*/
Workers’
Compensation Board
OPINION
ENTERED: December 22, 2016
CLAIM NO. 201356897
GLADE TAYLOR PETITIONER
VS. APPEAL FROM HON. CHRIS
DAVIS,
ADMINISTRATIVE LAW JUDGE
MCCOY ELKHORN COAL CORPORATION and
HON. CHRIS DAVIS,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
ALVEY,
Chairman. Glade Taylor (“Taylor”) appeals
from the Opinion, Award, and Order rendered May 20, 2016 by Hon. Steven G.
Bolton, Administrative Law Judge (“ALJ”) awarding temporary total disability
(“TTD”) benefits, permanent partial disability (“PPD”) benefits, and medical
benefits for a low back injury he sustained on December 10, 2013, but
dismissing his cervical injury claim.
Taylor also seeks review of the August 3, 2016 order denying his
petition for reconsideration rendered by Hon. Chris Davis, Administrative Law
Judge (“ALJ Davis”).
On
appeal, Taylor argues the ALJ erred in relying upon Dr. Timothy Kriss’ report in
dismissing his cervical injury claim.
Taylor asserts Dr. Kriss’ opinions do not constitute substantial
evidence pursuant to Cepero v. Fabricated Metals Corp., 132 S.W.3d 839
(Ky. 2004). Since Dr. Kriss’ opinion
constitutes substantial evidence and no contrary result is compelled, we
affirm.
Taylor
filed a Form 101 alleging two injury dates.
Taylor alleged he injured his neck and low back on March 5, 2013 when he
hit his head on overcast while lifting buckets filled with plaster. Taylor also alleged he re-injured his low
back and neck on December 10, 2013 when he slipped and fell on an incline. At the time of his alleged injuries, Taylor
worked for McCoy Elkhorn Coal Corporation (“McCoy”) as a mine foreman. The Form 104 reveals Taylor has worked in the
coal mining industry since 1976, and most recently worked for McCoy from May
2000 to December 2013. McCoy filed a
Form 111 denying the March 5, 2013 claim, and accepting the December 10, 2013
claim, but disputing the amount of compensation owed.
Taylor
testified by deposition on September 17, 2014, and at the hearing held March
21, 2016. He was born on November 18,
1955. He completed high school, and
holds electrical and mining cards. At
all relevant times, Taylor worked as a mine foreman for McCoy. He traveled with inspectors, built and cut
out overcast, built cribs and brattices, put up beams, addressed top issues,
and set head drives. He regularly lifted
twenty to one hundred pounds by himself, and five hundred to six hundred pound
steel beams with assistance. Prior to
his injuries, Taylor worked an average of sixty hours per week and did not have
any neck or back symptoms or complaints.
He was under no formal restrictions and was not prescribed any
medication for his neck or low back.
On
March 5, 2013, Taylor was allegedly carrying two buckets filled with plaster in
a bent over position, when he struck his head on a steel beam, causing him to
fall backward onto hard rock debris.
Taylor immediately felt pain in his neck, low back, and legs. Despite his pain, Taylor continued to work
full-time without restriction until his second work incident on December 10,
2013. Taylor stated his co-workers
assisted him with tasks he was unable to do on his own. Taylor did not miss any work following the
March 5, 2013 incident, and he could not remember when he sought medical treatment. Taylor treated with Dr. Michael Trivette
prior to December 10, 2013, and was prescribed medication.
On
December 10, 2013, Taylor was walking down a steep embankment when he slipped
and fell onto some rocks. At that time,
his neck and back pain from the prior incident had not resolved. Taylor testified that after he fell, he
experienced low back pain radiating down his legs, as well as neck pain. He subsequently went to the emergency room
after attempting to work the following day.
Taylor has not returned to work since.
Taylor received conservative treatment from Dr. Trivette, Dr. Duane Densler, Dr. David Weber and Dr. Norman Mayer. Eventually, Dr. Mayer performed cervical
surgery in July 2015. Taylor continues
to treat with Dr. Mayer and Dr. Weber, a pain management physician. He also
sees a nurse practitioner, Crystal Blair[1] (“Ms. Blair”) for treatment
of COPD, sleep apnea and high blood pressure.
Taylor
does not believe he can return to his former job with McCoy. He continues to experience pain in his neck,
right shoulder, right arm, low back and hips.
