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Workers’
Compensation Board
OPINION
ENTERED: September 11, 2015
CLAIM NO. 201400972
CARLOS COMBS PETITIONER
VS. APPEAL FROM HON. OTTO
D. WOLFF, IV,
ADMINISTRATIVE LAW JUDGE
CUMBERLAND RIVER COAL CO. and
HON. OTTO D. WOLFF, IV,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
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BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
ALVEY,
Chairman. Carlos
Combs (“Combs”) seeks review of the Opinion and Order rendered March 27, 2015
by Hon. Otto Daniel Wolff, IV, Administrative Law Judge (“ALJ”), dismissing his
claim for multiple injuries allegedly sustained while working for Cumberland
River Coal Co. (“Cumberland”). Combs
also seeks review of the May 20, 2015 order denying his petition for
reconsideration.
On appeal, Combs argues
the fact he was able to perform his job did not disprove his cumulative trauma
impairment. He also argues the fact the
records of his primary care treatment do not relate his work activity to his
complaints does not disprove a connection.
Finally, Combs argues the fact Dr. Snider refused to identify evidence
of cumulative trauma does not mean it was lacking. Because the ALJ’s decision is supported by
substantial evidence and a contrary result is not compelled, we affirm.
Combs filed a Form 101
on May 1, 2014, which alleged no particular injury, and likewise did not
identify any body part injured. It
merely stated, “These impairments rendered me unable to do my job at this
time”, without identifying the impairments to which he was referring. He alleged the injuries occurred on February
26, 2014, while working for Cumberland in Letcher County, Kentucky. On September 8, 2014, four months after the
filing of the Form 101, and four days prior to the Benefit Review Conference
(“BRC”), Combs filed a motion to amend the Form 101 to assert claims for
cervical, lumbar and bilateral upper extremity injuries. The Form 104 medical history attached to
the Form 101 identifies Combs worked at a factory from 1971 to 1979 where he
poured iron. He subsequently worked as a
coal mine laborer/repairman until February 26, 2014.
Combs testified at the
hearing held January 27, 2015. He
completed the eleventh grade and has no GED.
He has an underground electric certification. Prior to February 26, 2014, he earned thirty
dollars per hour, and worked approximately ten hours per day, six days per
week. He missed no work during his last
year of employment, and worked overtime until he quit working due to pain in
his hands, arms, back and neck. He
additionally stated he was having difficulty lifting mining tools and parts. He described his job as working in a
forty-two to forty-eight inch seam of coal which required heavy lifting and
getting into awkward positions. He also testified
he worked at least part of the time on the surface during his last two years of
employment. He stated he was taken off
work by Dr. William Collins, his family physician. However, Dr. Collins’ records only reflect he
saw Combs on February 26, 2014 to complete retirement paperwork.
Combs stated he has
pain in his back above his belt line, and down his right leg. He also described neck pain down his shoulders
into his arms and fingers, primarily on the right. He stated he drops items due to finger
numbness. He also described
headaches. He stated he had a specific
traumatic injury to his neck which occurred approximately six years ago. He stated his hand problems began
approximately eight years ago. Combs
stated he began taking Ultram in the 1990s.
In support of the Form
101, Combs filed the Form 107-I report of Dr. Robert Hoskins who conducted an
evaluation on March 31, 2014. Dr.
Hoskins noted Combs complained of several musculoskeletal problems. He diagnosed a cervical sprain/strain; right
cervical radiculitis; cephalgia; cervical degenerative disk disease;
herniations at C3-4, C4-5 and C5-6 of moderate severity; lumbosacral
sprain/strain; right lumbar radiculitis; annular disk bulging at L2-3 and L3-4;
small right sided herniations at T11-T12 and T12-L1; bilateral median
neuropathy(right greater than left); axonal and demyelinating sensorimotor
peripheral polyneuropathy. Dr. Hoskins
opined all of these problems were caused by Combs’ work of many years as a
repairman in the coal mining industry.
He stated Combs does not retain the capacity to return to his previous
work. Dr. Hoskins assessed a 19%
impairment rating pursuant to the 5th Edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment
(“AMA Guides”).
