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Workers’
Compensation Board
OPINION
ENTERED: January 21, 2016
CLAIM NO. 201499743
CHARLETTA RICHARDSON PETITIONER
VS. APPEAL FROM HON. WILLIAM J. RUDLOFF,
ADMINISTRATIVE LAW JUDGE
ADP, INC.
HON. WILLIAM J. RUDLOFF,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
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BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. Charletta Richardson (“Richardson”) appeals
from the August 6, 2015 Opinion, Order and Award and the September 8, 2015
Opinion and Order on Reconsideration rendered by Hon. William J. Rudloff, Administrative Law Judge (“ALJ”). The ALJ dismissed Richardson’s claim after
determining she did not sustain a work-related injury. Richardson argues the ALJ erred in failing to
find a work-related injury, and in relying on the opinion of Dr. John Guarnaschelli regarding causation. We affirm.
Richardson
filed her claim on October 31, 2014, alleging she sustained injuries to her
neck, low back, thoracic spine and upper extremities on November 6, 2012 when
she tripped on steps and caught herself on the side rail.
Richardson
testified by deposition on January 23, 2015 and at the hearing held July 28,
2015. She was employed by ADP, Inc. as a
claims processor. She testified she was
injured on November 6, 2012 when she slipped climbing stairs. She grabbed the handrail and her body jerked
forward and back. She heard a pop and
experienced immediate back, neck and left arm pain. Richardson was taken by ambulance to Baptist
East Hospital. She could not recall if
she told anyone at the emergency room that she had a work injury. Emergency room personnel told her they would
“put it down as workers’ comp” because she was brought from work in an
ambulance.
Richardson
was off work for six months and received short term disability benefits during
that time. She applied for long term
disability benefits but her application was denied. Richardson returned to work in April 2013,
working four hours per day. She
eventually returned to work full time performing her regular job duties. Her medical expenses were paid through her
health insurance. A year after the
incident, human resources contacted her and told her to report a work
injury.
Richardson
acknowledged a prior non-work-related low back injury as a result of a slip and
fall on ice while she was getting into her car on February 12, 2010. Her low back pain completely resolved after
physical therapy and home exercises. She
denied experiencing neck pain as a result of that fall. Richardson could not recall giving any health
care provider a history of cervical or thoracic complaints, nor could she
recall having x-rays or a cervical MRI.
She could not recall that physical therapy and her treatment with Dr.
Henderson was for cervical and thoracic complaints, indicating she only
remembered the treatment was for her low back.
Richardson stated she was not taking medications, nor was she missing
work because of neck pain, prior to the November 6, 2012 incident.
Danielle
Higdon, ADP’s Director of Government Services, testified by deposition on
January 30, 2015. She supervises a
number of managers, including Richardson’s manager. On November 6, 2012, a team member informed
her Richardson “was stuck in the stairwell” and that her back injury had flared
up. Higdon went to the stairs and
briefly spoke to Richardson. Richardson
never reported a work injury to Higdon.
Higdon was aware that Richardson sustained a back injury in a fall on
ice. Higdon believed Richardson’s back
pain in 2012 was related to her prior injury.
Patti
Jo Carrico, manager of operations for ADP, testified
by deposition on January 30, 2015. She
was Richardson’s manager at the time of the 2012 incident. The incident occurred before she arrived at
work. Carrico
was aware of Richardson’s prior injury from the fall on ice. Richardson took medicine for her back prior
to the 2012 incident. Carrico confirmed that Richardson returned to work with
accommodations in April 2013. Carrico was questioned regarding her knowledge of the
work-relatedness of Richardson’s condition as follows:
Q.
Okay. After Ms. Richardson
returned to work in April of 2013, did you have any conversations with her
regarding the November 6, 2012 incident?
A.
Yes.
Q.
What was the context of that conversation?
A.
She came back to my desk, and she said she was getting information from
the hospital that her claim – she had claimed that it was a workers’ comp
injury, and she said she never told them in the emergency room when she was
there that it was workman’s comp related.
She didn’t know why they kept saying it was workman’s comp because it
wasn’t.
Q.
And what did you tell her?
A. I
just – I don’t remember what I told her.
I mean, that’s what she told me.
Later, we had a conversation and she said it was workers’ comp, and I
said, “You told me that it wasn’t workers’ comp,” and she said, “I never said
that.”
Carrico was aware that Richardson’s
condition was symptomatic prior to the alleged work injury because Richardson
would discuss her back pain and kept medication on her desk.
The
November 6, 2012 records from Baptist East Hospital indicate Richardson was
seen for complaints of mid and low thoracic pain with radiation to the low
back. Notations in the record state:
“Patient notes an injury. Mechanism of
injury – she fell while walking. Occurred at work.
Patient denies injury to head or chest.
