*/
Workers’
Compensation Board
OPINION ENTERED: February 24, 2017
CLAIM NOS. 201595828 & 201500770
RANDY WAYNE WOODS PETITIONER
VS. APPEAL FROM HON. JONATHAN R. WEATHERBY,
ADMINISTRATIVE LAW JUDGE
PRIVATE INVESTIGATIONS
& COUNTER INTELLIGENCE, INC.
HON. JONATHAN R. WEATHERBY,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
IN PART
VACATING
IN PART
AND
REMANDING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. Randy Wayne Woods (“Woods”) appeals from the June 19, 2016 Opinion,
Award and Order and the July 19, 2016 Order on Reconsideration rendered by Hon.
Jonathan R. Weatherby, Administrative Law Judge (“ALJ”) awarding a period of
temporary total disability benefits and a limited period of medical benefits,
but dismissing his claim for permanent income and medical benefits. On appeal, Woods raises arguments concerning
the ALJ’s understanding of the evidence and the sufficiency of the proof. For the reason set forth herein, we affirm in
part, vacate in part and remand for additional findings.
Woods testified by deposition on July 21, 2015 and at the
hearing held January 7, 2016. He began
working for Private Investigations & Counter Intelligence, Inc. (“PICI”) in
an underground mine in October 2014. He
alleged he injured his neck and back on October 10, 2014 when he was operating
a mobile bridge carrier. When he
attempted to reverse the machine, another bridge segment backed into him and
knocked his carrier off the segment. He
bounced up, hitting his head on the canopy of his vehicle.
Woods testified he immediately felt a sensation in his neck
and low back. He was able to work the
rest of the week, but his condition worsened over the weekend. On Monday, Woods informed his employer he
needed to see a doctor.
Dr. Abdul Kader Dahhan treated Woods on November 17 and
24, 2014. Dr. Dahhan diagnosed sprains
and strains of the lumbar region, lumbar disc displacement without myelopathy,
and sprains and strains of the neck.
MRIs revealed mild disc bulges at L4-5 and L5-S1. He placed Woods on light duty. Woods was laid off on December 19, 2014.
Woods indicated he had fallen at home a number of times
because of weakness in his left leg caused by the work accident. On January 15, 2015, he was standing on his
porch when his left leg gave way and he fell down a set of ice-covered
steps. The incident worsened his low
back symptoms at the time, but the exacerbation was temporary and his symptoms
returned to the pre-fall level.
Woods was hospitalized for three days at Hazard ARH
following the fall at home. Dr. Mukut Sharma
diagnosed acute lumbar sprain and large hematoma, left gluteal region. Woods was also treated by Dr. Amy Fowler, who
drained the hematoma and ordered in-home physical therapy. Dr. Fowler continued to treat Woods following
his discharge from the hospital, and eventually referred him to Dr. James Bean
for low back and left leg pain. Dr. Bean diagnosed left paracentral disc herniation at
L5-S1 and recommended a lumbar myelogram to determine the source of nerve root
compression at that level. He eventually
recommended a lumbar discectomy at L4-5 which was performed on July 29,
2015. For the year following his
surgery, Woods continued to complain of left hip and leg pain. In a February 22, 2016 office note, Dr. Bean
opined the continued pain and numbness in the left leg and foot is a permanent
effect of the disc herniation and surgery.
The primary contested issue before the ALJ was the cause of
Woods’ current condition, and whether it originated from the work injury, the
slip and fall at home on January 15, 2015, or a combination of both. Woods submitted the record of Dr. Arthur
Hughes who conducted an independent medical evaluation (“IME”) on August 5,
2015. Dr. Hughes diagnosed neck pain
with probable radiculopathy; right shoulder pain with limitations of motion;
left shoulder pain and limitation of motion; and status post lumbar discectomy
at L4-5. He attributed Woods’ complaints
and lumbar surgery to the work injury and assigned a 23% impairment rating
pursuant to the American Medical Association, Guides to the Evaluation of
Permanent Impairment, 5th Edition (“AMA Guides”) based
upon 15% impairment for the 2014 injury and 11% impairment from cumulative
trauma to the shoulders.
