Commonwealth
of Kentucky
Workers’
Compensation Board
OPINION
ENTERED: October 17, 2014
CLAIM NO. 201293882
MARCIA GEMMELL PETITIONER
VS. APPEAL FROM HON. JEANIE OWEN MILLER,
ADMINISTRATIVE LAW JUDGE
WALGREENS
and
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. Marcia Gemmell (“Gemmell”)
appeals from the May 20, 2014 Opinion and Award and the June 18, 2014 Order on
Reconsideration rendered by Hon. Jeanie Owen Miller, Administrative Law Judge (“ALJ”). The ALJ found Gemmell suffered a work-related
injury which resulted in no permanent impairment. She awarded temporary total disability (“TTD”)
benefits and medical benefits. On
appeal, Gemmell argues she is entitled to permanent partial disability (“PPD”) benefits. For the reasons explained herein, we affirm.
Gemmell suffered two work-related injuries while employed as a
photo lab technician at Walgreen’s. The
first occurred on December 15, 2011.
Gemmell was on a business-related phone call when she tripped over a
stack of canisters containing photo paper.
She injured her low back and right knee.
Dr. Dana Soucy treated her conservatively with medication and physical
therapy. She returned to work on light
duty until February, 2012.
While she was still
attending physical therapy for the back injury, Gemmell suffered a second
work-related accident. On February 23,
2012, she fell in the Walgreen’s parking lot while entering for her 8:00 am
shift. She twisted her right ankle as
she fell, and landed on her right lower back.
Gemmell was able to work until 1:00 pm, when the pain became
intolerable. This accident is the
subject of the current claim and appeal.
Dr. Joseph Dobner, an
orthopedist in Dr. Soucy’s practice group, diagnosed a right ankle sprain and
ordered physical therapy. A subsequent
MRI revealed tears in three ligaments.
In April 2012, Dr. Soucy ordered an ankle brace. His notes indicate Gemmell reached maximum
medical improvement (“MMI”) for her right ankle condition as of October 8,
2012. In a November 21, 2012 office
note, Dr. Soucy stated there was no change in Gemmell’s diagnosis, and she did
not need to return for any future office visits. He also stated she suffered “no
impairment”.
A month later, Gemmell
sought treatment with Dr. Michael Allen, a podiatrist. Following a December 29, 2012 MRI, Dr. Allen
diagnosed an ankle sprain and ligament injury.
He recommended she continue wearing the ankle brace, and administered
injections. At the Final Hearing on
March 28, 2014, Gemmell testified she is still treating with Dr. Allen, and he
discussed possible surgery to repair her ligaments.
Meanwhile, Gemmell
continued to treat for her lumbar condition.
She received epidural steroid injections on July 25, 2012 and August 22,
2012. Following an MRI, Dr. Soucy’s
impression was multilevel degenerative disc disease and sponylosis, with a
central L1-2 annular tear. He diagnosed
a lumbar sprain/strain and extended her regimen of physical therapy. Later, on February 12, 2012, he prescribed a
TENS unit for chronic back pain and radiculitis.
A significant amount of
evidence was admitted concerning Gemmell’s medical history prior to the
injuries at Walgreens. Records from Dr.
Allen’s office indicate she was being treated for a number of podiatric
conditions, including plantar fasciitis and hammer-toes, throughout 2011. Also, many of the records concerned Gemmell’s
history of slip and fall accidents.
Between 2002 and 2010, she was treated for six slip and fall accidents
for which she received treatment of her shoulders, ankles, and feet.
Dr. Anthony McEldowney
performed an independent medical evaluation (“IME”) on January 4, 2014 at
Gemmell’s request. He opined Gemmell’s
lumbar spine condition had reached MMI as of August 1, 2013, but she had not
yet reached MMI for her right ankle condition.
Referencing the American Medical Association, Guides to the Evaluation
of Permanent Impairment, 5th Edition (“AMA Guides”), he
assigned a 5% impairment for the lumbar condition, but
declined to assign an impairment rating for the ankle. He imposed physical restrictions for the
lumbar condition, and opined Gemmell could not return to her previous
work. Dr. McEldowney also strongly
recommended she follow-up with her foot surgeon to
discuss a possible repair of the torn ligaments.
Dr. Gregory Gleis
performed an IME of Gemmell on February 18, 2014. He opined she reached MMI for her lumbar
spine condition when she finished her course of physical therapy on June 8,
2012. He found no evidence of permanent
injury to the spine, and therefore opined she had 0% impairment pursuant to the
AMA Guides.
