to the human organism as a result of a work-related accident was a temporary flare-up of symptoms of a pre-existing condition, the claimant was not entitled to income benefits for permanent partial disability or future medical expenses, but was entitled to be compensated for medical expenses that were incurred in treating the temporary flare-up of symptoms that resulted from the incident.
Having reviewed the evidence contained in this case and the arguments of the parties, and based on the medical report of Dr. Best, we conclude that there was substantial evidence to support the ALJ’s finding that Lako sustained no permanent disability as a result of the work-related injury of April 17, 2008 and that a different finding was not compelled. See Special Fund v. Francis, supra. Furthermore, in view of the evidence and in particular, Dr. Best’s medical report who found there was absolutely no objective evidence that a harmful change had occurred as a result of the April 17, 2008 injury and who also opined Lako required no additional forms of medical care or treatment, we also conclude there was substantial evidence to support the ALJ’s conclusion that no future medical benefits were warranted beyond the period of temporary total disability.
Accordingly, the opinion and award of July 27, 2009 is hereby AFFIRMED.
ALL CONCUR.
COUNSEL FOR PETITIONER
HON EDWARD A MAYER
2525 BARDSTOWN ROAD
LOUISVILLE KY 40205
COUNSEL FOR RESPONDENT
HON WALTER E HARDING
2300 AEGON CENTER
400 W MARKET STREET
LOUISVILLE KY 40202
ADMINISTRATIVE LAW JUDGE
HON HOWARD E FRASIER JR
400 EAST MAIN ST STE 300
BOWLING GREEN KY 42101
1 Attorney Tamara Cotton represented Lako in File No. 08-83306 and File No. 07-96348, but later withdrew. Attorney Ed Mayer represented Lako in File No. 08-83306 and also withdrew, but later represented Lako at a BRC and Formal Hearing.
2 Golden offered a stipulation to reflect that TTD benefits were paid from February 7, 2007 to May 7, 2007 and that $11,596.17 in medical expenses have been paid for this injury.