Taylor recently began using a cane, although this was not recommended by
a medical provider.
McCoy
filed Ms. Blair’s records. She is a
nurse practitioner with Home Town Family Care, who treated Taylor for
conditions unrelated to the alleged work injuries.
On
April 22, 2013, over a month after the first work incident, Taylor was treated
for bronchitis and denied he had low back or neck pain. On May 13, 2013, Taylor returned with a
persistent cough, and again denied low back or neck pain. On August 29, 2013, Taylor presented with
generalized complaints of myalgia, hand cramping, anxiety, and difficulty
sleeping. On December 19, 2013, nine
days following the second work incident, Taylor reported he had an injury at
work since he was last seen and was prescribed Neurontin, Robaxin
and Prednisone by Dr. Trivette. Ms.
Blair stated Taylor reported shortness of breath, wheezing, and low back pain
radiating into his right thigh. Taylor
did not complain of neck or upper extremities symptoms. Taylor returned in February 2014 complaining
of tingling in his chest and was sent to the emergency department for additional
evaluation. He was also treated for
heartburn. His diagnoses on February 18,
2014 included back pain, herniated disc syndrome and disc degeneration. In the May 2, 2014 office record, Ms. Blair
noted Taylor had started treatment with a pain management physician who listed
chronic, stable low back and neck pain well controlled with current medication
under musculoskeletal symptoms. Her
diagnoses included disc displacement, back pain, disc degeneration, herniated
disc syndrome and neck disorder.
Taylor
filed the records of Dr. Trivette, who treated him on several occasions in
November and December 2013. The records
are handwritten and largely illegible.
On November 1, 2013, approximately eight months after the first
incident, Taylor reported he had low back and left leg pain. He reported “last March” he was carrying two
buckets of plaster under overcast. Dr. Trivette
ordered a lumbar x-ray which showed mild degenerative disc disease. Dr. Trivette diagnosed low back pain with
radiation, and prescribed medication. On
November 8, 2013, Taylor returned stating he continues to have pain in his back
and legs. Dr. Trivette referred Taylor
to Dr. Ahmed. MRIs of the lumbar and
cervical spine were taken on December 12, 2013, two days following the second
work incident. The lumbar MRI demonstrated
degenerative disc disease, degenerative joint disease, and stenosis at multiple
levels with herniation at L5-S1. The
cervical MRI demonstrated degenerative disc and joint disease at multiple
levels. In the last note of record dated
December 13, 2013, three days after the second incident, Dr. Trivette noted
Taylor complained of “back pain R/T work related injury.” The remainder of the record is illegible.
Taylor
filed the records from Pikeville Medical Center spanning from December 24, 2013
through October 2015, showing he primarily treated with Drs. Densler, Weber and Mayer.
Taylor initially treated with Dr. Densler on
December 24, 2013 and February 27, 2014.
On the first visit, Taylor reported low back pain radiating into his
legs and pain in his neck, bilateral shoulders and arms, as well as numbness
and tingling. Dr. Densler
noted Taylor’s fall on December 10, 2013.
On February 27, 2014, Dr. Densler diagnosed
cervicalgia, backache, cervical disc degeneration, neck pain, lumbar
degenerative disc disease, lumbar disc displacement, and low back pain. He ordered physical therapy and an epidural
steroid injection.
Subsequently,
Taylor continued treating with Drs. Weber and Mayer. Dr. Weber treated Taylor on a monthly basis
for complaints of pain in his low back, neck, bilateral shoulders radiating
into his right arm, both calves, both feet, both thighs and both buttocks. Dr. Weber regularly prescribed Gabapentin,
Mobic, Norco, Zanaflex, and Fioricet. He also administered several injections. In his last noted dated August 26, 2015, Dr.
Weber diagnosed cervical HNP, cervical radiculopathy, degeneration of lumbar
intervertebral disc, sciatica due to displacement of lumbar disc, and post
cervical sympathetic syndrome. He prescribed
Norco, Neurontin, Zanaflex, and Mobic.
Dr.
Mayer began treating Taylor’s cervical symptoms on February 26, 2015. He noted complaints of severe and worsening
neck pain for two years, as well as numbness and tingling in his right shoulder
and arm. He performed an examination and
diagnosed displacement of cervical intervertebral disc without myelopathy and
degeneration of cervical intervertebral disc.