Regarding Gemmell’s
right ankle, Dr. Gleis opined she reached MMI on July 11, 2012, five months
after the date of injury. He believed
any treatment after this date was solely for pain complaints, and not because
the ankle needed further evaluation or treatment. He opined she could return to her position at
Walgreens without restrictions. Dr.
Gleis indicated Gemmell had no permanent impairment rating as a result of the
right ankle injury.
In his report, Dr.
Gleis specifically addressed Dr. McEldowney’s diagnosis of “grade one ankle
sprain”. He noted his physical
examination revealed no range of motion or strength deficits. Furthermore, Dr. Gleis emphasized, in
addition to Drs. Soucy and Allen, he found no instability in Gemmell’s right
ankle.
Gemmell submitted the
March 28, 2014 rebuttal report of Dr. McEldowney. Because Gemmell was receiving no further
treatment for her ankle, Dr. McEldowney opined she had reached MMI and assigned
a 3% impairment rating for her ankle condition.
Additionally, he reaffirmed his finding of instability in her right
ankle, emphasizing that a prior MRI revealed ligament tears. Finally, Dr. McEldowney suggested Dr. Gleis
misunderstood the diagnosis related estimate (“DRE”) method of impairment
assessment and, for this reason, found no permanent impairment for Gemmell’s
lumbar condition.
In analyzing whether
Gemmell had a permanent impairment as a result of the February 23, 2012
incident, the ALJ explained:
There are
several medical opinions in the record concerning the permanent impairment of
[Gemmell]. Dr. McEldowney assigned 8%
(3% plus 5%) whole body impairment and opined Gemmell did not retain the
capacity to return to the work she performed at the time of the injury. Dr. Gleis and Dr. Soucy both opined Gemmell
had 0% impairment per the AMA Guides.
Given the evaluator status of Dr. McEldowney and Dr. Gleis, their
respective opinions are not as convincing to the undersigned as is the treating
physician, Dr. Soucy, and the medical history of Gemmell.
Gemmell has
had an unusual history of falls, some idiopathic and some for apparent
reasons. Gemmell had been seen by no
fewer than six different physicians for either foot, back or other orthopedic
ailments (including elbow and shoulder) in the last decade. Significant to this fact finder was the
opinion from Dr. Soucy, a treating orthopedic surgeon, that Gemmell could
return to work, she had no impairment, no permanent work restrictions and that
she did not need to make a future appointment.
Gemmell filed a
petition for reconsideration, requesting the ALJ to acknowledge that Dr.
Soucy’s impairment rating was not based on the AMA Guides. She also requested further findings of fact
regarding the ALJ’s conclusion she suffered no permanent impairment as a result
of her ankle injury. The ALJ denied the
petition, stating she “found no error in [her] reliance upon Dr. Gleis and Dr.
Soucy.”
On appeal, Gemmell
contends the ALJ erred in failing to award PPD benefits. She identifies three specific errors
contributing to the denial. First, she
argues the ALJ erred in considering her medical history. She next claims the ALJ erroneously relied
upon medical opinions which were not based on the AMA Guides. Finally, she concludes the ALJ “blindly”
accepted Dr. Gleis’ opinion, constituting reversible error.
As stated above,
significant evidence of Gemmell’s prior medical history was submitted, which
the ALJ summarized. In her analysis, she
also noted Gemmell’s “unusual history” of falls and orthopedic ailments. Gemmell correctly notes pre-existing, active
impairment was not listed as a contested issue at the benefit review
conference. On appeal, she claims the
ALJ’s consideration and summary of her prior medical evidence “tainted” the
ALJ’s consideration and ultimate decision.
Though Walgreens never
argued Gemmell had a pre-existing active impairment, it presented her prior
medical history as part of its case on causation. It claimed her ongoing pain complaints were
due to her pre-existing conditions, not her workplace injuries. Thus, Gemmell’s prior medical history was
relevant and we find no error in its admission.
Furthermore, as discussed infra,
the ALJ’s ultimate ruling is not so flagrantly against the weight of the
evidence to suggest it is the result of undue prejudice. That the ALJ ruled against Gemmell is simply
insufficient to suggest bias or prejudice, particularly as a result of evidence
that was properly admitted.
Gemmell next argues the
ALJ improperly relied upon medical opinions which were not based on the AMA Guides. In concluding Gemmell suffered an injury
which did not result in a permanent impairment rating, the ALJ stated her
reliance upon Drs. Soucy and Gleis, although she indicated she placed more
importance on Dr. Soucy’s opinion as the treating physician. In his November 11, 2012 note, Dr. Soucy
opined Gemmell could return to work without restrictions and had “no
impairment.” He did not reference the
AMA Guides in making this assessment.
