Workers’
Compensation Board
OPINION
ENTERED: September 29, 2014
CLAIM NO. 201301612 & 201301609
ARTHUR AUXIER PETITIONER
VS. APPEAL FROM HON. STEVEN
G. BOLTON,
ADMINISTRATIVE LAW JUDGE
REVELATION ENERGY, LLC
and HON. STEVEN G. BOLTON,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
STIVERS,
Member. Arthur Auxier (“Auxier”) seeks review of the
June 23, 2014, Opinion and Order of Hon. Steven G. Bolton, Administrative Law
Judge (“ALJ”) dismissing his claim for multiple cumulative trauma injuries.[1]
On appeal, Auxier asserts the ALJ
erroneously relied upon inapplicable case law and the decision is arbitrary,
capricious, and an abuse of discretion as the credible medical evidence is
overwhelmingly in his favor. He also
argues the ALJ’s finding there were no objective medical findings is contrary
to the evidence.
Auxier’s Form 101 alleges on May 30,
2013, he sustained cumulative traumas to his back, hips, knees, neck, and right
shoulder.
Auxier testified he last worked for Revelation Energy, LLC
(“Revelation”) on May 30, 2013, and had worked for it since 2012. In February 2012, Revelation acquired his
previous employer, Lexington Coal.[2] Auxier testified he worked as a bulldozer
operator while working for Lexington Coal and Revelation. He began having low back problems in 2011 for
which he saw a physician’s assistant at the Salyersville Medical Center. He was prescribed Motrin to take as
needed. Auxier denied missing any work
prior to his last day of work. He
explained that on May 31, 2013, he informed Revelation he was not coming to
work. On that same date, he saw Dr.
Charles Hardin who prescribed Motrin, recommended an MRI, and told him to
remain off work. Dr. Hardin also
referred him to Dr. Phillip Tibbs. He
was seen by Dr. Tibbs on one occasion.
Although his back and neck are stiff
and sore, he has received no further treatment other than as enumerated above. He has also had soreness in his hips; more in
the left than in the right. Because of
his hip problems, he has trouble standing for more than fifteen minutes and
sitting for over an hour and a half.
Auxier testified he also has shoulder problems and was diagnosed with a
torn rotator cuff sometime in 2011 by Dr. Keith Hall and Dr. Kevin Pugh who recommended
surgery. Auxier refused surgery because
the length of the recuperation period would cause him to lose his job. He testified his left shoulder is not very
symptomatic but he has problems with the right shoulder whenever he attempts to
raise his arm to the side or above his shoulder. Auxier has received no further treatment for
his shoulder. He also has bilateral knee
problems. After he received an injection
in each knee, he received no further treatment.
Auxier denied sustaining a specific injury to his back, neck, hips,
knees, and shoulders.
Because of his physical problems,
Auxier is unable to return to his job at Revelation. He explained his neck, back, and shoulder
problems worsened in 2011. However, the
pain in his hips and knees have been present for several years. Auxier’s Form 104 and testimony regarding his
work history reveals he worked for the following employers: Horizon Natural
Resources from October 2002 to 2004; Addington Mining from July 1997 to 2002;
Magoffin County Road Department from 1995 to 1997; Magoffin County Board of
Education from 1994 to 1995; Toyota in 1994; Branham & Baker from 1985 to
1994; National Mines from 1974 to 1984; Marty Corp. in 1974; and A Seam Coal
Co. from 1971 to 1974. During the time
he worked in the coal industry, Auxier either operated a bulldozer or some type
of heavy equipment. When he worked for
the Magoffin County Board of Education he drove a school bus.
Auxier submitted the July 18, 2013, medical statement from
Dr. Dale Williams. Dr. Williams
indicated his examination revealed low back, hip, and knee pain, shoulder pain
with numbness in the right arm, and degeneration in both the cervical and
lumbar spine. His diagnosis was as
follows:
Cervicalgia with disc degeneration;
multilevel, but most severe at C5-C6 disc. Hypolordosis of cervical spine.
Lumbalgia with severe degeneration both disc and segmental. MRI reports disc
bulges and herniation most severe at L4-L5, segmental level.
Based on the amount of
degeneration and his understanding of Auxier’s occupational hazards, Dr.
Williams believes the thirty-six years Auxier worked as a heavy equipment
operator was a major contributing factor to his degeneration.
