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