Dr. Bruce Guberman conducted an IME on
December 3, 2015 and diagnosed chronic post-traumatic strain of the cervical
and lumbar spine, herniated discs at L4-5 and L5-S1 and status post lumbar
discectomy at L4-5 on July 29, 2015. Dr.
Guberman attributed Woods’ complaints to the work injury, noting the symptoms
became more severe when his left leg gave way and he fell at home on January
15, 2015. Dr. Guberman assigned a 20%
impairment rating pursuant to the AMA Guides based upon a 13% rating for
the lumbar spine and an 8% rating for the cervical spine. He opined Woods did not have an active
impairment prior to the injury.
In a February 11, 2016 supplemental
report, Dr. Guberman indicated he had reviewed Dr. Bean’s treatment notes, the
lumbar MRI dated January 4, 2016, and the cervical MRI dated January 15, 2016. He discerned no significant change between
the 2014 and 2015 lumbar MRI studies regarding the L4-5 disc. He attributed the January 15, 2015 fall to
left leg weakness that resulted from the 2014 injury. Dr. Guberman reaffirmed his 8% rating for the
cervical spine and concluded Woods’ cervical spine symptoms were dormant until
aroused into a disabling state by the 2014 injury. He stressed that the AMA Guides
require no specific abnormalities on imaging studies to qualify for DRE
Category II.
Dr. David Muffly conducted an IME on
April 20, 2015 stating Woods had reached maximum medical improvement from the
2014 injury. Dr. Muffly diagnosed lumbar
and cervical strains related to the 2014 incident. He noted Woods slipped on ice at home on
January 15, 2015, reinjuring his low back.
Dr. Muffly stated the November 26, 2014 lumbar MRI showed disc bulges at
L4-5 and L5-S1. An April 3, 2015 lumbar
MRI showed central disc herniation at L5-S1.
Based on his interpretation of these MRI reports, Dr. Muffly assigned a 6%
impairment rating for the lumbar condition and apportioned 3% to the 2014
injury and 3% to the 2015 injury.
In a January 26, 2016 report, Dr.
Muffly stated the 2015 non-work-related injury made the lumbar disc problem
worse and is the reason surgical treatment was necessary. He now assigned an 11% impairment rating for
the lumbar condition, apportioned 3% to the 2014 injury and 8% to the 2015
injury.
Dr. Russell Travis performed a medical
records review on October 3, 2015. As a
result of the work injury, Dr. Travis diagnosed a cervical strain/sprain and a
lumbar sprain superimposed on pre-existing degenerative changes. He found no evidence to document
radiculopathy. The lumbar MRI following
the work accident showed some evidence of disc bulge at L4-5 and L5-S1, which
did not compromise the neural foramen and exiting nerve roots.
Dr. Travis opined it was not until
Woods slipped and fell on ice on January 15, 2015 that he developed increased
low back pain and left lower extremity pain.
After this incident, there was a significant change in Woods’ lumbar
MRI. A side-by-side comparison of the
November 26, 2014 MRI and the April 3, 2015 MRIs revealed discs at both levels
had worsened following the slip and fall.
In fact, by April 3, 2015, Woods had a large extruded disc herniation at
L5-S1 following the 2015 fall. Dr.
Travis noted there was nothing that would have enlarged the disc protrusions
other than the slip and fall on ice on January 15, 2015. Dr. Travis therefore concluded the lumbar surgery
was not related to the work injury.
Dr. Travis completed a December 31,
2015 addendum after reviewing additional medical records from Dr. Bean, but
again concluded the surgery was not related to the work incident. Dr. Travis indicated Dr. Bean was under the
mistaken impression that Woods fell because his leg gave way. Dr. Travis stated the history was
incontrovertible that Woods slipped on ice.
