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March 31, 2017 201081256

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

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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