Workers’
Compensation Board
OPINION
ENTERED: May 12, 2017
CLAIM NO. 201300503
GREGORY JEFFERSON PETITIONER
VS. APPEAL FROM HON. ROBERT
L. SWISHER,
CHIEF ADMINISTRATIVE LAW JUDGE
DAKKOTA INTEGRATED SYSTEMS and
HON. ROBERT L. SWISHER,
CHIEF ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
ALVEY,
Chairman. Gregory Jefferson (“Jefferson”) appeals from the Opinion, Award and
Order rendered December 19, 2016 by Hon. Robert L. Swisher, Chief Administrative
Law Judge (“CALJ”). The CALJ awarded
temporary total disability (“TTD”) benefits, permanent partial disability
(“PPD”) benefits based upon a 13% impairment rating, enhanced pursuant to KRS
342.730(1)(c)1, and medical benefits for work-related right shoulder and knee
injuries sustained in a slip and fall accident on October 8, 2012. The 13% impairment rating reflects 8% for the
right shoulder injury, and 5% for the right knee injury. Jefferson also seeks review of the February
9, 2017 order denying his petition for reconsideration.
On appeal, Jefferson
argues the ALJ erred in finding only a 5% impairment rating attributable to the
right knee injury rather than 20%. Because
substantial evidence supports the ALJ’s determination and no contrary result is
compelled, we affirm.
Jefferson filed a Form
101 on April 1, 2013 alleging he injured his right shoulder, hand and knee when
he slipped and fell while exiting the restroom at work on October 8, 2012. Jefferson was a production worker for Dakkota
Integrated Systems, LLC (“Dakkota”) which manufactures dashboards for Ford
trucks. He is a high school graduate
with no specialized or vocational training. Jefferson began working for Dakkota
in 2006. His work history consists of
employment as a prep cook, cashier, convenience store manager, mixer at a
cookie company, bodyguard and production worker.
During the course of
the claim, Dakkota filed a Form 112 Medical Dispute challenging the request to
perform right shoulder surgery by Dr. Akbar Nawab. In support of the medical dispute, Dakkota
filed the peer review report by Dr. David Trotter who opined the proposed right
shoulder surgery, requested lab work and an EKG were unreasonable and
unnecessary. Dakkota later agreed to pay
for the surgery.
Jefferson testified by
deposition on August 27, 2015, and at the hearing held October 20, 2016. He is a resident of Louisville,
Kentucky. On October 8, 2012, he had
gone to the restroom at work at the end of his shift to wash his hands. He slipped and fell as he was throwing away a
paper towel. He fell forward striking
his right knee first, then his hands hit the floor. He was taken to the safety room, and then he
drove home despite low back and right wrist pain. His right knee was also swollen.
The next day Dakkota
sent Jefferson to OPS Newberg[1] for
treatment. X-rays were taken at OPS,
medication was prescribed, and restrictions were imposed. Jefferson was placed on light duty, and he
never returned to his regular job.
Jefferson continued to perform his light duty job, working forty hours
per week until he underwent surgery for his right knee on March 16, 2014. He had right shoulder surgery on March 11,
2015. He worked no overtime while on light duty. He testified he worked an average of twelve
hours of overtime per week prior to the accident.
Jefferson had
previously sustained a right knee injury while playing basketball in the eighth
or ninth grade. He had surgery in 1979
or 1980, but returned to play varsity basketball. He also sustained a right knee injury at work
in 2007. At that time, he saw Dr. Donald
McAllister, who practices with Dr. Ernest Eggers. Jefferson only missed a couple of days of
work for the 2007 injury and took anti-inflammatory medication. Jefferson continued to work his job at
Dakkota after the 2007 accident without restrictions or limitations.
Jefferson’s right wrist
problems had resolved by the time of his deposition. At that time, he testified he continued to
take Advil or Aleve for his right shoulder and knee problems.
Prior to the accident,
Jefferson worked on the production line, which consisted of approximately
thirty different jobs. He rotated
between some of the jobs throughout the day.
All jobs required continuous standing, which he testified he is no
longer able to do, and required the repetitive use of his hands. Jefferson testified at the hearing he can
walk only thirty to forty yards at a time, and can only sit for approximately
twenty minutes at a time. He is unable to
lift a gallon of milk with his right arm.
