OPINION ENTERED: FEBRUARY 16, 2010
CLAIM NO. 2005-83399
DORIS MULLINS PETITIONER
VS. APPEAL FROM HON. JOSEPH W. JUSTICE,
ADMINISTRATIVE LAW JUDGE
CATO CORPORATION
and HON. JOSEPH W. JUSTICE
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING IN PART
AND REMAND
* * * * * *
BEFORE: ALVEY, Chairman; COWDEN and STIVERS, Members.
ALVEY, Chairman. Doris Mullins (“Mullins”) appeals from the opinion, award and order (“opinion”) of the Hon. Joseph W. Justice, Administrative Law Judge (“ALJ”) dated August 6, 2009, awarding her income benefits to be paid by CATO Corporation (“CATO”) based upon a 20% impairment. Mullins filed a petition for reconsideration on August 20, 2009 which was denied on September 17, 2009. Mullins then filed this appeal on October 2, 2009.
On appeal, Mullins asserts that the ALJ’s opinion regarding the award of permanent partial disability benefits based upon a 20% impairment rating, rather than a 30% impairment rating, was not supported by substantial evidence. Mullins also claims that the ALJ erred by not awarding income benefits and medical benefits for a psychiatric condition. Finally, Mullins claims that the ALJ erred by not addressing and awarding medical benefits for her alleged cervical condition. This Board affirms in part and remands in part.
Mullins was born on April 4, 1966. She is a high school graduate. She has additional training in sales, retail marketing, customer service, profit and loss inventory systems, and human resource recruitment and management. Her work experience includes management positions in numerous industries. In particular, her vocational history includes employment in personnel, management, and retail sales jobs.
On May 16, 2005, Mullins was employed by CATO at a retail sales location. On that date, she claims that she injured her lower back, right leg, and foot. She additionally alleged an emotional or psychological component to her claim. A form 101 was filed on October 15, 2008 asserting these allegations. Mullins subsequently filed a motion to amend the form 101 on January 23, 2009 to include an allegation of a cervical injury. No ruling was ever entered regarding the cervical condition, but some limited evidence from both parties was introduced referencing the alleged cervical injury.
Mullins has treated with numerous physicians and facilities as noted in the form 101 which lists fifteen physicians and facilities where she had treated for the various maladies she associates with the May 16, 2005 date of accident. Despite the voluminous medical records, notes, and reports from various physicians, clinics, and facilities, only those most pertinent shall be summarized.
Mullins first sought treatment at Our Lady of the Way Hospital in Martin, Ky. The emergency room record from that visit indicates the area affected was the low back which she claimed to have injured while lifting boxes. She eventually treated with Dr. Phillip Tibbs, a neurosurgeon at the University of Kentucky Spine Center, who ordered an MRI revealing some degenerative changes at L4-5 with some central bulging, and a possible annular tear. Dr. Tibbs did not feel she was a surgical candidate and he referred her to Dr. William Witt for the purpose of having an IDET (intradiscal electrotherapy) performed. When Dr. Witt saw her on February 1, 2006, he noted only a history of low back pain which occurred after moving fifty pound boxes, and twisting. He felt that Mullins should have a combined percutaneous discectomy and annuloplasty. He also recommended a discogram.
Mullins eventually treated with Dr. Leon Ravvin who recommended a lumbar fusion surgery. A TLIF fusion procedure was performed on April 11, 2006. She had a subsequent surgery to remove the hardware on April 5, 2007, at which time some spinal fluid leakage was noted. In his office note of May 21, 2008, Dr. Ravvin noted Mullins had only mild limitation of lumbar range of motion, she was able to walk on heels and toes, and there was no sensory deficit. In a form 107 medical report dated May 27, 2009, Dr. Ravvin noted that Mullins retains a 30% whole person impairment. Nowhere in the file is there any indication as to which edition of the AMA Guides to the Evaluation of Permanent Impairment was utilized in arriving at the 30% rating. Assuming Dr. Ravvin relied upon the 5th edition of those guidelines, the ALJ noted correctly that none of the categories included in that table provide for a 30% rating.