Dr. Travis further noted a herniated disc at L4-5 would not cause the
entire leg to give way. Dr. Travis
reaffirmed his prior statement that Woods did not have a significant disc
herniation that would compromise the nerve roots at L4-5 or L5-S1 until the
slip and fall in 2015.
In a January 20, 2016 addendum, Dr.
Travis reviewed additional records from Dr. Guberman and Dr. Bean. Dr. Travis disagreed with Dr. Guberman’s
diagnoses and impairment ratings. Dr.
Travis noted the 2014 cervical MRI showed only a mild osteophyte complex at
C5-6 and C6-7 centrally with no evidence of spinal canal, spinal cord or neural
foramen compromise that could not be responsible for radicular pain, either
verifiable or non-verifiable radiculopathy.
In a January 27, 2016 addendum, Dr. Travis indicated he reviewed
additional diagnostic studies performed in January 2016. The additional imaging studies confirmed his
previous reports.
Woods also alleged a psychological
component to his injury. During his
testimony, he acknowledged experiencing some depression and anxiety, which
worsened following the work accident. He
treated at Kentucky River
Community Care for depression beginning April 1, 2015. Woods was diagnosed with major depressive
disorder, recurrent, and anxiety disorder NOS.
Dr. Piyush D. Patel evaluated Woods on
June 5, 2015. Dr. Patel diagnosed major
depressive disorder and assigned a 15% impairment rating for the psychological
condition pursuant to the AMA Guides.
He concluded Woods’ psychological complaints were the result of his work
injury, and that he did not have an active psychological impairment prior to
the injury.
PICI filed the report of Dr. Timothy
Allen who performed an independent psychiatric evaluation on August 24, 2015. Dr. Allen diagnosed malingering and adjustment
disorder with mixed depression and anxious mood. He noted Woods presented with depressed mood
and anxiety only nineteen days after the work incident, suggesting some
pre-existing symptoms. He also developed
psychiatric symptoms related to the guilt of not providing for his family. Woods began taking psychiatric medication
after the 2015 injury. Dr. Allen opined
Woods developed an adjustment disorder due to a combination of the work injury,
pre-existing factors, and multiple non-injury related medical conditions,
including obstructive sleep apnea and coronary artery disease with
dyspnea. He recommended Woods should
maintain treatment with Celexa, Buspar and either Trazadone, Amitriptyline or
Mirtazapine, and indicated this medication regimen is work-related. Woods has a Class I impairment for mental
disorder pursuant to the AMA Guides with a 0% impairment rating.
The ALJ made the following findings relevant to this
appeal:
18.
The ALJ finds that the objective medical evidence consisting of the imaging
studies as interpreted by Dr. Travis is the most persuasive in this
matter. Dr. Travis opined that the MRI
of November 26, 2014, revealed evidence of a disc bulge at L4-5 and L5-S1 that
was not significant for the neural foramen or exiting nerve roots. He concluded that it wasn’t until the
Plaintiff had the slip and fall on January 15, 2015, that he developed
increased low back pain and left lower extremity pain. Dr. Travis convincingly concluded that the herniated
disk that caused the Plaintiff’s impairment was not present on the imaging
studies until after the January 15, 2015 fall.
19.
Dr. Travis was also convincing in his testimony regarding contradictory
statements attributed to the Plaintiff regarding the nature of his fall.
20.
The ALJ further finds that the stark disagreement between the opinions of Drs.
Muffly and Guberman regarding the origin and the apportionment of any injuries
to the Plaintiff lend credibility to the concise and unequivocal opinion of Dr.
Travis. The ALJ therefore finds based
upon Dr. Travis’ report that the Plaintiff did not suffer any permanent
impairment as a result of the work injury.
21.
Dr. Travis’ opinion regarding the assessment of Dr. Hughes is also persuasive
in that Dr. Hughes’ impairment rating listed “probable radiculopathy” and Dr.
Travis credibly opined that an impairment cannot be based on “probable”
radiculopathy.
22.
The ALJ finds based upon the credible objective medical evidence herein that
the Plaintiff suffered a lumbar sprain/strain that resolved and has suffered no
permanent work-related injury as defined by the Act.
