*/
November 14, 2014 201386209

Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED:  November 14, 2014

 

 

CLAIM NO. 201386209

 

 

ANITA COMMODORE                                PETITIONER

 

 

 

VS.        APPEAL FROM HON. OTTO DANIEL WOLFF,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

KELLY SERVICES

HON. OTTO DANIEL WOLFF,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

AFFIRMING IN PART,

VACATING IN PART & REMANDING

 

                       * * * * * *

 

 

BEFORE:  ALVEY, Chairman, STIVERS and RECHTER, Members. 

 

ALVEY, Chairman.  Anita Commodore (“Commodore”) appeals from the Opinion and Order rendered July 17, 2014 by Hon. Otto Daniel Wolff, IV, Administrative Law Judge (“ALJ”), dismissing her claim after finding her cervical condition and associated upper extremity symptoms were not work-related.  Commodore also seeks review of the August 7, 2014 Order denying the majority of her petition for reconsideration.  On appeal, Commodore essentially argues substantial evidence does not support the ALJ’s finding regarding causation and the existence of a pre-existing condition, and a contrary result is compelled in her favor.  We disagree and affirm, finding substantial evidence supports the ALJ’s determination she did not sustain a permanent injury and had a pre-existing active condition.  However, we vacate and remand for a determination of whether Commodore sustained a temporary injury, if any, as a result of the March 21, 2013 work event.      

          Commodore filed a Form 101 on December 2, 2013 alleging on March 21, 2013 she “was using a drill at work and felt a new onset of pain.”  She alleged injuries to her “neck, bilateral hands/arms, and upper back.”  Commodore stated she notified her team leader of her pain around the first week of February 2013.  At the time of her alleged injuries, Commodore worked for Kelly Services, an employment agency which had placed her at Toyota as an assembly line worker.  

          Commodore attached the March 22, 2013 note of Dr. Maria Reyes, a physician with Toyota’s medical clinic, to her Form 101.  Dr. Reyes noted Commodore complained of numbness, tingling and pain in the fingers of both hands, which began in early February 2013.  Dr. Reyes diagnosed probable bilateral carpal tunnel syndrome, recommended physical therapy, ordered EMG/NCV studies of the bilateral upper extremities, and returned Commodore to work with restrictions.

          The May 6, 2014 benefit review conference (“BRC”) order identified the following contested issues:  benefits per KRS 342.730, work-relatedness/causation, injury as defined by the Act, credit for unemployment benefits, exclusion for pre-existing disability/impairment and temporary total disability as to overpayment and rate.  Subsequently, in the May 22, 2014 hearing order, the ALJ noted in relevant part, “only injury being pursued is cervical spine.”

          Commodore testified by deposition on February 14, 2014 and at the hearing held May 22, 2014.  Commodore worked from October 15, 2012 through April 11, 2013 with Toyota as an assembly line worker through her employment with Kelly Services.  Commodore denied experiencing any neck symptoms when she began working at Kelly Services.  Commodore was trained in four positions including CSA (airbag), T-brace, left side door off and washer hose, all on the trim line.  At her deposition, Commodore described the physical demands of each position.  Throughout a typical work day, Commodore rotated positions every two hours. 

          Commodore testified she began gradually experiencing symptoms in her neck and hands while working at Toyota in late January or early February 2013.  At her deposition, Commodore stated:

A:  It was just the looking up all the time or raising my arms up to secure the stuff or drilling or whatnot, but my hands and stuff would start going numb, and it just seemed like with the door-off job my shoulders and everything were - - it just felt like heavy weights . . .

 

Q:  Was this just on all the jobs or certain types of jobs?

 

A:  On certain - - doing the - - excuse me.  Doing the left side, putting the air bags in, it was mainly that, my neck, when I had to look up to do it

 

. . . .

 

Q:  You had to look up for a period of time?

 

A:  Yes.

 

Q:  And you said that was causing both hands to go numb?

 

A:  That was causing more so the left than the right. 

 

Commodore also stated she experienced pain in her shoulders and her upper back performing the door off position.  At the hearing, Commodore described her gradual symptoms as “a lot of sharp pains and tightness in the neck, and my hands were going numb and tingling at night . . . And sharp pains in both my - - like my arm pits, the shoulder areas.”

           She stated her left hand froze up on March 21, 2013 in a claw position as she was securing screws with a drill.  Commodore stated her left hand would not open or close.  After ten or fifteen minutes, her hand began functioning again.  She was moved to a different position, and was able to complete the remainder of her shift.  Commodore was seen by the company physician, Dr. Reyes, the following day on March 22, 2013.  Commodore stated Dr. Reyes examined her hands, neck and shoulders, and ordered an EMG.  Dr. Reyes referred Commodore to a neurologist and to Kleinert Kutz.  Dr. Tuna Ozyurekoglu from Kleinert Kutz treated her hands with a cortisone injection, which was ineffective.  Suspecting Commodore’s hand symptoms could be caused by a neck injury, Dr. Ozyurekoglu ordered a cervical MRI.  She then referred Commodore to a spine specialist, for which the workers’ compensation carrier refused financial responsibility.  Commodore was placed on light duty following her March 21, 2013 work injury, and continued to work until April 11, 2013.  Commodore testified she continues to experience numbness in her hands, pain in her neck and shoulders, neck stiffness and difficulty turning her neck side to side. 