Dr. Timothy Kriss evaluated Mullins at the request of CATO on March 9, 2009. Dr. Kriss noted the history of injury, treatments (including medications, injections, and surgery), and also noted Mullins advised that none of the treatments were particularly helpful to her except for the medications. Mullins complained to Dr. Kriss of unusually diffuse low back pain. She also complained of right leg pain beginning in the right buttock, and terminating in the right knee. She additionally complained of numbness, vague weakness, and cold sensation in the right foot affecting all five toes. A physical examination revealed normal reflexes, antalgic gait, no lumbar spasm, and range of motion which was limited by subjective pain. He noted, “a lot of Waddell-type signs with obvious facilitation.” He also noted that straight leg raising tests caused back pain rather than radicular pain which he indicated was an inconsistent and invalid result. He observed that an EMG study which had previously been performed on December 26, 2006 was normal.
Dr. Kriss found Mullins to be status post lumbar laminectomy and fusion at L4/L5. She is also status post lumbar re-exploration and decompression at L4/L5 with partial removal of the interbody cage. Dr. Kriss was unsure if Mullins ever had a confirmed lumbar radiculopathy. He noted that Dr. Tibbs saw her on multiple occasions and never diagnosed radiculopathy or radiculitis. On examination, he noted radicular findings to her right knee, but the complaints in the right foot were non-radicular. In his opinion, regardless of her symptomatology and exam, “Ms. Mullins does not have radiculopathy at this time.” He also noted that Ms. Mullins strained her neck temporarily on May 16, 2005.
Dr. Kriss stated in his report:
The dominant diagnosis in Ms. Mullins’ clinical presentation, however, is symptom magnification. This is consistent with subjective symptoms markedly [sic] portion to the objective findings, recalcitrance of all symptoms to all treatments, evolution and delayed onset of symptoms without physical explanation, diffuseness of symptomatology (the entire lumbar region equally, the entire foot), multiplicity of symptoms (head, neck, arm, low back, both lower extremities, depression, anxiety – all allegedly “caused” by a fairly minor single mechanical event), nonatomic [sic] distribution of symptoms (the entirety of the lumbar region, the entire right foot and all 5 toes), extensive poloypharmacy to little or no avail, major depression, anxiety, “panic/-anxiety attacks,” and particularly the highly demonstrative and emphatic psychological testing administered by Dr. Ruth.
Impairment: Lumbar
In accordance with the American Medical Association Guides to the Evaluation of Permanent Impairment, Fifth Edition, page 384, table 15-3, DRE lumbar category IV, for loss of motion segment due to successful or unsuccessful attempt at surgical arthrodesis, I would assign a whole person impairment of 20%.
The fact of the surgical fusion automatically places the patient into DRE category IV.
Impairment: Cervical:
In accordance with the American Medical Association Guides to the Evaluation of Permanent Impairment, Fifth Edition, page 392, table 15-5, DRE cervical category I, for significant clinical findings with no neurologic impairment and no documented significant clinical findings with no neurologic impairment and no documented significant alteration in structural integrity, I would assign a whole person impairment of 0%.
Initially Ms. Mullins did have some neck “stiffness” and discomfort after the May 16, 2005 event. But the symptoms have long since resolved. Dr. Gutti evaluated Ms. Mullins no less than 10 times between February, 2007 and January, 2009; none of these extensive evaluations give the slightest indication of any neck pain, neck stiffness, or cervical complaints of any type whatsoever. The same is true with 4 detailed evaluations of Ms. Mullins by Dr. Patel in May 2005 and the first half of 2006; in fact, Dr. Patel exclusively documented “resolved cervical strain” on multiple occasions (November 14 10 2005; October 17 10 2005; May 23 come in 2006). Ms. Mullins has no cervical symptoms today whatsoever.
Thus there is no permanent harmful change to the cervical spine, with no cervical symptoms and no cervical findings.
Mullins also alleged a mental or emotional component to her claim. She has treated with Dr. Granacher, a psychiatrist from Lexington, Kentucky, who last treated her in November, 2007. Dr. Granacher diagnosed Mullins with major depression and pain disorder. Dr. Granacher assigned a 15% whole person impairment rating due to these conditions. He also advised that he would not restrict her activities due to these conditions.
Mullins also treated with Dr. Jay Narola, the psychiatrist who treated Mullins after she ceased treatment with Dr. Granacher. In his report of May 2, 2009, Dr. Narola indicated that Mullins suffered from chronic major depressive disorder and anxiety disorder. He found Mullins to have a 25% impairment due to her mental conditions. He also found that she did not retain the capacity to perform her previous work. Dr. Narola assessed some restrictions due to her mental condition, but these restrictions were not legible in the report.
