Commonwealth
of Kentucky
Workers’
Compensation Board
OPINION
ENTERED: March 31, 2017
CLAIM NO. 201081256
LETICIA DOWNS PETITIONER
VS. APPEAL FROM HON. JONATHAN R. WEATHERBY,
ADMINISTRATIVE LAW JUDGE
BAPTIST HOSPITAL EAST
and HON. JONATHAN R. WEATHERBY,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
STIVERS,
Member.
Leticia
Downs (“Downs”) appeals from the July 18, 2016, Opinion and Order and the September
7, 2016, and December 20, 2016, Orders on Petition for Reconsideration of Hon.
Jonathan Weatherby, Administrative Law Judge (“ALJ Weatherby”). On appeal,
Downs argues the evidence compels her award of permanent partial disability
(“PPD”) benefits be enhanced by the three multiplier.
The July
28, 2011, Form 101 alleges on July 1, 2010, Downs sustained a work-related
injury to her back in the following manner: “Plaintiff suffered work-related
injury to her Back [sic] when she bent over to pick up a thermometer in the
course of her employment causing a harmful change evidenced by objective
medical evidence resulting in permanent impairment by the 5th
Edition AMA Guides.”
In the
February 16, 2012, Opinion and Award of Hon. John Coleman, Administrative Law Judge
(“ALJ Coleman”), Downs was awarded PPD benefits based on a 13% impairment
rating assessed by Dr. Jules Barefoot. Baptist Hospital East (“Baptist
Hospital”) appealed the decision asserting ALJ Coleman erred in failing to
dismiss Downs’ claim based on her failure to give due and timely notice. This
Board affirmed the Opinion and Award by Opinion entered July 25, 2012.
The Motion
to Reopen relevant to this appeal was filed by Downs on November 6, 2015, in
which she alleged a worsening of condition which has caused her “to be
permanently and totally occupationally disabled.”
Several
medical records of Dr. Gary Reasor were filed in the record by Downs. Included
in those filings is Dr. Reasor’s October 4, 2015, report which states, in
pertinent part, as follows:
1. Ms.
Downs’ current diagnoses are:
a. Lumbar spinal stenosis
b. Degenerative lumbar disc disease
c. Lumbar spondylosis
d. Lumbago
2. There
has been a change in the condition of Ms. Down’s [sic] back since the ALJ
decision rendered in February 2012. The degenerative changes have progressed
and have caused more changes to her back. She complains of increased back and
leg pain. The degenerative changes have increased as evidenced on her most
recent lumbar MRI dated June 16, 2014.
3. The
aforementioned MRI shows that the degenerative changes have worsened and caused
increased stenosis, or narrowing, in the lumbar area.
4. Neither
I nor any of my staff have noted any symptom magnification or obvious Waddell
signs during Ms. Downs’ treatment in the lumbar area.
5. Dr.
Bart Goldman claims that the degenerative changes in Ms. Downs’ back are only
age related. I disagree. In my medical opinion the degenerative changes have
been accelerated by her work injury. These were basically asymptomatic prior to
her injury and presented themselves after the injury and have progressed more
rapidly as a result. Even if imaging studies were to have shown some
degenerative changes, she had an arousal of an underlying condition.
6. Ms.
Downs’ impairment rating has changed from the current 13% whole person
impairment to 16%. The additional 3% are added pursuant to the AMA’s 5th
edition guidelines which permit the addition of the 3% due to her now chronic
pain.
7. Ms.
Downs was taken off work beginning May 19, 2014 and remains off work as she
cannot return to her normal duties due to her current condition.
8. I
agree with Ms. Downs’ decision not to proceed with surgery on her lumbar spine.
Lumbar spine surgery for degenerative disc disease has a track record of
perhaps 50% success rate. Furthermore, surgery to relieve the spinal stenosis may help her leg pain, but would
probably not do anything to help her back pain. I would urge her not to
consider surgery until she develops problems with bowel or bladder function or
increased leg weakness or if the pain is so severe that conservative measures
would not control it.