          Commodore testified she was involved in a motor vehicle accident (“MVA”) on October 31, 2011.  Commodore agreed she received treatment at the emergency room, Chambers Medical Group, and Louisville Sports and Injury.  Commodore stated she received therapy and medication for her neck and mid-back for a month or two.  Commodore denied or could not remember having symptoms in her arms, elbows or hands due to the MVA, and those symptoms did not occur at any time prior to February 2013.  Commodore stated she fully recovered from her injuries due to the MVA accident, and did not experience any more cervical symptoms until she began working for Toyota.  Commodore stated her cervical symptoms had completely resolved when she was released from Dr. Trace Kelly’s care in January 2012.

          In support of her claim, Commodore submitted reports of several diagnostic studies and the records of Kleinert Kutz.  A March 22, 2013 cervical MRI demonstrated mild degenerative changes in the mid and lower cervical spine, and mild kyphosis centered at C4-5 possibly due to muscle spasm.  A May 10, 2013 cervical MRI demonstrated C6-7 central disc protrusion with spinal cord effacement; no severe foraminal stenosis; T2-3 and T3-4 disc protrusions with foraminal stenosis at T3-4 and on the right at T2-3; straightening of the cervical lordotic curve; and no acute vertebral fractures.  An April 1, 2013 EMG/NCV study demonstrated moderate carpal tunnel syndrome bilaterally.

          On April 19, 2013, Dr. Ozyurekoglu noted complaints of numbness, tingling and weakness in both hands.  Dr. Ozyurekoglu diagnosed carpal tunnel syndrome, median nerve compression/pronator teres syndrome and lesion ulnar nerve/CTS/Guyon’s canal.  She administered an injection and restricted Commodore from using vibratory tools or working overhead.  Commodore was provided the same restrictions on May 29, 2013 and referred to a spine surgeon.

          Kelly Services filed the records from Norton Suburban Hospital, Chambers Medical Group and Louisville Sports and Injury for treatment received due to the October 31, 2011 MVA.  The relevant records revealed Commodore reported to the emergency room at Norton Suburban Hospital the following day.  She was diagnosed with a cervical strain, prescribed pain medication and discharged.  Commodore received medical and chiropractic treatment from Chambers Medical Group on at least five occasions from November 8, 2011 through November 28, 2011.  Commodore complained of neck pain, thoracic pain, low back pain, numbness in her fingers, and tingling in her hands.  

          Commodore received over twenty chiropractic treatments from Dr. Kelly, D.C., at Louisville Sports and Injury Center from November 28, 2011 through January 30, 2012 due to the effects of the MVA.  Throughout Commodore’s course of chiropractic treatment, she consistently complained of mid and low back pain radiating into both hips and neck pain radiating into both hands.  A December 2, 2011 cervical MRI demonstrated straightening of the cervical spine suggesting underlying muscular spasm, congenital narrowing of the spinal canal, disc bulging at C3-4, C4-5, and C6-7, most severe at C6-7, and neural encroachment. 

          A final examination was performed by Dr. Kelly on January 30, 2012.  He noted Commodore’s symptoms were “neck pain with intermittent radiation into both arms, mid back pain, and low back pain.”  Dr. Kelly diagnosed cervical radiculitis; cervical sprain/strain; cervical disc syndrome; thoracic sprain/strain; lumbar sprain/strain; and muscle spasms.  Dr. Kelly assessed “an impairment of 6% whole person using the guides to evaluation of permanent impairment percentage, fifth edition revised, American Medical Association.”  Dr. Kelly opined Commodore’s prognosis is fair with residuals.  He noted, with this type of injury, the degenerative processes of the spinal column associated with aging are prematurely accelerated and often result in localized chronic pain most prevalently with changes in weather, and times of stress, fatigue and overexertion.  Dr. Kelly opined Commodore’s injuries were due to the October 31, 2011 MVA.  He found she had attained maximum medical improvement (“MMI”), and he recommended additional chiropractic treatment.     

