Commonwealth
of Kentucky
Workers’
Compensation Board
OPINION
ENTERED: April 8, 2014
CLAIM NO. 201288787
MICHAEL ROSA PETITIONER
VS. APPEAL FROM HON. JANE RICE WILLIAMS,
ADMINISTRATIVE LAW JUDGE
PLY TECH,
DR. BARRETT LESSENBERRY
and HON. JANE RICE WILLIAMS,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member.
Michael Rosa (“Rosa”) appeals from the
September 23, 2013 Opinion, Award and Order and the October 31, 2013 Order on
Petition for Reconsideration rendered by Hon. Jane Rice Williams,
Administrative Law Judge (“ALJ”), finding he sustained a permanent knee injury
and a temporary low back strain. On
appeal, Rosa argues the evidence compels a finding he suffered from a
pre-existing dormant condition prior to the April 12, 2012 work-related
accident. He also claims the ALJ erred
in limiting his medical benefits related to the low back and knee
injuries. We affirm.
Rosa testified by deposition on May 14, 2013 and at the
hearing held July 24, 2013. He was
injured when he tripped over a pallet while walking through the Ply Tech
Corporation plant. Rosa fell, twisting
his leg and striking his back on the floor. He experienced pain so severe he became
nauseated. He was taken by ambulance to
TJ Samson Community Hospital.
The hospital’s records indicate Rosa presented on the day
of the accident with complaints of injuries to his head, lower back and right
knee. X-rays of the lumbar spine showed
moderate degenerative changes, bilateral L5 pars defects and grade 1
spondylolisthesis. X-rays of the knee
revealed mild degenerative joint changes.
Rosa testified he suffers constant pain between his
shoulder blades and in the low back radiating down both legs. He is not able to participate in many
activities, including working in his yard or around his farm, hunting or riding
a motorcycle. He does not believe he is
capable of performing any of his past jobs.
Rosa acknowledged suffering a back injury in the
1980s. After a period of physical
therapy and rest, he was released to work with no restrictions. Rosa denied any other back pain or treatment
for several years immediately prior to the work injury.
Eventually, Rosa came under the care of Dr. Barret
Lessenberry, whose records document treatment from April 17, 2012 through May
2013 for back and right knee pain. After
obtaining an MRI and EMG testing, Dr. Lessenberry performed a right knee
arthroscopy on May 21, 2012. The scope
revealed grade III changes in the medial tibial plateau in the medial femoral
condylar region. However, x-rays showed
maintenance of the joint space medially and laterally with no destructive
change. He also administered Celestone
and Supartz injections, which provided temporary relief.
In a November 15, 2012 note, Dr. Lessenberry indicated some
of Rosa’s knee pain was due to radicular pain in the right leg. Dr. Lessenberry noted Rosa has arthritic
change in the right knee, in part related to the work condition and
injury. The spondylolisthesis was not
related to his work and was a longstanding problem.
In his May 9, 2013 note, Dr. Lessenberry concluded Rosa’s
persistent knee pain is due primarily to arthrosis in the right knee. A lumbar MRI showed disc bulging at the L4-5
level with spondylolisthesis at L5-S1 from a bilateral pars defect that is “not
acute but chronic”.
Upon referral from Dr. Lessenbery, Rosa saw Dr. Vivek Jain
for evaluation and treatment of pain.
Dr. Jain diagnosed right knee osteoarthritis, lumbar facet arthropathy,
lumbar degenerative disc disease, lumbar radiculopathy, right sacroiliitis and
myofascial pain. Rosa reported pain was
so intense he could not sleep well or work.
Dr. Jain noted Rosa is morbidly obese and suspected he has sleep
apnea.
Dr. Jarred Madden conducted an independent medical
evaluation (“IME”) on January 5, 2013.
He diagnosed right knee internal derangement secondary to fall; medial
and lateral meniscal tears; chronic pain due to trauma; osteoarthritis, right
knee; somatic dysfunction of the lower extremity, thoracic, and lumbar regions;
low back pain; thoracic pain; and insomnia secondary to chronic pain
syndrome. Dr. Madden opined Rosa’s
complaints are the result of the work injury, identifying the knee injury as
the primary source of chronic pain. Rosa
also had an acute exacerbation of stable, chronic lumbar dysfunction as a
result of the fall. Dr. Madden found
Rosa was at maximum medical improvement (“MMI”) by the time of the examination,
more than six months after the accident.
