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RENDERED: JUNE 27, 2014; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
SURVEY ANALYSIS APPELLANT
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-12-83206
STANLEY STIGALL; HON. MARC
CHRISTOPHER DAVIS,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS’
COMPENSATION
BOARD APPELLEES
OPINION
AFFIRMING
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BEFORE: DIXON, MAZE AND TAYLOR, JUDGES.
DIXON, JUDGE: Survey Analysis petitions for review of an opinion of the Workers’ Compensation Board affirming the Administrative Law Judge’s assigning a work-related 7% impairment rating to Stanley Stigall. Survey Analysis contends that the impairment rating was not supported by substantial evidence due to an incomplete medical history, and that the evidence actually compelled a finding that Stigall had an active pre-existing impairment rating.
Stigall began working as a pipeline inspector for Survey Analysis in 2001. He estimated that he walked four to five miles per day wearing a back pack weighing twenty to thirty pounds. His work also involved bending and stooping. On April 24, 2012, while checking for a leakage, he stepped backwards and caught his heel on the edge of the sidewalk. He fell backwards, and stayed on the ground for some time before returning to his truck and contacting his supervisor. He was told to go home. The next day, he could hardly walk but tried to work. His employer told him to take a few days off, and see if the pain improved. Two days after the injury, Stigall went to the St. Claire Regional Medical Center, reporting back and left leg pain. X-rays showed no evidence of acute osseous abnormality and minimal osteophytes at L4 and L5. He was released with the diagnosis of acute lumbar and right shoulder strains, and was restricted from strenuous activities.
When Stigall’s pain did not improve, he consulted Dr. Gregory Snider on June 28, 2012. Dr. Snider diagnosed lumbar strain and right shoulder strain. He restricted Stigall to light duty, advised him to pursue physical therapy, and referred Stigall to Dr. Dirk Franzen.
Dr. Franzen examined Stigall on July 10, 2012. He ordered an MRI of the lumbar region, which revealed a very small foraminal lateral disc protrusion at L4-L5. His impression was that Stigall experienced lumbar strain, and might suffer from minor disc abnormalities.
Stigall continued to consult Dr. Franzen, complaining of ongoing pain. Dr. Franzen performed a functional capacity evaluation on October 22, 2012. The results showed non-organic pain responses and sub-maximal effort. Dr. Franzen released Stigall to medium duty. He found that Stigall had reached maximum medical improvement (MMI) as of October 24, 2012, and assigned a 7% whole person impairment rating according to the American Medical Association, Guides to the Evaluation of Permanent Impairment, 5th edition.
On December 4, 2012, Dr. Michael Best evaluated Stigall on behalf of Survey Analysis. He diagnosed lumbosacral sprain/strain that had resolved with no long-term or permanent harmful changes. He stated that Stigall’s subjective complaints outweighed any objective findings, and that Stigall had marked symptom magnification.
On February 26, 2013, Dr. James Owen performed an examination at Stigall’s request. He diagnosed persistent back pain with non-verifiable radicular symptomology, and suspected Stigall might be experiencing radiculopathy. He also did not believe Stigall had an active condition prior to the work accident.
He found that Stigall had not reached MMI, and assigned a 7% impairment rating under the AMA Guides.
On March 28, 2013, Dr. Rick Lyon evaluated Stigall on behalf of Survey Analysis. He concluded that Stigall had suffered a lumbosacral strain/sprain as a result of the work injury, which had resolved. He agreed with Dr. Franzen that Stigall had reached MMI on October 24, 2012, but found that he did not have a permanent impairment as a result of the work accident. Dr. Lyon’s report also contained a summary of earlier medical records showing that Stigall suffered for several years from a pre-existing low back condition.
