*/
Workers’
Compensation Board
OPINION
ENTERED: September 2, 2016
CLAIM NO. 201501142 & 201501141
MICHAEL LEWIS JOSEPH PETITIONER
VS. APPEAL FROM HON. DOUGLAS
W. GOTT,
ADMINISTRATIVE LAW JUDGE
CUMBERLAND RIVER COAL COMPANY and
HON. DOUGLAS W. GOTT,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
ALVEY,
Chairman.
Michael Lewis Joseph (“Joseph”)
appeals from the Opinion, Award and Order rendered April 28, 2016 by Hon.
Douglas W. Gott, Administrative Law Judge (“ALJ”) finding he sustained
cumulative trauma injuries to his cervical and lumbar spine, but dismissing his
claims for injuries to his knees and left upper extremity. Joseph also appeals from the May 20, 2016
Order denying his petition for reconsideration.
On
appeal, Joseph argues the ALJ erred in relying upon Dr. David Muffly’s opinion
in finding no left knee impairment, and no impairment due to left carpal tunnel
syndrome or ulnar neuropathy. Joseph
also argues the evidence compels a finding he is entitled to the application of
the three multiplier pursuant to KRS 342.730(1)(c)1. Because the ALJ’s decision is supported by
substantial evidence and a contrary result is not compelled, we affirm.
Joseph
filed a Form 101 on July 23, 2015, claiming cumulative trauma injuries to his
“cervical and lumbar spines, bilateral knees and upper extremities (due to
carpal tunnel syndrome and ulnar neuropathy)” caused by his repetitive work
with Cumberland River Coal Company (“Cumberland River”). He listed the date of injury as July 21,
2014, the same day he was laid off.
Joseph also filed a Form 103 occupational hearing loss claim for which
he was awarded only medical benefits. We
will not further discuss the hearing loss claim since it is not subject of this
appeal.
Joseph
testified by deposition on November 17, 2015, and at the hearing held March 4,
2016. At the time of the hearing, Joseph
was sixty years old. He attended college
for two years without obtaining a degree.
Joseph holds a foreman certificate, MET certificate, instructor
certificate and an electrical card.
Joseph has worked in underground coal mining for approximately
thirty-eight years. During this time, he
operated a roof bolter and scoop, and sat spades. He also worked as a safety inspector or
manager for several coal companies.
Joseph began working at Cumberland River in April 2010 as a working
supervisor. He was laid off on July 21,
2014 when the mine closed.
Joseph
worked twelve hour shifts during which he prepared reports, met with the
foreman, and conducted safety meetings. He
also traveled underground with inspectors.
He sometimes used a buggy or mantrip, but was also required to walk and
crawl. When there were no inspectors,
Joseph helped his co-workers underground.
He set jacks, beams, and timber.
He also built cribs, spliced belts and helped shovel. He testified that in the last two years of his
employment, his crew became increasingly short-handed. As a result, Joseph engaged in more physical
labor. Joseph frequently loaded and hauled
equipment left behind in closed mines.
Joseph estimated he lifted up to one hundred pounds daily, and worked in
coal heights ranging from thirty-eight to forty-four inches. Joseph was required to bend at the waist,
kneel, crawl and duck walk. He
constantly used his upper extremities.
Joseph estimated he spent half of his twelve hour shift performing
physical labor.
Joseph
testified he worked every day until the mine closed, and typically worked sixty
to seventy-two hours a week, despite his pain.
Joseph was not actively treating for any health problems at the time he
was laid off, and did not miss any work due to health conditions.
Joseph
testified he had experienced intermittent neck pain for many years. Once he started working for Cumberland River,
he experienced neck pain radiating into his left arm, as well as numbness and
tingling, and sought treatment in November 2010 with his family physician. His symptoms returned in 2012, but Joseph did
not seek medical treatment until after he was laid off in August 2014.
