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Commonwealth
of Kentucky
Workers’
Compensation Board
OPINION
ENTERED: May 15. 2015
CLAIM NO. 201358135
MICHAEL ADKINS PETITIONER
VS. APPEAL FROM HON. GRANT
ROARK,
ADMINISTRATIVE LAW JUDGE
R & D RAILROAD CONSTRUCTION, INC.
and HON. GRANT ROARK,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
STIVERS,
Member.
Michael Adkins (“Adkins”) seeks review of the November 17, 2014, Opinion,
Order, and Award of Hon. Grant Roark, Administrative Law Judge (“ALJ”) awarding
him temporary total disability (“TTD”) benefits from December 6, 2013, to June
19, 2014, and medical benefits for the effects of a work-related right arm
parasthesia extending from December 5, 2013, to June 19, 2014. The ALJ dismissed Adkins’ claim for income
benefits and future medical benefits against R & D Railroad Construction,
Inc. (“R & D”). Adkins also appeals
from the January 9, 2015, Order denying his petition for reconsideration.
On appeal, Adkins argues the ALJ erroneously relied upon
the opinions of Dr. David Muffly since his opinions cannot constitute
substantial evidence. Adkins charges Dr.
Muffly provided no explanation for his opinions other than to say Adkins had
experienced temporary symptoms.
Adkins alleged an injury to his right arm and hand while
driving railroad spikes with a sledge hammer on December 5, 2013.
Adkins’ May 9, 2014, deposition was introduced. Adkins testified he began work with R & D
in 2013 as a laborer. His job required
him, along with other employees, to lift ties weighing 300 pounds. He would also lift buckets and kegs of spikes
which weighed approximately 100 pounds.
Adkins denied experiencing any prior right shoulder or arm
injuries. However, he had begun
experiencing intermittent problems with his right forearm, hand, and elbow a
couple of weeks before the injury. At
the time of his deposition, Adkins was receiving TTD benefits and had not
worked since December 2013. On December
5, 2013, he had been hammering with a sledge hammer for approximately an hour. Adkins explained when he “slung the sledge
hammer to drive a plate in,” he felt a sharp pain up his right arm and his arm
went numb. The numbness extended from
his hand to his elbow. He reported the
injury to his foreman and went to the emergency room at Marcum and Wallace
Hospital, in Estill County. He was x-rayed
and sent to Dr. Tabitha Culver. Dr. Culver
put Adkins on Neurontin and referred him to Dr. Joseph Bajorek who saw him
three times. Dr. Bajorek referred Adkins
to Dr. Laura Reese for treatment of his shoulder.
Adkins explained he began
experiencing swelling in his right hand extending up the forearm to the elbow
approximately a week after the injury.
The top of his hand turned black and split open due to infection. Two surgeries were performed at King’s Daughters
Medical Center (“King’s Daughters”) to remedy the infection. Adkins was questioned about a hospital note
which showed he had experienced a spider bite.
He denied having any knowledge of a spider bite or having any breakage
of skin on December 5, 2013. At the time
of his deposition, he had no swelling of the right arm and was taking no
medication for an arm problem. Adkins
had experienced a heart attack two years prior and was taking medication for
his heart problem which included a blood thinner.
Adkins also saw Dr. Mohamad Abul-Khoud in December 2013
because a blood clot went to his lung.[1] As a result he takes Coumadin. He still has numbness in his hand and forearm
and continued pain in his shoulder.
Adkins testified after the surgery he developed throbbing pain in his
shoulder. He is able to lift his arm to
shoulder level but not above the shoulder.
During the proceedings, R & D
filed a medical fee dispute concerning the treatment provided by King’s
Daughters and Dr. Abul-Khoud and the related bills along with motions to join the
doctor and King’s Daughters. R & D
also filed a motion to join Dr. Reese contesting her treatment and bill. By separate orders, the ALJ granted the
motions and joined Dr. Reese and Dr. Abul-Khoud as parties. No order was entered joining King’s
Daughters.