The February 24, 2015 cervical MRI demonstrated
multilevel cervical degenerative changes with the most significant levels at
C4-5 and 5-6. Dr. Mayer ordered
additional physical therapy, which did not resolve his symptoms. On July 24, 2015, Dr. Mayer performed an
anterior cervical discectomy with bilateral foraminotomies
and arthrodesis at C4-5; C5-6 anterior cervical discectomy, bilateral foraminotomies and arthrodesis; and anterior cervical
plating at C4-C6 and intraoperative vocal cord monitoring. The operative report reflects a
post-operative diagnosis of herniated nucleus pulposus, C4-5 and C5-6, with
cervical radiculopathy.
Taylor
submitted a Form 107 dated December 9, 2014 by Dr. Weber. He diagnosed Taylor with lumbar degenerative
disc disease and sciatica due to a displaced lumbar disc and cervicalgia. He opined Taylor’s injuries caused his
complaints. Dr. Weber assigned
restrictions and stated Taylor does not retain the physical capacity to return
to work.
Taylor
also filed the June 24, 2014 and February 4, 2016 reports of Dr. David Muffly. In his June
24, 2014 report, Dr. Muffly diagnosed a L5-S1 central
disc herniation without nerve root impingement and cervical degenerative disc
disease with protrusion at C4-5 causing stenosis in the setting of the cervical
strain. Dr. Muffly
opined the lumbar disc herniation and cervical strain are related to the work
accidents of March 5, 2013 and December 20, 2013. He assessed a 6% impairment rating to the
lumbar spine and a 5% impairment rating to the cervical spine, which combined
for a total 11% impairment rating, pursuant to the 5th Edition of
the American Medical Association, Guides to the Evaluation of Permanent
Impairment (“AMA Guides”).
Dr. Muffly attributed the entire 11%
impairment rating to the work injuries of March and December 2013. Dr. Muffly opined
Taylor attained maximum medical improvement (“MMI”) on June 24, 2014. Dr. Muffly assigned
permanent restrictions and opined Taylor cannot return to his prior coal miner
position. He also recommended
intermittent prescription medications, an exercise program, and a trial of
epidural steroid injections.
Dr.
Muffly re-evaluated Taylor on February 4, 2016. He noted since his last evaluation, Taylor
underwent surgery on July 24, 2015. Dr. Muffly diagnosed cervical radiculopathy with C4-5
protrusion/stenosis which progressively worsened since his March 2013 and
December 2013 work injuries, and L5-S1 central disc herniation, spinal
stenosis/degenerative disc disease at L4-5.
Dr. Muffly opined the surgery was required due
to the progression of his cervical symptoms directly related to his work
injuries from March 2013 and December 2013.
Dr. Muffly increased the impairment rating he
assessed for the cervical condition to 27% pursuant to the AMA Guides. Dr. Muffly
estimated Taylor would reach MMI in six months.
McCoy
filed the October 7, 2014 report of Dr. Joseph Zerga. He diagnosed coccyx pain with no evidence of
significant cervical or lumbar spinal disease caused by the March 5, 2013 work
incident. Dr. Zerga
assessed a 3% impairment rating pursuant to the AMA Guides. He found Taylor had attained MMI and
recommended a coccyx injection. Dr. Zerga opined Taylor is able to return to work.
McCoy
filed the October 31, 2014 report of Dr. Chris Stephens who diagnosed chronic
back and leg pain secondary to lumbar disc disease, spinal stenosis, and
chronic neck pain secondary to moderately severe cervical spondylosis. He opined Taylor’s symptoms resulted from the
work incidents. Dr. Stephens assessed a
5% impairment rating for the lumbar condition and 5% for the cervical condition
pursuant to the AMA Guides. Dr.
Stephens opined Taylor is not a candidate for surgery, and believed neither
additional injective therapy nor the prescription of Tizanidine
as reasonable or necessary for his work-related injuries. He opined Taylor’s primary care physician
could manage Taylor’s medication on a quarterly basis. Dr. Stephens assigned permanent restrictions
and found Taylor is capable of returning to work.
McCoy
filed the November 18, 2014 vocational report of Dr. Ralph Crystal, who opined
Taylor has the ability to enter a wide range of jobs at present including his
usual and customary work and is not disabled from employment.
