Workers’
Compensation Board
OPINION
ENTERED: July 1, 2016
CLAIM NO. 201500018
HEATHER TRIPLETT PETITIONER
VS. APPEAL FROM HON. CHRIS DAVIS,
ADMINISTRATIVE LAW JUDGE
HOSPICE OF THE BLUEGRASS
HON. CHRIS DAVIS,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
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* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. Heather Triplett (“Triplett”) appeals from the
February 19, 2016 Opinion and Order rendered by Hon. Chris Davis,
Administrative Law Judge (“ALJ”) dismissing her claim against Hospice of the
Bluegrass (“Hospice”) in its entirety.
On appeal, Triplett argues the evidence establishes she had a worsening
of her condition and an increase in her impairment rating as a result of an
acute work injury entitling her to an award.
Because the ALJ’s determination is supported by substantial evidence, we
affirm.
Triplett testified by deposition on
May 19, 2015, and at the hearing held January 19, 2016. She was hired as a nurse by Hospice in August
2014 to provide in-home medical care including taking vital signs, dispensing
medication and moving patients. Triplett
testified she and three others were moving a patient from a bed to a stretcher
on August 28, 2014. She had “no signs
and symptoms at all” that day. However,
she woke in excruciating low back pain the next day and had difficulty
walking.
Triplett reported to work and gave
notice of her injury, then sought treatment at Quantum Healthcare. She followed up with Dr. Scott Akers, who
administered a steroid injection. She
was then referred to Dr. Leon Briggs, a neurosurgeon, for a consultation. Triplett was off work from Hospice for six or
seven weeks, and was then terminated because of her restrictions.
Triplett acknowledged she had
previously injured her back in a non-work-related slip and fall in a department
store in 2012. She settled a claim for
$72,500.00 in connection with that accident.
She testified her pain related to that injury had “subsided
tremendously” prior to the injury at Hospice.
Though she experienced pain prior to the work injury, her symptoms had
decreased three to four months prior to the work injury.
Dr. Briggs’ records indicate, on
August 23, 2012, Triplett complained of lower back pain, right greater than
left, radiating down her right leg to the knee.
She attributed her complaints to the slip and fall accident. He diagnosed sacroiliitis
and administered a series of sacroiliac joint injections.
Triplett returned on October 13, 2014,
reporting a history of an acute episode of low back pain in September 2014
while moving a patient. Dr. Briggs noted
Triplett improved following the injections in 2012, and was able to work and
function normally. On examination, Triplett
had decreased joint mobility with pain at L4-5, L5-S1, and bilateral sacroiliac
joints. Dr. Briggs diagnosed sacroiliitis and lumbar radicular pain, and ordered an
MRI.
Triplett filed the report of Dr. Bruce
R. Guberman who performed an independent medical
evaluation (“IME”) on October 20, 2014. He diagnosed chronic post-traumatic
strain of the lumbar spine. He assigned
an 8% impairment rating pursuant to the American Medical Association, Guides
to the Evaluation of Permanent Impairment, 5th Edition (“AMA Guides”). He attributed 5% of the impairment rating to
the prior slip and fall injury, and 3% impairment rating to the work injury.
Hospice filed medical records of
Physical Therapy Services documenting treatment on eighteen occasions between
October 12, 2012 and December 5, 2013.
At her last visit, Triplett reported overall improvement with regard to
pain and soreness, but she continued to have episodes of increased pain at the
low back and hip with no specific acts or motions. She also continued to note a numb/tingling
feeling at the buttocks with various movements.
Triplett was noted to be at maximum medical improvement with pain and
decreased strength limiting her functional activities and decreased range of
motion preventing full functional activity.
She was discharged with a home exercise program.
