RENDERED:  APRIL 28, 2017; 10:00 A.M.

NOT TO BE PUBLISHED

 

Commonwealth of Kentucky

Court of Appeals

 

NO. 2015-ca-000477-wc

 

 

derby city sign & ELECTRIC, INC.                                  APPELLANT

 

 

 

                           PETITION FOR REVIEW OF A DECISION

v.                   OF THE WORKERS’ COMPENSATION BOARD

                                        ACTION NO. WC-11-67145

 

 

 

ROBIN D. WILSON; JANE RICE

WILLIAMS, ADMINISTRATIVE

LAW JUDGE; AND WORKERS’

COMPENSATION BOARD                                                         APPELLEES

 

 

 

OPINION

REVERSING

 

** ** ** ** **

 

BEFORE:  ACREE, J. LAMBERT AND TAYLOR, JUDGES.

ACREE, JUDGE:  Derby City Sign & Electric, Inc., appeals from an opinion of the Workers’ Compensation Board which affirmed an Administrative Law Judge’s (ALJ) opinion awarding Robin Wilson temporary total disability benefits, permanent partial disability benefits, and medical expenses.  The issue before us is whether the ALJ’s finding that Wilson’s foot condition was caused by a work incident with no pre-existing impairment is supported by substantial evidence.  Upon review, we reverse.

I. Factual and Procedural Background

                   Robin Wilson worked for Derby City Sign & Electric, Inc., installing and servicing commercial signs.  His job duties included heavy lifting, climbing extension ladders, and loading and unloading heavy materials.  Although his claim is based on events occurring in November 2011, his medical history prior to that date is relevant.

                   In August 2011, Wilson was treated by Dr. William Brown of Podiatric Physicians of Kentucky for a bone spur in his left foot.  Wilson described the pain as a “sting.”  Dr. Brown’s notes from that August 2011 visit stated:

Chief Complaint (1/1):  This 49 year old [male^[1]] presents today for hindfoot pain assessment bilateral[.]

 

Location:  [He] indicates the problem location is the lateral aspect of the left foot and the lateral aspect of right foot.

 

Duration:  Condition has existed for one month.

 

Timing (onset/frequency):  Onset was gradual.

 

Associated signs and symptoms:  Associated signs and symptoms include morning pain and pain.

 

Modifying factors:  Patient indicates irritation from direct pressure and prolonged walking and standing aggravate the condition.

 

Quality:  Quality of the pain is described by the patient as localized, sharp and shooting.  Patient relates pain on a scale from 0 to 10 as 8/10.

 

Severity:  Severity of condition is progressively worsening.

 

Context:  Patient denies a previous history of trauma.  Prior history of this condition exists.  The patient has had no previous treatment for this condition.

 

                   The doctor’s notes further indicate that x-rays were taken, but the results are not recorded in the record.  Also, the “Impression” section of the note was left blank.  Dr. Brown diagnosed left foot pain related to plantar fasciitis and heal pain syndrome.  The only treatment option was surgical removal of the bone spur; Wilson opted against that course of treatment because, at the point, the condition was aggravating only when he shifted gears on his motorcycle.  Wilson was instructed to return for follow-up treatment in three weeks.

                   Wilson eventually returned, but not after three weeks as instructed.

                   On Monday, November 14, 2011, Wilson was working on a sign at Town Suites.  He descended the ladder and when he stepped off the ladder onto the ground, he rolled his left ankle.  He was not able to walk and crawled to his work truck.  The loss of footing was not witnessed, but Wilson stated he was seen by a maintenance man on the job site crawling to his truck.  He waited a few minutes and was then able to retrieve his equipment.  He loaded his equipment and returned to the shop.  When he arrived, Wilson informed his manager, Paul Ackerman, that he had rolled his ankle as he was stepping off the ladder.

                   Three days later, on Thursday, November 17, 2011, Wilson returned to Podiatric Physicians of Kentucky.  He asked to see Dr. Brown, but the doctor was unavailable.  Wilson was treated by Dr. Christopher Hubbard.  The treatment note from that appointment states:

Chief Complaint (1/1):  This 49 year old [male] presents today for follow up on hindfoot pain assessment left.