          Kelly Services also attached the records from Park Duvalle Community Health Center (“Park Duvalle”) which reflect she received treatment for unrelated complaints, such as hypertension, uncontrolled type II diabetes, obesity, vertigo, and blood clots, on five occasions from January 2012 through January 2013.  On February 22, 2013, Commodore reported fainting, chest pain, headaches, numbness and tingling to “both arms from elbow down to hand for 5 weeks,” and leg pain due to an injury to the right thigh.  It was also noted Commodore complained of neck pain.  Sharon Jamison, APRN, noted, “The injury occurred 3 month(s) ago.  Symptoms include neck pain, neck stiffness and muscle spasm.”  Ms. Jamison prescribed Gabapentin for Commodore’s neuropathic arm pain.  In follow-up visits on March 5, 2013 and February 12, 2014, it was noted Commodore had associated symptoms of extremity pain.       

          Commodore filed the March 1, 2014 independent medical examination (“IME”) report of Dr. Anthony McEldowney.  He diagnosed a cervical sprain/strain and stated Commodore’s subjective complaints and objective findings are the direct result of the work-related injury to her cervical spine on February 21, 2013.  He assessed a 6% impairment rating pursuant to the 5th Edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (“AMA Guides”) for her cervical condition.  He stated Commodore did not have a pre-existing, active impairment since she was working full duty without restrictions at the time of her work injury.  Dr. McEldowney stated Commodore attained MMI on May 21, 2013, opined she does not retain the physical capacity to return to the job at Toyota, assigned permanent restrictions and recommended additional treatment.  Dr. McEldowney also prepared a May 6, 2014 report which was filed for rebuttal purposes.    

          Kelly Services filed the June 6, 2013 IME report of Dr. Richard DuBou.  Dr. DuBou diagnosed multilevel cervical degenerative disease and temporary aggravation of a subclinical carpal tunnel problem.  He opined Commodore’s work activities with Kelly Services did not cause a permanent injury.  Dr. DuBou stated there are “systemic factors with diabetes being the key diagnosis in the development of her carpal tunnel syndrome and the cervical degenerative disease being the proximate cause of her marked symptoms.”  As a result, Commodore’s work activities caused a temporary exacerbation only, which required no treatment. Dr. DuBou stated Commodore does not have an impairment ratable condition since “it is a degenerative condition only.”

          Finally, Kelly Services filed the March 12, 2014 IME report of Dr. Ronald Fadel, who also testified by deposition on April 15, 2014.  In his report, Dr. Fadel diagnosed: 1) possible early adhesive capsulitis both shoulders arising from self-limited motion; 2) post-status cervical strain/sprain injury with transient exacerbation of pre-existing cervical/thoracic degenerative spondylosis and disc disease; and 3) bilateral moderate to moderately severe carpal tunnel syndrome of diabetic origin.  Regarding work-relatedness, Dr. Fadel stated “the singular diagnosis as relates to the claimant’s work incident is sprain/strain to the upper axial skeleton.  The discovered cervical discopathy pre-dates her work injury and is without any neural compression component. . .”  Dr. Fadel declined to assess an impairment rating for Commodore’s work-related cervical condition or impose restrictions.  

          At his deposition, Dr. Fadel confirmed Commodore had received treatment due to the 2011 MVA for symptoms to her cervical, thoracic and lumbar regions, with radiation into her hands, lower extremities and hips.  In comparing the medical records, Dr. Fadel testified Commodore’s complaints due to the MVA were similar, if not the same, to those she now attributes to her work activities.  Those complaints include neck pain radiating into both hands.  Dr. Fadel assessed a 5% impairment rating as a result of the injuries Commodore sustained due to the MVA pursuant to the AMA Guides.  He indicated this is a pre-existing condition, but “Active, I don’t know, I mean, but I would say it’s a pre-existing condition that she had received rather extensive care for.”   

          Dr. Fadel also noted his findings upon examination of Commodore’s cervical spine and the findings noted in the medical records following the MVA “are almost identical.”  He likewise stated his examination resulted in no evidence of a new injury to the cervical spine following the alleged work injury which was not present after the MVA.  Dr. Fadel further indicated there is no evidence her condition is now any worse than it was after the MVA, and would not assign an additional impairment.  Dr. Fadel diagnosed Commodore with an exacerbation of her degenerative spondylosis due to her alleged work injury, and felt it should have resolved at the end of three months.  Dr. Fadel again declined to attribute any degree of impairment for her cervical spine condition due to her alleged work injury.

          In the July 17, 2014 Opinion and Order, the ALJ summarized the medical and lay evidence, and identified the initial issue of whether Commodore’s present cervical symptoms are work-related or are continuing symptoms due to the October 31, 2011 MVA. 

Plaintiff claims she is able to differentiate her pain resulting from her 2011 MVA from her pain associated [sic] her alleged 2013 work injury. She indicated her 2013 neck pain radiated into her arms and hands, but this was not a symptom she experienced subsequent to her 2011 MVA.  Plaintiff testified at the time of her alleged 2013 work injury she had fully recovered from any neck pain symptoms associated with her MVA of October 31, 2011.  Plaintiff pointed out that at the time of her alleged work injury she was working without restrictions or limitations.