McCoy
also filed the December 23, 2015 report of Dr. Kriss. He performed an examination and listed the
medical records he reviewed, including a November 2013 lumbar x-ray, the
December 12, 2013 MRIs of the lumbar and cervical spine, and the September 28,
2015 cervical MRI.
Dr.
Kriss opined the March 5, 2013 event did not result in a permanent or harmful
cervical or lumbar injury. He noted
there is no mention of an injury or symptoms relating to Taylor’s low back or
neck in the medical records spanning March 2013 through August 2013, and Taylor
explicitly denied neck and low back pain in April, May, and August 2013
post-event evaluations with Ms. Blair.
He noted Taylor complained of low back and leg pain to Dr. Trivette on
November 1 and 8, 2013, eight months after the March 2013 event, but did not
complain of cervical, head, shoulder or upper extremity problems. He also noted Taylor continued working
full-time without restrictions or treatment for eight months. At most, the March 5, 2013 event resulted in
a temporary musculoskeletal cervical/ lumbar strain or contusion requiring no
medical assessment, no medical treatment, no restrictions, and no time off
work.
Dr.
Kriss found the back and leg pain reported in November 2013 were spontaneous
and atraumatic since the December 2013 event had not yet occurred, and the
March 2013 event is separated by eight months with no spinal symptoms, findings
or treatment. Dr. Kriss opined Taylor
presented with naturally occurring back pain from spinal osteoarthritis,
degenerative disc disease and spondylosis, all of which represent spontaneous
degenerative processes of aging readily and objectively confirmed on Taylor’s
lumbar imaging studies.
Dr.
Kriss likewise concluded the December 10, 2013 event did not result in a
permanent or harmful cervical injury.
Dr. Kriss noted Taylor did not complain of cervical or upper extremity
symptoms to Dr. Trivette on December 13, 2013 or to Ms. Blair on December 19,
2013. The first time Taylor complained
of neck symptoms was to Dr. Densler on December 24,
2013, two weeks after the work event.
Dr. Kriss opined Taylor’s reported neck and upper extremity complaints are
most likely the consequence of advanced objectively demonstrated
osteoarthritis, degenerative disc disease and spondylosis radiographically
confirmed to be chronically present. Dr.
Kriss found the December 2013 event resulted in an aggravation/exacerbation of
the non-work-related pre-existing active low back pain documented by Dr.
Trivette in November 2013.
Dr.
Kriss noted the medical evidence established 1) no cervical or lumbar permanent
work injury on March 5, 2013; 2) eight subsequent months of no cervical or
lumbar symptoms, treatment, diagnoses, or restrictions; 3) Three intervening
medical evaluations with no cervical or lumbar symptoms, diagnoses, or
treatment; 4) Three intervening medical evaluations at which Taylor explicitly
denied any neck or low back pain; 5) Spontaneous, atraumatic degenerative
age-appropriate back pain onset in November 2013; 6) A December 12, 2013 work-related
aggravation of pre-existing active non-work-related back pain; and 7) No
cervical spine injury or permanent harmful change on March 5, 2013 or December
10, 2013.
Dr.
Kriss assessed a 5% impairment rating for the lumbar condition pursuant to the AMA
Guides, attributing half to the December 10, 2013 work-related
event. He assessed a 25% impairment
rating for the cervical spine, but opined it is not related to either work
event. Dr. Kriss opined Taylor reached
MMI from the December 2013 injury on April 10, 2014. He recommended anti-inflammatories and
non-controlled-substance muscle relaxers, a lumbar corset, and daily home
exercises. Dr. Kriss declined to assign
permanent restrictions and opined Taylor can return to the job he performed at
the time of his December 2013 work injury.
The
March 21, 2016 Formal Hearing Order reflects the parties stipulated Taylor
sustained a work related injury on March 5, 2013, and an alleged work-related
injury on December 10, 2013. Counsel for
McCoy clarified at the hearing that they in fact stipulated to an alleged work
related injury on March 5, 2013 and a work-related injury on December 10, 2013. The Order and hearing transcript reflect
benefits per KRS 342.730 including extent and duration with multipliers,
work-relatedness/causation (cervical spine), and permanent partial versus total
disability were identified as contested issues.