Pursuant to the American Medical Association, Guides to the
Evaluation of Permanent Impairment, 5th Edition (“AMA Guides”),
he assigned a 15% impairment rating due to the work injury based upon mild gait
derangement of the knee. Dr. Madden
opined Rosa had no active impairment prior to the injury.
Dr. Michael Best conducted an IME on December 12,
2012. In addition to the work injury on
April 12, 2012, Rosa provided a prior medical history of a low back strain in
the 1970s and a re-injury during the 1980s after which he was off work for five
years. He settled a workers’
compensation claim for that injury in 1995.
Rosa also reported a back injury in a motor vehicle accident in the
1970s after which he was off work for one year.
He sustained injuries to his head and knee in a February 2002 motor
vehicle accident. Finally, he
acknowledged a low back injury on June 1, 2004 while working for Tokio
Marine.
Dr. Best diagnosed medial and lateral meniscus tears, grade
III chondromalacia of the medial and lateral femoral condyle, status post
arthroscopy and chronic low back pain.
Dr. Best noted Rosa had a long history of pre-existing back pain. Regarding his examination, Dr. Best stated as
follows:
The physical examination of Mr. Rose
[sic] today is impossible to perform. He
provides no effort. He resists all
testing. He has submaximal and
inconsistent efforts. Indeed, even with
functional testing, the patient has marked inconsistency in effort, even when
comfortably seated in a chair.
Clearly, an element of the patient’s
back and knee pain is his malignant obesity. He is 5’4½” in height and weighs 323
pounds. This results in a body mass
index of 55.4. (BMI greater than 30
equals obesity.)
Dr. Best observed obesity has been implicated in the
development and progression of low back pain and knee osteoarthritis. He cited several studies indicating obesity
leads to an excess load on the joint, increased cartilage turnover, increased
collagen type 2 degradation products, and increased risk of degenerative
meniscal lesions. According to the cited
studies, for every two units of BMI gain, the risk of knee osteoarthritis
increases by 36%.
Furthermore, Dr. Best opined Rosa engaged in significant gross
magnification of symptoms, and his subjective complaints far outweigh any
objective findings. Rather, Dr. Best
opined malignant obesity is the primary causative factor in Rosa’s persistent
complaints. He had pre-existing
degenerative arthritis and chronic low back pain that caused him to be off work
for six years. He was not capable of
performing unrestricted work activities as a result of the malignant obesity
and pre-existing degenerative arthritis only.
By the time of the IME, Dr. Best placed Rosa at MMI for the medial and
lateral meniscus tears. He stated,
within reasonable medical probability, Rosa’s current complaints are not a
function of the work event or meniscal tears.
He assigned a 4% impairment, noting the
meniscus tears are the only abnormality directly and causally related to the
work event. Dr. Best believed “[a]ny additional
impairment rating is secondary to the patient’s obesity and pre-existing
arthritic degeneration of the knees, and this should be appropriately
apportioned.”
The ALJ concluded Rosa suffered a permanent impairment to
the right knee and a temporary exacerbation of a pre-existing, active lumbar
spine condition, and awarded temporary total disability benefits from April 13,
2012 through January 31, 2013. The ALJ relied
on the 15% impairment rating assessed by Dr. Madden for the knee injury and
awarded permanent partial disability benefits enhanced by a 3.2 multiplier
based upon Rosa’s lack of physical capacity and age. Additionally, she awarded medical benefits for
the initial treatment of the temporary back strain. The ALJ found as follows concerning medical
benefits for the knee:
Furthermore, injury to the right knee
has been surgically repaired and Defendant Employer is liable for that
treatment. While it is not completely
clear from the record to what the ongoing injections for the right knee are
related, the obligation of Defendant Employer relates only to the meniscal
repair and not to long standing degenerative changes in the knee.
Rosa filed a petition for reconsideration raising
essentially the same arguments asserted on appeal. In her October 31, 2013 order denying the
petition for reconsideration, the ALJ reiterated her finding that Rosa
sustained a permanent injury to his knee, but there was no persuasive evidence
of anything other than degenerative changes in the low back. The ALJ then additionally found as follows:
For clarification purposes, it has been
found Plaintiff suffered permanent injury to the knee. Plaintiff argues the injury aroused
pre-existing dormant non-disabling conditions.