Joseph’s
low back pain started “many years ago,” prior to his employment with Cumberland
River. In 2012, his low back pain
worsened and began radiating primarily into his left lower extremity. He also experienced numbness in his left
foot. He has recently been prescribed a
cane due to his left lower extremity problems by his family physician, Dr. Van
Breeding.
Joseph’s
left hand began bothering him in 2010 and his right hand in 2012. Joseph indicated his left hand symptoms are
worse than his right. By 2012, he was
experiencing loss of strength, inability to grip, and numbness and tingling in
the fingers in both hands. Joseph
constantly experiences a stinging pain in his left elbow.
Joseph estimated his
bilateral knee symptoms began in 2000.
He experiences pain, popping and swelling. His left knee is worse than his right. Joseph did not seek treatment for his low
back, knees, or upper extremities until after he was laid off.
After
the layoff, Joseph was paid his full salary for sixty days. Thereafter, he drew unemployment benefits
until February 2015. At his deposition,
Joseph indicated he looked for other coal mining work until February 2015, but
no one was hiring. When asked if he had
thought he would be able to go back to coal mining work, if available, up until
February 2015, Joseph responded, “I wasn’t sure if I would be able to or
not.” At that time, Joseph stated he had
decided he was unable to return to work and applied for Social Security
disability benefits. At the hearing,
Joseph stated he was offered a safety inspector job with a different coal company,
but turned it down because he did not believe he could physically perform the
job. Joseph does not believe he can
return to any of his previous jobs due to his physical limitations. Joseph testified Dr. Muffly only utilized a
reflex hammer during his examination. He
also disagreed with Dr. Muffly’s statement his job involved only ten percent
labor.
Both
parties filed the records of Dr. Marlene Bielecki and Dr. Breeding who are
physicians at Mountain Comprehensive Health Corporation (“MCHC”). In November 2010, Joseph reported left
shoulder and arm pain, with occasional numbness and tingling. Dr. Bielecki ordered a cervical MRI, which
demonstrated small disc herniation centrally at C3-4 and C5-6, as well as
degenerative changes. No additional
treatment was rendered subsequent to the November 2010 MRI.
Joseph
returned to MCHC on July 29, 2014 complaining of low back pain radiating into
his hips for the past three years. He
also reported neck pain of four years duration radiating into his left arm, along
with numbness and tingling. Dr. Bielecki
ordered x-rays, prescribed medication, and recommended a lumbar MRI and
physical therapy for both areas of the spine.
The August 4, 2014 lumbar MRI demonstrated a small central herniation at
L4-5 and lateral herniations at L3-4.
Joseph continued to complain of low back and neck symptoms on August 6,
2014.
Dr.
Breeding took over Joseph’s care on August 19, 2014, and treated him on a
monthly basis through 2015. Joseph primarily complained of low back and neck
symptoms, for which he was prescribed Meloxicam and Tizanidine. In addition to his back and neck complaints,
Joseph reported bilateral knee pain on August 19, 2014 and December 17,
2014. X-rays of his knees demonstrated
very mild degenerative changes. The
November 6, 2014 cervical MRI demonstrated unchanged disc herniations at C3-4
and C5-6 and a new small herniation at C4-5 since the 2010 MRI. Dr. Breeding prescribed Joseph a cane on
November 3, 2015.
Dr.
Breeding prepared letters dated March 2, 2015 and November 24, 2015. In the first letter, Dr. Breeding noted the
facility had treated Joseph since 2006 for a variety of conditions including
left shoulder bursitis, left arm pain due to neck pathology, left ankle pain,
osteoarthritis, sciatica, bilateral knee pain, cervical disorder with
radiculopathy, lumbar disc herniation with radiculopathy, and chronic
conditions. Dr. Breeding opined Joseph
is physically unfit for his regular job or any type of work, and he is
precluded from performing coal mine work and all other gainful employment on a
regular basis due to objectively verified symptoms. He also imposed
restrictions on Joseph’s activities.