In
his May 20, 2016 opinion, the ALJ stated he believed Taylor has a tendency to
become anxious, focus on his symptoms and exaggerate. He then stated there was no evidence Taylor
suffered an actual injury contemporaneously with the alleged date of injury,
and there was no proof of injury. The
ALJ then reviewed the report of Dr. Kriss, who he found persuasive regarding
the occurrence of an injury and causation for Taylor’s lumbar and cervical
conditions. Therefore, the ALJ
determined Taylor sustained a lumbar injury due to the December 10, 2013 work
event. He adopted Dr. Kriss’ opinion in
finding neither work event resulted in an injury to Taylor’s cervical
spine.
The
ALJ adopted the 6% impairment rating assessed by Dr. Muffly
for the lumbar condition. He also found the three multiplier applicable based on Dr. Muffly’s and Dr. Weber’s opinions that Taylor cannot return
to his former work with the restrictions imposed. Based upon Dr. Crystal’s report, the ALJ
found Taylor is not permanently totally disabled. The ALJ awarded Taylor TTD benefits as
already paid, PPD benefits, and medical benefits for the lumbar injury caused
by the December 10, 2013 work event.
Taylor
filed a petition for reconsideration making essentially the same argument he
now raises on appeal. In an order dated
August 3, 2016, ALJ Davis overruled the petition finding Taylor was merely
rearguing the merits of the factual findings in the opinion.
On
appeal, Taylor argues Dr. Kriss’ opinion regarding the cause of his cervical
condition cannot constitute substantial evidence pursuant to Cepero v.
Fabricated Metals Corp., 132 S.W.3d 839 (Ky. 2004). Taylor asserts Dr. Kriss failed to consider
the December 12, 2013 cervical MRI in erroneously concluding there was no
mention of cervical problems until December 24, 2013. He also asserts Dr. Kriss failed to consider
Taylor provided notice to McCoy of both work-related events,
the off work slip Dr. Trivette provided to him on December 13, 2013, and
the fact McCoy voluntarily paid TTD benefits for the second work-related
event. Taylor also argues the December
10, 2013 event at the very least aroused significant degenerative changes,
along with stenosis and other pre-existing problems into disabling
reality.
As
the claimant in a workers’ compensation proceeding, Taylor
had the burden of proving each of the essential elements of his cause of
action, including work-relatedness/causation of his cervical condition. Snawder v. Stice, 576
S.W.2d 276 (Ky. App. 1979). Because he
was
unsuccessful in this 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 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 under 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). 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).
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
could otherwise 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.
We begin our analysis
by noting the
only issue on appeal is the ALJ’s dismissal of Taylor’s cervical claim. It is clear the ALJ relied entirely on the
opinions of Dr. Kriss in finding neither work-related event resulted in a
cervical injury warranting an impairment rating. In his nineteen page
December 23, 2015 report, Dr. Kriss listed the medical records he reviewed,
including those of Drs. Zerga, Trivette,
Ahmed, Crystal Blair, APRN, Densler, Weber, Fogg,
Stephens and Coughtry, as well as the Form 101 and
Dr. Crystal’s vocational report. On page
six of his report, Dr. Kriss outlined the November 1, 2013 lumbar x-ray, the
December 12, 2013 cervical and lumber MRI, the February 24, 2015 cervical MRI,
and the September 28, 2015 cervical x-ray.
After reviewing the mechanisms of injury for both alleged work events
and subsequent treatment, Dr. Kriss performed an examination. He also noted, “Taylor has florid symptom
magnification on examination today, with a plethora of Waddell-type
signs.”
After
reviewing the records for treatment subsequent to the March 5, 2013 event but
before the December 10, 2013 event, Dr. Kriss opined the March 5, 2013 event
did to result in a cervical or lumbar injury.
Dr. Kriss relied upon the fact Taylor explicitly denied neck or low back
pain to Ms. Blair at multiple evaluations in April, May, and August 2013. He also noted Taylor never complained of low
back, neck or upper extremity symptoms, and did not require any lumbar or
cervical diagnostic medical evaluations or treatment for eight months. He also concluded the low back pain Taylor
reported on November 1 and 8, 2013 to Dr. Trivette was spontaneous and
atraumatic, and resulted from non-work-related spinal osteoarthritis,
degenerative disc disease and spondylosis.
Under
the title, “No Cervical Work Injury on March 5, 2013 or December 10, 2013,” Dr.