In a subsequent note
dated September 18 2014, Dr. Hoskins stated his disagreement with the report of
Dr. Gregory Snider. He found it
troubling that Dr. Snider doubted Combs’ veracity. He stated Combs has not reached maximum
medical improvement, and reiterated his assessment of 19% impairment. He again stated Combs’ problems stem from the
cumulative trauma and repetitive strain of performing his job over the years.
Combs also filed the
report of Dr. Collins, his family physician, dated September 20, 2014. Dr. Collins began treating Combs with Ultram
for low back in 1991. He has
additionally treated Combs for GERD, anxiety and upper respiratory complaints. Dr. Collins stated over the years Combs has
complained of right knee pain, knots on his neck, leg cramps, a knot on his
right arm, fatigue, shortness of breath, right upper and lower extremity
numbness, neck pain and stiffness, right shoulder pain, stiffness and numbness
in his hands. He specifically noted a
2012 episode of neck soreness when Combs was kicked by a horse. He stated he ordered electrodiagnostic
testing which was consistent with carpal tunnel syndrome and bilateral ulnar
entrapment, although the test results were not filed of record, nor were they
provided for review either by Dr. Hoskins or Dr. Snider. He stated Combs has osteoarthritis which in
his opinion is beyond those characteristic of the aging process. Combs declined a referral to either an
orthopedic or neurosurgeon. He stated he
promised to assist Combs in filing for disability retirement and Social
Security disability benefits.
Cumberland filed
voluminous records of Dr. Collins for treatment from 1991 to 2014, many of
which are illegible. The May 8, 1991
note reflects Combs complained of back pain with spasm on the right, with pain
upon straight leg raising. On March 2,
1992, he complained of pain in the back of his neck. On May 7, 2005, Combs complained of a knot on
his neck and significant back pain. On
August 27, 2005, Dr. Collins diagnosed osteoarthritis and generalized anxiety
disorder. On December 30, 2005, Dr.
Collins prescribed Ultram and Xanax. On
December 3, 2009, Dr. Collins discussed retirement with Combs and a referral to
specialists. The February 26, 2014 note
states, “PT here to have paperwork filled out concerning his retirement”. The note does not reflect Combs was taken off
work.
Dr. Snider examined
Combs on August 25, 2014 at Cumberland’s request. He noted Combs’ lengthy history of employment
as an underground repairman. He noted
Combs complained of shortness of breath along with multiple musculoskeletal
complaints. He stated Combs complained
of neck pain which increased with range of motion, low back pain especially
with prolonged standing or sitting, and pain radiating into the right leg with
occasional swelling. He noted Combs had
no specific hand complaints. Dr. Snider
diagnosed neck pain, low back pain, and carpal tunnel syndrome by history. He noted the physical examination was
relatively benign. He stated Combs has
mild to moderate degenerative changes in his low back, but no conclusive
evidence of cumulative trauma. He saw no
basis for cumulative trauma treatment.
Dr. Snider assessed a 0% impairment rating pursuant to the AMA Guides,
and stated he found no objective abnormalities beyond what would be expected
for Combs’ age.
Dr. Snider testified by
deposition on September 11, 2014. He
noted Combs provided no specific date of injury, but last worked on February
26, 2014 due to several musculoskeletal complaints and shortness of
breath. He stated he had not been
provided with records from Dr. Collins, but noted Combs stated he was not interested
in surgery if offered. Combs complained
of neck pain with movement, back pain with prolonged sitting or standing, and
pain in the right leg with occasional swelling.
Dr. Snider stated the
neck had no gross abnormality on observation.
He detected no cervical spasm.
Range of motion of the neck was normal.
He stated the neurological examination of the neck was grossly normal,
and wrist reflexes were intact. He
detected no gross atrophy in the hands, but noted some degenerative changes in
the joints. The lumbar examination
revealed no abnormality on range of motion testing. Straight leg raising tests were
negative. He noted no sensory loss in
the lower extremities. He stated Combs
was able to squat and arise without difficulty.
Dr. Snider opined
Combs’ degenerative findings were typical for a 61 year old. Combs did not mention any problems with his
arms, hands or wrists. He stated
objectively there was no reason Combs could not return to work doing what he
wanted to do. He saw no indication for
formal treatment.
In a supplemental note
dated December 29, 2014, Dr. Snider noted he had reviewed MRI and x-ray
reports. The records showed degenerative
findings which were within the realm of normal based upon Combs’ age.