 

Documented records contradict Plaintiff's testimony on several key points.  Filed medical records from Norton Suburban Hospital ER documented Plaintiff was seen on November 1, 2011 with complaints of head and neck symptoms.  At the ER Plaintiff was asked to mark on a body outline where her pain was located, she marked her neck with pain extending into her left shoulder.

 

There was filed a January 30, 2012 “final examination and evaluation report” by Dr. Trace Kelly, DC, associated with Louisville Sports and Injury Center.  This report documented that at that time, January 2012, Plaintiff’s reported symptoms included, “neck pain with intermittent radiation into both arms, mid back pain and low back pain.”  As a result of this examination Plaintiff was assessed a 6% WPI.  Plaintiff testified that after she saw Dr. Kelly she did not have any ongoing problems involving her neck or arms.  Dr. Kelly’s diagnosis included cervical radiculitis, cervical sprain/ strain, cervical Disc Syndrome, muscle spasms, thoracic sprain/strain.  He assessed a 6% WPI based on the AMA Guides, 5th Edition.

 

Dr. Kelly went on to conclude, “at this point in time, it is my opinion that the prognosis for Ms. Commodore is fair, with residuals.  Healing of an injury of this type will typically result in adhesions and scarring of the injured areas, and consequently the degenerative processes of the spinal column associated with aging are prematurely accelerated.  This often results in localized chronic pain, most prevalently with changes in weather, time of stress, fatigue or overexertion.”

 

Plaintiff indicated her 2013 alleged work injury caused neck pain which radiated into her arms and hands, but this was not a symptom she experienced subsequent to her 2011 MVA.

 

Filed medical records contradict Plaintiff's contention she was not experiencing neck symptoms, with pain radiating into her arms and hands,  immediately prior to her alleged work injury, and that her symptoms resulting from the 2011 MVA did not radiate into her arms and hands.

 

There was filed a multi-paged February 22, 2013 ER record from the Park Duvalle Hospital Center.  These records document Plaintiff presented with “neck pain is described as the following: the injury occurred three month(s) ago.  Symptoms include neck pain, neck stiffness and muscle spasm.” Another entry on her February 22, 2013 ER record reads, “numbness/tingling is described as the following: both arms from elbow down to hands for five weeks. (emphasis original).”  Physical examination findings included, “Neck: Present – Neck Pain and Neck Stiffness. Not present- neck mass. (emphasis original)”   These records contradict Plaintiff’s contention she did not experience neck pain which radiated into her upper extremities prior to her work injury.

 

Plaintiff was subsequently seen in the Park Duvalle ER on March 5, 2013.  In that record it was documented Plaintiff had been seen in the past with complaints of, “neuropathic pain, arm.”  It was also noted Plaintiff was prescribed 300 mg of Gabapentin on February 22, 2013 for pain, as well as four other medications.  These records also contained the notation, “neurological: present – weakness and tingling.”

 

Based upon these records, it cannot be questioned Plaintiff experienced neck symptoms, described as numbness and tingling that radiated down into both arms and hands.  It is also documented Plaintiff experienced these specific symptoms at least five weeks before her March 5, 2013 ER visit.

 

Plaintiff was also uncertain about receiving medical treatment for her 2011 MVA symptoms.  Prior to her alleged 2013 work injury Plaintiff sought treatment for her MVA-related neck-injury symptoms at Chambers Medical Group and at Louisville Sports & Injury Center.  Records from these facilities document Plaintiff was seen on November 8, 2011 for symptoms she attributed to her October 2011 MVA.  At that time she presented complaining of neck pain, thoracic pain and low back pain.   She also indicated her fingers often felt numb.

 

Records from the Louisville Sports and Injury Center indicated she presented with complaints of neck pain which radiated into both arms.

 

Based upon Plaintiff’s 2011 and 2012 medical records, from two different medical facilities, Plaintiff’s denial of experiencing pre-work injury cervical symptoms which radiated down from her neck into her arms and hands, is not acceptable.  It is assumed these contradictions are due to Plaintiff’s poor memory rather than an attempt to present the wrong information.  Plaintiff was credible but forgetful and confused.

 

Furthermore, February 22, 2013 records from Park Duvalle Medical Center confirm, several weeks prior to her alleged March 2013 work-related injury, Plaintiff was experiencing neck pain, which pain was not only localized in her neck but was also described as radiating into her arms.

 

It is also significant that in early 2012, Dr. Kelly was able to assess a 6% WPI as a result of her MVA neck injuries.  Obviously a physician was able to assess a permanent whole person impairment rating for her symptoms prior to her alleged 2013 work injury.  This rating was based upon her reported MVA injuries, symptoms Plaintiff now contends are solely the consequence of her alleged 2013 work-related injury.  Plaintiff’s representations are not confirmed in the filed black-and-white medical records.

