RENDERED:  JUNE 12, 2015; 10:00 A.M.

NOT TO BE PUBLISHED

 

Commonwealth Of Kentucky

Court of Appeals

 

NO. 2014-ca-001751-wc

 

 

johnnie brown                                                                     APPELLANT

 

 

 

                           PETITION FOR REVIEW OF A DECISION

v.                   OF THE WORKERS’ COMPENSATION BOARD

                                        ACTION NO. wc-13-76990

 

 

 

THE WILLOWS AT HAMBURG;
HON. JEANIE OWEN MILLER,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS’
COMPENSATION BOARD                                                         APPELLEES

 

 

 

OPINION

AFFIRMING

 

** ** ** ** **

 

BEFORE:  ACREE, CHIEF JUDGE; COMBS AND MAZE, JUDGES.

MAZE, JUDGE:  Johnnie Brown petitions for review from an opinion of the Workers’ Compensation Board (Board) that affirmed in part and reversed in part an opinion and award by the Administrative Law Judge (ALJ).  Brown argues that the ALJ erred by relying on portions of contradictory opinions from her expert and the employer’s expert.  However, we find that the ALJ properly considered all of the evidence of record and her conclusions were supported by substantial evidence.  Hence, we affirm.

Brown began working at the Willows of Hamburg (the Willows) as a certified nursing assistant (CNA) on January 29, 2013.  Her position required her to lift at least fifty pounds.  On June 18, 2013, Brown and another nursing assistant were transferring a resident from a bed to a wheelchair.  As they lowered the resident into the wheelchair, Brown experienced a pop in the lower left side of her back and hip.  She experienced immediate pain and stated her left leg felt rubbery.  Brown was unable to complete her shift and was taken to the Urgent Treatment Center.  She has not returned to work since that incident.

Subsequently, Brown filed a Form 101 alleging she injured her left hip, left leg, and the left side of her back, and that her injury arose from the June 18, 2013, work-related incident.  Brown testified that she experiences pain in the lower left side of her back radiating into her hip and down her left leg.  She also experiences tingling and numbness when she sits for long periods of time.  She has difficulty sleeping, cannot sit or stand for prolonged periods of time, and no longer drives.  Brown stated she uses a cane to assist with walking.  Brown testified she cannot return to work as a CNA at the Willows due to her current limitations stemming from her injuries.      

Brown and the Willows filed various medical records for treatment she received following the June 18, 2013, work incident.  Brown reported to the Concentra Medical Center on June 18, 2013, after her incident.  X-rays of the hip and left leg demonstrated no acute bony abnormality, but revealed changes consistent with osteoarthritis.  The physician noted the x-rays were suspicious for a fracture.  The physician restricted Brown from work, prescribed crutches and medication, and ordered her to return in three days for a re-evaluation.  Brown returned on June 21, 2013, complaining of worsening symptoms.  Brown was diagnosed with hip, thigh and knee strains and referred to an orthopedic surgeon. 

Following a referral from her attorney, Brown was treated by Dr. Jerry Morris.  Dr. Morris diagnosed a work-related low back and left hip strain; persistent low back pain radiating into the left lateral thigh in the L4-5 dermatome; persistent tenderness in the left sciatic notch, left trochanteric bursa and tensor fascia lata muscle of the left thigh, with piriformis muscle syndrome; and deranged gait due to lower extremity pain.  Dr. Morris continued a course of conservative treatment.  He kept Brown off work and referred her to pain management.

Brown also sought treatment from Dr. Oliver James, a pain management physician, who began treating Brown on October 1, 2013.  He recommended a left SI joint injection, prescribed medication, and restricted Brown from work.  On November 8, 2013, Dr. James administered a left sacroiliac steroid injection, which was unsuccessful.  On November 26, 2013, Dr. James diagnosed lumbar degenerative disc disease; lumbar spondylosis; lumbar facet arthropathy; and left hip pain.  He recommended a left lower lumbar injection, ordered additional diagnostic studies, and prescribed Norco and Zipsor.  

In support of her claim, Brown filed the February 1, 2014 report of Dr. Anthony McEldowney, who noted she complained of low back, left hip, and left leg pain with no numbness or tingling.  After reviewing the medical records and performing an examination, Dr. McEldowney diagnosed a lumbar sprain/strain and left greater trochanteric bursitis.  He opined Brown’s injuries caused her complaints, and her subjective complaints and objective findings resulted from the June 18, 2013, work-related injuries to her low back and left hip.  Pursuant to the American Medical Association, Guides to the Evaluation of Permanent Impairment, Fifth Edition (AMA Guides), Dr. McEldowney assessed a 7% impairment rating for Brown’s lumbar condition using the DRE lumbar category II and a 3% impairment for her chronic trochanteric bursitis with abnormal gait, yielding a combined 10% impairment rating.  He opined Brown attained maximum medical improvement (“MMI”) in November 2013 and assigned permanent restrictions.  Dr. McEldowney stated Brown does not retain the physical capacity to return to the type of work she performed at the time of injury.  In a March 3, 2014, supplement, Dr. McEldowney noted his disagreement with Dr. Philip Corbett’s opinion and stated his opinions contained in the February 1, 2014, report remained unchanged.