At the September 18, 2014, hearing, Adkins testified when
he swung the hammer on December 5, 2013, he felt an electric shock up his arm
and his arm went numb. On December 22,
2013, his hand was swollen, and when he “closed his arm” the skin on the top of
his right hand split and pus ran out.
Adkins went to the hospital where two surgeries were performed. He later developed a blood clot. His arm still goes numb and he experiences
pain daily. He does no heavy lifting and
estimated he can only lift twenty pounds with his right hand and arm. He is unable to perform any overhead work. Adkins acknowledged that approximately two
weeks earlier he began experiencing intermittent numbness from his elbow to his
hand. He now experiences this numbness
daily. He had no splits or breakage of
the skin prior to December 22, 2013.
Adkins testified he no longer has problems with his right shoulder. The last time he experienced pain or a
problem with his shoulder was in July 2015.
Adkins testified he was referred to
Dr. Reese for his hand, not his shoulder.
His current symptoms extend from the elbow to his hand. Adkins has not treated with Dr. Bajorek after
he referred Adkins to Dr. Reese.
Although he was unable to provide the year, Adkins testified he had
experienced a blot clot prior to the work injury, for which he took Coumadin. He had also experienced a prior pulmonary
embolism and had two stents implanted due to a heart condition. Adkins has not experienced another abscess
since undergoing the surgeries to address the abscess which occurred on
December 22, 2013. Adkins acknowledged
telling the emergency room personnel that he did not know what caused the
abscess.
Adkins introduced the independent medical evaluation
(“IME”) report of Dr. Bruce Guberman, the records of Dr. Bajorek, and the
Marcum and Wallace Hospital note of December 5, 2013.
R & D introduced the records of King’s Daughters and
Dr. Reese, and the IME reports of Dr. Muffly and Dr. David Jenkinson.
After summarizing the evidence, the ALJ entered the
following analysis, findings of fact, and conclusions of law:
Causation/Work-Relatedness/Prior
Active Condition/Injury Under the Act
As
a threshold issue, the employer disputes that plaintiff’s work activities on
December 5, 2013 caused any permanent injuries.
It argues the events of that day may have caused a temporary right arm
parasthesias per Dr. Muffly, but that subsequent right hand infection requiring
surgery and the pulmonary embolism are wholly unrelated and not compensable.
Having
reviewed the evidence of record, the Administrative Law Judge notes that
plaintiff’s own treating physician, Dr. Bajorek, indicated it was unknown what
the mechanism of plaintiff’s injury was initially. Moreover, plaintiff’s expert, Dr. Guberman,
was apparently unaware that plaintiff had sought treatment for similar right
arm parasthesia just days before December 5, 2013 and that the initial ER
records that day show that plaintiff reported that he woke up with that pain
and numbness and did not recall any specific injury. Given these facts, the Administrative Law
Judge is ultimately persuaded by the opinion of Dr. Muffly that plaintiff did
not suffer any work-related permanent injury.
Dr. Muffly reviewed records and was aware of plaintiff’s prior history
and performed an examination. Although
Dr. Bajorek indicated plaintiff’s EMG/NCV showed severe carpal tunnel syndrome,
he indicated the cause of his injury was unknown. Moreover, Dr. Bajorek indicated the EMG/NCV
showed bilateral CTS, whereas plaintiff’s complaints were only in the right
arm. Thus, the positive EMG/NCV
findings, in the face of plaintiff’s clinical examinations with Dr. Bajorek and
Dr. Muffly, lead the ALJ to place little importance on those diagnostic studies. Instead, Dr. Muffly’s opinion is found to
most accurately take into account plaintiff’s complaints, the history provided
at the ER on December 5, 2013 and his prior history. As such, it is determined plaintiff did not
suffer any permanent injury on December 5, 2013.
Moreover, based on the medical records in
general and Dr. Olash in particular, it is determined plaintiff’s right hand
infection and subsequent surgeries and pulmonary embolism are wholly unrelated
to any work event and, as such, the expenses for such treatment are not
compensable.
