Workers’
Compensation Board
OPINION
ENTERED: April 28, 2017
CLAIM NO. 201599854
JAMES BRUCE PETITIONER
VS. APPEAL FROM HON. JONATHAN R. WEATHERBY,
ADMINISTRATIVE LAW JUDGE
GRACE DISCOUNT FOODS
and HON. JONATHAN R. WEATHERBY,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
IN PART, REVERSING IN PART,
AND
REMANDING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
STIVERS,
Member.
James Bruce (“Bruce”) seeks review of the December 19, 2016, Opinion and Order
of Hon. Jonathan R. Weatherby, Administrative Law Judge (“ALJ”) dismissing his
claim for income and medical benefits for an alleged work-related back injury
occurring on July 31, 2014. Bruce also
appeals from the February 15, 2017, Order denying his petition for
reconsideration.
On appeal, Bruce asserts the ALJ’s reliance upon Dr.
Richard Sheridan’s impairment rating is erroneous since the impairment rating is
not in conformity with the 5th Edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (“AMA Guides”). Bruce also argues he is entitled to
reimbursement for medical expenses related to the cure and relief of his low
back condition.
At his September 20, 2016, deposition, Bruce testified he
worked for Grace Discount Food (“Grace”) pulling pallets, stocking shelves, and
stocking the frozen section in the store.
Bruce described the injury as follows:
Q: All right. So, James, in your own
words, July 31, 2014 tell me what happened.
A: I was in the walk-in freezer getting
a case of product out, everything was covered in ice, and as I picked up the
product and turned to walk out of the freeze [sic] my feet slipped from under
me and I bounced off the rack and hit the floor.
Q: What part of your body hit the
floor?
A: My back.
Q: Lower back?
A: Yes.
Q: Did you feel symptoms in your lower
back or any other part of your body at that time?
A: My whole back hurt that day.
Bruce advised the store manager of
the injury and went next door to Metcalfe Family Practitioners where he was
sent for x-rays and advised by the nurse practitioner that he likely had a
muscle strain.[1] Bruce was off work one or two days. He was next seen by Dr. Kelly McMurtrey, a
chiropractor, who took him off work and referred him to an orthopedic
specialist.[2] Bruce was treated by Dr. McMurtrey on sixteen
occasions. Because her treatment only
provided temporary relief, Dr. McMurtrey referred Bruce to an orthopedic
physician, Dr. Barret Lessenberry. Dr. Lessenberry prescribed anti-inflammatory
medications and ordered an MRI. After the MRI was performed, Dr. Lessenberry
diagnosed a disc protrusion and recommended three epidural injections and
physical therapy. Bruce only underwent
one of the recommended injections because Grace’s workers’ compensation carrier
refused to pay for the rest. Bruce testified the one injection provided relief
for a couple of weeks. He attended six physical therapy sessions and was
provided a TENS unit. Dr. Lessenberry
released him to return to work with twenty-five pound and, later, fifty-pound lifting
restrictions. However, Grace would not
allow him to return to work with either of these restrictions.
Bruce began working for Amneal
Pharmaceutical (“Amneal”) approximately a year after Grace refused to allow him
to return to work. At the time he began
working for Amneal, Bruce was not being treated by Dr. Lessenberry. He has not been treated by any doctors other
than Drs. McMurtrey and Lessenberry.
Bruce testified he occasionally experienced low back symptoms at work consisting
of pain radiating down his hips and legs.
Sitting and standing too long prompt his symptoms. Bruce believes he is capable of returning to
his prior job with Grace.
At the October 18,
2016, hearing, Bruce indicated he was only allowed six physical therapy
sessions by Grace’s workers’ compensation carrier. Although the workers’ compensation carrier
approved the use of a TENS unit, it later reversed its position resulting in
Bruce returning the TENS unit. Bruce
continues to work at Amneal and at times experiences low back symptoms at work. Approximately two weeks before the hearing,
Bruce returned to Dr. McMurtrey for an adjustment for which he paid. Bruce testified that of the sixteen visits to
Dr. McMurtrey, Grace’s workers’ compensation carrier paid for twelve visits,
and he paid for four visits at $40.00 per visit. Bruce testified he has now paid Dr. McMurtrey
$200.00 ($160.00 for the last four visits of the initial sixteen visits plus
$40.00 for the last visit to Dr. McMurtrey in October 2016).