 

Concern about Plaintiff’s representations is also raised when it is noted that, for some time after her alleged March 2013 work-related injury, she sought medical treatment for symptoms allegedly associated with that work injury, but, for some time, did not report a neck injury or neck symptoms.  Her initial post-work injury symptoms were treated at Defendant’s in-house medical facility by Dr. Reyes.  While treating with Dr. Reyes she did not receive medical treatment for or report a neck injury.  Furthermore, Dr. Tuna’s April 18, 2013 office-visit records do not contain any reference to neck symptoms resulting from her alleged work-related neck injury. (original emphasis)

 

After finding the opinions of Dr. McEldowney unpersuasive, the ALJ determined Commodore had a pre-existing, active condition pursuant to Finley v. DBM Technologies, 217 S.W.3d 261 (Ky. 2007), stating as follows: 

Pursuant to Finley v. DBM Technologies, 217 SW3d 261 (Ky.,  2007), an injured worker is deemed to have had a pre-existing active condition, if the worker had a pre-existing condition which was symptomatic and impairment ratable pursuant to the AMA Guides, immediately prior to the occurrence of an alleged work-related injury.

 

Defendant has proven Plaintiff had a pre-existing condition which was impairment ratable pursuant to the AMA Guides, immediately prior to the alleged occurrence of her 2013 work-related injury.  On January 30, 2012, Dr. Trace Kelly D.C., assessed Plaintiff a 6% WPI which was the result of Plaintiff’s October 2011 MVA.  A review of Dr. Kelly’s January 30, 2012 evaluation indicates Plaintiff’s neck pain included “intermittent radiation into both arms.” 

Herein, it is determined, Defendant has proven satisfaction of the first prong, of the two prong test.

 

Defendant has also proven Plaintiff’s pre-existing cervical spine was symptomatic and radiating into her arms immediately before her alleged work injury of March, 2013.  What constitutes “immediately” before a work injury is debatable, but herein it cannot be denied that from January 18, 2012 through February 22, 2013 Plaintiff treated at the Park Duvalle Community Health Center eight times for neck symptoms.  A February 22, 2013 record documented, “the injury occurred three months ago. Symptoms include neck pain, neck stiffness and muscle spasms.” It remains unclear what neck injury occurred three months prior to February 2013, but it is undeniable Plaintiff had troublesome symptoms of neck pain which radiated into her arms, neck stiffness, and muscle spasms shortly before March, 2013.

 

Based upon the above discussed medical records, it is determined Plaintiff had a WPI rating for her MVA neck injury and was symptomatic and treating for a neck injury immediately prior to the occurrence of her alleged work-related injury.  Thus, it is determined all of Plaintiff’s 6% WPI allegedly related to her March 2013 work incident, was in fact, an active and pre-existing condition.

 

Plaintiff is not pursuing a total disability award, but rather a permanent partial disability award.  As set forth in Roberts Brothers Coal Co. v. Robinson, 113 S.W.3d 181 (Ky., 2003), when an injured worker is seeking a permanent partial disability award, the employer is entitled to a complete exclusion of any prior permanent impairment appropriately assigned to the same body part.  Dr. Fadel answered “No, absolutely not” to the question, “was there any evidence on your examination of any new injury to the cervical spine after the alleged work injury that wasn’t present after the car accident?” (Fadel, p. 17)

 

Based upon the foregoing, it is determined Plaintiff’s alleged work-related symptoms were not the result of a work incident, but rather was a continuation of the symptoms she incurred as a result of her 2011 MVA, and therefore, Plaintiff's claim must be dismissed in its entirety. 

 

          Commodore filed a petition for reconsideration, raising the same arguments she now makes on appeal.  In the petition, Commodore pointed out the ALJ erroneously referred to Dr. McEldowney in summarizing the April 15, 2014 deposition testimony of Dr. Fadel, and requested a correction.  The ALJ overruled Commodore’s petition on August 7, 2014, with the exception of replacing Dr. McEldowney’s name with Dr. Fadel as being the physician who was deposed on April 15, 2014.

          On appeal, Commodore begins by asserting the manner in which the ALJ framed the issue of this claim caused him to make unreasonable inferences, presume facts which do not exist and misconstrue the requirements of Kentucky law.  She also alleges the opinion contains several factual inaccuracies, unsupported findings and conclusions.  When taken collectively, Commodore alleges the ALJ did not understand the evidence before him, and advocates her explanation of the events, beginning with the 2011 MVA.

          Commodore argues the ALJ erred in his opinion by identifying Dr. McEldowney as the physician who was deposed, when it was actually Dr. Fadel.  She asserts this error substantively changed Dr. McEldowney’s testimony. 

          Commodore argues the ALJ erred in his reliance on the February 22, 2013 record from Park Duvalle to support his conclusion she had a pre-existing cervical spine condition, which was symptomatic and radiating into her arms immediately before her alleged March 2013 work injury.  Commodore insists the ALJ overlooked the fact her “neck, shoulder and arm symptoms immediately prior to March, 2013 are part and parcel of her work injury,” insisting her symptoms developed over a period of time, and became disabling on March 21, 2013. (original emphasis).  Therefore, Commodore argues the ALJ erred in relying upon this record in determining she had pre-existing, active symptoms immediately prior to her work injury.