In
the second letter, Dr. Breeding noted a recent EMG/NCV demonstrated bilateral
carpal tunnel syndrome and ulnar neuropathy.
He opined the degenerative changes and conditions showed on imaging
studies are typical of a person far older than Joseph. Between 2010 and 2014, these changes produced
a steadily increasing cascade of symptoms due to the increasing burden of work
activities he was required to perform, particularly in the last two years he
worked. During the last two years, Dr.
Breeding opined the degenerative changes were gradually awakened and began to
detract him from his functional ability.
Both
parties filed the records of Dr. Sajata Gutti, who treated Joseph from
September 2014 through July 2015. A
September 19, 2014 EMG/NCV study of Joseph’s lower extremities was consistent
with right S1 radiculopathy and mild sensory type of peripheral
neuropathy. After noting cervical
symptoms, including left arm paresthesia and hand numbness, Dr. Gutti
recommended an EMG/NCV on Joseph’s upper extremities in December 2014. The May 15, 2015 study was consistent with
bilateral ulnar nerve entrapment across the elbow consistent with cubital
tunnel syndrome and mild bilateral carpal tunnel syndrome. Dr. Gutti diagnosed Joseph with bilateral
mild cervical radiculopathy, bilateral carpal tunnel syndrome and cubital
tunnel syndrome, diabetic polyneuropathy, cervical spondylosis and
radiculopathy, and lumbar disc degeneration disease with intermittent flare-ups.
Joseph
filed the records from Dr. Haider Abbas, a rheumatologist. On September 8, 2014, Joseph complained of
chronic pain in his neck, back, shoulders and knees. Dr. Abbas assessed generalized
osteoarthritis; mechanical neck and back pain with spasms/strain; chronic
bilateral trochenetric bursitis; and numbness in the left arm and right leg.
Both
parties filed the records of Dr. James Bean, who treated Joseph on two
occasions in October and November 2014.
He noted Joseph complained of pain in his neck, shoulders, arms, low
back, legs, knees and ankles which has been present for ten years. He performed a neurological examination and
diagnosed chronic neck and back pain and cervical and lumbar degenerative disc
disease. Subsequently, he noted the
November 2014 MRI demonstrated three level degenerative cervical disc disease
with significant disc space narrowing at C5-6.
He found no evidence of nerve root compression or spinal cord
compression and did not recommend neurosurgical treatment.
Both
parties filed the records of Dr. Steven Carawan, who treated Joseph on October
14, 2014 for bilateral knee pain. He
noted x-rays taken that day showed, “minimal arthritic changes. Well maintained joint spaces.” Dr. Carawan diagnosed chondromalacia of
patella, and recommended range of motion exercises and a steroid injection,
which Joseph declined.
A
functional capacity evaluation (“FCE”) was performed on February 26, 2015 by
Jennifer Crisp, PT. She indicated Joseph
can lift up to twenty to thirty pounds rarely and five to seven and a half
pounds constantly, and can push and pull up to fifty pounds rarely and twelve
and a half pounds constantly. Joseph
exhibited good ability with unweighted rotation movements, walking, stair
climbing, ladders, coordination and balance.
He exhibited deficiencies in lifting, carrying, pushing/pulling,
prolonged standing, and trunk flexion in sitting/standing. He had the most difficulty with squatting,
crouching, kneeling, and elevated work.
In
support of his claim, Joseph filed the April 3, 2015 report of Dr. Jeffery
Uzzle, who evaluated him on April 3, 2015 and June 26, 2015. He reviewed the medical records and performed
an examination. Dr. Uzzle specifically
noted, “Jeffery has negative ulnar Tinel’s test at the elbows and median nerve
tests are negative on Phalen’s Tinel’s and Durkin’s test at both wrists.” Dr. Uzzle diagnosed the following:
Chronic cervical sprain strain.