Concerning Adkins’
entitlement to TTD benefits and medical benefits, the ALJ found and concluded
as follows:
TTD
On the issue of temporary, total
disability, the Administrative Law Judge is again persuaded by the opinion of
Dr. Muffly. As indicated above, he
concluded plaintiff did not suffer any permanent injury. However, he also opined the December 5, 2013
incident caused a temporary right arm parasthesia which had resolved as of the
time of his examination on June 19, 2014.
While plaintiff suffered the effects of this parasthesia, he was unable
to perform his regular work of replacing railroad ties as it required heavy use
of his right arm. Even though Dr.
Jenkinson concluded plaintiff reached MMI as of his examination in April, 2014,
the Administrative Law Judge is not convinced Dr. Jenkinson took into account
the same right arm parasthesia which Dr. Muffly concluded had affected
plaintiff. Accordingly, it is determined
plaintiff did not reach MMI from his temporary right arm parasthesia until
determined so by Dr. Muffly on June 19, 2014.
Plaintiff is therefore entitled to TTD benefits from December 5, 2013
until June 19, 2014 at the rate of $345.14 per week.
Medical
Expenses/MFD
Based on the foregoing findings it is
determined the defendant employer is responsible for payment of medical
expenses associated with plaintiff’s right arm parasthesia up to June 19, 2014.
As Dr. Muffly concluded no additional treatment was required thereafter, no
medical expenses are payable after June 19, 2014.
Adkins filed a petition for
reconsideration taking issue with the ALJ’s reliance upon Dr. Muffly’s opinions. He asserted that although Dr. Muffly stated his
parasthesia
was temporary, he offered no explanation for his opinion. Adkins observed the records establish he
continues to experience the same problems.
In addition, even though Dr. Muffly concluded the right hand abscess and
pulmonary embolism are not related to the work injury, he provided no
explanation for his opinion. Adkins
requested the ALJ reconsider his decision.
In the alternative, he requested a specific finding as to why Dr. Muffly
is more credible as well as additional findings explaining why the record as a
whole does not support a finding of a specific injury.
Concluding Adkins’ petition for reconsideration was a
re-argument of the merits and did not point to a patent error within the
decision, the ALJ denied the petition for reconsideration by order dated
January 9, 2015.
Adkins first observes even Dr. Muffly noted in his report
that as of June 19, 2014, Adkins still had numbness in his right arm when he
uses it. In addition, Adkins testified
he experienced numbness when using his arm for a short period of time. Adkins complains Dr. Muffly did not provide an
explanation for his opinion that Adkins only had temporary symptoms which had
resolved without impairment. He contends
no physician indicated he no longer had symptoms or numbness in his right arm. Therefore, since Dr. Muffly noted Adkins was
still having complaints when he examined him, his opinions cannot constitute
substantial evidence.
Adkins observes Dr. Muffly did not
provide an explanation for his conclusion the right hand abscess and pulmonary
embolism were not related to the December 5, 2013, injury. He argues since Dr. Muffly’s opinions have no
basis and are inconsistent, the evidence is uncontradicted that he sustained parasthesia
on December 5, 2013, for which he still has complaints. Therefore, Dr. Muffly’s opinions are not substantial
evidence and do not support the ALJ’s decision.
Adkins seeks reversal.
As
the claimant in a workers’ compensation proceeding, Adkins had the burden of
proving each of the essential elements of his cause of action including
entitlement to permanent income and medical benefits. Snawder v. Stice, 576 S.W.2d 276 (Ky. App.
1979). Since Adkins was unsuccessful in
that burden, the question on appeal is whether the evidence compels a different
result.
As
fact-finder, the ALJ has the sole authority to determine the weight,
credibility and substance of the evidence.
Square D Co. v. Tipton, 862 S.W.2d 308 (
We first observe Adkins does not
argue Dr.
Bart Olash’s opinions are not substantial evidence in support of the ALJ’s
determination his right hand infection, subsequent surgeries, and pulmonary
embolism are unrelated to the work event.
Rather, Adkins attacks Dr. Muffly’s opinions with respect to the ALJ’s
determination on this issue. The ALJ did
not rely on Dr. Muffly’s opinion in determining the right hand infection,
subsequent surgeries, and pulmonary embolism are not work-related. He specifically noted he was relying on Dr.