          Commodore argues the ALJ misunderstood the medical records from Park Duvalle, when he stated “it cannot be denied that from January 18, 2012 through February 22, 2013 Plaintiff treated at the Park Duvalle eight times for neck symptoms.”  Commodore points out the first five visits were for reasons unrelated to her neck, shoulders and arms.  Commodore then argues the visits on February 22, 2013 and March 5, 2013 “included symptoms that were the beginning stage of Plaintiff’s work injury which became disabling on March 21, 2013” and the last visit on February 12, 2014 involved the continuing of treatment for symptoms which developed while Commodore was working for Toyota.           

          Commodore takes issue with the ALJ’s reliance on Dr. Kelly’s January 6, 2012 report, specifically his assessment of impairment in finding she had a ratable pre-existing condition.  Commodore argues Dr. Kelly assessed a 6% impairment rating, but did not indicate to which specific body part.  In his report, Dr. Kelly examined all three regions of the spine and diagnosed cervical radiculitis, cervical sprain/strain, cervical disc syndrome, thoracic sprain/strain, lumbar sprain/strain, and muscle spasms.  Commodore argues the ALJ’s finding Dr. Kelly assigned a 6% impairment rating for her neck injury only is speculative.  Commodore also argues Dr. Kelly did not reference specific tables or pages in the AMA Guides supporting his impairment rating.  Therefore, Dr. Kelly’s assessment of impairment cannot constitute substantial evidence.

          In arguing the ALJ erred in finding she had a pre-existing active condition, Commodore urges the Board to accept her testimony her symptoms began sometime in February 2013 while working for Toyota, and became disabling on March 21, 2013.  Commodore states it was for these symptoms she sought treatment at Park Duvalle on February 22, 2013 and March 5, 2013, and “these records were part and parcel of Plaintiff’s work injury and cannot possibly support the notion that Plaintiff’s condition was symptomatic immediately prior to her work injury.”  Commodore also points to the fact she received no medical treatment for her neck, shoulder or arms between January 31, 2012 to February 22, 2013.  Commodore argues the ALJ erred in finding she received treatment for her neck at Park Duvalle prior to February 22, 2013, noting she was treated only for unrelated conditions.

          As the claimant in a workers’ compensation case, Commodore bore the burden of proving each of the essential elements of her cause of action, including causation/work-relatedness.  Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979).  Since Commodore was unsuccessful in her burden, the question on appeal is whether the evidence is so overwhelming, upon consideration of the record as a whole, as to compel a finding in her 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). 

          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 (Ky. 1993).  Similarly, the ALJ has the sole authority to judge all reasonable inferences to be drawn from the evidence. Miller v. East Kentucky Beverage/Pepsico, Inc., 951 S.W.2d 329 (Ky. 1997); Jackson v. General Refractories Co., 581 S.W.2d 10 (Ky. 1979).  The ALJ may 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.  Magic Coal Co. v. Fox, 19 S.W.3d 88 (Ky. 2000); Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999).  Mere evidence contrary to the ALJ’s decision is not adequate to require reversal on appeal.  Id.  In order to reverse the decision of the ALJ, it must be shown there was no substantial evidence of probative value to support his decision.  Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986).

          The Board, as an appellate tribunal, may not usurp the ALJ’s role as fact-finder by superimposing its own appraisals as to the weight and credibility to be afforded the evidence or by noting reasonable inferences that otherwise could have been drawn from the record.  Whittaker v. Rowland, 998 S.W.2d 479, 481 (Ky. 1999).  So long as the ALJ’s ruling with regard to an issue is supported by substantial evidence, it may not be disturbed on appeal.  Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986).

          We first find no merit to Commodore’s assertion the ALJ erroneously framed the main issue of this claim as “whether Plaintiff’s present cervical spine symptoms, primarily pain which radiates into her arms, are due to a March 21, 2012[sic] work injury or are the same symptoms Plaintiff experienced as a result of an October 31, 2011 motor vehicle accident . . .”  Causation has been the primary issue throughout the litigation of this claim.  In addition, the parties identified work-relatedness/causation, injury as defined by the Act, and exclusion for pre-existing disability/impairment as contested issues at the May 6, 2014 BRC.   

          Likewise, we disagree with Commodore’s assertion the ALJ did not collectively understand the evidence before him.  The ALJ summarized the medical and lay evidence in eleven pages of his opinion and order, and after a review of that opinion, we find he did not err in his recitation of the evidence.  His decision was based upon that review, and it was within the ALJ’s discretion to determine which evidence was more persuasive.  In this instance, the ALJ clearly relied upon the medical records, which he found contradicted Commodore’s testimony.  