Chronic lumbar sprain strain.
Left cervical radiculopathy without a neurological deficit
detected. Left lumbar radiculopathy
without neurological deficit detected.
Left knee osteoarthritis.
Cumulative trauma disorder related to the nature of his work as an
underground coal miner. He has other
arthralgias and soft tissue complaints including left shoulder pain, left
trochanteric bursitis. He is known to
have cervical disc herniation. X-rays
have shown mild osteoarthritic changes in the knees and degenerative changes of
the cervical and lumbar spine. He has
lumbar disc herniations.
Electrodiagnostic studies have confirmed lower extremity radiculopathy.
Bilateral upper extremity nerve entrapment syndromes (carpal tunnel at wrists
and ulnar neuropathy probably at elbows.)
Probable generalized motor peripheral neuropathy.
Dr.
Uzzle found Joseph’s injury caused his complaints. He opined cumulative trauma from Joseph’s
work contributed to his nerve entrapments, cervical, lumbar and knee joint
problems. Dr. Uzzle stated a series of
micro injury trauma over time led to disc breakdown and degenerative changes
which caused his symptoms to develop.
Pursuant to the American Medical Association, Guides to the
Evaluation of Permanent Impairment (“AMA Guides”), Dr. Uzzle
assessed a 19% impairment rating which is inclusive of 5% for his cervical
condition, 5% for his lumbar condition, 4% for his left knee, 0% for his right
knee, 3% for his left upper extremity (carpal tunnel syndrome), and 2% for his left
upper extremity (ulnar neuropathy). Dr.
Uzzle assigned permanent restrictions and opined Joseph does not retain the
physical capacity to return to work based on his own description of his job
requirements.
On
June 26, 2015, Dr. Uzzle noted since his last evaluation, Joseph had an
additional May 15, 2015 EMG/NCV study which showed findings consistent with
bilateral carpal tunnel syndrome and bilateral ulnar neuropathy. He noted Joseph’s physical examination had
not significantly changed. Dr. Uzzle
noted Joseph had a negative Tinel’s test at the ulnar nerve over the wrist and
elbows bilaterally, as well as negative Phalen’s, Tinel’s, and median nerve
compression test bilaterally at the wrist for carpal tunnel. He opined Joseph reached maximum medical
improvement on June 26, 2015. Dr.
Uzzle’s diagnoses, assessment of impairment, and assignment of permanent
restrictions remained unchanged.
In
a supplemental questionnaire dated November 2, 2015, regarding his assessment
of Joseph’s upper extremities, Dr. Uzzle stated he reasonably followed the
clinical test recommendations in the AMA Guides for evaluating
entrapment and compression neuropathy.
Dr. Uzzle based the left upper extremity rating on Joseph’s history,
symptoms, findings upon examination, and on electrodiagnostic testing.
Cumberland
River filed the October 8, 2015 report of Dr. David Muffly. He noted Joseph complained of neck, low back
and bilateral knee pain, as well as bilateral upper extremity numbness and
tingling, all of which he related to cumulative trauma. Dr. Muffly noted Joseph worked as a
supervisor for Cumberland Coal in which 10% of his workday involved manual
labor. On examination, he noted Joseph
walked without a limp, had good balance on a single leg, and could fully
squat. Although Joseph complained of
pain at the limits of flexion, both knees had full extension, no effusion,
stable cruciate and collateral ligaments, and he had negative meniscal
testing. Dr. Muffly noted negative Tinel
and Phalen tests at both the right and left wrists for carpal tunnel syndrome,
and a negative Tinel test over the right and left cubital tunnel. Dr. Muffly found no thenar atrophy or small
muscle hand atrophy present. He also
found Joseph had full range of motion of the fingers, wrists, elbows and
shoulders. Dr. Muffly concluded,
“clinically, there is no carpal tunnel syndrome or ulnar neuropathy.”