9. With
regards to her current treatment plan, I would recommend continuing her current
medication. Repeat lumbar epidural steroid injections might be helpful in the
short term. Certainly, a trial of spinal cord stimulation would not be
unreasonable as it is easily reversible should it not work. If she noted
significant pain relief, then implantation of a more permanent system would not
burn any bridges should she need more invasive spine surgery in the future.
10. There
is an objective basis for her pain that can be found on her imaging studies as
well as her physical exam. Her most recent exam, done 9/30/2015, revealed
persistent tenderness over her lumbar spine as well as chronic tightness in the
adjacent paraspinous muscles.
11. In
my medical opinion, Ms. Downs is unable to work either a full time or part time
job in her current field of health care. Furthermore, due to her chronic back
and leg pain, I do not think she is employable in any position either on a full
or part time basis. Her pain and structural changes to her back would cause
problems with prolonged standing, walking, twisting or bending. Furthermore,
the pain would cause problems with sedentary work as well.
Baptist
Health filed the January 13, 2016, Independent Medical Examination (“IME”)
report of Dr. Timir Banerjee. After performing an examination and medical
records review, Dr. Banerjee set forth the following opinions:
A. Diagnosis:
·
Clinical
– stiffness of the back Erector Spinae – ilio costalis part and chronic
narcotic consumption making her dysfunctional and the belief that she is
disabled. She has had [sic] injury to the S1 nerve root on the left with
permanent deficit of hypesthesia with NO MUSCLE WEAKNESS.
·
Radiological
finding of disc herniation at L5-S1 with no progressive deficit.
B. I
believe both the above conditions are related to the work injury of 2010. This
has been combined with [sic] ill advised operation (for fixed deficit) and ‘not
advised’ exercises and not finding a job and consuming narcotics.
C. She
had long reached MMI. She had reached MMI in 2012 when her settlement was
carried out. Radiological progression did not match with objective clinical
finding [sic]. Calf muscles did not undergo atrophy. There is no weakness.
There has been a failure to distinguish pain inhibition from weakness. I agree
with Dr. Reasor that she does not need any operation.
D. I
believe chronic narcotic consumption has made her dependent and sluggish and
constipated.
E. She
has 13% impairment according to the 5th edition of the AMA
guidelines and she belongs to category III of DRE Page 384 table 15-3.
F. Her
condition has not changed any except she has become dependent on narcotics.
G. I
believe she can return to several kinds of work. But since I am not an
occupational specialist I may not be considered to be credible. She can
certainly work as [sic] Medical assistant, she can be a receptionist in a hotel
or in a doctor’s office or lawyer’s office, be a security guard, she can work
as [sic] TSA agent, and she can work as a security guard within the
restrictions of avoiding repetitive bending, not lifting more than 25 pounds.
She must exercise and do exercises. No harm will befall upon her more than what
has happened by not doing anything. There is no salutary effect to the back by
watching TV.
H. She
does not have any more restrictions now than she had in 2012. I have
consistently stated about the ‘nonsense – i.e., no-science’ behind the personal
report of pain numbers. Now someone has written about it [sic] NEJM. There is
no additional 3% impairment from the Chapter 18 of the 5th edition.
This is erroneous thinking. The Sisyphean effort of continuously drugging with
narcotic [sic] with no functional improvement has to be abandoned.
I. I
believe future treatment should consist of tapering off the narcotic pills in 4
weeks. Zanaflex has no long term benefit. Mobic is fine. She can sit in a hot
bath. She can use [sic] icy hot patch couple of times per day. Being drug free
she will feel energized and accept the discomfort of six years as non-disabling
but much like an unwelcome furniture in the living room of life that she has to
learn to walk around and understand that 13% impairment is because of that
furniture because otherwise it would be zero. We must understand that
nociception and complaint of pain are different matters. Please see the
enclosed muscle anatomy and also NEJM from November 26, 2015. It is not a
concept that many pain doctors will acknowledge.