Auxier submitted the Form 107 report of Dr. Arthur Hughes
generated as a result of an examination conducted on November 25, 2013. In the Form 107, Dr. Hughes states Auxier had
been employed in the strip mining industry for thirty-eight years driving all
types of equipment but primarily dozers, rock trucks, and graders. He noted two or three years prior to the
examination, Auxier developed low back pain without injury. Auxier had pain extending from the left leg
into the calf. He also developed right
shoulder pain several years ago for which surgery was recommended. Auxier declined the surgery because his time
off work after the surgery would cause him to lose his job. Dr. Hughes noted Auxier continued to have
right shoulder pain and some left shoulder pain. He also had bilateral hip pain for fifteen
years and bilateral knee pain for many years.
In addition, Auxier had neck pain for many years which Auxier attributed
to eighteen years running a dozer. Dr.
Hughes indicated the only report he had reviewed was Dr. Williams’ July 18,
2013, report. After conducting a
physical examination, Dr. Hughes provided the following diagnosis:
1. Neck pain without radiculopathy.
2. Bilateral shoulder pain and
limitation of motion.
3. Right carpal tunnel syndrome by
history, resolved.
4. Lower back pain with history of left
lumbar radiculopathy.
5. Bilateral knee pain.
6. Bilateral hip pain, right worse than
left.
Dr. Hughes expressed the opinion that
Auxier’s symptoms are a consequence of cumulative trauma to multiple joints
resulting from many years of operating heavy equipment. Concerning the explanation for causal
relationship, Dr. Hughes stated as follows:
Mr. Auxier has been operating heavy
equipment for over 30 years and has done other kinds of heavy work as well
though mainly operating equipment in strip mining operations. This has caused
repetitive jarring, twisting, etc., over many years, which caused pains in
multiple joints and he improved in some areas when he was no longer subject to
these multiple physical stresses after he stopped work. The pains have limited
his activities in ordinary life such as sitting, standing, lifting, etc., and also
in his recreational life.
Pursuant to the 5th
Edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (“AMA Guides”), Dr. Hughes assessed a 22%
impairment rating. Although Drs. Hall
and Pugh diagnosed right rotator cuff tear, Dr. Hughes did not make such a
diagnosis.
Revelation submitted the January 31,
2014, report of Dr. Daniel Primm generated as a result of an orthopedic
examination conducted on that same date.
After providing an in depth medical records review which included the
report of Dr. Hughes, Dr. Primm provided the following:
IMPRESSION: Mild age-related
degenerative changes with normal physical exam findings for a 61-year-old man.
DISCUSSION: I really cannot
identify any objective findings in this individual that indicate any of his
complaints are unusual for a man in his age group. The examination of his neck,
back, knees, and shoulders actually is, in my experience, very unremarkable and
certainly within normal limits for an individual in this age group, regardless
of occupation. I disagree with Dr. Hughes’ assessments, particularly since his
examination shows no evidence of radiculopathy in the upper or lower
extremities and also shows no signs of nerve root impingement or peripheral
nerve problems, such as carpal tunnel syndrome. I know of no studies that have
confirmed that these types of common musculoskeletal aches and pains are in any
way more common in patients who have worked as equipment operators, compared to
the general population. In fact, if you research the medical literature, you
can find studies that report these same findings basically in all occupations,
including very sedentary light work occupations. From an objective standpoint,
particularly as it relates in the context of his work, I do not believe there
are any credible objective findings that would indicate any of this man’s
musculoskeletal symptoms are the direct result of or have been aggravated
permanently by his work.
Accordingly, Dr. Primm did not assess
a permanent impairment rating pursuant to the AMA Guides.
Significantly, the records of Drs.
Hall and Pugh were introduced by Revelation and their July 24, 2012, record
states that five years ago Auxier developed right shoulder pain which occurs
constantly and has worsened. The record
notes a diagnosis of right rotator cuff tear.
Regarding the cumulative trauma
injury, the ALJ provided the following analysis:
As to Plaintiff’s cumulative trauma claim, I note Plaintiff has
sustained no identifiable work injuries during his employment with the
Defendant/Employer. Instead, he has alleged injury to most of the joints
between his head and feet. However, in describing the causal relationship
between Plaintiff’s complaints and work, Dr. Hughes has opined only that
Plaintiff’s work has caused pain. He was, at the time he saw Dr. Hughes, 61
years of age. Dr. Primm found that his complaints were unremarkable for a
person of his age. The MRI reviewed by Dr. Hughes only revealed degenerative
changes and Dr. Primm expressly opined that those degenerative changes were
‘mild’ and ‘age related.’