 

Location:  [He] indicates the problem location is the lateral aspect of the left foot.

 

Duration:  Condition has existed for one month.

 

Timing (onset/frequency):  Onset was gradual.

 

Associated signs and symptoms:  Associated signs and symptoms include pain.

 

Modifying factors:  Patient indicates irritation from direct pressure and prolonged walking and standing aggravate the condition.

 

Quality:  Quality of the pain is described by the patient as localized, sharp and shooting.  Patient relates pain on a scale from 9 to 10, (10 being the wors[t]).

 

Severity:  Severity of condition is progressively worsening.

 

Context:  Patient denies a previous history of trauma.  Prior history of this condition exists.  The patient has had no previous treatment for this condition.

 

                   Dr. Hubbard ordered an MRI of Wilson’s left foot and left ankle.  In addition, he prescribed medication and a pneumatic boot to wear when not at work. 

                   That same day, November 17, 2011, Dr. George Dunn conducted the MRI.  The history Dr. Dunn took from Wilson reflects that the patient is a “49 year-old male with lateral sided foot pain for 3 months, worsening over last six weeks.”

                   Despite pain in his foot, Wilson continued working at Derby City on projects that did not involve climbing.  He returned to Dr. Hubbard’s office on December 2, 2011, to discuss the results of the MRI.  A note from that visit stated for the first time that Wilson “is reporting this to be a work related injury and states his employer is aware of this.”  Once again, surgery was recommended.  

                   On February 1, 2012, Dr. Hubbard amended his November 17, 2011 notes to reflect Wilson was reporting this as a work injury.  On February 7, 2012, and notwithstanding Dr. Hubbard’s November 2011 note in Wilson’s medical history that “Patient denies a previous history of trauma,” the doctor corrected that history to say “at that time he stated that he had slipped off a ladder at work and hurt his left foot.”  The letter also mentioned that Wilson reported he had been treated previously by Dr. Brown for pain in both feet.

                   Surgery was scheduled and conducted by Dr. Hubbard on March 22, 2012.  Thereafter, Wilson completed a six-week course of physical therapy.

                   Dr. Hubbard released Wilson to return to work with no restrictions on June 14, 2012.  Wilson’s private health insurance paid for covered medical expenses associated with his treatment.  Wilson himself paid out-of-pocket costs.

                   Upon Wilson’s return to Derby City in June 2012, Ackerman told him that work was slow and Wilson was no longer needed.  Wilson filed for and was awarded unemployment benefits.  A short time later, Wilson found a job doing similar work, without any restrictions, at Glass Sign Company.  He worked at Glass Sign for approximately five months.  He then went to work at Louisville Signs without any restrictions, other than those self-imposed, for approximately three months.  Wilson then began working for Signarama doing the same work as at the other sign companies, but with less lifting and climbing.

                   Wilson continued to have issues with pain and swelling in his left foot which is worsened by activity, so he is not as active as before.  Sign work (climbing ladders, crouching down, and lifting items) is very difficult and uncomfortable for Wilson because his foot pain increases.

                   Wilson filed a workers’ compensation claim on October 18, 2013, alleging a work injury to his left foot and ankle that occurred on November 14, 2011, while working for Derby City.  Derby City denied Wilson’s claim in its entirety.  A benefit review conference was held on August 14, 2014, at which time the parties entered into stipulations and isolated their contested issues.  A formal hearing was held on August 27, 2014. 

                   Wilson testified by deposition on January 13, 2014.  He recounted his visit to Podiatric Physicians of Kentucky with Dr. Brown in August 2011 and told of the pain in his foot at that time.  He gave an account of what happened on November 14, 2011, stating that after he stepped off the ladder, the pain in his foot was “totally different” than any he had experienced before.

                   Ken Ackerman, the owner of Derby City, also testified by deposition regarding Wilson’s hire date and duties.  He testified that Wilson had mentioned multiple times prior to November 2011 that he had a foot problem and would eventually need to have surgery.  Ackerman also remembered Wilson missing work on at least two occasions in 2009 to see a doctor about his foot.  Ackerman also authenticated video footage from company security cameras depicting Wilson entering and leaving the work premises on the day of the work incident.  Wilson denied telling Ackerman he needed foot surgery prior to November 2011.