In response, the Willows filed the January 27, 2014, report of Dr. Corbett, who evaluated Brown at its request.  Dr. Corbett noted Brown had previous muscle strains in her back.  X-rays of the lumbar spine taken on the day of the examination demonstrated minimal evidence of degenerative changes in L2-L5 with no evidence of wedge compression, spondylolysis, spondylolisthesis, disc space narrowing or SI joint dysfunction.  A hip x-ray demonstrated both hips have mild degenerative changes with no evidence of an acute injury.  After reviewing the medical records and performing an examination, Dr. Corbett diagnosed exogenous obesity; degenerative joint disease involving both hips; and left greater trochanter bursitis and sprain of the gluteus maximus, tensa fascia lata, and gluteus medius, left buttock, as well as contusion of those muscles.

Dr. Corbett opined Brown suffered a left buttock contusion due to her June 18, 2013, work injury, which caused her to develop trochanter bursitis of the left hip.  He opined Brown had some degree of pre-existing degenerative joint disease involving both hips, which was not disturbed.  Dr. Corbett stated Brown reached MMI three months following her June 18, 2013, incident.  Dr. Corbett concluded that Brown had not suffered any permanent impairment as a result of the work-related incident.  Rather, he concluded that any impairment was caused by Brown’s pre-existing arthritis.  He also believed that Brown was displaying signs of symptom magnification.  Consequently, Dr. Corbett assessed a 0% impairment rating with no permanent restrictions.

After summarizing the evidence, the ALJ found Brown suffered a low back strain and left hip injury due to the June 18, 2013 work-related incident, relying upon Dr. Morris’ opinion since he treated her for over five months.  The ALJ found Brown entitled to temporary total disability (“TTD”) benefits from June 18, 2013, to November 26, 2013, the day Dr. McEldowney found Brown reached MMI.   However, the ALJ further found that only Brown’s hip injury warranted a permanent impairment rating. 

While acknowledging that Dr. McEldowney’s and Dr. Corbett’s opinions were diametrically opposing, the ALJ relied upon portions of their respective testimony.  The ALJ concluded that Brown suffered an injury that resulted in 3% impairment due to chronic trochanteric bursitis, but found no permanent impairment as related to the lumbar spine.  In addition, the ALJ found that Brown lacks the physical capacity to return to the work performed on the date of the injury and is entitled to the 3x multiplier per KRS 342.730(1)(c)1.  The ALJ also awarded medical benefits for the treatment or cure of Brown’s chronic trochanteric bursitis, but did not address medical benefits for treatment of the lumbar injury.  Thereafter, the ALJ denied Brown’s petition for reconsideration.

On appeal, Brown argued that the ALJ erred by relying on Dr. Corbett’s opinion concerning a lumbar impairment because he specifically found no low back injury.  The Board concluded that the ALJ acted within her discretion and was free to rely in part on Dr. McEldowney’s assessment of impairment regarding Brown’s hip injury and in part on Dr. Corbett’s assessment of impairment regarding her low back strain.  The Board also noted that the ALJ’s conclusions were supported by the other medical evidence of record.  However, the Board found that the ALJ erred by failing to address Brown’s claim for medical benefits for treatment of the lumbar injury, noting that the ALJ may award medical benefits despite the lack of a permanent injury after providing sufficient reasons for the award.  In the absence of sufficient findings, the Board remanded the latter matter to the ALJ to address the issue.

In this petition for review, Brown notes that Dr. Corbett found no evidence that she suffered any impairment to either her low back or her hips as a result of the June 18, 2013, work injury.  The ALJ specifically rejected his opinion with respect to the hip injury, and also found, contrary to Dr. Corbett’s assessment, that Brown suffered a low back strain which was caused by the work injury.  Notwithstanding this conclusion, the ALJ accepted Dr. Corbett’s assessment of no permanent impairment as a result of the lumbar injury.  Brown maintains that the ALJ’s decision to accept such contradictory findings was unreasonable and manifestly unsupported by the credible evidence of record.

But 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, 309 (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, 330 (Ky. 1997); Jackson v. General Refractories Co., 581 S.W.2d 10, 11 (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, 96 (Ky. 2000).  Mere evidence contrary to the ALJ’s decision is not sufficient to require reversal on appeal.  Whittaker v. Rowland, 998 S.W.2d 479, 481 (Ky. 1999).  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, 643 (Ky. 1986).

If the ALJ had relied upon only Dr. Corbett’s assessment of no impairment for Brown’s lumbar injury, then we would be more inclined to agree with Brown that the ALJ made unreasonable inferences from the conflicting evidence.  But as the Board noted, the ALJ also relied upon the various diagnostic studies of the lumbar spine in support of her determination.  In summarizing the evidence, the ALJ quoted the findings from the June 18, 2013, radiology report, the July 18, 2013, MRI of the lumbar spine and left hip, and the August 15, 2013, NCV/EMG study.  Even though Dr. Corbett found no evidence of a low back injury, the objective tests supported his conclusion that Brown incurred no permanent impairment as a result of her lumbar condition.  Given this evidence, we agree with the Board that there was substantial evidence of probative value to support the ALJ’s conclusions on this point.

Accordingly, we affirm the September 26, 2014, opinion of the Board and remand this matter to the ALJ for further proceedings as set out in the Board’s opinion.

                   all concur

 

BRIEF FOR APPELLANT:   James D. Howes Louisville, Kentucky

BRIEF FOR APPELLEE:   Aziza H. Ashy Lexington, Kentucky