The May 19,
2016, Benefit Review Conference Order and Memorandum lists the following
contested issues: benefits per KRS 342.730; unpaid or contested medical
expenses; and TTD.
In her
brief to the ALJ, among other arguments not relevant to this appeal, Downs
asserted she is entitled to permanent total disability (“PTD”) benefits.
In the July
18, 2016, Opinion and Order, the ALJ put forth, in relevant part, the following
Findings of Fact and Conclusions of Law:
12. All
of the doctors that have examined the Plaintiff post award have opined that she
still falls in the DRE Category III, which corresponds with impairment ratings
from 10%-13%. The Plaintiff’s prior award is based upon the high end of that
range at 13%. Dr. Reasor has opined that an additional 3% should be added due
to pain.
13. The
ALJ finds that Dr. Reasor’s opinion is based almost entirely upon the
subjective complaints of the Plaintiff and does not constitute credible
objective evidence upon which the ALJ chooses to rely.
14. The
ALJ finds that the opinion of Dr. Banerjee is the most credible as it is based
upon the objective medical evidence available.
Dr. Banerjee opined that the Plaintiff’s radiological progression did
not match with the objective clinical findings and that she reached maximum
medical improvement in 2012. Dr.
Banerjee also noted that there was no atrophy or weakness in the calf muscles
and pointed out that there has been a failure to distinguish pain inhibition
from weakness. The opinions of Dr.
Banerjee have convinced the ALJ.
15. The
ALJ finds based upon the foregoing, that the Plaintiff has not suffered an
increase in impairment and that she is not entitled to any additional temporary
total disability benefits.
Unpaid or Contested Medical Expenses
16. 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 injury and thereafter during
disability…KRS 342.020.
17. The
ALJ finds that the contested epidural steroid injections are not reasonable and
necessary for the cure and relief of the Plaintiff’s work injury. The Plaintiff has testified that the prior
injections were not effective and has indicated that she is no longer
interested [sic] them.
Downs filed a Petition for
Reconsideration on August 1, 2016, asserting, in relevant part, that she is
entitled to have her award of PPD benefits enhanced by the three multiplier
beginning on the date of Downs’ November 6, 2015, Motion to Reopen. Downs’
Petition for Reconsideration was deemed moot by the ALJ by order dated
September 7, 2016. Downs filed a second Petition for Reconsideration on
September 19, 2016, reasserting her request for additional findings on, among
other issues not relevant to this appeal, her request for enhancement of her
PPD benefits by the three multiplier beginning on November 6, 2015.
In the December 20, 2016, Order ruling
on the second Petition for Reconsideration, the ALJ stated, in relevant part,
as follows:
The ALJ has previously justified the reliance
upon the credible medical opinions of Dr. Bannerjee [sic]. Dr. Bannerjee [sic]
was convincing in his opinion that there has been no change in the Plaintiff’s
restrictions since 2012. Dr. Bannerjee [sic] also opined that the Plaintiff
could work at [sic] as a medical assistant, a security guard, a receptionist or
a TSA agent.
The burden of proof in a motion to reopen based on a worsening condition falls on
the party seeking to increase the award. Griffith v.
Blair, 430 S.W.2d 337 (Ky. 1968); Jude v. Cubbage, 251 S.W.2d 584
(Ky. 1952). Since Downs was unsuccessful in meeting her 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 that 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).
In rendering a decision, KRS 342.285
grants an ALJ as fact-finder the sole discretion to determine the quality,
character, and substance of evidence.