That position is not adopted herein.
The pre-existing conditions were not changed or affected by the meniscal
tear, which is the only permanent injury found herein.
On appeal, Rosa asserts the ALJ erred in concluding his
back condition was pre-existing and active at the time of the work
accident. He notes no medical records
predating the injury were submitted to establish the conditions were active. While Rosa acknowledges his pre-existing
degenerative conditions, he contends they were asymptomatic. Citing to Finley v. DBM Technologies,
217 S.W.3d 261 (Ky. App. 2007), he argues the evidence compelled a finding his
back condition had reverted to its pre-injury dormant state prior to the work
accident. Finley states:
[A] pre-existing
condition that is both asymptomatic and produces no impairment prior to the
work-related injury constitutes a pre-existing dormant condition. When a
pre-existing dormant condition is aroused into disabling reality by a work-related
injury, any impairment or medical expense related solely to the pre-existing
condition is compensable. A pre-existing
condition may be either temporarily or permanently aroused. If the pre-existing
condition completely reverts to its pre-injury dormant state, the arousal is
considered temporary. If the pre-existing condition does not completely revert
to its pre-injury dormant state, the arousal is considered permanent, rather
than temporary.
Id. at 265.
As the claimant in a workers’ compensation proceeding, Rosa had the burden of proving each of the essential elements
of his cause of action. Snawder v. Stice, 576
S.W.2d 276 (Ky. App. 1979). Because he was unsuccessful in proving
a permanent injury to his low back, 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). While Rosa has
identified evidence supporting a different conclusion, there was substantial
evidence presented to the contrary. The
ALJ acted within her discretion to determine which evidence to rely upon, and
it cannot be said the ALJ’s conclusions are so unreasonable as to compel a
different result. Ira
A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000).
Although Rosa testified his back pain following his earlier
injuries had resolved and he had returned to work, his testimony does not
compel a finding he sustained a permanent back injury. Rosa had been off work for a total of six
years as a result of prior low back injuries.
Only Dr. Best was provided with the history of those injuries and the
resulting significant loss of time. He
opined the meniscus tears are the only abnormality directly and causally
related to the work event. As noted by
the ALJ, Dr. Lessenberry indicated the spondylolisthesis was a longstanding
problem unrelated to the work injury. No
doctor assessed an impairment rating relative to the low back condition. In her order on reconsideration, the ALJ
specifically found the pre-existing conditions were not changed or affected by
the work injury. The ALJ was only persuaded
the work injury caused a temporary back strain.
The evidence does not compel a finding of any harmful change to the low
back as a result of the work injury.
Similarly, Rosa argues the ALJ erred in limiting future
medical expenses related to his knee.
Rosa contends any pre-existing degenerative condition was dormant and
non-disabling prior to the work injury.
He emphasizes Dr. Lessenberry’s belief the knee injury contributed to
the arthritis in the knee, and that the knee was asymptomatic prior to the work
injury.
The ALJ specifically found the degenerative condition of
the knee was not changed by the work event.
Dr. Best stated the meniscal tear was the only work injury to the
knee. He found the current complaints
were subjective and not work-related, but the result of malignant obesity. Dr. Best explicitly stated the entirety of
the degenerative arthritic condition of the knee was pre-existing. Substantial evidence supports the ALJ’s
conclusion that the work-related knee injury included only the meniscal
tear. Thus, the ALJ correctly limited
the award of future medical benefits to expenses related to the meniscal
tear.
Accordingly, the September 23, 2013 Opinion, Award and
Order and the October 31, 2013 Order on Petition for Reconsideration rendered
by Hon. Jane Rice Williams, Administrative Law Judge are hereby AFFIRMED.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON BEN T HAYDON
PO BOX 1155
BARDSTOWN, KY 40004
COUNSEL
FOR RESPONDENT:
HON SARA COWLES
1830 DESTINY CT. STE 113
BOWLING GREEN, KY 42104
ADMINISTRATIVE
LAW JUDGE:
HON JANE RICE WILLIAMS
657 CHAMBERLIN AVE
FRANKFORT, KY 40601