                   Dr. Hubbard testified by deposition on May 29, 2014.  He confirmed he treated Wilson in November 2011 and performed surgery on Wilson’s left foot.  Dr. Hubbard stated he considered Wilson’s condition to be the natural progression of the symptoms for which he sought treatment in August 2011, noting also that Wilson made no mention of a specific injury.  Dr. Hubbard testified as follows:

Q: Would the surgery be consistent with the symptoms that are listed in August of 2011?

 

A: It could be. I would have to look at the exam.  And once again, we hadn’t had the MRI at that point, so the MRI would have confirmed what would have needed to be done surgically.

 

Q: Are there any particular mechanisms of injury that you could associate with the type of surgery you completed on Mr. Wilson?

 

A: Once again, as a general rule, I believe that it’s not one specific incident, but it could be precipitated by an inversion type of ankle sprain, or a lateral ankle sprain, which could injure the tendon, and then usually kind of degenerates over time.

 

It’s usually not kind of like a fracture, a broken bone, where you had the surgery and you need to go in to repair it.  Usually with tendon injuries, usually, you will have still sometimes try physical therapy and conservative treatment . . . before you talk about surgical intervention.

 

When I got the patient in my hands, so to speak, he was saying he had discomfort since August – well, of course, before then, based upon the note.

 

Q: And then again, did you consider this just to be the natural progression of the symptoms that he complained of back in August?

 

A: In my mind, that’s what I felt I was dealing with, yes.

 

Q: Doctor, have all of your opinions been stated with a reasonable degree of medical probability?

 

A: That’s correct.

 

On cross-examination, Dr. Hubbard stated the following:

Q: Mr. Wilson testified that on November 14^th of 2011 he was stepping off of a ladder and – I don’t know – rolled his foot, I guess.  Could that type of injury have caused the problems that he had that led to the surgery?

 

A: It could have. It could have. It’s possible.   

 

                   Wilson also presented a report dated January 8, 2014, from Dr. James Farrage.  Dr. Farrage conducted an Independent Medical Evaluation (IME) by taking history from Wilson, performing a physical examination, and reviewing Wilson’s medical records.  As it bears on the question of causation, Dr. Farrage’s report says only that Wilson’s “clinical presentation and historical account are consistent with the proposed mechanism of injury” justifying surgery.

                   Derby City filed the reports of two physicians, Dr. Keith Myrick and Dr. Thomas Loeb.  In his February 28, 2012 report, Dr. Myrick opined that Wilson’s torn tendons were unrelated to the November 14, 2011 work injury based upon the November 17, 2011 treatment note.  The note indicated Wilson had a prior history of the condition, and he denied any trauma.

                   Dr. Loeb’s February 18, 2014 report noted Wilson’s statement that he twisted his ankle when stepping off a ladder on November 14, 2011.  However, he found the pre-existing nature of the injury critical to his medical causation conclusion.  He said:

I think the medical record is critical in this case, and there is certainly controversy as to when this injury occurred, particularly when looking at Dr. Hubbard’s records.  He states clearly that the condition began one month prior to [Wilson’s] being seen [on November 17, 2011] only three days after the alleged injury date.  There is no question that there is a pathologic lesion in the peroneal tendon, but I find it difficult to believe, based on Dr. Hubbard’s history, that this is related to the work injury of 11-14-11.

 

Derby City provided a supplemental affidavit from Dr. Loeb commenting on an “operative note dated 3/22/12” as being “consistent with the prior history of injury in November 2011.”[2]  The only operative note in the record, dated 3/22/12 but signed by Dr. Hubbard on March 23, 2012, states:

TENOSYNOVITIS OF FOOT AND ANKLE

Pain in Limb

CONGENITAL ANOMALIES OF FOOT NOT ELSEWHERE

            CLASSIF

RUPTURE OF SYNOVIUM UNSPECIFIED

NONTRAUMATIC RUPTURE OF OTHER TENDONS OF

            FOOT AND

NONTRAUMATIC RUPTURE OF OTHER TENDON

 