He has difficulty sleeping due to his shoulder injury, and lies down
several times per day. He does not believe he is able to perform the light duty
job he held prior to the knee surgery. He was awarded Social Security
disability benefits.
In support of the Form
101, Jefferson attached records from OPS for treatment on six occasions from
October 16, 2012 through November 20, 2012.
He was diagnosed with a sprain/strain of the right shoulder, contused
right hand, and contused right knee. He
was allowed to return to seated jobs, with no lifting above the right shoulder,
and no lifting greater than five pounds with the right arm. He also submitted the October 10, 2012 note
from Frazier Rehabilitation. He additionally
submitted the December 17, 2012 record of Dr. Eggers, which noted his right
shoulder pain, and the need for a right total knee replacement.
Jefferson subsequently
filed multiple office records from Dr. Eggers, many of which were
illegible. Included in those records is
the April 23, 2013 statement in which Dr. Eggers opined Jefferson’s upcoming
knee replacement surgery was due to unrelated degenerative arthritis, and not
associated with a work injury. In his
note dated November 26, 2012, Dr. Eggers stated Jefferson is 6’ 4” and weighs
394 pounds. He noted the slip and fall
incident, after which Jefferson experienced right shoulder pain. He also noted Jefferson had experienced right
knee problems for years.
Jefferson filed
multiple reports from Dr. Warren Bilkey. From an examination on July 8, 2012, Dr.
Bilkey noted Jefferson’s complaints of right knee swelling, pain and
locking. He also noted his right
shoulder problems worsened with activity.
He noted Jefferson developed right knee problems while playing basketball
in high school, and had a right knee arthroscopy in 1980. Jefferson also had right knee swelling prior
to the October 8, 2012 work injury which required treatment with
anti-inflammatory medication and periodic draining. Dr. Bilkey diagnosed a work-related right
shoulder strain, rotator cuff tear versus tendinitis, due to the October 8,
2012 accident. He also diagnosed a right
knee contusion superimposed upon significant degenerative arthritis. He opined Jefferson needed a right knee
replacement, and physical therapy for the right shoulder. He stated Jefferson had not reached maximum
medical improvement (“MMI”) for either condition. He recommended weight lifting restrictions
for the right upper extremity with no overhead lifting. Although Dr. Bilkey determined Jefferson had
not reached MMI, he stated most likely the right shoulder condition would
result in a 5% impairment rating pursuant to the 5th Edition of the
American Medical Association, Guides to the Evaluation of Permanent
Impairment (“AMA Guides”). He
stated the right knee would most likely qualify for a 20% impairment rating
pursuant to the AMA Guides, attributing only a fourth to the October 8,
2012 work-related injury, with the remainder due to his degenerative arthritis.
In a report dated
January 27, 2016, Dr. Bilkey stated Jefferson had reached MMI for both the
right shoulder and knee injuries. He
assessed an 8% impairment for the right shoulder. He assessed a 20% impairment for the right
knee, of which only 5% was due to the work injury. The combined impairment rating he assessed
for the work-related injuries was 13% pursuant to the AMA Guides. Dr. Bilkey assessed restrictions of no
lifting greater than fifteen pounds with the right upper extremity, and to
avoid prolonged standing for more than twenty minutes.
Jefferson also filed
the February 27, 2013 report of Dr. Michael Best who examined him at Dakkota’s
request. Dr. Best determined Jefferson
had not reached MMI and had returned to light seated duties. He diagnosed a right shoulder strain/sprain,
contusion of the right hand, and contusion of the right knee. He stated Jefferson was at end-stage
degenerative arthritis of the right knee, “therefore, the work injury does
appear to have resulted in the need for surgical intervention.” He stated an impairment rating could be
assessed after Jefferson reached MMI from the total knee replacement.
Jefferson also filed
the note of George Sickles, P.T., D.P.T, dated October 1, 2015. This note reflects Jefferson’s decreased
shoulder and knee ranges of motion. Six
additional weeks of physical therapy was recommended.
