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Commonwealth
of Kentucky
Workers’
Compensation Board
OPINION
ENTERED: August 1, 2014
CLAIM NO. 201300796
PIKE COUNTY BOARD OF EDUCATION PETITIONER
VS. APPEAL FROM HON. JONATHAN R. WEATHERBY,
ADMINISTRATIVE LAW JUDGE
LINDA GRIFFEY
and HON. JONATHAN R. WEATHERBY,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
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BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. Pike County
Board of Education (“Pike”) appeals from the February 10, 2014 Opinion and
Award and the March 28, 2014 Order rendered by Hon. Jonathan R. Weatherby,
Administrative Law Judge (“ALJ”) finding Linda Griffey (“Griffey”) permanently
totally disabled. On appeal, Pike argues
Griffey did not sustain an injury as defined by the Act, can return to her
custodian position, is not permanently totally disabled and is not entitled to
any future medical treatment. Because
the ALJ’s decision is supported by substantial evidence, we affirm.
Griffey testified she began working
for Pike in 1989 as a custodian and this has been her only employment. Her work involved cleaning, mopping,
sweeping, cleaning windows and bleachers, cleaning the gym, waxing and
polishing floors, moving tables, moving desks, cleaning bathrooms and stair
rails, scrubbing walls, and collecting garbage, which was the heaviest
task. These tasks involve frequent
stooping, twisting, lifting, and bending.
Griffey indicated she began treating
with Dr. Stephen Harrison in 2004 for back pain. She sought treatment because she had been
having trouble performing job duties including lifting, tugging and mopping
stairs. Eventually, she received several
injections from Dr. Sujati Gutti to relieve her back pain. In addition, Griffey treated with Dr. Mark
Reed for anxiety and depression, who referred her to
Mountain Comprehensive Care.
Griffey testified she experiences back
pain radiating down her right leg and numbness in the leg and foot. While working for Pike, she had to sit and elevate
her leg, which put her behind in her work.
As an accommodation, she would skip breaks, causing additional
stress.
She completed a form for an initial
absence on August 16, 2012, citing stress, nerves, and sickness. The following day, she visited Dr. Gutti and
her subsequent forms listed nerves, depression, stress, and back and leg pain
as the reasons she was off work. She
remained off work until April 2013, when her sick leave was exhausted. Griffey did not believe she could return to
work as a custodian.
Nancy Grubb, Director of Finance &
Treasurer for Pike, confirmed Griffey last worked on August 9, 2012, began
using sick days during the August 6 through 17, 2012 pay period, and exhausted
her sick leave in April 2013. When asked
whether the custodian position involved heavy manual labor, Grubb replied
“Yes. It’s definitely a manual
job.” A written job description
submitted by Pike for Griffey’s position indicates a custodian must have the
ability to perform heavy physical labor and be able to walk, bend, lift, push
and stand for extended periods of time.
Dr. David E. Muffly performed an
independent medical evaluation (“IME”) on March 14, 2013. Griffey complained of constant low back pain
radiating through her hip and down her right leg. Dr. Muffly diagnosed progressive lumbar
degenerative disc disease, lumbar spinal stenosis and radicular pain. He opined the progressive degenerative
changes were associated with her occupation as a custodian which required
frequent bending, twisting and lifting.
Dr. Muffly assigned an 8% impairment pursuant
to the American Medical Association, Guides to the Evaluation of Permanent
Impairment, 5th Edition (“AMA Guides”). He noted “[t]his 8% impairment is related to
cumulative trauma associated with her 24 years of custodial work” for
Pike. He further indicated Griffey did
not have an active impairment prior to her injury. Dr. Muffly permanently restricted her from
lifting over fifteen pounds, and to avoid bending and stooping. He also stated Griffey should have the
opportunity to change from a seated position every twenty minutes and to avoid
sitting more than two hours per eight hour day.
Additionally, he limited Griffey to standing and walking a total of four
hours per day and indicated she must be able to lie down and elevate her leg
for relief of her symptoms. Dr. Muffly
indicated Griffey should only occasionally climb stairs and ramps, balance,
stoop, kneel, crouch or crawl.