Dr. Douglas Ruth, a psychiatrist from Lexington, Kentucky, evaluated Mullins on January 22, 2009. Dr. Ruth observed that despite the fact that Mullins claims to be distracted by pain and suffers from marked impairment of concentration, she was able to complete her testing with far more precision than the average person. According to Dr. Ruth, “[t]his demonstrates that her attention and concentration actually are better than those of the average individual.”
Dr. Ruth diagnosed Mullins as having Mood disorder, NOS. He noted marked exaggeration of symptoms. He found Mullins to be at maximum medical improvement. He did not feel Mullins qualified for a functional impairment rating in accordance with the AMA Guides, and further opined:
The examination does not produce objective evidence to indicate that Mrs. Mullins suffers a psychiatric condition as a direct result of a physical injury. The examination discloses signs of symptom exaggeration or malingering. Symptom exaggeration or malingering is not considered to be caused by the illness or injury whose symptoms are magnified, but it is thought to arise from another ulterior motivating influence.
Vocational evidence was also submitted by both parties in this case. Mullins submitted a report of Dwight McMillion (“McMillion”) dated September 10, 2008. He noted that, “She has not been able to work since the date of her injury.” McMillion additionally stated:
She is unable to sleep, rest, concentrate, and would not be reliable to attend or perform even simple sedentary work due to her multiple symptoms. Retraining at this time does not seem to be a viable option because of her chronic symptoms of pain and depression.
CATO submitted the report Dr. Luca Conte dated March 26, 2009. Dr. Conte observed Mullins tested above the high school level in the reading portion of the Wide Range Achievement Test, and at high school level in the spelling and math portions of that test. Dr. Conte stated:
These test results thus reveal a woman of strong academic capacity who has the ability to perform work-related academic tasks into the semi-skilled and skilled sectors of the labor market, including various technical and many paraprofessional occupations. These scores also reflect a woman who has the ability to progress in work situations requiring the acquisition of new skills or knowledge as well as the capacity for further higher educational accomplishments should she be so inclined.
Dr. Conte indicated that many employment opportunities exist and would be available to her if she was so inclined to pursue them.
The ALJ, as indicated in the Opinion, was more impressed with the opinions of Drs. Kriss and Ruth than the other medical evidence of record. Although indicating that he was “more persuaded by the report of Dr. Ruth dated January 22, 2009,” the ALJ failed to follow up in his opinion regarding a specific finding related to the mental component of the claim. It is apparent that the ALJ is of the opinion the report of Dr. Ruth is most credible, however no specific finding and decision was made as to whether the mental condition was compensable, or whether future treatment for that condition is compensable. Since Mullins’ claim for a psychological injury was not adequately addressed, we remand the matter to the ALJ for a determination pertaining to the compensability of the psychological claim, and future treatment for that condition as required by FEI Installation, Inc. v. Williams, 214 S.W.3d 313 (Ky. 2007).
Likewise, the ALJ’s opinion failed to address the cervical condition. Despite the fact that little if any evidence was advanced for this condition, it must be considered. A motion to amend the form 101 to include the allegation of a cervical condition was filed by Mullins on January 23, 2009. There is no evidence this request was ever considered or that a ruling was ever entered. Nevertheless, the parties did produce some evidence regarding this aspect of the claim. Since the cervical condition was not addressed, this matter is remanded to the ALJ for a determination concerning the cervical condition, including whether this is a compensable condition, entitlement to income benefits, and entitlement to treatment for this condition, again pursuant to Installation, Inc. v. Williams, supra.
Insofar as Mullins’ claim regarding the lumbar spine, leg, and foot conditions are concerned, Mullins, as the claimant in a workers’ compensation proceeding, 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 Mullins was unsuccessful before the ALJ, the question on appeal is whether the evidence compels a different result. 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). The function of the Board in reviewing an ALJ’s decision is limited to a determination of whether the findings made are so unreasonable under the evidence that they must be vacated or reversed as a matter of law. Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000). The Board, as an appellate tribunal, may not usurp the ALJ’s role as fact finder by superimposing its own appraisals as to weight and credibility or by noting other conclusions or reasonable inferences that otherwise could have been drawn from the evidence. Whittaker v. Rowland, 998 S.W.2d 479, 481 (Ky.1999).