Dakkota filed numerous
records from Dr. Eggers, including the April 22, 2013 note also filed by
Jefferson. In his November 26, 2012
note, Dr. Eggers noted Jefferson’s chronic right knee pain, and the fact he was
at end-stage arthritis. He opined this
might need to be surgically addressed after the proposed shoulder surgery. He noted the right knee had been problematic
for years. Dakkota also filed records
from Dr. McAllister, who practices with Dr. Eggers, for treatment he
administered for Jefferson’s right knee in 2007 and 2009. Dr. McAllister noted Jefferson’s right knee
had been problematic for many years.
Those records include a notation of treatment with injections for the
right knee prior to the work injury.
Dr. Robert Jacob
examined Jefferson at Dakkota’s request on September 4, 2013. In his report dated September 24, 2013, he
noted Jefferson’s previous right knee surgery in 1979. He stated Jefferson had a documented history
of advanced and end-stage arthritis in the right knee, which preceded his work
injuries in 2007 and 2012. He assessed a
5% impairment rating pursuant to the AMA Guides for the right
shoulder. He opined the right knee
condition was pre-existing and active, and was neither exacerbated nor
aggravated by his work injury. He
disagreed with the 20% impairment rating for the right knee assessed by Dr.
Bilkey.
Dakkota later filed a
supplemental report of Dr. Jacob from an evaluation performed on August 26, 2015. He noted Jefferson had undergone a right
total knee arthroplasty by Dr. Akbar Nawab.
He noted Jefferson’s continued complaints of pain, weakness and
limitation of the right shoulder motion.
He found Jefferson had reached MMI from the right knee surgery. He assessed a 20% impairment rating for the
right knee pursuant to the AMA Guides, but this is not due to the work
injury. He additionally noted Jefferson
had reached MMI from his right shoulder surgery, and continued to complain of
pain on range of motion. He assessed a
3% impairment rating for the shoulder pursuant to the AMA Guides. He recommended restrictions of no constant or
overhead use of the right shoulder, no lifting of over twenty pounds above the
shoulder, no squatting, kneeling or climbing of ladders or stairs repetitively.
In a report dated
January 27, 2016, Dr. Jacob stated Jefferson qualified for a 15% impairment
rating for his right knee pursuant to the AMA Guides. He stated his opinion of an impairment rating
of 3% for the right shoulder remains unchanged from his previous report. In a report dated March 23, 2016, Dr. Jacob
stated he had reviewed the report of a functional capacity evaluation (“FCE”)
performed on February 16, 2016. He
stated the FCE was unreliable, and did not reflect Jefferson’s true range of
motion.
Dakkota also filed Dr.
Nawab’s January 4, 2016 treatment note.
Dr. Nawab stated Jefferson needs yearly follow up visits for his right
knee after the total arthroplasty. He
also stated Jefferson needs an FCE for the right shoulder.
Dakkota additionally
filed treatment records from Dr. Mark Williams, Jefferson’s family physician,
for treatment of the right knee from November 25, 2008 through January 17,
2012. Those records reflect ongoing
treatment for right knee swelling and pain, including right knee injections.
A benefit review
conference (“BRC”) was held on September 11, 2013 before Hon. R. Scott Borders,
Administrative Law Judge, to whom the claim was initially assigned. The claim was later re-assigned to the
CALJ. The BRC Order and Memorandum
reflects the issues at that time included whether Jefferson retains the
capacity to return to the type of work performed on the date of the injury,
benefits per KRS 342.730, work-relatedness/causation, unpaid/ contested medical
expenses, injury as defined by the Act, exclusions for pre-existing disability/impairment,
and the claim was bifurcated to address the work-relatedness causation of the
right knee condition. An agreed order
was entered on September 24, 2013 indicating Dakkota would pay TTD benefits and
for the surgery.
Another BRC was held on
September 12, 2016. The BRC Order and
Memorandum reflects the remaining issues included benefits pursuant to KRS
342.730, exclusion for pre-existing disability/impairment, and TTD (including
underpayment as to duration).