Bruce introduced the records of Metcalfe Family
Practitioners and Dr. Lessenberry. Bruce
also introduced the January 6, 2016, Impairment Rating report of Laura
Goulbourne (“Goulbourne”), a physical therapist, which reflects a diagnosis of
discogenic back pain and an assessment of an 8% impairment rating pursuant to
the AMA Guides. The report notes Bruce was referred to her by Dr.
Lessenberry. Within the report,
Goulbourne sets out the portions of the AMA Guides upon which she relied
in assessing the impairment rating.
Attached to the report is Dr. Lessenberry’s note of January 19, 2016,
which states, in relevant part, as follows:
His impairment rating was completed on
1/6/16 with the result of 8% impairment to the person as a whole. The patient
was placed in DRE category 2 based on 5th Edition AMA Guidelines.
The patient did have pre-existent
symptoms and, in fact, had had treatment for these symptoms previously. I think
the work related fall was responsible for 50% of the impairment that might not
have arisen had he not sustained the fall.
Grace introduced the May 18, 2015,
Independent Medical Evaluation report of Dr. Sheridan in which he concluded
Bruce had reached maximum medical improvement (“MMI”) in relation to his low
back pain and had no permanent restrictions associated with the injury. Pursuant to the AMA Guides, he opined Bruce
had zero impairment.
In his December 19, 2016, Opinion and Order, the ALJ set
forth the parties’ stipulations which are, in relevant part, as follows:
The Plaintiff sustained a work-related
injury on or before July 31, 2014, with the Defendant having received due and
timely notice of Plaintiff’s injury.”
TTD benefits were paid to the Plaintiff
at the rate of $166.64 per week from November 3, 2014 through May 21, 2015 for
a total of $4,795.15.
The Defendant has paid on behalf of the
Plaintiff medical expenses in the amount of $7,254.79.
After summarizing Bruce’s testimony
and the medical evidence, the ALJ provided the following findings of fact and
conclusions of law:
9.
The ALJ is most persuaded by the opinion of Dr. Sheridan in this matter and is
unable to rely upon the inconsistent evidence provided by the Plaintiff to
establish an impairment rating in this matter. The impairment rating issued by
Ms. Goulbourne and then discounted by Dr. Lessenberry does not constitute the
basis of an opinion upon which the ALJ may confidently rely.
10. Dr. Sheridan
has detailed the thorough examination that he performed and reviewed diagnostic
imaging before reaching the determination that the Plaintiff has a 0%
impairment with no restrictions and no pre-existing component. This opinion has
convinced the ALJ and the ALJ therefore finds that the Plaintiff has a 0% whole
person impairment.
Bruce filed a petition for reconsideration asserting Dr. Sheridan’s impairment
rating does not conform to the AMA Guides. Bruce also took issue with the ALJ’s
statements regarding Dr. Lessenberry’s impairment rating, and he requested the
ALJ reconsider the impairment rating of Dr. Lessenberry.
The ALJ denied Bruce’s petition for
reconsideration.
On
appeal, Bruce argues the ALJ’s reliance upon Dr. Sheridan’s impairment rating
is misplaced, as he “does not really use the Mandatory Guides.” Bruce argues Drs.
Lessenberry and McMurtrey, along with the physical therapist, observed pain,
spasm, alteration of gait, and other objective findings during “the acute
phase.” On the other hand, Dr. Sheridan
did not examine Bruce until nearly nine months later. Thus, his failure to find the acute symptoms
“means nothing with respect to impairment” according to the AMA Guides. Bruce
argues Dr. Sheridan did not apply the language of the AMA Guides, but
only “feigns to do so.”
Next, Bruce argues since he sustained a
work-related injury he is entitled to medical benefits. In spite of that fact, the ALJ did not
require Grace to bear the cost of Bruce’s treatment even though he experiences continual
post-injury pain. Bruce notes his hearing
testimony establishes he paid $160.00 for medical care, and the ALJ’s decision
deprived him “of his statutory entitlement for payment of medical bills.”
As the claimant in a workers’
compensation proceeding, Bruce 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). Since Bruce was unsuccessful in that 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). 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 that they must be reversed as a matter
of law. Ira A. Watson Department
Store v.