Olash’s opinions and “the medical records in general” in resolving this issue.
In his February 6, 2014, report, Dr.
Olash noted Adkins was seen at King’s Daughters’ emergency room on January 23,
2014, and diagnosed with acute pulmonary emboli. With respect to the right hand infection and
subsequent surgeries, Dr. Olash did not believe the soft tissue infection (cellulitis/abscess)
was in any way related to the work injury.
Dr. Olash noted the work injury did not result in a skin tear. He did not believe the work injury resulted
in a lack of feeling which could predispose Adkins to traumatizing the right
forearm without knowing an injury had occurred.
Dr. Olash noted there was documentation that Adkins may have sustained a
bug bite or a scratch from one of his pets resulting in the infection. Dr. Olash concluded it was apparent “the
infection started around December 19th.” Dr. Olash did not believe Adkins was working
on that date. Dr. Olash concluded any
treatment for the abscess/cellulitis of the right upper extremity cannot be
considered work-related. In addition,
the hospitalization at King’s Daughters, the antibiotic treatment, and the
subsequent complication of pulmonary emboli could not be considered work-related.
Since Adkins does not contend the
opinions of Dr. Olash do not constitute substantial evidence in support of the
ALJ’s determination that his hand infection, subsequent surgeries, and the
pulmonary embolism are unrelated to the work event, the ALJ’s determination the
infection, subsequent surgeries, and the pulmonary embolism are non-compensable
must be affirmed.
We also note the medical records do not overwhelmingly
support a finding Adkins sustained a work-related injury. The medical record from Marcum Wallace
Hospital, attached to Adkins’ Form 101, reveals he presented at the emergency
room with numbness from the right forearm and elbow down to the hand. Adkins indicated this had been happening on
and off for two weeks and he woke up that morning with numbness but no pain to
the arm. The record reveals the
following: “no definitive injury, works driving spikes, but no incident causing
problem. No neck or elbow pain but
thought he may have pulled something.”
Similarly, the triage assessment contains the hand written notation
“patient came in with numbness from elbow to fingertips - no known injury.”
In the same vein, when Dr. Bajorek first saw Adkins on January
2, 2014, he received a history from Adkins that he was driving railroad spikes
into ties when he developed pain shooting down his arm and lost feeling from
the region below the forearm including all his fingers. Adkins developed swelling and pain which
started over the dorsum of the hand and it became blackened. It cracked and expressed pus. This required debridement and IV antibiotic
treatment for several weeks which he was still undergoing at that time. Dr. Bajorek noted Adkins had weakness in the
hand both in extension and flexion and still has numbness from the forearm to
the fingers. Dr. Bajorek noted the
question is raised of “either radicular local or brachial plexopathy etiology
for his symptoms.” Significantly, his
impression was “right arm distal weakness and numbness possibly associated with
a right brachial plexopathy vs. local injury as the 2 mostly likely
etiologies.” Thus, it appears Dr.
Bajorek was unclear as to the cause of Adkins’ arm problems.
Similarly, in her note of April 10, 2014, Dr. Reese
summarized the records from Dr. Bajorek and his findings. She noted the Marshall University medical records
reflect Adkins injured his hand at work and was referred to neurology for an
EMG and nerve conduction studies, but in the meantime he received a spider bite
to the dorsum of his right hand and developed some draining pus. As a result, Adkins was admitted after “superficial
I & D” in the emergency department.
The records of Marcum and Wallace Hospital
and Dr. Bajorek do not unequivocally support Adkins’ claim of an injury on
December 5, 2013. Further, Dr. Reese’s
medical record reveals the right hand infection necessitating the subsequent
surgeries was due to a spider bite.
We note that only Dr. Guberman expressed a definite opinion
Adkins sustained a work-injury to his arm on December 5, 2013. Similarly, Dr. Guberman was the only
physician to express the opinion the right forearm abscess, numbness in the
right hand, deep vein thrombophlebitis, and pulmonary embolism were attributable
to the work injury.