Square D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993). An ALJ may draw reasonable inferences from the
evidence, 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. Jackson v. General Refractories Co.,
581 S.W.2d 10 (Ky. 1979); Caudill
v. Maloney’s Discount Stores, 560 S.W.2d 15 (Ky. 1977). Although a party may note evidence that would
have supported a different outcome than that reached by an ALJ, such proof is
not an adequate basis to reverse on appeal. McCloud
v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974). Rather, it must be shown there was no evidence of
substantial probative value to support the decision. Special Fund v. Francis, 708 S.W.2d
641 (Ky. 1986).
When reviewing a decision on
appeal, the function of the Board is limited to a determination of whether the
findings made are so unreasonable under the evidence that they must be reversed
as a matter of law. Ira A. Watson Department Store v. Hamilton, 34 S.W.3d
48 (Ky. 2000). The Board, as an appellate tribunal, may not usurp the ALJ's
role as fact-finder by superimposing its own appraisals as to weight and
credibility or by noting other conclusions or reasonable inferences that
otherwise could have been drawn from the evidence. Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999).
As an initial matter, we note Downs’
argument on appeal – i.e. the evidence compels enhancement of her PPD benefits by
the three multiplier beginning on November 6, 2015 – not only does not match
the argument she asserted in her November 6, 2015, Motion to Reopen and July 8,
2016, brief to the ALJ, but does not assert a legitimate basis for a reopening minus an accompanying assertion of entitlement
to increased PPD benefits based upon an increase of impairment rating. See KRS 342.125 and KRS 342.730; See also
Rock Drilling, Inc. v. Howell, Not Reported in S.W.3d, 2013 WL 4680489
(August 29, 2013). We note that while Downs alleged an increase in impairment
rating in her November 6, 2015, Motion to Reopen and brief to the ALJ relative to
her claim of a worsened condition causing her to be permanently totally
disabled, she failed to set forth an alternative argument of entitlement to increased
PPD benefits based upon the alleged worsening of condition. Thus, this Board’s
sole task on appeal is to determine if the record compels a different result
than that reached by the ALJ when he determined Downs has not suffered an
increase in impairment.
The July 18, 2016, Opinion and Order demonstrates
the ALJ relied upon Dr. Banerjee’s opinions to determine Downs has not suffered
an increase in impairment since the February 16, 2012, Opinion and Award of ALJ
Coleman. “Substantial evidence” is defined as evidence of relevant consequence
having the fitness to induce conviction in the minds of reasonable persons. Smyzer
v. B. F. Goodrich Chemical Co., 474 S.W.2d 367 (Ky. 1971). Dr. Banerjee’s opinions contained in the December
21, 2015, IME report constitute substantial evidence supporting the ALJ’s
conclusion Downs’ condition has not worsened. Dr. Banerjee assessed a 13% whole
person impairment rating which mirrors the 13% impairment rating assessed by
Dr. Barefoot upon which ALJ Coleman relied in rendering the 2012 award. Dr.
Banerjee further opined Downs’ “condition has not changed any except she has
become dependent on narcotics.” Since Downs was unsuccessful in proving an
increase in her work-related impairment rating, as a matter of law she is not
entitled to enhanced PPD benefits via the three multiplier. As Dr. Banerjee’s
IME report constitutes substantial evidence in support of the ALJ’s
determination Downs has not suffered a worsening of impairment, the record does
not compel a different result.
Accordingly, the ALJ’s July 18, 2016,
Opinion and Order and the September 7, 2016, and December 20, 2016, Orders on
Petition for Reconsideration are AFFIRMED.
ALL
CONCUR.
COUNSEL
FOR PETITIONER:
HON STEPHANIE WOLFINBARGER
640 W FOURTH ST STE 400
LOUISVILLE KY 40202
COUNSEL
FOR RESPONDENT:
HON DOUGLAS U’SELLIS
600 E MAIN ST STE 100
LOUISVILLE KY 40202
ADMINISTRATIVE
LAW JUDGE:
HON JONATHAN R WEATHERBY
657 CHAMBERLIN AVE
FRANKFORT KY 40601