At the final hearing, Survey Analysis submitted treatment records from New Hope Clinic and St. Joseph Medical Systems showing that Stigall had been treated on numerous occasions in 2005, 2006, 2009, and 2010, for pain in his legs, hips and back. These records had been provided to Dr. Lyon before he performed his examination on behalf of Survey Analysis, but they were not provided to any of the other medical evaluators. Stigall nonetheless testified that he had never been treated previously for low back pain, and that he had not reported any prior low back pain or treatment to Drs. Owen and Best. When he was cross-examined about the medical records, he repeatedly stated that he could not recall receiving any treatment.
The ALJ’s opinion acknowledged that Stigall had sought medical treatment for back pain on numerous occasions before the work accident, and described his deposition testimony when confronted with his earlier medical records as “less than forthright.” The ALJ also found, however, that prior to the accident, Stigall had never missed work due to his low back condition, had not been treated for low back pain after December 1, 2011, nearly five months before the work accident, and had never been assigned an impairment rating. The ALJ concluded that, while Stigall’s prior condition may have been symptomatic prior to his work injury, it was not active and ratable prior to that injury. On those grounds, the ALJ refused to find an exclusion for a pre-existing condition. The ALJ assigned a work-related 7% impairment rating, in reliance on the opinions of Dr. Franzen and Dr. Owen, noting that Dr. Franzen was the Plaintiff’s treating physician and therefore in the best position to observe Stigall’s condition over time.
Survey Analysis appealed to the Board, which affirmed the ALJ’s opinion, award and order. This petition by Survey Analysis followed.
The function of further review of the WCB [Workers’ Compensation Board] in the Court of Appeals is to correct the Board only where the Court perceives the Board has overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause gross injustice.
Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).
If, as in this case, the party with the burden of proof is successful before the ALJ, the question on appeal is whether the ALJ’s opinion is supported by substantial evidence. Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984).
Citing Cepero v. Fabricated Metals Corp., 132 S.W.3d 839 (Ky. 2004), Survey Analysis argues that the ALJ erred in relying on the reports of Dr. Franzen and Dr. Owen, because they were unaware of Stigall’s prior medical history of back pain. In Cepero, the claimant was awarded benefits after suffering a work-related knee injury. The ALJ relied on the opinions of two physicians, neither of whom was aware that the claimant had previously broken the same knee, resulting in his lengthy confinement to a wheelchair and a recommendation of surgery. The Supreme Court held that, under these circumstances, the physicians’ reports could not constitute substantial evidence:
[I]n cases such as this, where it is irrefutable that a physician’s history regarding work-related causation is corrupt due to it being substantially inaccurate or largely incomplete, any opinion generated by that physician on the issue of causation cannot constitute substantial evidence. Medical opinion predicated upon such erroneous or deficient information that is completely unsupported by any other credible evidence can never, in our view, be reasonably probable. Furthermore, to permit a ruling of law to stand based upon such evidence that is not reliable, probative and material would be fundamentally unjust.
Cepero, 132 S.W.3d at 843.
Survey Analysis argues that, just as in Cepero, the medical opinions relied upon by the ALJ in this case could not constitute substantial evidence because (1) there was a complete omission of the prior condition; (2) the contested medical opinions were completely unsupported by any other credible evidence; (3) Stigall made affirmative efforts to conceal his prior lumbar condition; (4) the undisclosed prior condition and treatment was of significant temporal relevance to determining causation; (5) neither Dr. Franzen nor Dr. Owen was aware of the prior history, and had no apparent means of being so informed; and (6) the only physician who had an accurate medical history, Dr. Lyon, opined that Stigall’s condition was pre-existing and active.
It was undisputed in this case that Stigall suffered a work-related injury. Even Dr. Lyon, the only physician who was aware of Stigall’s medical history of back problems, diagnosed him with having suffered a lumbosacral strain/sprain as a result of the work accident, which had since resolved. He found no permanent impairment or objective evidence that Stigall is unable to return to his former employment. Hs report also states:
I agree with
the determination of MMI by Dr. Franzen on 10/22/2012. Since there are no objective findings and his
subjective findings are not explainable using neuroanatomy, it is my opinion
that he [Stigall] has no impairment rating based upon the AMA Guides to
Impairment, Fifth Edition. Dr. Franzen
and Dr. Owen determined a rating of 7% as a Lumbar Category II impairment. According to their records, they did not have
access to the previous history of chronic low back pain and radicular complaints. According
to the records I reviewed (detailed above) it is clear Mr. Stigall had a
pre-existing Lumbar Category II impairment.