          We find no merit to Commodore’s argument the ALJ erred in his July 17, 2014 decision by identifying Dr. McEldowney as the physician who was deposed, when it was actually Dr. Fadel.  Commodore raised this error in her petition for reconsideration.  The ALJ cured this error in the August 7, 2014 Order on reconsideration.  Because of the correction, we find no error requiring reversal on appeal.

          Commodore essentially requests this Board to re-weigh the evidence and substitute its opinion for that of the ALJ in her favor.  We may not do so.  The ALJ found Commodore generally credible “but often failed to remember or acknowledge pre-work injury facts, facts which were well documented in her filed medical records.”  In his opinion, the ALJ identified the medical records he determined contradicted Commodore’s testimony she was not experiencing neck symptoms radiating into her arms and hands immediately prior to her work injury, and her symptoms following the 2011 MVA did not radiate into her arms and hands. 

          The ALJ cited to specific language in the November 1, 2011 Norton Suburban Hospital record, the January 30, 2012 report of Dr. Kelly, the February 22, 2013 and March 5, 2013 records from Park Duvalle, the records from Chamber Medical Group, and the records from Louisville Sports and Injury Center.  The ALJ specifically found Commodore “experienced neck symptoms, described as numbness and tingling that radiated down into both arms and hands” immediately prior to her alleged work injury based upon the February 22 and March 5, 2013 records from Park Duvalle on pages 14 and 15 of his opinion.  In citing to the 2011 and 2012 records from Chambers Medical Group and Louisville Sports and Injury, the ALJ found Commodore’s denial of experiencing pre-work injury cervical symptoms radiating into her arms and hands unacceptable, and attributed the contradictions to her poor memory.  The ALJ also noted following her alleged work injury, she sought medical treatment with Drs. Reyes and Ozyurekoglu for symptoms allegedly associated with her work injury, but did not report a neck injury or cervical symptoms.  

          Based upon the foregoing, the ALJ identified substantial evidence in the record supporting his ultimate determination Commodore failed in proving her alleged 2013 work-related cervical injury was a result of her work for Kelly Services, but were rather a continuation of the symptoms she incurred as a result of her 2011 MVA, and no contrary result is compelled.  We acknowledge Commodore is able to identify conflicting evidence in the record, such as her own testimony and the opinions of Dr. McEldowney, which would support her position.  However, mere evidence contrary to the ALJ’s decision is not adequate to require reversal on appeal.  Magic Coal Co. v. Fox, supra; Whittaker v. Rowland, supra.

          Throughout Commodore’s brief on appeal, she insists the ALJ overlooked or misunderstood the fact her neck, shoulder and arm symptoms immediately prior to March, 2013 are part and parcel of her work injury, insisting her symptoms developed over a period of time, and became disabling on March 21, 2013.  In particular, Commodore asserts her work-related symptoms had begun at the time she visited Park Duvalle on February 22, 2013 and March 5, 2013, and therefore these records do not support a finding she received treatment immediately prior to her work injury on March 21, 2013.  We disagree. 

          We first note Commodore did not allege a cumulative trauma injury to her neck due to her work activities with Toyota.  The Form 101 identifies an acute injury occurring on March 21, 2013 while working with a drill.  At no time throughout the litigation of this claim did Commodore seek to amend the Form 101 to allege a cumulative trauma injury. 

          In the ALJ’s summary of Commodore’s testimony, he stated, “Plaintiff subsequently represented her work-related neck injury symptoms, including pain radiation into both arms, started before her hand actually locked on March 21, 2013.  Plaintiff’s final hearing testimony was that her neck and arm symptoms actually started in February 2013.”  He further stated, “Her present symptom of pain in her neck and shoulders came on gradually.  On March 21, 2013, her left hand “locked up” into a claw position.”  It is clear the ALJ understood Commodore’s theory of her work-related injury.  However, he was not compelled to accept it. 

          Further, a review of the February 22, 2013 and March 5, 2013 records from Park Duvalle do not clearly confirm Commodore’s testimony.  The February 22, 2013 note provides the following “History of Present Illness:”

     The patient is a 41 year old female who presents with a complaint of Fainting.  The fainting has been occurring for 2 months.  The symptoms have been associated with chest pain and headache.

 

Additional complaints:

 

NUMBNESS/TINGLE is described as the following:

BOTH ARMS FROM ELBOW DOWN TO HAND FOR FIVE WEEKS

 

Leg Pain is described as the following:

The patient sustained an injury to the right thigh.

 

Neck pain is described as the following:

The injury occurred 3 months(s) ago.  Symptoms include neck pain, neck stiffness and muscle spasm.

 

Follow up for diabetes type II is described as follows:

Onset was 1 year(s) ago.  The patient describes this as mild and improving.