In the December 19,
2016 Opinion, Award and Order, the CALJ found Jefferson is permanently
partially disabled. He found Jefferson
has an 8% impairment for the right shoulder, and a 5% impairment for the right
knee due to the work-related injury. He
based this determination upon the opinion of Dr. Bilkey who found three-fourths
of the 20% impairment he assessed for the knee was not due to the work
injury. The CALJ found Jefferson does
not retain the physical capacity to return to the job he performed on the date
of the injury, and additionally found the multiplier contained in KRS
342.730(1)(c)1 is applicable. He awarded
TTD benefits at the rate of $428.73 per week from March 8, 2014 through January
20, 2016, and PPD benefits at the rate of $167.20 per week for 425 weeks. The CALJ also awarded medical benefits
pursuant to KRS 342.020. Regarding the
applicable impairment ratings, the CALJ specifically found as follows:
In order to quality for an
award of permanent disability benefits, therefore, whether total or partial,
plaintiff must first establish that he has a permanent disability rating.
“Permanent disability rating” means the permanent impairment rating selected by
an administrative law judge multiplied by the statutory grid factor. KRS
342.0011(36). In this matter plaintiff alleges injuries to both his right knee
and right shoulder. Drs. Bilkey and Jacob have offered expert medical opinions
with respect to the extent to which plaintiff retains
any permanent functional impairment ratable under the AMA
Guides to the Evaluation of Permanent
Impairment, 5th Edition, by virtue of his stipulated
work-related injuries. Dr. Bilkey assigned a 20% impairment rating with respect
to plaintiff’s right knee as a result of the total right knee arthroplasty
which he attributed to the work-related aggravation of plaintiff’s pre-existing
degenerative joint disease but concluded that one-fourth of the 20% impairment
rating, or 5%, is attributable to the work event with the remaining
three-fourths being attributable to what he considers to be a pre-existing
active degenerative condition. He also assigned an 8% whole person impairment
rating with respect to plaintiff’s post-surgical shoulder condition. Dr. Jacob,
on the other hand, does not believe that the work event resulted in anything
more than a contusion to the right knee, and that while he agrees that
plaintiff’s current impairment rating, based on knee replacement surgery is
15%, he is of the further opinion that none of that impairment is attributable
to the work injury but, instead, arises by virtue of plaintiff’s pre-existing
active degenerative joint disease. Jacob further assigned a 3% impairment
rating with respect to the right shoulder.
Having carefully
considered the evidence
in the record, the undersigned is ultimately
persuaded that Dr. Bilkey has offered a far more persuasive and probative
opinion and assessment of impairment than Dr. Jacob. With respect to the right knee injury, it is undisputed that plaintiff had
severe pre-existing degenerative changes in the right knee leading up to
October 8, 2012. In fact, he acknowledged receiving treatment for his right
knee including a distant surgery and more recent injection and fluid
withdrawal. In January of 2012, a mere nine months prior to the work injury,
plaintiff was seen by his primary care physician, Dr. Williams, with complaints
of a painful swollen right knee for which he received an injection and fluid
was drained from the knee. The medical records further reflect that plaintiff
had presented over the course of time with an antalgic gait. Plaintiff’s size
is also significant at almost 400 pounds. While the slip and fall of October 8,
2012 might have been the straw that broke the proverbial camel’s back, the
medical evidence in the record establishes to the satisfaction of the undersigned
that the right knee was significantly weakened and actively symptomatic prior
to the work event. Dr. Bilkey’s assessment that plaintiff had a pre-existing
15% impairment rating immediately prior to the work incident based on the
“bone-on-bone” arthritic condition in his knee is both probative and highly
persuasive. Accordingly, the undersigned finds that as a result of the work
injury resulting in the arousal and worsening of a pre-existing active
degenerative condition, plaintiff retains a 5% whole person impairment rating.
The CALJ further finds, in reliance upon the report of Dr. Bilkey, that
plaintiff retains an 8% whole person impairment rating with respect to his
right shoulder. The undersigned acknowledges that Dr. Jacob is less impressed
with plaintiff’s right shoulder deficits, but the CALJ finds Dr. Bilkey’s
report and assessment simply more credible and persuasive in this regard.
Accordingly, combining the impairment ratings attributable to the right knee
and right shoulder injuries, the undersigned finds that plaintiff retains a 13%
whole person impairment rating as a result of the stipulated work injury of
October 8, 2012. A 13% impairment rating results in a 13% permanent disability
rating as well.