Thoracic and lumbosacral x-rays were negative.” Richardson was diagnosed with acute back
pain; thoracic strain.
Dr.
R. Kirk Owens, II, treated Richardson on December 4, 2013. He noted the reason for the visit as back
pain “upper back X’s 4 years after fall in 2009, worse since November 2012,
left arm pain and numbness and tingling of the left arm and pinky.” Dr. Owens recorded a history of upper
thoracic back pain and radiation into the left arm and small finger, which
started after a slip and fall on ice in 2009.
Dr. Owens’ impression was cervical radiculopathy.
Dr.
Nanine Henderson treated Richardson from September 25, 2009 through October 3,
2012. On January 4, 2011, Richardson was
seen for follow-up after a December 31, 2010 emergency room visit for radiating
mid-back pain. She was diagnosed with a
cervical spine sprain/strain, and received regular treatment for cervical and
thoracic complaints throughout 2011.
Dr.
Guarnaschelli, a neurosurgeon, evaluated Richardson
on October 9, 2013 at Dr. Henderson’s request.
He noted a history of back pain for three years, left arm pain, and
numbness and tingling in the left pinky finger.
According to Dr. Guarnaschelli’s notes,
Richardson had considered breast reduction surgery, and had undergone physical
therapy and pain management. Dr. Guarnaschelli diagnosed degenerative disc disease and
opined Richardson has a chronic pain syndrome with mid axial pain mid-back
primarily, and low back and upper neck and shoulder pain following a slip and fall on ice over three
years prior. The neurological exam
failed to reveal any signs suggesting a true radiculopathy or myelopathy.
Richardson
filed the December 2, 2014 report of Dr. Jules Barefoot who performed an
independent medical examination (“IME”).
Dr. Barefoot reviewed extensive medical records for treatment received
after the 2012 injury. He diagnosed
cervical radiculitis with non-verifiable radicular complaints. He placed Richardson in DRE cervical category
II and assigned an 8% impairment rating pursuant to the American Medical
Association, Guides to the Evaluation of Permanent Impairment, 5th
Edition (“AMA Guides”), which he attributed solely to the November 6,
2012 work incident.
ADP
filed the report of Dr. Ellen Ballard who conducted an IME on February 19, 2015. Dr. Ballard’s impression was a history of
reported neck, left arm, and upper back pain complaints. Dr. Ballard felt Richardson possibly had a
mild strain as an initial injury, and opined Richardson’s current complaints
cannot be related to the alleged work event on November 6, 2012. There were no objective medical findings to
support an impairment rating attributable to the alleged work event on November
6, 2012. In Dr. Ballard’s opinion,
Richardson would have reached maximum medical improvement within three months
of her reported problem and retains the physical capacity to return to the work
she performed at the time of the work incident.
Dr.
Ballard further stated Richardson had a pre-existing condition that “is
somewhat described by Dr. Guarnaschelli” with a
history of a slip and fall three years before and a fall on ice in 2010. Dr. Ballard noted Richardson previously
sought approval for breast reduction surgery, which is considered medically
appropriate for individuals whose large breasts cause neck, shoulder, and back
pain. Dr. Ballard felt it would be
difficult to assign an impairment rating related to the 2012 incident unless
there was absolutely no evidence she ever had any cervical spine complaints
before the incident. At most, Richardson
could qualify for a 5% impairment rating pursuant to the AMA Guides. Dr. Ballard opined Dr. Barefoot’s
recommendations and conclusions would not be considered valid because he did
not have a full history of Richardson’s prior medical issues.
After
noting the definitions of injury in KRS 342.0011(1) and objective medical
findings in KRS 342.0011(33), and noting Richardson bore the burden of proof on
every element of the claim, the ALJ found as follows:
I
make the determination that the medical records of Dr. John Guarnaschelli,
a renowned neurosurgeon, as covered above, are very persuasive, compelling and
reliable. I also make the determination
that the comprehensive medical report from Dr. Ellen Ballard, the examining
physician, is very persuasive, compelling and reliable. The medical evidence from Dr. Ballard is
covered in detail above.
Based
upon the sworn testimony of the plaintiff Ms. Richardson, as covered above, and
the persuasive, compelling and reliable medical evidence from Dr. Guarnaschelli, as covered above, as well as the persuasive,
compelling and reliable medical evidence from Dr. Ballard, as covered above, I
make the determination that the plaintiff Ms. Richardson did not sustain
work-related injuries to her neck, low back, thoracic spine and upper
extremities as a result of her alleged work event on November 6, 2012.
For
all of the above reasons, the credible and convincing weight of the evidence in
this case is against the plaintiff Ms. Richardson on the threshold issues of
injury as defined by the Act and work-relatedness/causation, which compels a
dismissal of her claim for the injuries alleged in her Form 101. The plaintiff is, therefore, not entitled to
recover workers’ compensation benefits for either medical benefits or income
benefits.