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 (
We find no merit in Bruce’s first argument
the ALJ erred in relying upon Dr. Sheridan’s opinions. First and foremost, we point out that Bruce
did not object to Dr. Sheridan’s report or identify Dr. Sheridan’s impairment
rating is not compliant with the AMA Guides as a contested issue. 803 KAR 25:010 Section 13(11) and (12) read
as follows:
(11) If at the conclusion of the BRC the parties have not
reached agreement on all the issues, the administrative law judge shall:
(a) Prepare a final BRC memorandum and order including
stipulations and identification of all issues, which shall be signed by all
parties or if represented, their counsel, and the administrative law judge; and
(b) Schedule a final hearing.
(12) Only contested issues shall be the subject of further
proceedings.
The September 16, 2016, Benefit Review
Conference (“BRC”) Order and Memorandum demonstrates the parties identified the
contested issues as “benefits per KRS 342.730; unpaid or contested medical
expenses.” No other contested issue was
listed. Thus, Bruce waived his right to raise
as an issue before the ALJ and on appeal that Dr. Sheridan’s impairment rating
is not in conformity with the AMA Guides.
In Howard
v. Cumberland River Coal, 2015-CA-001704-WC, rendered August 26, 2016,
Designated Not To Be Published, the Court of Appeals stated:
Since KRS [footnote
omitted]
342.730(1)(b) mandates use of the AMA Guides in determining
impairment and benefits awarded, Howard argues that an evidentiary objection to
noncompliance is unnecessary for appellate preservation purposes and that an
ALJ is not free to rely upon an AMA noncompliant medical expert's opinion.
However, we agree with the Board's conclusion that Howard was required to raise
an objection if he believed that Dr. Hall's impairment rating was not compliant
with the AMA Guides. 803 KAR [footnote
omitted] 25:010
§ 13(13) requires that all contested issues be raised before the ALJ; per 803 KAR
25:010 § 13(14), only the issues listed as “contested” may proceed
beyond the benefit review conference. Since Howard did not raise the issue
before the ALJ, the Board correctly held that the ALJ could not address that
issue, nor could the Board. Furthermore, failure to raise an issue before an
administrative body precludes that issue from judicial review. Urella v. Ky.
Bd. of Med. Licensure, 939 S.W.2d 869, 873 (Ky. 1997).
Slip Op. at 2.
Further, we conclude Dr. Sheridan’s
opinions were in accordance with the AMA Guides. In his report of May
18, 2015, Dr. Sheridan provided a history and the results of his examination of
Bruce’s lumbar spine and low extremities.
His examination of Bruce’s lumbar spine revealed “the lumbar spine is
full in all modes” and Bruce’s gait was normal. Bruce had “positive Waddell
rotation tests.” Bruce needed no aids
and his toe and heel walking was symmetrical.
His squat was 100% of standard and performed unassisted. He was able to get on and off the examination
table unassisted, and in a normal fashion.
The supine straight leg raising signs elicited complaints of low back
pain on the respective sides. However,
Bruce’s lower limb lengths were equal.
He had negative Bragard and Lasegue signs bilaterally and negative
FABERE tests bilaterally. Bruce’s hips
had full motion and neither appeared irritable.
Dr. Sheridan concluded Bruce reached MMI regarding his low back pain and,
had no permanent restrictions associated with the injury. Citing to page 385 of the AMA Guides,
he opined Bruce fell within DRE Category I and had 0% impairment rating.
The
opinions of Dr. Sheridan as set out above constitute substantial evidence upon
which the ALJ was free to rely in reaching a decision on the merits. Kentucky
Utilities Co. v. Hammons, 145
S.W.2d 67, 71 (Ky. App. 1940) (citing American Rolling Mill Co.
v. Pack et al., 128 S.W. 2d 187, 190 (Ky.
App. 1939). As previously stated, where the evidence with regard to an
issue preserved for determination is conflicting, the ALJ, as fact-finder, is
vested with the discretion to pick and choose whom and what to believe. Caudill v.