                   The ALJ considered all this evidence.  When she reached the critical issue in this appeal – medical causation – she addressed the impact of each of these physicians and their medical records on her conclusion.  She found:

Wilson is a believable witness.  He had seen Dr. Brown, Dr. Hubbard’s partner, for a foot condition prior to the work injury but worked unrestricted with no significant complaints until he twisted the ankle on November 14, 2011.  The surveillance video, though mostly inconclusive, appears to show Wilson having difficulty walking, if anything.  The initial treatment record from Dr. Hubbard on [November] 17, 2011 notes a gradual onset but also refers to Wilson as a female all through the record.  For this reason, the initial record from Dr. Hubbard is not found to be conclusive on this issue.

 

. . . .

 

Additionally, Dr. Hubbard’s later office notes state the condition is work related.  Dr. Loeb’s report has been reviewed but his opinion on the causation is not adopted herein.  The opinion of Dr. Farrage on work-relatedness/ causation is not found to be any more helpful than that of Dr. Loeb on the issue.  It is the review of the records of Dr. Hubbard along with the testimony of Wilson which have been persuasive on the issue of causation.

 

                   The ALJ awarded Wilson permanent partial disability (PPD) benefits upon a 2% impairment rating with an applicable three-multiplier.  The ALJ also awarded Wilson temporary total disability (TTD) benefits from January 26, 2012, the date of the surgery, until Dr. Hubbard found Wilson reached maximum medical improvement (MMI) on June 14, 2012.  He was also awarded medical benefits.

                   Derby City filed a petition for reconsideration specifically on the issue of medical causation.  Derby City maintained that the ALJ’s finding on medical causation was not supported by substantial evidence.  The petition was denied.

                   Derby City then sought review by the Board of Workers’ Claims arguing the record lacked substantial evidence supporting Wilson’s claim that his November 14, 2011 errant descent from a ladder caused his foot injury.  The Board determined the ALJ’s decision was supported by substantial evidence.  The Board stated “[i]n this instance, it was not so unreasonable for the ALJ to infer from the totality of the circumstances evidenced by the lay and medical testimony that Wilson’s left ankle condition was caused by his work accident.”  The Board indicated that Wilson’s medical records and the testimony of Dr. Hubbard were equivocal, but when considered in conjunction with Wilson’s testimony, the Board concluded there was substantial evidence on which the ALJ could rely in determining causation.  Derby City now appeals.

II. Standard of Review

                   The crux of the inquiry on judicial appeal of an administrative decision is whether the finding which was made is so unreasonable under the evidence that it must be viewed as erroneous as a matter of law.  Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986).  The ALJ is the finder of fact in workers’ compensation matters.  Ira A. Watson Dept Store v. Hamilton, 34 S.W.3d 48, 52 (Ky. 2000).  Where the ALJ determines that a claimant has satisfied his or her burden of proof with regard to a question of fact, the issue on appeal is whether substantial evidence supported the determination.  Special Fund, 708 S.W.2d at 643.  Substantial evidence means “evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable men.”  Owens–Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998).  Thus, where an ALJ’s finding is unsupported by substantial evidence, it is well within the province of the Board and this Court to reverse the ALJ.

                   This Court’s function when reviewing a decision made by the Board “is to correct the Board only where the [sic] Court perceives the Board has overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause gross injustice.”  Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687–88 (Ky. 1992). 

III. Analysis

                   Derby City argues that the ALJ erred in the determination that Wilson’s foot condition was the result of the work-related incident, and that the Board erred in affirming that determination, because the record does not contain substantial evidence to support the ALJ’s finding regarding medical causation.  The question on appeal is whether that finding was reasonable.  Based on our review of the record and the following analysis, we conclude it was not.

                   Medical causation is to “be proved to a reasonable medical probability with expert medical testimony.”  Brown-Forman Corp. v. Upchurch, 127 S.W.3d 615, 621 (Ky. 2004) (citations omitted).  “It is the quality and substance of a physician’s testimony, not the use of particular ‘magic words,’ that determines whether it rises to the level of reasonable medical probability, i.e., to the level necessary to prove a particular medical fact.”  Id. (citation omitted).  The claimant bears the burden of proof with regard to every element of a workers’ compensation claim.  Magic Coal Co. v. Fox, 19 S.W.3d 88, 96 (Ky. 2000).     