23.
The ALJ is also persuaded by the opinion of Dr. Allen that the Plaintiff has a
0% psychiatric impairment with no psychiatric restrictions. There is no credible evidence upon which the
ALJ might rely that indicates any psychological impairment to the Plaintiff.
24.
It is the employer’s responsibility to pay for the cure and relief from the
effects of an injury or occupational disease the medical, surgical, hospital
treatment, including nursing, medical and surgical supplies and appliances as
may reasonably be required at the time of the injury and thereafter during
disability…KRS 342.020.
25.
The ALJ finds in accordance with the opinion of Dr. Travis and Muffly that the
Plaintiff’s sprain/strain resolved as of April 20, 2015, and that the
subsequent injury of January 15, 2015, is the proximate cause of the need for
surgery and associated medical expenses related to increased low back pain and
lower extremity pain. The ALJ therefore
finds that the Defendant is relieved of expenses related to the Plaintiff’s low
back incurred on or after January 15, 2015.
Woods filed a petition for reconsideration arguing the ALJ
failed to consider the report of Dr. Patel and challenging his reliance on Dr.
Travis’ opinions. On reconsideration,
the ALJ acknowledged Dr. Patel’s report in the record and provided a
summary. However, he concluded the
psychological injury documented by Dr. Patel was the result of the January 15,
2015 slip and fall and not the work injury.
Therefore, the ALJ declined to disturb the result of the Opinion, Award
and Order.
On appeal, Woods challenges the ALJ’s reliance on and
characterization of Dr. Travis’ opinions.
Woods contends that because Dr. Travis did not perform a physical
examination and his view of the MRI results varied to a great extent, his
opinions lack the substance necessary to constitute proof within reasonable
probability regarding causation. Woods
further argues the opinions of Drs. Muffly and Guberman do not substantiate Dr.
Travis’ opinion, contrary to the ALJ’s statement. Rather, Drs. Muffly and Guberman assessed 11%
and 13% impairment ratings for the lumbar condition. Dr. Muffly apportioned fifty percent of his
lumbar rating to the 2014 injury. Woods
argues the ALJ misread the reports of Drs. Travis and Muffly when he determined
the lumbar condition as it relates to the 2014 injury had resolved by April 20,
2015.
Finally, Woods argues there is no expert medical evidence
that his 2015 fall at home caused his psychological condition. Woods contends Dr. Allen did not reach the
question of causation. Instead, he found
there was no psychiatric impairment based upon the results of tests he deemed
invalid. Woods asserts Dr. Patel offered
the only expert testimony regarding causation of the psychological condition,
and therefore the ALJ was obliged to rely upon it.
As the claimant in a workers’ compensation proceeding, Woods had the burden of proving each of the essential elements
of his cause of action. Snawder v. Stice, 576 S.W.2d 276 (Ky. App.
1979). Because he was unsuccessful in proving entitlement to permanent
income benefits for the physical or psychological injury, 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 that is 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 contained conflicting
evidence regarding the causation of Woods’ cervical and lumbar conditions. Where the evidence is conflicting, the ALJ, as fact-finder, is vested with the discretion to
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 substantial evidence
supports the ALJ’s ruling, it may not be disturbed on appeal. Special
Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986).
Much of Woods’ argument
on appeal goes to the sufficiency of the proof supporting the ALJ’s
decision. Upon review, we conclude the
ALJ’s decision is based on substantial evidence. Drs. Travis and Muffly diagnosed cervical
strains. Neither found a permanent
injury related to the cervical condition.
Dr. Travis found no permanent injury of the lumbar spine related to the
2014 incident. Instead, he found a
non-work-related re-injury in 2015 that necessitated the surgery and produced
Woods’ impairment rating. Dr. Travis
maintained throughout his reports that the 2015 incident at home produced a
worsening of his lumbar discs. Dr.