After reviewing the medical
records, Dr. Muffly diagnosed cervical disc degeneration without cervical
radiculopathy; lumbar disc degeneration without lumbar radiculopathy; and
complaints of knee pain with preserved joint spaces. Dr. Muffly did not detect carpal tunnel
syndrome or cubital tunnel syndrome (ulnar neuropathy) on his clinical
examination. Dr. Muffly stated the NCV
test indicates peripheral sensory neuropathy which is a condition unrelated to
work. Like Dr. Uzzle, Dr. Muffly
assessed a 5% impairment rating to Joseph’s cervical condition, but stated it
is not work-related. Pursuant to the 5th
Edition of the AMA Guides, Dr. Muffly assessed a 0% impairment rating to
the lumbar spine, 0% for both knees, 0% for bilateral carpal tunnel syndrome,
and 0% for bilateral ulnar neuropathy.
Dr. Muffly opined Joseph has
the physical capacity to return to his previous occupation as supervisor at
Cumberland River without restriction.
In
the April 28, 2016 opinion, after summarizing the evidence, the ALJ found
Joseph’s increased work activities with Cumberland River during the last two
years of his employment aggravated pre-existing dormant degenerative conditions
in his spine into disabling reality. He
found the 5% impairment ratings each for the cervical and lumbar conditions
were appropriate. The ALJ relied upon
Dr. Muffly’s opinion in finding Joseph failed to prove, “work related injuries
to his knees or to his left upper extremity.”
The ALJ also relied upon: 1) Dr. Breeding’s treatment notes, which do
not initially record complaints or symptoms consistent with carpal tunnel
syndrome or ulnar neuropathy; 2) Dr. Uzzle’s exam findings of a negative Tinel
at the elbow and over the median nerve with sensation intact; and 3) Dr.
Carawan’s finding of only minimal arthritic changes in the knees with
well-maintained joint spaces. The ALJ
found Joseph is not entitled to the three multiplier since he continued to work
at his regular job until he was laid off, Joseph looked for and received a job
offer after the layoff, and additionally because Dr. Muffly opined he retains
the physical capacity to return to his pre-injury job.
The
ALJ awarded permanent partial disability benefits for Joseph’s lumbar and
cervical injuries and medical expenses for those conditions, in additional to
his hearing loss. The ALJ dismissed
Joseph’s claim of injuries to his knees and left upper extremity, and his claim
for income benefits for hearing loss.
Joseph
filed a petition for reconsideration essentially making the same arguments he
now raises on appeal. The ALJ summarily
denied this petition in an order dated May 20, 2016.
On
appeal, Joseph argues the ALJ should not have relied upon Dr. Muffly’s opinion
Joseph had no impairment due to left carpal tunnel syndrome and ulnar
neuropathy. Joseph points to Dr. Uzzle’s
opinion, Dr. Gutti’s records, and the fact Joseph complained of neuropathic
upper extremity symptoms to physicians other than Dr. Breeding. Joseph asserts Dr. Uzzle’s examination is
more in accordance to the AMA Guides than Dr. Muffly’s in detecting
carpal tunnel syndrome and ulnar neuropathy.
Joseph also asserts Dr. Muffly did not review Dr. Gutti’s treatment
records or the EMG/NCV reports.
Therefore, Joseph argues the ALJ should not have relied upon Dr. Muffly’s
opinion in finding he had no ulnar neuropathy or carpal tunnel syndrome
impairment.
Likewise,
Joseph argues the ALJ should not have relied upon Dr. Muffly’s opinion he has
no left knee impairment. Joseph points
to Dr. Uzzle’s opinions. Joseph argues
Dr. Muffly did not follow the AMA Guides since he only used a reflex
hammer during his examination. Joseph
also argues Dr. Carawan’s opinion of a “well maintained” cartilage interval did
not preclude an assessment of impairment pursuant to the AMA Guides.