Hospice also submitted the report of
Dr. John Vaughan who performed an IME on June 17, 2014. On physical examination, Triplett had full
range of motion and negative straight leg raising tests. Dr. Vaughan diagnosed lumbar strain and
lumbar spondylosis. Noting the degenerative
changes were present on MRI in 2012, he concluded the work injury did not cause
her current complaints. He further cited
the fact her chronic back pain that was active and in need of treatment prior
to the work injury. Any pain, need for
treatment, impairment rating, or need for restrictions pre-existed the work
injury. Dr. Vaughan stated there was no
objective evidence the 2014 injury resulted in a harmful change to the human
organism.
After noting evidence from Dr. Guberman could support an award, the ALJ made the following
findings:
The symptoms experienced by
the Plaintiff post-date of injury are nearly identical with those experienced
pre-date of injury. Only a slightly
vague allegation of a worsening of those symptoms is made.
It is even clear, based on
the 5% pre-date of injury and the total 8% post-date of injury, that Dr. Guberman is saying that it is essentially the same
condition, but only that the symptoms worsened.
This is true because both pre- and post-date of injury the Plaintiff,
according to Dr. Guberman, was in DRE Category II.
Notes from Dr. Briggs in
October, 2014 do refer to the then current reason for the office visit as low
back pain from moving a patient on a stretcher.
However I am unable to discern how any exam finding for the Plaintiff
differed from her pre-date of injury findings.
It also appears as if the pre-date of injury medical treatment by Dr.
Briggs was actually more consistent and in-depth than the post-date of injury
treatment.
Conversely Dr. Vaughan has
noted that the Plaintiff’s underlying condition, which he does not dispute
exists, is not work-related. He states
her pre- and post-date of injury conditions are unchanged.
In reliance on Dr. Vaughan
and the foregoing analysis the Plaintiff’s claim is dismissed, in its entirety,
for failure to prove any work-related injury or condition sufficient to make an
award of any medical or income benefits, whether temporary to [sic] permanent.
Triplett did not file a petition for reconsideration. On
appeal, she argues the evidence establishes she had an acute injury and a
worsening of her condition as a result of the lifting incident with
Hospice. She further contends the ALJ
failed to take into account her testimony and Dr. Briggs’ records, which indicate
her condition following the 2012 injury had greatly
improved prior to the injury at Hospice.
Triplett bore
the burden of proving each of the essential elements of her cause of
action. Snawder v. Stice, 576 S.W.2d 276 (Ky.
App. 1979). Because she was unsuccessful in that 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 so overwhelming that 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).
The record contains
substantial evidence supporting the ALJ’s dismissal of the claim. Dr. Vaughan opined the underlying condition
was not work-related and her condition was unchanged following the alleged work
incident. He stated her prior back
condition was active and any pain, need for treatment, impairment rating, or
need for restrictions pre-existed the work injury. Further, he stated there is no objective
evidence her work produced a harmful change to the human organism because the
degenerative changes in her spine were present in the 2012 MRI.
Triplett’s arguments are essentially
an attempt to have this Board re-weigh the evidence and substitute our opinion
for that of the ALJ. We are without
authority to do so. Whittaker v. Rowland, 998
S.W.2d 479 (Ky. 1999). It was the
ALJ’s prerogative to rely upon Dr. Vaughan’s opinion. Triplett merely identifies conflicting
evidence supporting a different outcome, which is not an adequate basis to
reverse on appeal. It cannot be said the
ALJ’s conclusions are so unreasonable as to compel a different result. Ira A. Watson Department
Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000).
Accordingly , the February 19, 2016 Opinion and Order
rendered by Hon. Chris Davis, Administrative Law Judge, is hereby AFFIRMED.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON PATRICK E O’NEILL
1029 COLLEGE AVE #101
JACKSON, KY 41339
COUNSEL
FOR RESPONDENT:
HON GREGORY LITTLE
1510 NEWTOWN PIKE #220
LEXINGTON, KY 40511
ADMINISTRATIVE
LAW JUDGE:
HON CHRIS DAVIS
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601