OPINION ENTERED: FEBRUARY 19, 2010
CLAIM NO. 06-71627
ERIC BURBANK PETITIONER
VS. APPEAL FROM HON. CHRIS DAVIS,
ADMINISTRATIVE LAW JUDGE
ZOOM EXPRESS DELIVERY, INC.
and HON. CHRIS DAVIS,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
* * * * * *
BEFORE: ALVEY, Chairman, COWDEN and STIVERS, Members.
STIVERS, Member. Eric Burbank (“Burbank”) seeks review of the opinion, award, and order rendered October 13, 2009, by Hon. Chris Davis, Administrative Law Judge (“ALJ”) finding Burbank had a 4% impairment as a result of a work-related injury while in the employee of Zoom Express Delivery, Inc. (“Zoom”) and granting him an award of temporary total disability (“TTD”) and permanent partial disability (“PPD”) benefits. Significantly, Burbank did not file a petition for reconsideration.
On appeal, Burbank’s sole argument is the opinions expressed by the unbiased treating physicians clearly establish Burbank had RSD.1 Burbank argues the ALJ ignored the opinions of the treating physicians whom Burbank characterizes as having no interest or stake in the outcome of this case. Burbank also asserts the opinions expressed by Drs. DeBou and Best do not constitute credible evidence, and the ALJ should not have given any consideration to their testimony. Burbank further asserts the testimony from the treating physicians overwhelmingly establishes he suffers from RSD and comprises the only credible evidence in the record. Accordingly, Burbank asserts the ALJ’s findings are not supported by credible evidence, and the ALJ’s decision must be reversed.
It is well established that a 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). Since Burbank was unsuccessful in his burden of proof regarding the issue of whether the work injury caused RSD, the question on appeal is whether, upon consideration of the whole record, 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. Square D Company v. Tipton, 862 S.W.2d 308 (Ky. 1993); Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985). As fact finder, 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 ALJ, such proof is not an adequate basis to reverse on appeal. McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974). It must be shown that there was no evidence of substantial probative value to support the decision. Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986).
That said, 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 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 drawn from the evidence. Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999).
Furthermore, in the absence of a petition for reconsideration, on questions of fact, the Board is limited to a determination of whether there is substantial evidence contained in the record to support the ALJ’s conclusion. Stated otherwise, inadequate, and 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 ultimate conclusion. Eaton Axle Corp. v. Nally, 688 S.W.2d 334 (Ky. 1985); Halls Hardwood Floor Co. v. Stapleton, supra.
Burbank began working for Zoom in August, 2004, driving a truck and delivering loads to various destinations. Burbank was injured on October 11, 2006 while trying to move a pallet using a pallet jack. The pallet jack abruptly stopped, striking and injuring him in the area around his left arm pit. After he was struck, he did the splits “around the pallet jack and the pallets” and fell approximately four feet off the back of the truck. He immediately experienced aching and burning in his arm pit and left leg. Burbank explained he only hauled two loads after his injury, with his last load being a run made on November 18, 2006. Burbank has not worked anywhere regularly since the injury and received TTD from October 19, 2006, through May 20, 2008. He regularly takes medication because of the injury, and he also takes Diclofenac for a hand condition which he developed after the accident. Burbank indicated he began experiencing problems with his right foot in early or mid-2008 and had discussed with Dr. Collis the implantation of a spinal cord stimulator. He experiences pain daily from his hips to his ankles, and his clothes feel like sandpaper on his skin. He has pain and burning on his right leg from his shin to his toes and pain from his hips to his shoulders. Burbank stated his pain had not gotten better but rather has increased, and his legs continue to burn and ache constantly. He specifically denied climbing stairs during an independent medical examination (“IME”) conducted by Dr. Best.
As previously noted, Burbank introduced the medical records and reports of his treating physicians Drs. Khalily, Collis, and Vitaz which indicate their belief Burbank has RSD as a result of the injury. Zoom countered those opinions with the reports and depositions of Drs. Best and Debou.
Dr. Best conducted an IME on May 12, 2008, at which time Burbank told him he fell and dislocated his hip and then relocated the hip. Dr. Best testified he had never heard of that occurring. Dr. Best noted if that had occurred, Burbank’s hip would have “hurt like the dickens” making it extremely difficult for Burbank to drive for hours and unload cargo. Dr. Best noted when Dr. Khalily first examined Burbank he did not diagnose him with RSD. Dr. Khalily stated Burbank’s pain was out of proportion with his finding and Dr. Khalily was going to treat Burbank as if he had RSD in order to try to relieve the pain. As a part of his treatment, Burbank’s doctors tried sympathetic blocks, and the results from those blocks did not support a diagnosis of RSD. The three phase bone scan did not reveal characteristics of RSD. After doing an extensive evaluation for RSD, Dr. Best indicated his findings paralleled those of Dr. Travis who did not diagnose RSD.