                   Generally, the ALJ is free to “reject any testimony and believe or disbelieve various parts of the evidence [.]”  Id.  In the Board’s decision affirming the ALJ’s finding on causation, the Board relied on Mengel v. Hawaiian-Tropic Northwest & Central Distributors, Inc., 618 S.W.2d 184 (Ky. App. 1981) when it stated, “[w]hile medical causation usually requires proof from a medical expert, the ALJ may properly infer causation, or a lack of causation, from the totality of the circumstances as evidenced by the lay and expert testimony of record.” (R. 336). 

                   However, the Board failed to cite the passage in Mengel that is more applicable in this case: “the board is not justified in disregarding the medical evidence . . . where the causal relationship is not apparent to the layman . . . .”

Mengel, 618 S.W.2d at 187.  The causal relationship in this case is not apparent to the layman.  In fact, none of the half dozen or so medical practitioners involved could unequivocally identify a cause.  Therefore, it was improper for the ALJ and the Board to decide this claim without relying on the testimony of the medical experts and, instead, relying only on (1) the believability of Wilson’s testimony regarding his changing symptoms, and (2) notes Wilson asked Dr. Hubbard to add to his medical record, as determinative of medical causation.

                   Nevertheless, we still can affirm if we find in the record substantial evidence in the form of medical proof, within a reasonable degree of medical certainty, that the cause of Wilson’s injury was rolling his ankle while at work on November 14, 2011.  We have examined the record and fail to find such evidence.

                   Like the ALJ, we find the testimony of Dr. Farrage unhelpful on the issue of causation.  He simply finds consistency between the treatment prescribed and the history Wilson gave; that history would include complaints of problems with his foot for which he sought treatment in August 2011 and again in November 2011.  So we turn to testimony offered by Wilson from one of the treating physicians, Dr. Hubbard.

                   Dr. Hubbard testified on cross-examination that it was medically possible that Wilson’s injury was caused by Wilson’s misstep off the ladder.  However, that possibility is not inconsistent with the doctor’s earlier testimony that he proceeded in his treatment of Wilson believing the tendon injury was a degenerative condition.  He expressly stated, “I believe that it’s not one specific incident,” and testified he held that belief with a reasonable degree of medical probability.  The Board’s assessment of this testimony as equivocal ignores the reality that medical causation testimony, for all practical purposes, always admits of other causation possibilities.  A doctor’s acknowledgement of the possibility of an alternative cause certainly is “some evidence” of that cause.  But “some evidence” is not the equivalent of substantial evidence.

                   This conclusion is not based on a reweighing of the evidence.  We are following legal precedent that addresses the sufficiency of testimony of merely “possible” causes of work-related injuries.  In similar circumstances, testimony of a possible cause has been found inadequate to support a claim for benefits.  In an early Workers’ Compensation case, our highest court said: “The most [the testifying physician] would say in this connection was that the trouble could have been thus caused.  Certainly, in view of this situation, there was no evidence of substance that the appellee’s trouble resulted” from a mere possible cause.  Kentucky Stone Co. v. Phillips, 294 Ky. 576, 172 S.W.2d 216, 217 (1943) (emphasis added).  More recently, our Supreme Court said “although both physicians said at various times that [a claimant’s condition] could be the result of [a particular event], neither stated that [it] was the definitive cause. . . . Therefore, the finding by the hearing officer [based on a possible cause] is not supported by evidence of substance.”  Kentucky Retirement Systems v. Wimberly, 495 S.W.3d 141, 149 (Ky. 2016) (emphasis added). 

                   Wilson bore the burden of establishing causation.  Testimony of a possible cause, especially when counterpoised by testimony of a probable cause, does not rise to the standard of substantive evidence.  Pierce v. Kentucky Galvanizing Co., Inc., 606 S.W.2d 165, 168 (Ky. 1980) (“Substantial evidence is not simply some evidence or even a great deal of evidence; rather, substantiality of evidence must take into account whatever fairly detracts from its weight.”).