Therefore, if his subjective
complaints are to be believed, it is my opinion his impairment is unchanged as
a result of the alleged work event.
(Emphasis supplied) Thus, all the physicians agreed that Stigall had a lumbar impairment at some point. The physicians who were unaware of his medical history, Drs. Franzen and Owen, operated on the assumption that his symptoms stemmed from his work injury; hence, they did not present any opinion regarding whether the impairment could have pre-existed the injury. The ALJ was entitled to rely on their diagnosis of a current impairment, however, because such a diagnosis would not be reliant on knowing his prior medical history. Thus, the opinions of Drs. Franzen and Owen constituted substantial evidence that Stigall has a 7% permanent impairment. The question is whether that impairment was caused by the work injury, or was due to a pre-existing condition.
An employer is not responsible for a pre-existing active condition present at the time of the alleged work-related event. “To be characterized as active, an underlying pre-existing condition must be symptomatic and impairment ratable pursuant to the AMA Guidelines immediately prior to the occurrence of the work-related injury.” Finley v. DBM Technologies, 217 S.W.3d 261, 265 (Ky. App. 2007).
The ALJ concluded that Stigall’s condition was not active and ratable prior to the work injury. The ALJ did not rely on the opinions of Dr. Franzen and Dr. Owen to arrive at this conclusion, but instead noted that no records were submitted showing that Stigall had been treated for low back pain after December 1, 2011, nearly five months before his work accident; no evidence was presented of a definitive diagnosis or an identified low back condition; Stigall had never previously been assigned an impairment rating; and finally, no evidence was submitted that Stigall had ever missed any days of work for low back pain prior to the date of the injury. These findings constitute substantial evidence. “Medical causation must be proved to a reasonable medical probability with expert medical testimony but KRS 342.0011(1) does not require it to be proved with objective medical findings.” Brown-Forman Corp. v. Upchurch, 127 S.W.3d 615, 621 (Ky. 2004) (internal citations omitted). An ALJ may rely on lay testimony and his own expertise in matters involving observable causation. Mengel v. Hawaiian-Tropic Northwest and Cent. Distrib., Inc., 618 S.W.2d 184, 187 (Ky. App. 1981).
Survey Analysis argues that there was no evidence in the record to support the ALJ’s finding that Stigall never missed work for lower back pain. “[T]he burden of proving the existence of a pre-existing condition falls upon the employer.” Finley v. DBM Technologies, 217 S.W.3d at 265. Although an employer does not have to show that an employee missed work in order to prove the existence of an active pre-existing condition, work attendance records are certainly a type of evidence that is most readily accessible to an employer. Furthermore, it appears that none of the medical records referenced by Dr. Lyon and subsequently entered into the record mention that Stigall reported missing work due to back pain. The ALJ was entitled to note, as support for his finding of a work-related injury that caused a permanent impairment, the absence of any evidence that Stigall missed work due to lower back pain prior to the injury.
Although a party may note evidence which would have supported a different conclusion than that which the ALJ reached, such evidence is not an adequate basis for reversal on appeal. The crux of the inquiry on appeal is whether the finding which was made is so unreasonable under the evidence that it must be viewed as erroneous as a matter of law.
McNutt Construction/First General Services v. Scott, 40 S.W.3d 854, 860-61 (Ky. 2001) (internal citations omitted). The ALJ’s findings in this case were supported by substantial evidence, in the form of medical opinions and observable causation, and were certainly not so unreasonable as to merit reversal.
The opinion of the Board is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT: Steven D. Goodrum Ian M. Godfrey Lexington, Kentucky |
BRIEF FOR APPELLEE STANLEY STIGALL: McKinnley Morgan London, Kentucky |