Joseph
argues the ALJ should not have relied upon Dr. Muffly’s opinion, that because
of his continued employment until the layoff, and his pursuit of a job
following the layoff he is not entitled to the three multiplier. Joseph asserts the fact he continued to work
his regular job without restrictions until the mine closed does not establish
he had the physical capacity to do it. With regard to the fact he was offered a
job after the layoff, Joseph points out he declined it because he did not feel
he could physically perform it. Joseph
also asserts Dr. Muffly was in no position to state whether he retained the
physical capacity to perform his former job.
As the claimant in a workers’
compensation proceeding, Joseph had the burden of proving each
of the essential elements of his cause of action, including extent and duration
of disability and entitlement to the three multiplier. Snawder v.
Stice, 576 S.W.2d 276 (Ky. App. 1979). Because Joseph was
unsuccessful in his burden regarding his alleged knee and left upper extremity
injuries, as well as the three multiplier, 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 that which
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.
In essence, Joseph has
asked this Board to re-weigh the evidence, and rely upon the opinions of Drs.
Uzzle and Gutti to find he sustained work-related injuries to his knees and
left upper extremity warranting an impairment rating. It is not the function of this Board to
re-weigh the evidence. Whittaker v. Rowland, supra. The ALJ provided thorough summaries of the
medical opinions and articulated his reasoning for finding the opinions of Drs.
Muffly, Breeding, Uzzle and Carawan most persuasive in finding Joseph failed to
prove work-related injuries to his knees and left upper extremity.
With regard to the
upper left extremity, Dr. Muffly noted Joseph’s complaints in both extremities
and his treatment with Dr. Gutti. Dr.
Muffly stated he reviewed the medical records, including the September 2014
EMG/NCV report and the May 2015 NCV report as referred to in the report of Dr.
Uzzle. Dr. Muffly performed an
examination, and stated as follows:
Tinel
test and Phalen test are negative at both the right and left carpel
tunnel. Tinel test is negative over the
right and left cubital tunnel. There is
no thenar atrophy present or small muscle hand atrophy present in the upper
extremities. He has full range of motion
of the fingers, wrists, elbows, and shoulders.
Rotator cuff muscle strength is 5/5. . . He has 5mms two point
discrimination in all digits of both hands.
Clinically there is no carpal tunnel syndrome or ulnar neuropathy.
.
. . .
I
do not detect carpal tunnel syndrome and I do not detect cubital tunnel
syndrome (ulnar neuropathy) on his clinical examination. His NCV test indicates peripheral sensory
neuropathy which is a condition unrelated to work.
.
. . .
There
is 0% impairment regarding carpal tunnel syndrome to both the right and left
wrist. There is 0% impairment regarding
ulnar neuropathy to both the right and left arm.
The ALJ additionally relied upon
the fact Joseph did not initially complain of upper extremity symptoms at MCHC,
and the physical examination findings of Dr. Uzzle. When he examined Joseph on April 3, 2015, Dr.
Uzzle noted he “has negative ulnar Tinel’s test at the elbows and median nerve
test are negative on Phalen’s Tinel’s and Durkin’s tests at both wrists.” Likewise, when Dr. Uzzle re-examined Joseph
on June 26, 2015 he noted, “There is a negative Tinel’s test at the ulnar nerve
over the wrist and elbows bilaterally.
There is negative Phalen’s, Tinel’s, and median nerve compression test
bilaterally at the wrist for carpal tunnel syndrome.”
We
find unpersuasive Joseph’s argument Dr. Muffly did not perform adequate testing
in order to diagnose upper extremity entrapment and compression neuropathies
pursuant to the AMA Guides. The
Supreme Court in Tokico v. Kelly, 281 S.W.3d 771 (Ky. 2009) held KRS 342
did not require a doctor to conform his diagnosis to criteria listed in the AMA
Guides. The Supreme Court stated:
Diagnosing what
causes impairment and assigning an impairment rating are different
matters. Diagnostic criteria stated in
the Guides clearly have relevance
when judging the credibility of a diagnosis, but Chapter 342 does not require a
diagnosis to conform to criteria listed in the Guides.