Maloney’s Discount Stores, 560 S.W.2d 15 (
Concerning the second argument, we vacate
that portion of the ALJ’s December 19, 2016, Opinion and Order dismissing
Bruce’s claim in total. At the September
16, 2016, BRC, the parties stipulated Bruce sustained a work-related injury on
or about July 31, 2014, and Grace received due and timely notice. The parties
also stipulated TTD benefits were paid from November 3, 2014, through May 21,
2015, for a total of $4,793.00, and paid medical expenses in the amount of
$7,254.79. Under contested issues it is specifically noted TTD is “not at
issue.” Just as significant, Dr.
Sheridan, upon whom the ALJ relied, opined Bruce has no permanent restrictions
associated with this “injury.”
At
the hearing, the following exchange took place between the ALJ and the parties’
attorneys:
The Court: On
the 16th of September of this year, a Benefit Review Conference was
held in this matter and the following matters were stipulated: That there is
jurisdiction under the Act, that the parties or there was an employment
relationship at all relevant times, that the plaintiff sustained a work-related
injury on July 31st of 2014, and that due and timely notice was
given.
I show that TTD benefits were paid at a
rate of $166.64 a week from November 3rd of 2014 to May 21st
of 2015 for a total of $4,795.15. Medical expenses were paid in the amount of
$7,254.79. And I show that plaintiff’s average weekly wage, which was just
stipulated to just prior to going on the record here today, as $259.51. I show
plaintiff’s date of birth as August 30th of ’64?
The Witness:
Yes.
The Court: Thank
you. He has obtained a GED and the contested issues therefore are benefits per
KRS 342.730, unpaid or contested medical expenses and temporary total
disability; is that correct?
Mr. White: Not
any more. It’s correct, other than the temporary total disability. We’ve
checked that and gone over that and that’s all been paid. So we can take that
off the table.
The Court: Okay.
Do the parties agree to remove temporary total disability as an issue?
Mr. Hartsock:
Yes, judge.
The Court: Thank
you.
Mr. White: It
was late and we weren’t sure all the payments were made, but we’ve concluded
now they are.
Since Dr. Sheridan opined Bruce sustained
an injury and the parties’ stipulated Bruce sustained a work-related injury and
his entitlement to TTD benefits was not an issue, the ALJ erred in dismissing
Bruce’s claim in total. The parties
identified entitlement to medical benefits as a contested issue and the ALJ
failed to resolve that issue. Bruce
offered testimony at the hearing that he had paid $160.00 for four physical
therapy visits. Thus, the claim must be
remanded to the ALJ for entry of an amended decision finding Bruce sustained a
work-related low back injury and entry of the appropriate award of TTD and
medical benefits. Since the parties stipulated there was no issue as to the
amount of TTD benefits to which Bruce is entitled, the award of TTD benefits
shall be for the duration and the amount paid by Grace. However, on remand the ALJ must determine the
medical benefits to which Bruce is entitled.
In FEI Installation, Inc. v. Williams, 214 S.W.3d 313 (Ky. 2007),
the Kentucky Supreme Court instructed that 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. Therefore, the absence of
an impairment rating does not preclude the ALJ, on remand, from awarding future
medical benefits. Consequently, on remand the ALJ must determine, based on the
medical evidence, the extent to which Bruce is entitled to medical benefits.
Accordingly, that portion of the December 19, 2016, Opinion and Order
dismissing Bruce’s claim for permanent income benefits is AFFIRMED. As the February
15, 2017, Order denying Bruce’s petition for reconsideration does not relate to
Bruce’s entitlement to medical benefits, it is also AFFIRMED. The ALJ’s dismissal of Bruce’s claim set forth in the
December 19, 2016, Opinion and Order is REVERSED.
The claim is REMANDED to the ALJ for
entry of an amended opinion and award finding Bruce sustained a work-related
injury and awarding TTD benefits, as stipulated by the parties, and awarding
medical benefits in conformity with the views expressed herein.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON J ANDREW WHITE
734 S FIRST ST
LOUISVILLE KY 40202
COUNSEL
FOR RESPONDENT:
HON RICHARD W HARTSOCK
730 FAIRVIEW AVE STE B5
BOWLING GREEN KY 42101
ADMINISTRATIVE
LAW JUDGE:
HON JONATHAN R WEATHERBY
657 CHAMBERLIN AVE
FRANKFORT KY 40601