Dr. Best set forth the clinical findings necessary for a diagnosis of RSD as set forth in the American Medical Association, Guides to the Evaluation of Permanent Impairment, 5th Edition, (AMA “Guides”). He found none of those symptoms or physical changes which would support a diagnosis of RSD. In the functional capacity evaluation, Burbank ascended and descended steps at the rate of 102 per minute. Based on that fact, Dr. Best opined it was impossible to diagnose RSD because this was a very fast pace for any individual much less someone with RSD. Dr. Best noted Burbank did have atrophy in the left hip. Dr. Best noted Burbank may have had RSD in the past, but at the time of his examination, it was no longer present. The problem in Burbank’s hands which is known as Dupuytren’s disease was not caused by the work injury. Dr. Best pointed out that disease is not caused by using a cane or other ambulatory device. Accordingly, he did not assess an impairment rating for RSD. He did, however, assess an impairment rating due to the atrophy in the lower extremity.
Dr. DeBou conducted an IME on July 2, 2009. He noted Burbank saw Dr. Best in May, Dr. Bilkey in June, and Dr. DeBou in July. Dr. DeBou found it highly unlikely Burbank would not have RSD in May and July, but have it when Dr. Bilkey saw him in June. Dr. DeBou testified he had previously taught classes at the University of Louisville Medical School on RSD. He noted that RSD is now known as CRPS 1. After reviewing Dr. Bilkey’s report, Dr. DeBou did not believe Dr. Bilkey’s report reflected the findings necessary for a diagnosis of RSD. Like Dr. Best, Dr. DeBou observed the Guides set forth the clinical findings necessary for a diagnosis of RSD. Except for atrophy of the thigh, Burbank had no other symptoms which would support a diagnosis of RSD. In Burbank’s case, he only had one of the necessary clinical findings. He also noted the three phase bone scan was normal. Therefore, Burbank did not qualify for a diagnosis of CRPS. Dr. DeBou saw no other objective findings in any of the other doctors’ reports or records to justify a diagnosis of RSD except for certain findings regarding the lower left extremity. Like Dr. Best, Dr. DeBou indicated Burbank’s ability to go up and down stairs in one minute, as reflected in the functional capacity evaluation, is inconsistent with a diagnosis of RSD.
Dr. DeBou believed that Burbank’s limp was not as pronounced after his examination. Dr. DuBou’s diagnosis was a soft tissue contusion to the left thigh with residual mild atrophy. Dr. DuBou observed it was not within the realm of medical probability for the injury Burbank sustained to have caused the symptoms Burbank complained of in every part of his body. He also agreed with Dr. Best that Burbank could not relocate his hip on his own and Burbank’s Dupuytren’s disease is hereditary and not related to the work injury. Additionally, Dupuytren’s disease would not have been caused by the use of a cane or RSD. Dr. DeBou believed Burbank had engaged in symptom magnification, and acknowledged he had previously stated Burbank was a “faker and not a good one at that.” Dr. Dubou also stated if Burbank previously had RSD, it was resolved when he saw Burbank. He assessed a 4% impairment based on the thigh atrophy.
As to whether Burbank had RSD, the ALJ made the following findings of facts and conclusions of law:
The Administrative Law Judge has reviewed all of the evidence and arguments made in this claim. Several contested issues have been listed and will be addressed. However, since TTD and medical benefits have been paid, and both of the defense experts have assigned impairment ratings what is essentially being contested is whether or not Plaintiff has RSD, also known as CRPS. It is settled in a Kentucky Workers’ Compensation claim an impairment rating for RSD/CRPS must be in conformity with the AMA Guides but a diagnosis does not necessarily need to be in conformity with the Guides. Tokico Co. v. Krystal Kelly, 281 S.W. 3d 771 (Ky. 2009) [sic]
The Administrative Law Judge, when deciding if the Plaintiff has proven his case herein, takes note of several relevant factors. The first of these is the most reliable and objective diagnostic tools for the correct diagnosis of RSD/CRPS, i.e. the bone scan and the x-rays, are both normal. Neither of these tests demonstrates any evidence of the osteoporosis that would be present if the Plaintiff has RSD/CRPS.
The second factor which the undersigned takes note of is the fact that the sympathetic block, the prescribed method for the treatment of RSD/CRPS was essentially self-reported by the Plaintiff as being a failure. What the Plaintiff said was that it provided 10% relief for the short term. The undersigned finds this extremely unlikely if the Plaintiff has a true case of RSD/CRPS.