The present case concerns the ALJ’s authority to choose
among the opinions of physicians who diagnose a condition differently. The ALJ relied upon substantial evidence in
finding no work-related injury to Joseph’s left upper extremity, and no
contrary result is compelled. Joseph’s
ability to point to other evidence in the record supporting his position is not adequate
to require reversal on appeal.
Likewise,
Dr. Muffly’s opinion and Dr. Carawan’s treatment note constitute substantial
evidence supporting the ALJ’s determination Joseph failed to prove work-related
injuries to his knees. Dr. Carawan
examined Joseph on one occasion in October 2014 for bilateral knee pain. He reviewed x-rays which demonstrated minimal
arthritic changes and well maintained joint spaces. He performed an examination, and diagnosed
chondromalacia of the patella. Dr. Carawan
recommended exercises and steroid injections, which Joseph declined. In his October 8, 2015 report, Dr. Muffly
noted Joseph walked without a limp, has good balance on a single leg, and can
fully squat while holding on. His
examination revealed full extension with either 120 or 130 degrees of flexion
(with complaints of pain) of the right and left knee. He noted no effusion, stable cruciate and
collateral ligaments, and negative meniscal testing. He reviewed the medical records. He diagnosed complaints of knee pain with
preserved joint spaces and determined he did not qualify for an impairment
rating for either knee under the AMA Guides.
We
find no merit in Joseph’s argument Dr. Muffly’s examination was not performed
in accordance with the AMA Guides because he only used a reflex hammer
during the examination. In Kentucky
River Enterprises, Inc. v. Elkins, 107 S.W.3d 206 (Ky. 2003), the Kentucky
Supreme Court instructed the proper interpretation of the AMA Guides is a medical question solely
within the province of the medical experts.
In George Humfleet Mobile Homes v. Christman, 125 S.W.3d 288 (Ky.
2004), the Court further held, while an ALJ is not authorized to independently interpret the AMA Guides, he may as
fact-finder consult the Guides
in the process of assigning weight and credibility to evidence. Although assigning a permanent impairment rating is a matter for
medical experts, determining the weight and character of medical testimony and
drawing reasonable inferences therefrom are matters for the ALJ. Knott County Nursing Home v. Wallen,
74 S.W.3d 706 (Ky. 2002). Moreover,
authority to select an impairment rating assigned by an expert medical witness
rests with the ALJ. See KRS 342.0011 (35) and (36); Staples, Inc. v. Konvelski,
56 S.W.3d 412 (Ky. 2001). We also note
neither party took the opportunity to cross-examine either Dr. Muffly or Dr. Uzzle. In this instance, the ALJ was free to adopt
either Dr. Uzzle’s or Dr. Muffly’s opinion and properly
exercised his discretion.
Finally, we find
substantial evidence supports the ALJ’s determination Joseph retains the
physical ability to return to his former job, thus not finding the multiplier
inapplicable, and no contrary result is compelled. Again, contrary to Joseph’s assertion, Dr.
Muffly’s opinion he can return to his previous occupation as a supervisor without
restriction constitutes substantial evidence.
The attacks by Joseph against Dr. Muffly’s
opinion go to the weight of the evidence to be considered by the ALJ and do not
render it unsubstantial. We find the ALJ
acted within his discretion in considering the fact Joseph worked every day until the
mine closed and was subsequently offered a similar job.
Accordingly,
the April 28, 2016 Opinion, Award and Order and the May 20, 2016 order on
petition for reconsideration rendered by Hon. Douglas W. Gott, 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 M DAVIDSON
PO DRAWER 986
HAZARD, KY 41702
ADMINISTRATIVE
LAW JUDGE:
HON DOUGLAS W GOTT
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601