 

After an examination was performed, Commodore was prescribed Gabapentin for her neuropathic arm pain.  In the March 5, 2013 note, it was stated, “The patient  . . . presents for follow up of type II diabetes.  Symptoms include fatigue.  Associated symptoms include extremity pain and insomnia.” 

          The above-referenced records are not consistent with Commodore’s assertion she sought treatment for her neck due to her work activities with Toyota on February 22 and March 5, 2013.  Rather, they indicate she sought treatment due to unrelated events. It was well within the ALJ’s discretion to rely upon these records in his determination Commodore experienced non-work-related neck symptoms, including numbness and tingling radiating down into both arms and hands, several weeks prior to her alleged March 2013 injury.      

          The ALJ identified substantial evidence in the record supporting his determination Commodore’s “alleged work-related symptoms were not the result of a work incident, but rather was a continuation of the symptoms she incurred as a result of her 2011 MVA,” and no contrary result is compelled.

          With that said, the Board must vacate and remand the claim to the ALJ for a determination of whether Commodore sustained a temporary injury due to the March 21, 2013 work event warranting temporary benefits, if any.  This Board is permitted to sua sponte reach issues even if unpreserved but not raised on appeal. KRS 342.285(2)(c); KRS 342.285(3); George Humfleet Mobile Homes v. Christman, 125 S.W.3d 288 (Ky. 2004). 

          Since the rendition of Robertson v. United Parcel Service, 64 S.W.3d 284 (Ky. 2001), this Board has consistently held it is possible for an injured worker to establish a temporary injury for which temporary benefits may be paid, but fail to prove a permanent harmful change to the human organism for which permanent benefits are authorized.  In Robertson, the ALJ determined the claimant failed to prove more than a temporary exacerbation and sustained no permanent disability as a result of his injury.  Therefore, the ALJ found the worker was entitled to only medical expenses the employer had paid for the treatment of the temporary flare-up of symptoms.  The Kentucky Supreme Court noted the ALJ concluded Robertson suffered a work-related injury, but its effect was only transient and resulted in no permanent disability or change in the claimant's pre-existing spondylolisthesis. The Court stated:

Thus, the claimant was not entitled to income benefits for permanent partial disability or entitled to future medical expenses, but he was entitled to be compensated for the medical expenses that were incurred in treating the temporary flare-up of symptoms that resulted from the incident.

 

It is well established an ALJ can award future medical benefits for a work-related injury, although a claimant has reached maximum medical improvement and did not have a permanent impairment rating resulting from the injury.  See FEI Installation, Inc. v. Williams, 214 S.W.3d 313 (Ky. 2007).

          In this instance, Commodore testified she sought medical attention the day after her hand froze into a claw position on March 21, 2013 and attached the medical records documenting her course of treatment.  Dr. McEldowney diagnosed cervical sprain/strain due to the work accident and assessed a permanent impairment rating.  Dr. Dubou diagnosed multilevel cervical degenerative disease and temporary aggravation of a subclinical carpal tunnel problem.  He opined Commodore’s work activities with Kelly Services did not cause a permanent injury, but a temporary exacerbation only, and required no treatment.  In his report, Dr. Fadel diagnosed a post-status cervical strain/ sprain injury with transient exacerbation of pre-existing cervical/thoracic degenerative spondylosis and disc disease.  At the deposition, he again diagnosed Commodore with an exacerbation of her degenerative spondylosis due to her alleged work injury, and felt it should have resolved at the end of three months.  Dr. Fadel again declined to attribute any degree of impairment for her cervical spine condition due to her alleged work injury.

          On remand, in light of the evidence of record, the ALJ is directed to perform an analysis pursuant to Robertson v. United Parcel Service, supra; and FEI Installation, Inc. v. Williams, supra, to determine whether Commodore sustained a temporary injury, if any, as a result of the March 21, 2013 work accident warranting temporary benefits.  This Board may not and does not direct any particular result because we are not permitted to engage in fact-finding. See KRS 342.285(2); Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985).

          Accordingly, the July 17, 2014 Opinion and Order and the August 7, 2014 Order on Reconsideration rendered by Hon. Otto Daniel Wolff, IV, Administrative Law Judge, are hereby AFFIRMED IN PART, VACATED IN PART, AND REMANDED to the ALJ for a determination of whether Commodore sustained a temporary injury entitling her to temporary benefits pursuant to Robertson v. United Parcel Service, supra; and FEI Installation Inc. v. Williams, supra.

          ALL CONCUR.

 

 

COUNSEL FOR PETITIONER:

 

HON JAMES D HOWES

5438 NEW CUT RD, STE 201

LOUISVILLE, KY 40214

 

COUNSEL FOR RESPONDENT:

 

HON THOMAS EDELEN

1315 HERR LN, STE 210

LOUISVILLE, KY 40222

 

ADMINISTRATIVE LAW JUDGE:

 

HON OTTO DANIEL WOLFF

657 CHAMBERLIN AVENUE

FRANKFORT, KY 40601