Griffey introduced Dr. Gutti’s medical
records, including a May 4, 2007 lumbar MRI report which revealed degenerative
changes at L4-5 with mild associated spinal stenosis and no herniated
disc. An October 29, 2008 MRI revealed
stable degenerative disc disease at L4-5 and L5-S1 with mild central bilateral
recess stenosis. On June 24, 2009, nerve
conduction studies revealed chronic right S1 radiculopathy. Griffey received trigger point injections on
May 1, 2012 with good results for three to four weeks. In the final note on December 6, 2012, Dr.
Gutti recorded diagnoses of lumbar degenerative disc disease with mechanical
symptoms of facet dysfunction and SI dysfunction, right leg radicular symptom
in the L5-S1 distribution and carpal tunnel syndrome.
Dr. Russell L. Travis performed an IME
on September 16, 2013. Griffey
complained of pain in her back and right lower extremity, and indicated she had
“nerve problems” as well. Dr. Travis
diagnosed complaints of low back and right lower extremity pain.
In his IME report, Dr. Travis
emphatically challenged the notion Griffey suffers from any condition other
than normal degenerative changes. He
found no objective findings on detailed neurological evaluation, and believed
Griffey exhibited some mild symptom magnification. Dr. Travis reviewed MRI scans from 2007, 2008
and 2010 revealing progressive facet arthropathy “which hasn’t changed a great
deal” with perhaps some enlargement of the facets from arthropathy consistent
with the aging process. There was no
evidence of acute traumatic changes or evidence of a soft herniated disc. Dr. Travis noted Griffey also has suffered
from significant non-work-related anxiety and depression for years, which is a
major component preventing her from working.
Dr. Travis’ report also challenges the
general concept of cumulative trauma. He
stated there are no specific studies revealing a higher incident rate for
spinal problems in individuals engaged in custodial work. He indicated numerous studies have shown
facet arthropathy is an age-related problem, unrelated to cumulative trauma. Dr. Travis opined Griffey does not have a
work-related condition, but does have a 5% impairment rating pursuant to the
AMA Guides attributable to the natural aging process. She could be restricted as a result of her
age and development of facet arthropathy to no lifting greater than fifty
pounds. However, he noted that, with
work hardening, the restriction could be lifted in four to six weeks. Based upon her job description, Dr. Travis
stated the age-related degenerative changes likely will affect her capacity to
continue to work as a custodian.
Relying on the opinion of Dr. Muffly,
the ALJ found Griffey sustained an injury as defined by the Act resulting in an
8% functional impairment. He found no
pre-existing active condition. The ALJ
concluded Griffey does not retain the physical capacity to return to the type
of work performed at the time of her injury.
After noting the definitions of “permanent total disability” and “work”,
and identifying the considerations required by Ira A. Watson Department
Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000), the ALJ determined Griffey is
permanently totally disabled as a result of the work-related injury. While acknowledging Griffey’s relatively
modest impairment rating, the ALJ also considered the significant physical
restrictions imposed on her. These
restrictions, combined with her advanced age and work history limited to
custodial activity from which she is now prohibited, convinced the ALJ it is
highly unlikely Griffey will be able to provide services to another in return
for remuneration on a regular and sustained basis in a competitive economy.
Pike filed a petition for
reconsideration arguing the ALJ erred in finding Griffey permanently totally
disabled. By order dated March 28, 2014
the ALJ overruled the petition.
On appeal, Pike raises four
arguments. It first asserts the ALJ
erred in finding Griffey has suffered a work-related cumulative trauma
injury. Next, it challenges the
conclusion Griffey is unable to return to her custodial position. Thirdly, it claims there is no evidence to
support a finding Griffey is permanently totally disabled due to the alleged
work injury. Finally, Pike claims the
ALJ erred in awarding future medical benefits.
Pike’s arguments on appeal are
essentially an attempt to have the Board reweigh the
evidence and substitute its opinion for that of the ALJ. We may not do so. As to Pike’s first claim of error, the ALJ
was faced with conflicting evidence on the issue of whether Griffey sustained
an injury as defined by the Act. He
weighed the evidence and, as was his prerogative, found the opinion of Dr.
Muffly more persuasive. Dr. Muffly found
Griffey sustained a work-related cumulative trauma resulting in a permanent
impairment rating. His report,
therefore, constitutes the requisite substantial evidence to support the
award. Wolf Creek
Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984).