All of the above aside, we find no
merit in Adkins’ argument the report of Dr. Muffly does not constitute
substantial evidence in support of the ALJ’s decision. In his report of June 19, 2014, Dr. Muffly
noted Dr. Bajorek, who provided neurological treatment, diagnosed right arm
weakness with numbness but could not find a mechanism of injury. Dr. Muffly noted the EMG/NCV testing was
performed noting severe bilateral carpal tunnel syndrome which he thought was
non-work-related. Significantly, he
noted Dr. Reese performed two treatments on the right arm and shoulder. Adkins had slight decrease in right hand
sensation not specific for carpal tunnel syndrome. Dr. Reese noted the carpal tunnel syndrome
was in existence prior to December 5, 2013.
Adkins did not complain of right hand numbness. Adkins did not have pain but at times would
get numbness sensation when for example he used a weed eater. Adkins stated he could not use a hammer
because it would cause onset of symptoms.
He gets relief using over-the-counter medications or upon exercising his
hand.
Dr. Muffly reviewed various imaging
studies and the medical records of Marcum Wallace Hospital emergency room, Dr. Culver,
Dr. Bajorek, Dr. Reese, Grayson Family Urgent Clinic Care, KDMC (Marshall
University), and Dr. Olash. His assessment
was “paresthesia’s of the right hand which were temporary symptoms described
from the December 5, 2013, injury from using a sledge hammer.” He noted Adkins had prior active treatment
before the alleged work injury. In Dr.
Muffly’s opinion, there was no specific injury which was confirmed by multiple
treating medical providers. Similarly,
the right hand abscess and subsequent development of a pulmonary embolism were
not work-related. Dr. Muffly considered
the paresthesia described on December 5, 2013, to be temporary and resolved as
of the date he saw Adkins. Dr. Muffly
stated Adkins was at maximum medical improvement. He assessed no impairment related to the
alleged work injury and concluded Adkins did not need any additional medical
treatment.
A review of his report indicates Dr. Muffly fully explained
the basis for his decisions. He noted
his opinions were confirmed by multiple treating medical providers. Dr. Muffly provided the medical records and opinions
of the physicians upon whom he relied.
Contrary to
Adkins’ assertions, the opinions of Dr. Muffly and Dr. Olash constitute
substantial evidence upon which the ALJ was free to rely in reaching a decision
on the merits. Kentucky
Utilities Co. v. Hammons, 145
S.W.2d 67, 71 (Ky. App. 1940) (citing American Rolling Mill Co.
v. Pack et al., 278 Ky. 175, 128 S.W. 2d 187, 190 (Ky.
App. 1939). Moreover, in
line with Robertson v. United Parcel Service, 64 S.W.3d 284 (Ky. 2001),
we believe the ALJ could reasonably conclude from that evidence that the injury
of December 5, 2013, produced only temporary harmful changes involving Adkins’
right arm that were transient in duration, and that fully resolved by June 19,
2014, the date of Dr. Muffly’s examination thereby resulting in no permanent
impairment or disability or the need for future medical treatment.
The ALJ’s discussion of the findings of Drs.
Bajorek and Muffly sufficiently apprised the parties of the basis for his
decision. Moreover, as previously noted,
Adkins does not take issue with the ALJ’s reliance on Dr. Olash’s opinions in
resolving the work-relatedness of the right hand infection, subsequent
surgeries, and the pulmonary embolism. The ALJ is not required to set out the minute details of his reasoning in reaching his
conclusion. Big Sandy Community Action
Program v. Chaffins, 502 S.W.2d 526 (Ky. 1973); Shields v. Pittsburgh &
Midway Coal Mining Co., 634 S.W.2d 440 (Ky. App. 1982). The
only requirement is the decision must adequately set forth the basic facts upon
which the ultimate conclusion was drawn so the parties are reasonably apprised
of the basis of the decision. Big Sandy Community
Action Program v. Chaffins, supra.