Kriss stated as follows:
From March 5, 2013 right up to December 10,
2013, Mr. Taylor has never once complained of neck pain, shoulder pain, arm
pain, numbness, tingling, neurologic complaints, or upper extremity complaints.
Instead, Mr. Taylor explicitly denied any
and all neck pain and explicitly denied neurologic complaints on multiple
occasions.
Even after December 10, 2013, Mr. Taylor
STILL does not complain of ANY neck pain or cervical/upper extremity/ neurologic
symptoms.
On December 13, 2013 Dr. Trivette records
no neck pain, no cervical complaints, and no upper extremity symptoms.
On December 19, 2013 Ms. Branam [sic] records no neck pain, no cervical complaints,
and no upper extremity symptoms.
The one-time traumatic incident of December
10, 2013 cannot be responsible for permanent harmful change to the cervical
spine if there are no cervical symptoms and no cervical findings at the first
medical evaluation three days later and no cervical symptoms and no cervical
findings at the second medical evaluation nine days later.
By definition, a “permanent” harmful change must be permanent; Mr. Taylor should have cervical symptoms on December 13,
2013 and December 19, 2013 if the slip and fall on December 10, 2013 causes any
permanent cervical injury. This is not
the case.
When neck pain and upper extremity
complaints manifest later, spontaneously and atraumatically,
this is most likely a consequence of the fairly advanced, objectively
demonstrated osteoarthritis, degenerative disc disease and spondylosis
radiographically confirmed to be chronically present in Mr. Taylor’s cervical
spine all along, - a totally age-appropriate, totally natural manifestation of
unavoidable degeneration or “aging.”
Mr.
Taylor has already shown quite emphatically that he is not an accurate medical
historian, and therefore we must rely on the contemporaneous medical records,
not markedly delayed, contradictory, retrospective reconstructions from Mr.
Taylor.
(original emphasis).
Dr.
Kriss’ opinions constitute substantial evidence, and no contrary result is
compelled. When conflicting evidence is
presented, the ALJ may choose whom or what to believe. Pruitt vs. Bugg Bros.,
547 S.W.2d 123, 125 (Ky. 1977).
Taylor’s ability to point to conflicting evidence supporting a more
favorable outcome is not an adequate basis to reverse on appeal. McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974).
We
find no merit in Taylor’s argument that Dr. Kriss’ opinion does not constitute
substantial evidence pursuant to Cepero v. Fabricated Metals Corp., 132
S.W.3d 839 (Ky. 2004). Cepero, supra, was an unusual case involving not only a complete
failure to disclose, but affirmative efforts by the employee to cover up a
significant injury to the left knee only two and a half years prior to the
alleged work-related injury to the same knee. The previous,
non-work-related injury had
left Cepero confined to a wheelchair for
more than a month. The physician upon whom the ALJ relied in awarding
benefits was not informed of this prior history by the employee and
had no other apparent means of becoming so informed. Every physician who
was adequately informed of this prior history opined Cepero’s left knee impairment was not work-related
but, instead, was attributable to the non-work-related injury
two and a half years previous. We find
nothing akin to Cepero in the case sub
judice. The ALJ could reasonably infer the opinions
expressed by Dr. Kriss on December 23, 2015, were based on a complete
understanding of Taylor’s medical history since he indicated he reviewed in
detail the medical records pertaining to the cervical condition, including the
MRIs.
Accordingly,
the May 20,
2016 Opinion, Award, and Order rendered
by Hon. Steven G. Bolton, Administrative Law Judge, and the August 3, 2016
Order on petition for reconsideration rendered by Hon. Chris Davis,
Administrative Law Judge, are hereby AFFIRMED.
ALL
CONCUR.
COUNSEL
FOR PETITIONER:
HON RANDY C CLARK
PO BOX 1529
PIKEVILLE, KY 41502
COUNSEL
FOR RESPONDENT:
HON TERRI SMITH WALTERS
PO BOX 1167
PIKEVILLE, KY 41502
ADMINISTRATIVE
LAW JUDGE:
HON CHRIS DAVIS
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601
[1] Prior to August 29, 2013, the records refer
to the nurse practitioner as Crystal L. Branham, APRN. However, we will use the most recently noted
last name, Crystal L. Blair, APRN.