Third, the Plaintiff does present as an individual who makes increasingly ill advised claims regarding symptoms, pain and limitations. I am persuaded by the opinion of Dr. Best and Dr. DuBou that it is not really realistic that the Plaintiff dislocated his hip, popped it back into place and then finished his work shift. I am further persuaded by the opinion of Dr. DuBou that the Plaintiff’s subjective claims of pain and limitations are medically unfeasible and that he displays overt symptoms magnification. I can find nothing in the record more persuasive that the Plaintiff over all lacks credibility than that he initially makes wild claims about having work related symptoms in his right leg and bilateral upper extremities which are then, in turn, not substantiated by any physician. If the Plaintiff makes claims about all four body limbs, three of which are discounted as not true, then surely this casts doubts on his allegations about the remaining limb, the left leg.
The undersigned is also persuaded by the photographs that Dr. DuBou took and that were attached to his deposition. These photos, as interpreted by Dr. DuBou, show absolutely no evidence of RSD/CRPS. No unusual hair growth, nail growth, swelling, or skin discoloration is noted.
The undersigned is also impressed by the expertise of Dr. DuBou in this area. The Administrative Law Judge finds it highly unlikely that if Dr. DuBou felt the Plaintiff has RSD/CRPS he would lie and say he didn’t. This is not to say that I do not respect the integrity of those physicians who found RSD/CRPS, certainly they refused to go along with all of the Plaintiff’s allegations. However, it does appear to the undersigned that their level of expertise in this area is not so great as Dr. DuBou’s and perhaps they have been too influenced by kindness.
It may also be, in this claim, that as both Dr. Best and Dr. DuBou have allowed for, that at one time the Plaintiff did have RSD/CRPS, which has resolved. The Plaintiff may simply be unwilling to accept it has resolved or genuinely, for whatever reason, does not believe it has resolved. Regardless, based on the opinion of Dr. DuBou the undersigned is not required to make a finding that the Plaintiff never had RSD/CRPS, I need only find he does not have it now and that it has resolved without permanency.
In reliance on the report, testimony and opinion of Dr. DuBou the Administrative Law Judge finds that the Plaintiff does not have RSD/CRPS as a result of the work injury. Further, in reliance on the report of Dr. DuBou I find that the Plaintiff retains a 4% impairment rating, without restrictions. I believe that this is the correct finding for all of the above reasons regarding Dr. DuBou’s objectivity, expertise and the obvious fact that he rejects the subjective allegations of the Plaintiff and any role those allegations may play in assigning an impairment rating. An impairment rating having been assigned for the left leg injury it is not possible to refuse to award medical benefits.
As I have relied on the report of Dr. DuBou it follows, and I so find, that the only work-related injury is to the left leg.
. . .
In making this award I have taken into account the contrary opinions of the treating physicians and Dr. Bilkey. I am simply persuaded the objective evidence in this claim is wholly insufficient to support finding of RSD/CRPS.
Accordingly, the ALJ based his award on the 4% impairment rating assessed by Dr. DuBou and awarded TTD, PPD, and medical benefits. As previously pointed out, Burbank filed no petition for reconsideration.
Clearly, the in depth testimony of Drs. DuBou and Best constitutes substantial evidence sufficient in our opinion to support the ALJ’s findings as to whether Burbank had RSD as a result of the work-related injury. While the contrary opinions of the treating physicians establish otherwise, that testimony represents nothing more than conflicting evidence compelling no particular outcome. Copar, Inc. v. Rogers, 127 S.W.3d 554 (Ky. 2003). Further, we disagree with Burbank’s argument that the ALJ completely ignored the opinions of the treating physicians. The ALJ succinctly stated on page 14 of his opinion that he considered the opinions of the treating physicians and Dr. Bilkey which were contrary to those of Drs. Best and DeBou. In the case sub judice, as is his prerogative, the ALJ chose to reject the medical opinions offered by Burbank’s physicians and rely on the opinions of Drs. Best and DuBou.
The resolution of conflicting medical opinions is a matter exclusively within the ALJ’s province as fact finder. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985). As we have noted before, there is no authority which requires the ALJ to give the treating physicians’ opinions more weight than those of any other physicians.
Accordingly, since the decision of the ALJ is supported by substantial evidence, it may not be disturbed on appeal. Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986). The decision of the ALJ in this matter is AFFIRMED.
ALL CONCUR.
COUNSEL FOR PETITIONER:
HON KEVIN B SCIANTARELLI
9300 SHELBYVILLE RD STE 215
LOUISVILLE KY 40222
COUNSEL FOR RESPONDENT:
HON JUDSON F DEVLIN
2000 WARRINGTON WAY STE 165
LOUISVILLE KY 40222
ADMINISTRATIVE LAW JUDGE:
HON CHRIS DAVIS
410 WEST CHESTNUT ST STE 700
LOUISVILLE KY 40202
1 “RSD” or reflex sympathetic dystrophy is also known as complex regional pain syndrome I.