A BRC was held on
September 12, 2014. Cumberland did not
stipulate Combs had sustained a work injury.
Listed as issues were Combs’ ability to return to the job performed at
the time of injury; benefits per KRS 342.730; causation/ work-relatedness;
injury as defined by the Act; credit for unemployment benefits; and exclusion
for pre-existing disability/impairment.
In his decision
rendered March 17, 2015, the ALJ first noted Combs did not initially note any
particular injuries, or how they may have occurred. He then found as follows:
An employee has the burden
of proof and the risk of non-persuasion to convince the ALJ of every element of
his workers’ compensation claim. Snawder v. Stice, 576 SW2d 276 (Ky. App.,
1979).
When
medical evidence is conflicting, the question of which evidence to believe is
within the exclusive province of the ALJ.
Square D Company v. Tipton, 862
S.W.2d 308 (Ky., 1993).
The ALJ has the sole discretion to determine the quality, character
and substance of the evidence and to draw reasonable inferences from the
evidence. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky., 1985).
The ALJ has the sole authority to judge the weight to be afforded the
testimony of a particular witness. McCloud v. Beth-Elkhorn Corporation, 514
S.W.2d 46 (Ky., 1974).
The
significant issue is to determine is[sic] whether Plaintiff’s alleged
cumulative trauma injuries were caused by or arose out of the years of work
Plaintiff did as an underground coal
miner.
CAUSATION
There are two essential
elements to every workers’ compensation claim: (1) an injury and (2) causation.
“Causation” consists of two components, medical and legal.
Medical causation is
a question to be addressed by healthcare providers within the realm of
“reasonable medical probability.” Legal
causation, commonly referred to as “work-relatedness,” is a factual
determination to be made by the ALJ.
Medical evidence, although relevant and material, must be considered not
as determinative but rather as a part of the “totality of circumstances” upon
which the ALJ must make the factual determination of whether the alleged
disability was caused by the work the alleged employee performed for an
employer. Hudson v. Owens, 439 S.W.2d 565 (Ky., 1969).
In determining
whether an injury is work-related, no single factor should be given conclusive
weight, and the decision must be based on the quantum of aggregate facts rather
than the existence or non-existence of any particular factor. Hayes v. Gibson Hart Co., 789 S.W.2d 775
(Ky., 1990).
“Work-related” and
“arising out of and in the course of employment” are synonymous terms. Armco Steel Co. v. Lyons, 561 S.W.2d 676
(Ky., 1978).
The role of weighing
evidence, drawing inferences, and making determinations rests solely in the
hands of the ALJ. Magic Coal Co. v. Fox,
19 S.W.3d 88 (Ky. 2000).
On February 26, 2014
Plaintiff decided to quit working. He
has not worked since.
Plaintiff testified
he worked 5 to 6 days a week, 10 hours a day through February 25, 2014. He worked without restriction. He did not miss any time at work due to
musculoskeletal problems, he testified, “I would not miss work.” (FH, p. 47).
Plaintiff testified
he worked on the surface during the last couple years of his employment with
Defendant, but acknowledged he continued to work at least three-fourths of his
time underground.
Based upon
Plaintiff’s testimony, particularly that part acknowledging he could work 10
hours a day, 5 to 6 days a week without restriction through February 25, 2014,
it is difficult to understand how he can now validly claim he could not as of
February 26, 2014.
Furthermore,
a page by page review of the content of Dr. Collins’ 140-pages of medical
records does not present much persuasive proof Plaintiff’s alleged cumulative
trauma injuries, if any, were caused by and/or arose out of Plaintiff’s underground
mining work.
These records
provide little indication Plaintiff’s occasional complaints of back and/or neck
pain were due to work. In fact Dr. Collins’ February 1, 2014 record does not
associate Plaintiff’s problems with work, but specifically notes, “HPI: in for
back pain from arthritis.”
The greater bulk of
Dr. Collins’ records do not mention back or neck pain, but many of his records,
particularly those in the years immediately prior to Plaintiff’s retirement in
2014, do document Plaintiff’s arthritis and associated problems – specifically,
but not limited to, records from February 2004, August 2004, August 2005,
December 2005, June 2012, August 2012, December 2012, April 2013, July 2013,
and February 2014.
