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Workers’
Compensation Board
OPINION
ENTERED: April 22, 2016
CLAIM NO. 201393998
ARMSTRONG COAL COMPANY, INC. PETITIONER/CROSS-RESPONDENT
VS. APPEAL FROM HON. JEANIE OWEN MILLER,
ADMINISTRATIVE LAW JUDGE
BRANDON RUSSELL RESPONDENT/CROSS-PETITIONER
HON. JEANIE OWEN MILLER,
ADMINISTRATIVE LAW JUDGE RESPONDENT
OPINION
AFFIRMING
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BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. Armstrong Coal Company, Inc.
(“Armstrong”) appeals from the October 23, 2015 Opinion, Award and Order
rendered by Hon. Jeanie Owen Miller, Administrative Law Judge (“ALJ”). Armstrong argues Brandon Russell (“Russell”) is
not entitled to temporary total disability benefits, and the finding he
suffered a second spinal injury is not supported by substantial evidence. Russell cross-appeals, arguing he is entitled
to enhancement of his award by the three multiplier. For the following reasons, we affirm.
Russell began working as an underground coal miner for Armstrong
in 2009. He briefly left and worked for
another mining company in 2010, but returned to Armstrong in 2012. When he returned in 2012, Russell underwent a
pre-employment physical examination and reported no current medical problems
and no regular medication. He
acknowledged a prior left shoulder injury but denied any current problems.
Russell sustained an injury to his low back on January 2,
2013. He was moving a heavy chain when
he heard a pop in his back and experienced immediate pain. He finished his shift but sought medical care
at the hospital that evening. Russell
was diagnosed with a lumbar strain and taken off work. He was thereafter referred to Dr. Neil
Troffkin, who ordered an MRI and eventually diagnosed an L5-S1 disc
herniation. Dr. Troffkin performed
surgery on March 25, 2013.
Armstrong does not dispute that Russell sustained a work-related
injury on January 2, 2013 which necessitated the March 25, 2013 surgery. However, the parties contest his current
physical condition and whether Russell experienced any post-surgery changes to
his spine. Furthermore, it was
Armstrong’s position that Russell lied at his pre-employment physical
examination, and failed to report chronic shoulder and knee pain for which he
had been prescribed narcotic pain medication by multiple physicians. Armstrong also argued, and submitted evidence
to establish, Russell had violated narcotic pain medication agreements and had
displayed drug seeking behavior with several different physicians.
Armstrong submitted records from Madisonville Multicare on
January 10, 2013, shortly after his work-related injury but before he visited
Dr. Troffkin. Dr. Abraham Galloway,
Russell’s provider at Madisonville Multicare, refused to prescribe Russell
narcotic pain medication for this injury because he had previously violated a
pain management agreement. Prior to his
referral to Dr. Troffkin, Russell was also treated by Connie Skinner, a
nurse. Her notes also indicate Russell
admitted to a “problem” with Lortab and was taking Suboxone to combat his
addiction.
Following surgery, Dr. Troffkin monitored Russell’s
recovery. His records indicated Russell
called several times for refills of his narcotic pain medication. On April 25, 2013, Dr. Troffkin released
Russell to return to work with no restrictions on May 9, 2013. Russell testified his back pain never
completely dissipated after the surgery, though it temporarily ceased radiating
into his legs.
Russell returned to Armstrong at the same position and wage,
however he testified his leg pain returned almost immediately. His low back pain was constant, and worsened
after he returned to work. Dr. Troffkin
examined Russell on May 28, 2013 and again took him off work. A post-surgery MRI revealed no recurrent disc
herniation but possible scar tissue forming.
Dr. Troffkin found no evidence of S1 nerve root displacement. Following a July 9, 2013 examination, Dr.
Troffkin found no explanation for Russell’s ongoing leg pain and believed it
was inconsistent with the MRI findings.
He again released Russell to full duty work on July 11, 2013. He also referred him to a pain management clinic.