In claiming Griffey did not sustain a
work-related injury, the thrust of Pike’s argument is that Dr. Travis’ report
is more thorough, detailed, and credible than Dr. Muffly’s opinion. However, the duty of this Board is not to
determine what evidence is most persuasive; that task lies within the exclusive
discretion of the ALJ. Square D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993). Having concluded Dr. Muffly’s opinion
constitutes substantial evidence supporting the ALJ’s finding, we may not
reverse the finding of a work-related injury.
Pike next challenges the conclusion
Griffey cannot return to her custodian position. Again, to support this
argument, Pike points to Dr. Travis’ opinion that Griffey’s physical
restrictions could likely be lifted if she underwent a work hardening
program. Notwithstanding, the ALJ was
entitled to rely upon the restrictions assessed by Dr. Muffly, which would
clearly preclude Griffey from performing custodial tasks. Moreover, the testimony of Ms. Grubb, as well
as the job description submitted by Pike, indicated Griffey’s position required
heavy physical labor. This evidence is
substantial proof to support the conclusion Griffey is incapable of performing
her prior work duties.
Pike’s third argument is that Griffey
is not permanently totally disabled.
Pike states the impetus for Griffey’s cessation of work was not related
to her low back, but rather her non-work-related psychological issues. Indeed, a non-work-related impairment may not
be considered in determining whether an employee is totally disabled. Furthermore, Pike emphasizes none of the
physicians specifically stated Griffey was permanently disabled due to physical
problems. Additionally, Pike contends
there is no evidence Griffey’s work as a custodian was heavy manual labor, nor
was a vocational evaluation submitted regarding her education, work history,
skill, and restrictions compared to available work.
The ALJ understood the definitions of
permanent total disability and work and applied the holding of Ira A. Watson
Department Store v. Hamilton, id.
Griffey is an older worker whose only employment has been as a custodian
engaged in physical labor for Pike. The
job description filed by Pike indicates the position requires the ability to
perform heavy physical labor and the ability to walk, bend, lift, push and
stand for extended periods of time. The
ALJ accepted the restrictions assessed by Dr. Muffly which clearly preclude
Griffey from performing the work as stated in the job description. Although Dr. Travis did not believe Griffey
had a work-related condition, he conceded the degenerative condition of her
spine would affect her capacity to continue in the custodial position. The ALJ could reasonably conclude Dr.
Muffly’s positional restrictions (needing to change from a seated position
every twenty minutes and sitting only a total of two hours per eight hour day),
would preclude performing even sedentary employment on a regular and sustained
basis in a competitive economy.
Additionally, Griffey, whom the ALJ found credible, testified she needed
to lie down and elevate her leg which would significantly impact her ability to
secure and maintain regular employment.
An ALJ has wide discretion in granting or denying an award of permanent total disability. Colwell v. Dresser
Instrument Div.,
217 S.W.3d 213 (Ky. 2006). While
Pike has identified proof supporting a different conclusion, there was
substantial evidence presented to the contrary.
As such, the ALJ acted within his 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. McCloud v. Beth-Elkhorn
Corp., 514 S.W.2d 46 (Ky. 1974).
Finally, Pike argues Griffey is not
entitled to future medical treatment because the probative and persuasive
medical evidence establishes she does not have any physical condition which is
work-related. Again, Pike contends any
physical condition is degenerative in nature and the result of the natural
aging process.
A
worker who has established a work-related permanent impairment
rating has also established a disability for purposes of KRS 342.020 and is entitled to future medical benefits. FEI Installation, Inc,. v. Williams, 214 S.W.3d 313 (Ky. 2007).
Because the ALJ adopted Dr. Muffly’s impairment rating, as a matter of
law, Griffey is entitled to an award of future medical benefits. There was no error.
Accordingly, the February 10, 2014
Opinion and Award and the March 28, 2014 Order rendered by Hon. Jonathan R.
Weatherby are hereby AFFIRMED.
ALL
CONCUR.
COUNSEL
FOR PETITIONER:
HON TODD P KENNEDY
POB 1079
PIKEVILLE, KY 41502
COUNSEL
FOR RESPONDENT:
HON MICHAEL FLEET JOHNSON
PO BOX 1529
PIKEVILLE, KY 41502
ADMINISTRATIVE
LAW JUDGE:
HON JONATHAN R WEATHERBY
PREVENTION PARK
657 CHAMBERLIN AVE
FRANKFORT, KY 40601