Even in his
September 20, 2014 letter Dr. Collins does not make a strong, if any, link
between Plaintiff’s work and his spine problems. Plaintiff may have had
questionable fitness to perform his job duties, but Dr. Collins seems to
attribute Plaintiff's lack of fitness to osteoarthritis and aging.
Not surprisingly,
but seemingly correct, Defendant’s Dr. Snider wrote, “I certainly have not said
that Mr. Combs does not potentially have impairment. I have simply pointed out
that based on the information available to me I cannot identify clear evidence
of ‘cumulative trauma’, beyond what is essentially attributable to age and
other conditions, that warrants impairment.”
Based upon the
above, it is determined Plaintiff has not presented ample persuasive proof of a
link between his work and the cumulative trauma he alleges herein:
consequently, Plaintiff’s claim will be dismissed in its entirety.
Combs filed a petition
for reconsideration essentially requesting the ALJ to revisit the evidence to
make a different determination. On May
20, 2015, the ALJ issued an order denying the petition for reconsideration.
As
the claimant in a workers’ compensation proceeding, Combs
had the burden of proving each of the essential elements of his cause of
action, including causation/work-relatedness. Snawder v. Stice,
576 S.W.2d 276 (Ky. App. 1979). Because Combs was unsuccessful in his
burden, the question on appeal is whether the evidence compels a different
result. Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App.
1984). “Compelling evidence” is defined as evidence that is
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). The function of the Board in reviewing the ALJ’s
decision is limited to a determination of whether the findings made by the ALJ
are so unreasonable based on the evidence they must be reversed as a matter of
law. Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky.
2000).
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 which otherwise could have been drawn from the
record. Whittaker v. Rowland, supra. 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, supra.
Despite Combs’ argument
to the contrary, we find Dr. Snider’s opinion constitutes substantial evidence
supporting the ALJ’s dismissal of the claim, and no contrary result is
compelled. An ALJ is vested with broad
authority to decide questions involving causation. Dravo Lime Co. v. Eakins, 156 S.W. 3d
283 (Ky. 2003). Causation
is a factual issue to be determined within the sound discretion of the ALJ as
fact-finder. Union Underwear Co. v.
Scearce, 896 S.W.2d 7 (Ky. 1995); Hudson v. Owens, 439 S.W. 2d 565
(Ky. 1969).
In
this instance, there were differing medical opinions in the record addressing both
Combs’ condition, and the cause of his complaints. The ALJ, as fact-finder, has
full discretion to determine the physician or physicians upon which he
relies. We acknowledge the differing
medical opinions in the record. However,
if “the physicians in a case genuinely express medically sound, but differing
opinions as to the severity of a claimant's injury, the ALJ has the discretion
to choose which physician's opinion to believe.” Jones v.
Brasch-Barry General Contractors, 189 S.W.3d 149, 153 (Ky. App. 2006).
Although Combs advocates
Dr. Collins’ opinion is most persuasive as the treating physician, nothing in Chapter 342 mandates
greater weight be given to a treating physician’s testimony. Wells v. Morris, 698 S.W.2d 321 (Ky.
App. 1985); Sweeney v. King’s Daughters Medical Center, 260 S.W.3d 829, 830
(Ky. 2008). Where the evidence is
conflicting, the ALJ, as fact-finder, has the discretion to pick and choose
whom and what to believe. Caudill v.
Maloney’s Discount Stores, 560 S.W.2d 15 (Ky. 1977).
Combs’
arguments discrediting the opinion of Dr. Snider go to the weight of the
evidence and do not serve to render his opinions unsubstantial. In this instance, the ALJ found Dr. Snider’s
opinion most persuasive and his opinion constitutes substantial evidence
supporting the ALJ’s determination. Although contrary evidence exists in the record, this does not compel
a different result.
Accordingly, the March 27, 2015, Opinion and Order and the May 20, 2015 order
denying the petition for reconsideration by Hon. Otto Daniel Wolff, IV,
Administrative Law Judge, are hereby AFFIRMED.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON SHERRY BRASHEAR
PO BOX 1626
HARLAN, KY 40831
COUNSEL
FOR RESPONDENT:
HON DENISE DAVIDSON
PO DRAWER 986
HAZARD, KY 41702
ADMINISTRATIVE
LAW JUDGE:
HON OTTO D WOLFF, IV
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601