Richardson
filed a petition for reconsideration requesting additional findings regarding
the reports of Drs. Ballard and Guarnaschelli,
temporary total disability, permanent partial disability and other issues. Richardson argued she sustained an
unexplained workplace fall and is entitled to a presumption of work-relatedness.
The
ALJ issued his Opinion and Order on Reconsideration on September 8, 2015,
denying Richardson’s petition for reconsideration. He again stressed Richardson’s history of
back pain, and his reliance on the opinions of Drs. Guarnaschelli
and Ballard. The ALJ also makes a
specific determination that Richardson did not fall in the stairwell, but
rather “slipped and grabbed a rail”. He
again found the alleged work accident did not cause work-related injuries to
her neck, low back, thoracic spine and/or upper extremities.
On
appeal, Richardson argues the ALJ erred in failing to find she sustained an
injury as defined by the Act. She
contends the overwhelming evidence shows a work-related accident occurred and
she sustained an injury, noting the fact an ambulance was called and the
treatment at Baptist East Hospital.
Richardson contends Ms. Higdon’s testimony corroborates her version of
events. She also asserts she is entitled
to a rebuttable presumption of a work-related injury, as the incident occurred
on work premises and was otherwise not explained.
As the claimant in a workers’
compensation case, Richardson bore the burden of proving each of
the essential elements of her cause of action, including work-relatedness/causation. Snawder v. Stice, 576 S.W.2d 276 (Ky.
App. 1979). Because she 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) superseded by statute on other grounds as stated in Haddock
v. Hopkinsville Coating Corp., 62 S.W.3d 387 (Ky. 2001).
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). An
ALJ is vested with broad authority to decide questions involving causation. Dravo
Lime Co. v. Eakins, 156 S.W. 3d 283 (Ky. 2003). 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). 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, 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).
The mere fact Richardson experienced symptoms
at work does not mean that her symptoms were caused by the work, nor does it
compel a finding that she sustained a work-related injury. In this instance, there were differing medical
opinions in the record addressing the cause of Richardson’s conditions. Dr. Ballard’s opinions
constitute substantial evidence supporting the ALJ’s determination Richardson’s
conditions are not casually related to her work activities at ADP, and no
contrary result is compelled. Dr.
Ballard reviewed all pertinent medical records, and disagreed with Dr. Barefoot’s opinion.
She felt Richardson had pain from a pre-existing non-work-related
injury. She also opined Richardson’s
work event with ADP “was not such that there is any testing that could indicate
that her tests show anything new.” Her
opinion is substantial evidence to support a conclusion the event did not
produce a harmful change.
Although Dr. Barefoot
opined the work incident produced an injury, he apparently reviewed only
medical evidence for treatment following the alleged work injury. Dr. Ballard indicated his opinion was not
valid due to an incomplete medical history.
Richardson provided Dr. Barefoot a history of treatment for her low back
after the fall on ice with resolution of her problems related to that
incident. The incomplete history and Dr.
Ballard’s critique are sufficient bases for the ALJ to reject Dr. Barefoot’s opinion regarding causation.
Richardson
also argues the ALJ erred in relying on Dr. Guarnaschelli’s
records. Richardson contends the note
from the office visit was not an expert medical opinion directed specifically
to this claim. She further asserts Dr. Guarnaschelli did not have a correct medical history and
did not have an opportunity to review all of the medical records in the
claim.
Richardson’s argument on appeal
regarding Dr. Guarnaschelli’s note is essentially an
attempt to have the Board revisit the ALJ’s assessment of the appropriate
weight to be given that evidence. We may
not do so. The ALJ was well within his
authority in finding Dr. Guarnaschelli’s note
persuasive. Dr. Guarnaschelli
reviewed prior and current MRI scans, and received a history of the slip and
fall on ice. He noted “She denies other
trauma injuries.” He attributed her
complaints to chronic pain syndrome following a slip and fall three years
earlier.
The evidence falls far short of compelling a finding Richardson’s
conditions are causally related to her employment with ADP. Because Richardson failed to meet her burden
of proof on this threshold issue, the ALJ properly dismissed
the claim.
Accordingly, the August 6, 2015 Opinion and Order and the September 8,
2015 Opinion and Order on Reconsideration rendered by Hon. William J. Rudloff, Administrative Law Judge are hereby AFFIRMED.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON JOHN SPIES
420 W LIBERTY STREET
SUITE 260
LOUISVILLE, KY 40202
COUNSEL
FOR RESPONDENT:
HON AIDA BABAHMETOVIC
333 GUTHRIE GREEN #203
LOUISVILLE, KY 40202
ADMINISTRATIVE
LAW JUDGE:
HON WILLIAM J. RUDLOFF
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601