In August, 2013, Russell began treating with Dr. Faisal Tawwab
of Owensboro Health Multicare, a pain management clinic. Russell complained of constant and severe
back pain, and insomnia. Dr. Tawwab
noted paraspinal muscle tenderness and tightness, reduced range of motion, and
a sleep disorder. Russell returned on October
22, 2013 and complained he was still having trouble sleeping due to the
pain. Dr. Tawwab prescribed various
medications over the next few months in an attempt to control Russell’s pain,
and also ordered physical therapy. Dr.
Tawwab last treated Russell on June 24, 2014, when he relocated his
practice.
Shortly after he began treating with Dr. Tawwab, on October 4,
2013, Russell moved to a less physically demanding position and his wages were
reduced. He also exhausted all of his
Family Medical Leave Act days and holiday hours taking approximately one day
off each week. He testified he needed
these periodic days off work to “recover”.
Also in October, 2013, Armstrong’s insurer requested an
impairment rating from Dr. Troffkin. His
colleague, Dr. David Weaver, issued a 12% impairment rating based on the
American Medical Association, Guides to the Evaluation of Permanent
Impairment, 5th Edition (“AMA Guides”). He utilized the DRE method of calculating
Russell’s impairment, and opined he had reached maximum medical improvement
(“MMI”).
A month later, on November 22, 2013, Ben Waide, a physical
therapist, also issued an impairment rating following a functional capacity
evaluation. Mr. Waide rated Russell
using the DRE Lumbar Category III method and noted significant signs of
dermatomal pain, but no symptoms in his leg.
He assessed a 10% whole person impairment pursuant to the AMA Guides.
On June 24, 2014, the same day as his last appointment with Dr.
Tawwab, Russell was seen by Dr. Paul Shahidi.
Dr. Shahidi recommended Russell wean from Ambien as a long-term sleep
aid and discussed alternate sleep medications.
Russell was “not interested”. Dr.
Shahidi also refused to prescribe Russell Valium, which he requested.
Also on June 24, 2014, Russell was seen by Dr. Kenneth Hargrove
to establish as a family physician and for medicine refills. Dr. Hargrove noted his current medications
and that Russell reported no history of drug misuse. Dr. Hargrove refused to prescribe Valium,
Percocet, Klonopin or Ambien.
Russell last worked at Armstrong on June 14, 2014. After Dr. Tawwab’s practice was relocated,
Russell established care with Dr. Stephanie Schulz. She first examined Russell on July 15, 2014,
and noted his request for a referral to a pain clinic in Clarksville,
Tennessee. Dr. Schulz ordered another
MRI which revealed some postsurgical changes in the form of a protrusion or
postsurgical disc material. She believed
this stenosis caused Russell’s pain, and he is unable to work. She also renewed Russell’s prescriptions for
Cymbalta, Oxycontin, Mobic, Tizanidine and Diazepam. At a follow up appointment in August, 2014,
she filled prescriptions for Klonopin and Percocet. She ordered him off work, although he had
already ceased working at Armstrong. Dr.
Schulz moved her practice in 2015 and Russell ceased treating with her. He continues to treat with a pain management
physician, Dr. Steven Rupert, who Dr. Schulz had recommended.
Mr. Waide reevaluated Russell on August 13, 2014 and rated him,
this time utilizing the range of motion (“ROM”) method. He reviewed Russell’s treatment and medical
records since the prior exam, and also the 2014 MRI. Mr. Waide opined Russell had a combined 28%
whole person impairment pursuant to the AMA Guides. Dr. Schulz concurred with this rating and
signed it. At a later deposition, Mr.
Waide explained he used the DRE method at his first evaluation because Russell
displayed no symptoms in his left leg, and because he had reviewed the 2014
MRI. He also opined Russell is unable to
perform any significant work due to his physical limitations and ongoing pain,
and because he needs to change positions about every fifteen minutes.
In a narrative report, Dr. Schulz adopted Mr. Waide’s impairment
rating and explained in detail her opinion of Russell’s condition and his
prognosis. She explained her belief that
he suffered post-surgical changes, indicated on the 2014 MRI. She believes the MRI correlates to the ongoing
symptoms he suffers. She also requested
an evaluation by a specialist for consideration of possible surgical
correction. Dr. Schulz explained her
intent to control Russell’s pain until such time as he could be evaluated for
further surgical treatment.
