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Workers’
Compensation Board
OPINION
ENTERED: July 3, 2014
CLAIM NO. 201263579
MARTHA NELSON PETITIONER
VS. APPEAL FROM HON. JONATHAN
R. WEATHERBY,
ADMINISTRATIVE LAW JUDGE
CARDINAL COUNTRY STORES
and HON. JONATHAN R. WEATHERBY,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
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BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
ALVEY,
Chairman. Martha Nelson (“Nelson”) seeks review of the opinion and award
rendered February 14, 2014 by Hon. Jonathan R. Weatherby, Administrative Law
Judge (“ALJ”) awarding temporary total disability (“TTD”) benefits, and medical
benefits, but denying her claim for permanent partial disability (“PPD”)
benefits. Nelson also appeals from the
March 20, 2014 order on reconsideration finding she did not suffer a
compensable shoulder injury.
On appeal, Nelson argues the ALJ’s finding of no impairment or injury
to the right shoulder was not supported by substantial evidence because it was
not specifically referenced in the report of Dr. David J. Jenkinson, upon which
he relied. We disagree and affirm because
substantial evidence in the record supports the ALJ’s determination and a
contrary result is not compelled.
Nelson filed a Form 101
on July 15, 2013 alleging she injured her upper and lower back on October 24,
2012, when she slipped and fell on a wet floor at the end of a counter while
working as a cook for Cardinal Country Stores (“Cardinal”). Nelson began working for Cardinal in 2000,
and last worked there on the date of the accident. This is the only job she has ever held.
Nelson testified by
deposition on November 27, 2013, and at the hearing held December 17,
2013. She was born on January 24, 1964,
and is a resident of Prestonsburg, Kentucky.
Nelson is a high school graduate.
She stated she never had any back problems prior to the accident, but
was treating for unrelated left knee pain.
Nelson had typically
worked for Cardinal from 7:00 a.m. to 4:00 p.m., but her hours were reduced
approximately a month and a half prior to the accident. Her job at Cardinal involved cooking,
cleaning, washing dishes, sweeping, mopping and waiting on customers. At the time of the accident she had mopped
the floor, but had not allowed it enough time to dry. As she walked around the counter to wait on a
customer, her feet slipped from under her causing her to fall. She experienced immediate low back pain, and
was helped up by a co-worker. She stated
her right shoulder began bothering her later that evening.
Nelson was taken to the
hospital by her daughter, and subsequently sought treatment with Dr. Anbu K.
Nadar, who she stated she saw upon her attorney’s recommendation. Dr. Nadar ordered an MRI, prescribed
medication, ordered physical therapy and administered one injection. Nelson stated she continues to have back pain
which is aggravated by prolonged standing or sitting, stair climbing and
bending. She stated she has intermittent
pain in her right leg, and reported leg numbness on three occasions. She also complained of a tightness or pain
between her shoulders. She stated she
does not believe she can return to her job at Cardinal due to problems with
standing, bending, lifting, pulling and tugging.
In support of her
claim, Nelson filed Dr. Nadar’s July 9, 2013 report, and his office notes. In his report, Dr. Nadar stated Nelson
injured her back and right shoulder when she slipped and fell working for
Cardinal. He diagnosed her with dorsal,
lumbar and right shoulder strains. He
assessed a 10% impairment rating pursuant to the American Medical Association, Guides
to the Evaluation of Permanent Impairment, 5th Edition, (“AMA Guides”),
of which he assessed half to the lumbar strain, and half to the dorsal
strain. He assigned no impairment to the
right shoulder. He advised Nelson to
avoid heavy lifting, bending, twisting, climbing and crawling.
Nelson filed Dr.
Nadar’s office notes for treatment from October 30, 2012 through June 18,
2013. On October 30, 2012, Dr. Nadar
noted Nelson’s complaints of persistent back pain with some pain down the right
hip to the knee with intermittent numbness.
She indicated she had some previous back pain which required treatment. He noted a lumbar CT-scan, and a right
shoulder x-ray were both negative. He
diagnosed dorsolumbar strain and right shoulder sprain. Subsequent records note muscle tenderness in
the back, with complaints of pain in the scapula and rotator cuff, with normal
range of motion. A January 9, 2013 MRI
revealed degenerative changes in the back.
Dr. Nelson’s records do not reflect right shoulder complaints or
treatment subsequent to the November 27, 2012 office visit.
Nelson also filed the
emergency room records from the Highland Regional Medical Center on October 24,
2012. Those records do not indicate
Nelson’s complaints, but do reflect a lumbar CT-scan and right shoulder x-rays
were ordered. The records also reflect a
prescription for Naproxen 500 mg. The
remainder of the documentation provides general information regarding muscle
strains and cautions regarding taking medication.
Cardinal filed the
April 8, 2013 report of Dr. Jenkinson who evaluated Nelson at its request. Dr. Jenkinson noted the history of injury
occurring October 24, 2012 when she fell and struck her lower back and the
region around her right shoulder blade.
At the time of the evaluation, she complained primarily of pain in her
lower back with radiation into her right leg.
She also complained of tightness between her shoulder blades. On examination he noted full range of motion
in both the upper and lower extremities.
He noted normal grip strength and lightly callused hands which he stated
indicated she was involved in some ongoing manual activity.