As fact finder, the ALJ has the sole authority to determine the weight, credibility and substance of the evidence. Square D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993). Similarly, the ALJ has the discretion to determine all reasonable inferences to be drawn from the evidence. Miller v. East Kentucky Beverage/ Pepsico, Inc., 951 S.W.2d 329 (Ky. 1997); Jackson v. General Refractories Co., 581 S.W.2d (Ky. 1979). The ALJ 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). Although a party may note evidence that would have supported a different outcome than that reached by an ALJ, such proof is not an adequate basis to reverse on appeal. McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974). In order to reverse the decision of the ALJ, it must be shown there was no evidence of substantial probative value to support the decision. Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986).
Certainly there was evidence to support the opinion of the ALJ regarding his finding that Mullins was entitled to benefits based upon a 20% impairment rather than a 30% impairment. The report of Dr. Kriss specifically indicated that the impairment was based upon the AMA Guides to the Evaluation of Permanent Impairment, 5th Edition (“AMA Guides”). The report of Dr. Ravvin does not indicate which edition he relied upon, other than indicating that it is the most recent edition.
In the Opinion, the ALJ noted, “Dr. Ravvin’s impairment rating is off the chart on the upper end, and Dr. Kriss’ assignment is at the low end of DRE Lumbar Category IV.” Mullins has indicated in her brief that it was improper for the ALJ to “interpret” the AMA Guides. There is no indication that the ALJ attempted to “interpret” the AMA Guides. He merely observed that none of the categories in the table which Dr. Ravvin claims that he referred to, provide for the 30% impairment he assessed. It certainly was in his discretion to make such observation. Authority to select an impairment rating assigned by expert medical testimony rests with the ALJ. See KRS 342.0011(35) and (36); Staples, Inc. v. Konvelski, 56 S.W.3d 412 (Ky. 2001). It is also well established that an ALJ may consult the AMA Guides in the process of assigning weight and credibility to such evidence. George Humfleet Mobile Homes v. Christman, 125 S.W.3d 288 (Ky. 2004). This Board has routinely held that an ALJ may reference the AMA Guides in arriving at his ultimate conclusion as to extent and duration of a claimant’s disability.
The Kentucky Supreme Court addressed the issue in the unpublished decision of Appalachian Racing, Inc. v. Blair, 2002-SC-0581-WC, 2003 WL 21355872 (Ky. 2003). See also Lourdes Hospital v. Wininger, 2003-CA-001810-WC, 2004 WL 315177 (Ky.App. 2004). In Blair, supra, the Court determined KRS 342.730 grants an ALJ has the discretion to make assessments in accordance with AMA Guides in some situations. In Blair, supra, the ALJ was faced with a range of impairment of 12% to 15% assessed by a physician relative to a claimant’s cervical and lumbar injuries. No apportionment was made by the physician with reference to each individual body part. Nevertheless, the Court determined the ALJ had the discretion to select a whole body impairment rating within the combined range provided by the physician applicable to each body part. In Caldwell Tanks v. Roark, 104 S.W.3d 753 (Ky. 2003), the Court similarly instructed when faced with unrefuted medical evidence of increased hearing impairment in the two-year period prior to filing of workers' compensation claim, the ALJ was both authorized and required to consult the AMA Guides and to convert the earlier evidence of hearing impairment into a whole-body impairment, for purposes of determining claimant's medical and income benefits. In this instance, no assessment was made by the ALJ of impairment or apportionment. Based on the decisions referenced above, we conclude it was plainly within his discretion to simply observe whether the rating which was assessed was provided for in the table which was referenced.
Accordingly, the decision rendered August 6, 2009, by Hon. Joseph W. Justice, Administrative Law Judge, is hereby AFFIRMED IN PART, and REMANDED for further proceedings consistent with this opinion.
ALL CONCUR.
COUNSEL FOR PETITIONER:
HON. JOHN EARL HUNT
PO BOX 308
STANVILLE, KY 41659
COUNSEL FOR RESPONDENT:
HON. WALTER A. WARD
333 W VINE ST, SUITE 1100
LEXINGTON, KY 40507
ADMINISTRATIVE LAW JUDGE:
HON. JOSEPH W. JUSTICE
107 COAL HOLLOW ROAD, SUITE 100
PIKEVILLE, KY 41501