Dr. Mark Barrett performed an independent medical evaluation on
January 7, 2015. He diagnosed chronic
pain, status post L5-S1 herniated disc with recurrent pain after operative
correction. He noted Russell had a
recurrence of his symptoms and post-surgical changes at the same level. He believed the ROM method was appropriate
and assigned a 28% whole person impairment.
He also opined Russell would not be able to return to his pre-injury
position.
In a comprehensive
opinion detailing the lengthy medical records filed in this case, the ALJ
determined Russell suffered a work-related injury. She acknowledged the significant evidence of
Russell’s “drug-seeking” behaviors which accompanied many of his doctor’s
visits. However, the ALJ likewise
believed Russell’s lumbar spine suffered post-surgical changes which caused
significant pain, as explained by Dr. Schulz.
The ALJ chose to rely upon Dr. Schulz’s opinion and her acceptance of
Mr. Waide’s second evaluation and use of the ROM method. Relying on Dr. Schulz and Dr. Barrett, she
assigned a 28% whole person impairment rating.
The ALJ further concluded Russell is able to return to his
pre-injury position, and therefore not entitled to the three multiplier pursuant
to KRS 342.730(1)(c)1. She noted Russell
did in fact return to this position, though he was eventually moved to a lower
paying, less physically demanding job.
However, she also stated that it is difficult to determine whether he
missed days due to his ongoing back pain or his drug dependency. For these reasons, she was unconvinced
Russell is unable to work his pre-injury job due solely to his work injury. Turning
to KRS 342.730(1)(c)2, the ALJ found Russell is entitled to enhanced benefits after
he ceased working on June 24, 2014.
The ALJ also awarded temporary total disability (“TTD”)
benefits. Armstrong voluntarily paid TTD
benefits from February 12, 2013 through May 9, 2013, and again from May 29,
2013 through July 24, 2013. Russell was
again taken off work by Dr. Tawwab on June 25, 2014, and Dr. Schulz took him
off work on July 15, 2014. Dr. Barrett
placed him at MMI on January 7, 2015.
Based on this evidence, the ALJ awarded TTD benefits from July 15, 2014
through January 7, 2015.
Neither party petitioned for reconsideration. On appeal, Armstrong first argues the ALJ
erred in awarding TTD benefits from June 24, 2014 through January 7, 2015. The ALJ relied on Dr. Shulz’s impairment
rating which was based on Mr. Waide’s August 13, 2014 evaluation. Because an impairment rating may only be
assessed once a claimant has reached MMI, Armstrong reasons the ALJ was not
permitted to specifically adopt Dr. Barrett’s MMI date of January 7, 2015.
Armstrong is correct that the AMA Guides state an
impairment rating should not be assessed unless the claimant is at MMI. However, Armstrong fails to acknowledge the
ALJ stated her reliance on Dr. Barrett as well as Dr. Schulz, both of whom
assessed a 28% impairment rating: “I find Dr. Schulz’s and Dr. Barrett’s
opinions more accurately reflect the Plaintiff’s residual condition and
impairment under the AMA Guides and is therefore more persuasive.” The ALJ then turned more specifically to the
issue of MMI:
Plaintiff
was taken off from work by Dr. Tawwab on June 25, 2014 until he could see a
neurosurgeon for the work injury. Dr.
Tawwab left the practice and Plaintiff began treating with Dr. Schulz. Dr. Schulz also took Plaintiff off from work
on July 15, 2014 until he could see a surgeon for the work injury. She was trying to refer him to Dr. Burkett,
an orthopedic surgeon. Dr. Schulz’s Form
113 [sic] and it was signed by the workers’ compensation carrier’s adjustor,
Ms. Baker.
Ultimately,
the Plaintiff’s attorney moved for bifurcation on the issues of payment of TTD
benefits and medical treatment on October 23, 2014. The motion was based
primarily on the narrative report of Dr. Schulz. The Defendant/employer
objected and pointed to the fact that Mr. Waide had previously opined Plaintiff
had reached MMI and [] even though Dr. Schulz had been designated as
Plaintiff’s 113 doctor, she had not provided a medical treatment plan.