Muffly also opined the condition of the lumbar discs worsened as a result of
the 2015 incident. While Woods contends
he fell in 2015 as a result of leg weakness related to the 2014 injury, the
history he initially provided was that he slipped and fell on ice. Dr. Travis further opined the 2014 injury
would not cause the entire leg to give way.
The ALJ was not compelled to find that Woods fell as a result of his leg
“giving way.” This proof constitutes the
requisite substantial evidence to support the ALJ’s decision.
Woods challenges the reliability
of Dr. Travis’ report due to alleged inconsistencies and the fact he did not
personally examine Woods. He also argues
the ALJ incorrectly characterized Drs. Muffly and Guberman as substantiating
Dr. Travis’ opinion. However, our review
reveals no blatant misunderstanding of the evidence, or any inaccurate or
erroneous interpretation of the proof.
Rather, these arguments goes to the weight to be afforded the
evidence. When there is a conflict among
the medical opinions submitted, the ALJ enjoys the discretion to assess the
weight and credibility of each report. Yocum
v. Emerson Electric, 584 S.W.2d 744 (Ky. App. 1979).
The ALJ was free to
accept Dr. Muffly’s opinion that Woods reached maximum medical improvement by
April 20, 2015 and accept Dr. Travis’ opinion that the 2014 injury produced no
permanent impairment rating. Moreover,
the fact Dr. Travis did not personally examine Woods is inconsequential in this
claim. Even if the AMA Guides
require a physical examination, the ALJ did not rely on Dr. Travis’ report for
the assessment of an impairment rating.
Instead he relied on Dr. Travis’ report for its diagnosis and his
opinion as to causation. KRS Chapter 342
requires only that the permanent impairment rating comport with the AMA Guides. KRS 342.0011(35).
Furthermore,
the evidence does not compel a finding Woods has an impairment rating for the psychological condition. Dr. Allen noted Woods did not take psychiatric
medication until after the 2015 injury, and he related Woods’ condition to his
inability to provide for his family. In
fact, Woods continued to work until December 2014 when he was laid off for
reasons unrelated to his injury. In
January 2015, he sustained the additional injury that resulted in the need for
surgery. Woods acknowledged some prior
symptoms of anxiety and depression and Dr. Allen likewise indicated there were
some pre-existing symptoms. Upon completion
of his evaluation, Dr. Allen found no permanent impairment rating for the
psychological condition. The ALJ acted within his
discretion to rely upon Dr. Allen’s opinion, and his conclusions are not so
unreasonable as to compel a different result.
Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky.
2000).
However, it is necessary to vacate the
dismissal of the psychological claim in its entirety and to remand for
additional findings related to a possible award of future medical benefits for
the psychological condition. While we
affirm the finding of no permanent impairment rating for the psychological
condition, future medical benefits may be awarded where there is an impairment
that does not arise to a level that produces an impairment rating but the
patient requires additional treatment. FEI Installation, Inc. v. Williams,
214 S.W.3d 313 (Ky. 2007). KRS 342.020(1) does not require proof of an impairment rating to
obtain future medical benefits, and the absence of a
functional impairment rating does not necessarily preclude
such an award. We are unable to
determine from the ALJ’s decision whether he considered the possibility of an
award of medical benefits for the psychological condition. Here, Dr. Allen stated Woods should
continue on a medication regimen and stated that regimen is work-related. Dr. Allen’s opinion could support an award of
future medical benefits for the psychological condition. The
Board directs no particular result concerning this issue.
Accordingly, the June 10, 2016 Opinion, Award and Order and the July 19, 2016 Order on Reconsideration rendered by Hon. Jonathan R. Weatherby, Administrative Law Judge, are hereby AFFIRMED IN PART, VACATED IN PART AND REMANDED for additional findings regarding an award of future medical benefits related to the psychological condition.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON SHERRY BRASHEAR
PO BOX 1626
HARLAN, KY 40831
COUNSEL
FOR RESPONDENT:
HON W BARRY LEWIS
PO BOX 800
HAZARD, KY 41702
ADMINISTRATIVE
LAW JUDGE:
HON JONATHAN R. WEATHERBY
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601