                   In fairness, the ALJ did not say she was persuaded by Dr. Hubbard’s, or any physician’s, testimony regarding a possible cause.  Rather, she said it was “the records of Dr. Hubbard along with the testimony of Wilson which have been persuasive on the issue of causation.”  So, we turn our attention to Dr. Hubbard’s medical records. 

                   Like his testimony, Dr. Hubbard’s medical records were deemed to be equivocal.  We are not convinced they are.  The records indicate that when Wilson first saw Dr. Hubbard on November 17, 2011, seeking treatment for foot pain, he “denie[d] a previous history of trauma.”  So why was he there?  According to Dr. Hubbard’s record that day, he was there “for follow up on hindfoot pain assessment left.”  The follow up was from his visit to the same medical facility three months earlier when he complained to Dr. Brown of the same malady.

                   On that previous occasion, in August 2011, Wilson told Dr. Brown his “[c]ondition has existed for one month[, i.e., since July 2011, and the o]nset was gradual. . . . [D]irect pressure and prolonged walking and standing aggravate the condition [which was] progressively worsening.”  For the next three months, until November 2011, his job would require prolonged walking and standing and direct pressure climbing the rungs of a ladder.  By the time Dr. Hubbard saw Wilson for follow up in November, the condition had existed for four months and the pain had increased on a scale of 0 to 10 from an 8 to a 9.

                   On the same day that Dr. Hubbard first saw Wilson, Dr. Dunn met with Wilson to take a history prior to conducting an MRI.  Wilson told Dr. Dunn he had had “foot pain for 3 months, worsening over [the] last six weeks.” 

                   To us the record is clear that, on November 17, 2011, Wilson perceived his condition as a worsening continuum of pain that began in July 2011.  He related nothing that day to his medical providers indicating he was seeking treatment for anything other than exacerbation of the medical condition Dr. Brown diagnosed in August 2011.  One might then ask what makes the Board consider Dr. Hubbard’s medical records equivocal.  The answer might be two-fold. 

                   First, Dr. Hubbard’s medical records often refer to the patient, Robin Wilson, as female.  We see no evidentiary significance in that error, however, and view it simply as did the Board when it twice said it “appears to be a typographical error in the physician’s records.” 

                   Second, a December 2, 2011 office note by Dr. Hubbard states “[Wilson] is reporting this to be a work[-]related injury and states his employer is aware of this.”  In February 2012, Dr. Hubbard added an addendum to his November 17, 2011 report to reflect the same thing.  A February 7, 2011 letter from Dr. Hubbard provided that Wilson “stated that he had slipped off a ladder at work and hurt his left foot.” 

                   The Board and ALJ fully relied on these notes.  The ALJ went so far as to say, “Dr. Hubbard’s later office notes state the condition is work related.”  That is not a correct analysis of these notes.  These supplemental notes are not expressions of Dr. Hubbard’s medical opinion as to the cause of Wilson’s condition.  At most, they are the doctor’s recordation of Wilson’s post hoc allegation to that effect.  Wilson’s believable testimony that events on November 14, 2011 increased the pain he was already experiencing does not provide the missing proof of work-related medical causation.  On the contrary, his increase in pain was entirely consistent with Dr. Hubbard’s conclusion that he was performing surgery to correct a degenerative condition Wilson first noticed in July 2011.   

                   Proving work-related medical causation was Wilson’s burden to bear.  We find the ALJ’s conclusion that Wilson met that burden unreasonable because it is not supported by substantial evidence.  

CONCLUSION

                   For the forgoing reasons, we REVERSE the Board’s order affirming the ALJ’s award. 

                   TAYLOR, JUDGE, CONCURS IN RESULT ONLY.

                   lAMBERT, J., JUDGE, dISSENTS AND DOES NOT FILE separate OPINION.

 

BRIEF FOR APPELLANT:   Douglas A. U’Sellis Louisville, Kentucky

BRIEF FOR APPELLEES: Joy L. Buchenberger Louisville, Kentucky