The report of Dr. Hughes is insufficient to award income
benefits for cumulative trauma because Dr. Hughes does not attribute any
permanent physical condition or impairment to work, but merely indicates that
work has caused the Plaintiff ‘pain.’ The simple fact is that there is no proof
in the record that the Plaintiff’s work has actually caused a ‘harmful change
in the human organism evidenced by objective medical findings.’ KRS
342.0011(1). That statutory definition of ‘injury’ expressly ‘does not include
the effects of the natural aging process.’
The only changes found by anyone, including Dr. Dale Williams,
were degenerative changes. It was the opinion of Dr. Primm that all the
Plaintiff has is degenerative changes from the natural aging process consistent
with any others in Plaintiff’s age group regardless of occupation. All of the
impairment ratings assessed by Dr. Hughes were expressly based on either
complaints of pain or range of motion, or both, and both pain and range of
motion are subjective findings and not objective findings. It is of concern
that Dr. Hughes ordered only a MRI of the lumbar spine, without obtaining
studies of the other areas of complaint voiced by the Plaintiff. Further,
although Mr. Auxier asserts several x-ray studies done by Drs. Pugh and Hall,
there is no mention of them in any medical report.
Dr. Hughes reports receiving a history of the Plaintiff having
worked on surface mines for 38 years. Of that time, only the last 14 months
were with Revelation Energy. Plaintiff’s histories to the various evaluating
doctors place the onset of his symptoms well before he began working for
Revelation Energy and there is no evidence of record that the 14 months he
worked there contributed in any way to any impairment or condition he may have.
In fact, the Plaintiff noted that the bulldozer operated by him at Revelation
was a newer model D11 with an ‘air ride seat.’ To the extent any degenerative
changes could be work related, both Dr. Hughes and Dr. Williams attribute
causation (and even then only in part) to the entirety of Plaintiff’s work as a
heavy equipment operator. That’s 38 years according to Dr. Hughes, and of that,
only 14 months were with Revelation Energy.
The only condition that Plaintiff has that is in any way
evidence of trauma is his torn rotator cuff. The Plaintiff reported to Dr.
Primm that he had injured that shoulder about five years earlier when he almost
fell off a dozer when he jerked his arm holding on to the dozer. That is
certainly a sufficient traumatic event to cause a rotator cuff tear and that
specific event occurred well before the 14 months the Plaintiff worked for
Revelation Energy.
Although, Plaintiff denied any shoulder injury at his discovery
deposition, the date reflected in Dr. Primm’s report is consistent with the
history in the records of Dr. Keith Hall and Dr. Pugh indicating an onset date
of right shoulder pain five years earlier.
In a decision issued by the Kentucky Court of Appeals on January
31st of this year, CDR Operations Inc. v. Ronnie Hale, No.
2013-CA-001030-WC, that Court affirmed the Workers’ Compensation Board in
finding that the Administrative Law Judge should determine what percentage, if
any, of a claimant’s impairment was attributable directly to his employment by
his employer in that claim. The claim is presently on appeal to the Supreme
Court and cannot be cited as precedent, but I note that the Court cited to the
case of Southern Kentucky Concrete Contractors Inc. v. Campbell, 662
S.W.2d 221 (Ky. App. 1983) in reaching its conclusion. The Court in that case
remanded the claim to the Workers’ Compensation Board to “‘determine the
percentage of Campbell’s disability attributable to the work performed by him
while employed by Southern, and Southern is to be liable to that extent.’” The
Court continued: “‘absent evidence to the contrary, Southern shall be liable
for that percentage of Campbell’s disability which is equal to the percentage
of Campbell’s work life spent with Southern.’” (Id. at 222, 223).
As there is no objective evidence that Plaintiff’s work with
this employer has caused any permanent harmful change to the claimant, the
injury claim must be dismissed. In making this finding, I rely on the medical
report of Dr. Daniel Primm.
Further, as argued by the Defendant/Employer, if it were to be
found that the Plaintiff has sustained some degree of injury caused by
cumulative trauma from his work, there is no evidence that any of it was caused
by his work at Revelation Energy, and the claim against Revelation must be
dismissed. I find that if Plaintiff did suffer from some degree of cumulative
trauma, if was not caused by injuries sustained at Revelation as evidenced by
the Plaintiff’s own testimony and the medical report of July 24, 2012 from Dr.
Pugh and the history given to Dr. Primm.