Dr. Jenkinson noted,
“There is no evidence that she sustained any significant structural injury to
any body part.” He noted she had
subjective complaints without evidence of any objective abnormality. Regarding her treatment, Dr. Jenkinson stated
as follows:
I
believe the emergency room assessment with x-rays was reasonable and
necessary. I also believe that the
follow-up care by Dr. Nadar with MRI scan was reasonable and necessary in view
of her subjective complaints. I believe
a short course of physical therapy would have been appropriate at the time it
was prescribed. Given the fact that all
investigations have been negative for significant abnormality and that she has
continued subjective complaints in the absence of objective abnormality then it
is my opinion that further treatment is not reasonable and necessary.
Dr. Jenkinson opined
Nelson reached maximum medical improvement (“MMI”) within two to three weeks
after the October 24, 2012 accident. He
stated she had clearly reached MMI by the date of his examination. He stated she requires no additional
treatment. He assessed a 0% impairment
rating pursuant to the AMA Guides.
On January 24, 2014,
the ALJ entered an order amending the Form 101 to reflect the allegation of a
right shoulder injury pursuant to a motion filed by Nelson on December 18,
2013.
The ALJ rendered an
Opinion and Award on February 14, 2014.
He awarded TTD benefits from October 25, 2012 through April 8, 2013, the
date of Dr. Jenkinson’s examination, at the rate of $314.00 per week. The ALJ relied upon the 0% impairment rating
assessed by Dr. Jenkinson, who he found more credible than Dr. Nadar, in
denying PPD benefits. The ALJ did not
specifically address Nelson’s right shoulder complaints, but noted she had
suffered a lumbar sprain which had resolved.
Nelson filed a petition
for reconsideration on February 26, 2014 arguing the ALJ failed to consider the
shoulder injury. She also argued the ALJ
should have relied upon the 10% impairment rating assessed by Dr. Nadar instead
of the 0% impairment rating assessed by Dr. Jenkinson because he is the
treating physician and in a better position to evaluate her condition.
The ALJ rendered an
order on reconsideration on March 20, 2014.
He reiterated he found Dr. Jenkinson more convincing. He specifically found as follows:
2. Dr. Jenkinson concluded that the Plaintiff
did not sustain a significant injury to any body part and the ALJ finds that
this statement is conclusive and convincing regarding the Plaintiff’s shoulder
complaints.
3. The ALJ therefore finds based upon the most
convincing medical evidence that the Plaintiff did not suffer a compensable
injury to the right shoulder.
On appeal, Nelson
argues the ALJ erred in relying upon Dr. Jenkinson, in particular regarding the
right shoulder complaints. Nelson argues
Dr. Jenkinson failed to address the right shoulder in his report. Dr. Jenkinson indicated he had reviewed the
x-ray of the right shoulder. The report
clearly reflects he conducted a complete examination of the back, the lower
extremities, and the upper extremities, which included range of motion. It is further noted that although the ALJ did
not specifically discuss the right shoulder in his original decision, he did so
in the order on reconsideration.
As the claimant in a workers’
compensation proceeding, Nelson 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). Burton v. Foster Wheeler Corp., 72 S.W.3d 925 (Ky.
2002). Since she was unsuccessful before
the ALJ regarding PPD benefits and the alleged right shoulder injury, the question on appeal is whether the evidence compels a
finding in Nelson’s favor. Wolf Creek
Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984). Compelling evidence is
defined as evidence 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).
In rendering a decision, KRS 342.285
grants the ALJ as fact-finder the sole discretion to determine the quality,
character, and substance of evidence.
AK Steel Corp. v. Adkins, 253 S.W.3d 59 (Ky. 2008). The ALJ may
draw reasonable inferences from the
evidence, 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. Jackson v. General Refractories Co.,
581 S.W.2d 10 (Ky. 1979); Caudill
v. Maloney’s Discount Stores, 560 S.W.2d 15 (Ky. 1977). Although a party may note evidence supporting
a different outcome than 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).
The function of the Board in reviewing
an ALJ’s decision is limited to a determination of whether the findings are so
unreasonable 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 reasonable inferences that otherwise could
have been drawn from the evidence. Whittaker
v. Rowland, 998 S.W.2d 79 (Ky. 1999).
The ALJ determined Nelson sustained a
lumbar injury which has resolved, and later found she did not suffer a
compensable injury to the right shoulder in the order on reconsideration. The ALJ awarded income and medical benefits
for the temporary lumbar injury. He also
awarded medical benefits which are not limited to the period of TTD
benefits.
Contrary to Nelson’s arguments, the
ALJ’s decision regarding the right shoulder is supported by Dr. Jenkinson’s
report. It is further noted Dr. Nadar,
Nelson’s treating physician, made no mention in his records of the shoulder
after the November 27, 2012 office visit, except for his later report. It is further noted Dr. Nadar did not address
the shoulder in his report where he assessed impairment ratings for the spine. It was reasonable for the ALJ to conclude
Nelson sustained no compensable injury to the right shoulder. Therefore, we determine the ALJ’s decision is
supported by substantial evidence, and a contrary result is not compelled.
Accordingly, the decision rendered February
14, 2014, by Hon. Jonathan R. Weatherby, Administrative Law Judge, and the March
20, 2014 order on the petition for reconsideration are hereby AFFIRMED.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON RANDY G CLARK
PO BOX 1529
PIKEVILLE, KY 41502
COUNSEL
FOR RESPONDENT:
HON TROY W SKEENS, JR
301 ARTILLERY PARK DR, STE 101
FORT MITCHELL, KY 41017
ADMINISTRATIVE
LAW JUDGE:
HON JONATHAN R WEATHERBY
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601