The
report of Dr. Jenkinson also supports the ALJ’s decision in this claim. Dr. Jenkinson’s report alludes to a number of
the medical records. In his summary and
conclusion, Dr. Jenkinson stated Adkins had reported an injury occurring on
December 5, 2013. Although he complained
of numbness with electric shock sensation in his right arm, Dr. Jenkinson noted
the initial emergency room records indicate no specific injury. That record also indicates Adkins woke up
with numbness in the right arm and retrospectively attributed his symptoms to
driving a railroad spike even though there was no history of a specific
injury. Dr. Jenkinson noted Adkins later
developed an abscess on the right hand probably due to a bite. As a result, Adkins required debridement with
Wound Vac and the open wound is now healed with minimal residual
abnormality. At the time of his
evaluation, Dr. Jenkinson noted Adkins complained of vague numbness on the
dorsum of his right arm and hand but there is no objective neurologic
deficit. Adkins had normal motor
function and normal reflexes and complained of decreased sensation in a
non-dermatomal distribution, but apart from the healed scar there is no
objective abnormality on physical examination.
Consequently, Dr. Jenkinson expressed the opinion there was no objective
basis for a specific diagnosis and concluded there was no evidence Adkins
sustained a specific work injury on December 5, 2013. In addition, the only objective finding is a
healed scar on the dorsum of Adkins’ right hand.
Although Adkins contends he continues to have symptoms, the ALJ may
choose not to believe the claimant’s testimony regarding the existence of
present symptoms. Further, within his
discretion, the ALJ may also choose to conclude the cause of Adkins’ current
problems is not work-related. The ALJ’s determination
Adkins did not suffer a permanent work injury but instead suffered a temporary
right arm paresthesia
is amply supported by substantial evidence.
Adkins’ testimony established he had a blood clot prior to the injury
for which he had taken Coumadin. He also
acknowledged having sustained a pulmonary embolism prior to the work injury of
December 5, 2013. In light of the evidence
as recited herein we believe a different result is not compelled. Because the outcome selected by the
ALJ is supported by substantial evidence, we are without authority to disturb hid
decision on appeal. Special Fund v.
Francis, supra.
We feel compelled to address R & D’s assertion that since the notice
of appeal failed to name the medical providers joined in the medical fee
dispute, the appeal must be dismissed.
First, we point out that even though Dr. Abul-Khoud was joined as a party,
King’s Daughters was not joined as a party.
King’s Daughters was a medical provider in this claim, not Dr.
Abul-Khoud. Dr. Abul-Khoud was merely an
employee of the medical provider and failure to name him as a party to the
appeal is not fatal to the appeal.
Further, Dr. Reese’s report of April
10, 2014, reveals she saw Adkins for right shoulder problems and carpal tunnel
syndrome. In her report, she indicated
Adkins needed to be evaluated for physical therapy, anti-inflammatories, and
possible approval for a subacromial injection in the right shoulder. Dr. Reese believed the carpal tunnel syndrome
was present before the December 5, 2013, injury. Since the carpal tunnel syndrome predated the
injury and Adkins made no claim it was work-related, Dr. Reese was not an indispensable
party to the appeal. Concerning her
treatment of Adkins’ right shoulder, Adkins testified at the hearing he no
longer experiences shoulder problems.
Consistent with his testimony, on appeal Adkins does not argue the ALJ
failed to award benefits for a shoulder injury.
In fact, Adkins’ brief does not assert he sustained a shoulder
injury. Thus, the failure to name the
medical providers, joined as parties during the proceedings, in the notice of
appeal is not cause to dismiss Adkins’ appeal.
Accordingly, the November
17, 2014, Opinion, Order, and Award and the January 9, 2015, Order overruling
the petition for reconsideration are AFFIRMED.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON JEFFREY D HENSLEY
P O BOX 1004
FLATWOODS KY 41139
COUNSEL
FOR RESPONDENT:
HON KATHERINE M BANKS
P O BOX 1350
PRESTONSBURG KY 41653
ADMINISTRATIVE
LAW JUDGE:
HON GRANT S ROARK
410 WEST CHESTNUT ST
SEVENTH FLOOR
LOUISVILLE KY 40202
[1]
R & D spells the doctor’s name as
listed herein. However, King’s Daughters’ records spell his name two ways; Dr.
Abul-Khoud and Dr. Abul-Khoudoud. We will refer to him as Dr. Abul-Khoud.