The
Defendant/employer, however, did not provide any medical evidence to counter
Dr. Schulz’s narrative report. Even though
Mr. Waide had rated Plaintiff under the AMA Guides, that does not rise
to the level of medical evidence that would counter Dr. Schulz’s specific and
detailed report. Dr. Schulz concluded that Plaintiff was not able to work and
needed to see a surgeon. I rely on Dr.
Schulz opinion and medical conclusions and find that Plaintiff was entitled to
TTD from July 15, 2014 until Dr. Barrett placed him at MMI on January 7, 2015.
We find no error in the ALJ’s adoption of Dr. Barrett’s date of
MMI. She further explained why she lent
more credence to Dr. Schulz’s narrative report, which explained her belief that
Russell needed further evaluation by a specialist to consider surgical
intervention or other treatment. In this
regard, the ALJ essentially determined Mr. Waide’s report conflicts with Dr.
Schulz’s written narrative, to which she afforded more credence.
More importantly, the ALJ relied on the impairment rating of
both Dr. Barrett and Dr. Schulz.
Therefore, even if the ALJ erred in relying on Dr. Schulz’s impairment
rating, Dr. Barrett’s report alone constitutes the requisite substantial
evidence to support the impairment rating as well as the date Russell attained
MMI. There was no error.
Armstrong next argues
there is insufficient evidence to support the finding Russell suffered a second
injury at the same spinal level. It
further asserts, because there was no evidence of a second injury, the ALJ erred
in relying upon an impairment method assessed using the ROM method. It then claims, even if the post-surgical
changes do constitute a new injury, this new injury was not causing Russell’s
symptoms, as Drs. Troffkin and Weaver assert.
We believe this argument is essentially a request to determine
the opinions of Drs. Troffkin and Weaver are more reliable because they are
neurological specialists. Chapter 342
does not require an ALJ to lend more credibility to the opinion of specialists
or treating physicians. Moreover, we
have no authority to reweigh the evidence or invade the ALJ’s discretion in
this manner. Whittaker v. Rowland, 998 S.W.2d 479, 481 (Ky.
1999).
Furthermore, the AMA Guides permit the use of the ROM
method when there is injury in the same spinal region. There is evidence from Russell, the 2013 MRI
and from Dr. Schulz that he was suffering a recurrence of injury and
symptoms. Mr. Waide testified he used
the ROM method due to recurrent injury in the same spinal region, and Dr.
Schulz adopted his report.
The record contained differing impairment ratings assessed using
different methods. The ALJ enjoys the
discretion to choose which evidence is most credible. Square D Co. v. Tipton,
862 S.W.2d 308 (Ky. 1993). Given
Drs. Schulz and Barrett’s opinions, supported by Russell’s description of his
symptom progression after surgery, the ALJ was well-within her discretion to
rely upon the impairment rating assessed using the ROM method.
On cross-appeal, Russell argues the evidence compels a
determination his award should be enhanced by the three multiplier. He further claims the ALJ exceeded the scope
of her authority in offering a medical opinion unsupported by the evidence when
she cited Russell’s drug-seeking behavior.
The ALJ provided the following analysis concerning an award of enhanced
benefits pursuant to KRS 342.730 (1)(c):
In
determining whether the Plaintiff, as a result of the January 2, 2013,
work-related injury, is entitled to any statutory enhancement per KRS
342.730(1)(c), also commonly known as the “multipliers”, the following analysis
was made. Under KRS 342.730(1)(c)(1), an
injured employee who lacks the physical capacity to return to the work
performed on the date of the injury may receive a triple income benefit, while
KRS 342.730(1)(c)(2) encourages those who retain the physical capacity to
return to the same type of work and earn the same or greater wage to receive a
double income benefit during any period of time that employment at that wage
level ceases. If both sections of KRS
342.732(1)(c) are applicable, an Administrative Law Judge is required to make a
further determination.