Gemmell argues the ALJ
relied on Dr. Soucy in violation KRS 342.730(1)(b). However, that provision states that an award
for PPD benefits must be calculated by using a “permanent impairment rating
caused by the injury or occupation disease as determined by the” AMA Guides. See
also Jones v. Brasch-Barry General Contractors, 189 S.W.3d 149, 153
(Ky. App. 2006). However, the ALJ did
not award PPD benefits. For this reason,
we are unable to agree that the ALJ violated KRS 342.730 in relying upon Dr.
Soucy’s records.
Furthermore, the ALJ also
relied upon Dr. Gleis’ opinion that Gemmell had no permanent impairment due to
her lumbar spine or ankle conditions.
There is no doubt his opinion is based on the AMA Guides, which
he expressly states in his report. As
such, his opinion constitutes the requisite substantial evidence to support the
ALJ’s conclusion. Special Fund v. Francis,
708 S.W.2d 641 (Ky. 1986).
Notwithstanding the ALJ’s concurrent reliance on Dr. Soucy’s opinion,
the ultimate decision is well supported by Dr. Gleis’ opinion alone.
Finally, Gemmell argues
the ALJ’s “blind acceptance” of Dr. Gleis’ opinion is reversible error. As part of this argument, she contends Dr.
Gleis improperly interpreted the AMA Guides in assigning no permanent
impairment rating for her lumbar spine and right ankle conditions.
With respect to
Gemmell’s lumbar spine condition, Dr. Gleis noted he found “no subjective or
objective radiculopathy.” Gemmell argues
that DRE Lumbar Category II, relied upon by Dr. McEldowney, specifically
exempts “radiculopathy” as an element.
However, Dr. Gleis assigned the 0% impairment rating on DRE Category
I. His clinical findings, specifically
his notation of “no lumbar muscle guarding, muscle spasm, or dysmetria”, are
consistent with DRE Category I criteria.
Essentially, Gemmell’s
argument rests on the fact that Dr. McEldowney found evidence of radiculopathy,
while Dr. Gleis found none. Gemmell
attempts to argue that Dr. Gleis did, in fact, find radicular complaints
because she indicated leg pain in her intake documents. However, we find this fact insufficient to
establish Dr. Gleis’ opinion is incompetent or that he otherwise disregarded
the AMA Guides. See Jones, 189
S.W.3d at 154.
Similarly, Dr. Gleis
did not misinterpret the AMA Guides where he failed to find any evidence
of instability in Gemmell’s right ankle.
His clinical exam revealed no range of motion or strength deficit. Based on these findings, he assigned no
permanent impairment rating. The fact
Dr. McEldowney disagreed with this clinical finding does not render Dr. Gleis’
report incompetent. Furthermore, the ALJ
was entitled to rely upon Dr. Gleis’ opinion notwithstanding Dr. McEldowney’s
conflicting opinion. “Although the
proper diagnosis of a medical condition and the proper interpretation of the
AMA Guides are medical questions, an ALJ must decide the legal
significance of conflicting medical evidence.”
Tokico (USA), Inc. v. Kelly, 281 S.W.3d 771,
775 (Ky. 2009).
This appeal is, in
essence, a request of this Board to reweigh the evidence in Gemmell’s favor,
which we may not do. Whittaker
v. Rowland, 998 S.W.2d 479, 481 (Ky. 1999). Conflicting
medical evidence was presented concerning the lasting effects of her
work-related accidents. The ALJ enjoyed
the discretion to weigh the evidence and draw reasonable inferences therefrom. Miller
v. East Kentucky Beverage/Pepsico, Inc.,
951 S.W.2d 329 (Ky. 1997). While Gemmell presented Dr. McEldowney’s IME
report to support her case, the ALJ was free to rely instead upon the records
of Drs. Gleis and Soucy. McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky.
1974). Upon review of the entire
record, we do not believe the evidence compels a finding of permanent partial
disability. Wolf Creek Collieries v. Crum, 673 S.W.2d
735 (Ky. App. 1984).
Accordingly, the May
20, 2014 Opinion and Award and the June 18, 2014 Order on Reconsideration
rendered by Hon. Jeanie Owen Miller, Administrative Law Judge are hereby AFFIRMED.
ALL
CONCUR.
COUNSEL
FOR PETITIONER:
HON JAMES D HOWES
5438 NEW CUT RD #201
LOUISVILLE, KY 40214
COUNSEL
FOR RESPONDENT:
HON AZIZA ASHY
300 EAST MAIN STREET STE 400
LEXINGTON, KY 40507
ADMINISTRATIVE
LAW JUDGE:
HON JEANIE OWEN MILLER
PREVENTION PARK
657 CHAMBERLIN AVE
FRANKFORT, KY 40601