Relative to the cumulative trauma
injury claim, the ALJ concluded there was no objective evidence establishing Auxier’s
work for Revelation caused any permanent harmful change and the claim must be
dismissed. In making that finding, the
ALJ stated he relied upon the medical report of Dr. Primm which he concluded
was the most complete, compelling, and persuasive evidence. No petition for reconsideration was filed.
On appeal, Auxier cites the findings
of Dr. Hughes and Dr. Williams in arguing the ALJ erroneously determined there
are no objective medical findings. He also
argues the ALJ’s reliance upon Southern Kentucky Concrete Contractors, Inc.
v. Campbell, 662 S.W.2d 221 (Ky. App. 1983) is misplaced as it is
inapplicable to any work injury occurring subsequent to the abolishment of the
Special Fund. Auxier concludes it is
indisputable his injuries became manifest and disabling on the last date he
performed work activities for Revelation and not while he was employed by a
prior employer. Finally, Auxier takes
the position that the ALJ’s decision is arbitrary, capricious, or an abuse of
discretion since the credible medical evidence is so overwhelming in his
favor. Auxier seeks reversal of the
decision.
On review, we find Auxier’s appeal to
be nothing more than a re-argument of the evidence before the ALJ. Auxier impermissibly requests this Board to
engage in fact-finding and substitute its judgment as to the weight and
credibility of the evidence for that of the ALJ. That is not the Board’s function. See
KRS 342.285(2); Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (
As
the claimant in a workers’ compensation proceeding, Auxier 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). Since Auxier was unsuccessful in
that burden, the question on appeal is whether the evidence compels a different
result.
As fact-finder, the ALJ has the sole
authority to determine the weight, credibility and substance of the
evidence. Square
D Co. v. Tipton, 862 S.W.2d 308 (
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 (
We find no merit in Auxier’s argument
Campbell, supra, is inapplicable.
We agree with the ALJ that Dr. Hughes did not offer an opinion
attributing any of the impairment rating to the time Auxier worked for either
Lexington Coal or its successor in interest, Revelation. Dr. Hughes assessed a 22% impairment based on
Auxier’s exposure to cumulative trauma over a thirty-six year period. He did not state any portion of Auxier’s
impairment rating was directly attributable to his employment with Lexington
Coal or Revelation.
That said, in the case sub judice, identifiable substantial
evidence in the record supports the ALJ’s finding Auxier failed in his burden
of showing he sustained an injury while in the employ of Revelation. The ALJ specifically stated he relied upon
the report of Dr. Primm in reaching this decision. In his report, Dr. Primm stated there was no credible
objective findings which indicated any of Auxier’s musculoskeletal symptoms
were a direct result of or were permanently aggravated by his work. Consequently, Auxier had normal physical findings
upon examination for a man his age.
Leaving aside the applicability of Campbell, supra, Dr.
Primm’s report constitutes substantial evidence supporting the conclusion Auxier
did not sustain a work-related injury or injuries as defined by the Act and the
decision dismissing his cumulative trauma claim for income and medical
benefits.
As previously noted, our only task on
appeal is to determine if substantial evidence exists in the record in support
of the ALJ’s decision. Because there is
substantial evidence in the record and the outcome selected by the ALJ is
supported by substantial evidence, we are without authority to disturb his
decision on appeal. Special Fund v.
Francis, supra.
Accordingly, the June 23, 2014, Opinion and Order of Hon.
Steven G. Bolton, Administrative Law Judge, is AFFIRMED.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON MCKINNLEY MORGAN
921 S MAIN ST
LONDON KY 40741
COUNSEL
FOR RESPONDENT:
HON JEFFREY DAMRON
P O BOX 351
PIKEVILLE KY 41502
ADMINISTRATIVE
LAW JUDGE:
HON STEVEN G BOLTON
657 CHAMBERLIN AVE
FRANKFORT KY 40601
[1]
Auxier also filed a hearing loss claim
and a coal workers’ pneumoconiosis (“CWP”) claim. The CWP claim was severed and
the hearing loss and cumulative trauma claims were consolidated both of which
were resolved by the June 23, 2014, Opinion and Order. As Auxier does not
contest the ALJ’s decision regarding the hearing loss claim, we will not
discuss the ALJ’s decision regarding the hearing loss claim.
[2]
Auxier’s work history filed with his
Form 104 represents he worked for Revelation from February 2012 through May 30,
2013, and for Lexington Coal from October 2004 through February 2012.