Although
there is evidence from Dr. Schulz and Dr. Barrett that Plaintiff lacks the capacity
to return to the same type of job he performed at the time of the injury, I
find that he did return to that same job until he was placed in a lower paying
job where he worked for almost a year before being terminated. It is difficult for a legal fact-finder to
determine whether Plaintiff was missing work because of his drug dependency or
because of the pain from his work injury.
The two are obviously intertwined. Because there is not sufficient
medical evidence to persuade the undersigned that Plaintiff lacked the physical
capacity to return to his regular work due to the effects of his work injury,
I find that he is not entitled to the 3 multiplier.
KRS
342.730(1)(c)2, pertaining to application of the two multiplier, states as
follows:
If an employee returns to work at a weekly wage
equal to or greater than the average weekly wage at the time of injury, the
weekly benefit for permanent partial disability shall be determined under
paragraph (b) of this subsection for each week during which that employment is
sustained. During any period of cessation of that employment, temporary or
permanent, for any reason, with or without cause, payment of weekly benefits
for permanent partial disability during the period of cessation shall be two
(2) times the amount otherwise payable under paragraph (b) of this subsection.
This provision shall not be construed so as to extend the duration of payments.
Plaintiff
does meet the requirements of the two multiplier. He returned to work earning
the same or greater wage. Based upon KRS 342.730(1)(c)(2) Plaintiff would be
entitled to the 2 multiplier when he ceased working on June 24, 2014. It is
undisputed that Plaintiff returned to employment during the pendency of his
claim at a weekly wage equal to or greater than the average weekly wage earned
at the time of his work-related injury.
Russell did not file a petition for reconsideration. Therefore, the ALJ’s findings of fact are
conclusive and binding, and our review is limited to a determination as to
whether the ALJ’s conclusions are supported by substantial evidence. KRS 342.285(1). The ALJ determined the evidence did not
support application of the three multiplier.
She acknowledged the opinions of Drs. Schulz and Barrett, who believed
Russell lacked the physical capacity to return to his pre-injury position. However, she weighed these opinions against
the fact Russell initially returned to his pre-injury position, then to a
lower-paying position for nearly a year.
The ALJ also considered the fact Russell took numerous days off during
this period, though she was unable to discern if he missed work due to his pain
or drug use.
Russell argues the ALJ was compelled to accept the opinions of
Drs. Schulz and Barrett, as well as Mr. Waide.
This is not so. As fact-finder,
the ALJ enjoys the discretion to weigh the evidence and determine the
credibility to be afforded each opinion. Miller v.
East Kentucky Beverage/Pepsico, Inc., 951
S.W.2d 329 (Ky. 1997).
Furthermore, even if we assume arguendo
the medical opinions of Drs. Schulz and Barrett were unrebutted, as Russell
asserts, the ALJ is not obliged to accept them.
In addition, we find no error in the ALJ’s consideration of the
evidence of Russell’s drug-seeking behavior, which she thoroughly
summarized. Russell posits the ALJ made
a medical determination in concluding it is difficult to determine if he missed
work due to his pain or his drug use. We
disagree this is a medical determination.
During the period Russell missed days of work, he had not been taken off
work by a physician. Thus, only Russell
testified he missed those days due to physical pain. As fact-finder, she is not obligated to
accept this testimony. Furthermore, the
ALJ was entitled to consider the evidence of drug-seeking behavior during this
same period. The ALJ was not convinced
Russell missed work solely due to his physical pain. It was reasonable for her to consider the
totality of the evidence concerning this period of Russell’s return to work,
and to reject his testimony. Magic
Coal Co. v. Fox, 19 S.W.3d 88 (Ky. 2000).
We find no error.
Accordingly, for the foregoing reasons, the October 23, 2015
Opinion, Award and Order rendered by Hon. Jeanie Owen Miller, Administrative
Law Judge, is hereby AFFIRMED.
ALL
CONCUR.
COUNSEL
FOR PETITIONER:
HON WILL E MESSER
300 EAST MAIN ST, STE 360
LEXINGTON, KY 40507
COUNSEL
FOR RESPONDENT:
HON ERIC WEINER
1387 S FOURTH ST
LOUISVILLE, KY 40208
ADMINISTRATIVE
LAW JUDGE:
HON JEANIE OWEN MILLER
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601