Jefferson filed a
petition for reconsideration on January 3, 2017 arguing as he does on appeal,
the CALJ erred in awarding only 5% impairment rather than 20% for the right
knee condition. Jefferson argued, “While
it is clear that the Claimant had a pre-existing active impairment,
there was no evidence to reflect that he had a pre-existing active disability.” In his order denying the petition for
reconsideration, the CALJ held as follows:
This matter is before the
undersigned Chief Administrative Law Judge on plaintiff’s petition
for reconsideration of the Opinion,
Award and Order of December
19, 2016. Therein, plaintiff contends that the undersigned erred not awarding a
20% impairment as it relates to plaintiff’s knee injury (and a total of 28%
considering 8% for the shoulder). The defendant/employer has filed a response
and objection arguing that plaintiff points to no patent error and is simply
re-arguing the merits of the claim.
Having reviewed plaintiff’s
petition for reconsideration, the undersigned notes that it is simply an
impermissible re-argument of the merits of the claim. On petition for
reconsideration, an administrative law judge is precluded from changing
findings of fact. Garrett Mining Co. v. Nye, 122 S.W.3d 513 (Ky. 2003).
Plaintiff having failed to point to any patent errors appearing on the face of
the Opinion, Award and Order of December 19, 2016, the petition for
reconsideration is OVERRULED.
On appeal, Jefferson
again argues the CALJ erred in finding him entitled to a 5% impairment rating
for the right knee injury. As the claimant in a workers’
compensation proceeding, Jefferson 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 Jefferson
was unsuccessful in his burden regarding the award of PPD benefits for his
arthritic knee condition based upon a 20% impairment rating rather than a 5%
impairment rating, 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 they must be reversed as a matter of
law. Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky.
2000).
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 (Ky. 1993). Similarly, the ALJ
has the sole authority to judge all reasonable inferences to be drawn from the
evidence. Miller v. East Kentucky Beverage/Pepsico, Inc., 951 S.W.2d 329
(Ky. 1997); Jackson v. General Refractories Co., 581 S.W.2d 10 (Ky.
1979). An ALJ is vested with broad authority to decide questions involving causation. Dravo Lime
Co. v. Eakins, 156 S.W.3d 283 (Ky. 2003).
The
ALJ may 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. Magic
Coal Co. v. Fox, 19 S.W.3d 88 (Ky. 2000); Whittaker
v. Rowland, 998 S.W.2d 479 (Ky. 1999). Mere evidence contrary to the ALJ’s decision
is not adequate to require reversal on appeal.
Id.
In order to reverse the decision of the ALJ, it must be shown there was
no substantial evidence of probative value to support his decision. Special Fund v. Francis, 708 S.W.2d
641 (Ky. 1986).
The Board, as an appellate tribunal, may not usurp an 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 could otherwise have been drawn from the
record. Whittaker v. Rowland, supra. So long as the ALJ’s ruling with regard to an
issue is supported by substantial evidence, it may not be disturbed on appeal.
Special Fund v. Francis,
supra.
On review,
we find Jefferson’s appeal to be nothing more than a re-argument of the
evidence before the CALJ. After careful
review, we find the CALJ accurately summarized the evidence and had a complete
understanding of the issues before him.
It is undisputed Jefferson had experienced significant right knee
problems for years prior to the October 8, 2012 work-related accident. This is evidenced by the records of Drs. McAllister
and Williams, and the CALJ accurately summarized Jefferson’s medical
history.
Both Drs. Jacob and Eggers opined
Jefferson’s need for right total knee replacement surgery was not
work-related. They both stated the
surgery was necessitated by the unrelated end-stage degenerative arthritis. Dr. Bilkey acknowledged Jefferson’s significant
pre-existing right knee arthritis, and reflected this by apportioning
three-fourths of the 20% of the impairment rating to that condition, and only a
fourth, or 5% impairment to the work-related injury. This was acknowledged by the CALJ who awarded
PPD benefits accordingly. This
determination is supported by substantial evidence and will not be disturbed.
The CALJ correctly noted the employer bears
the burden of proving an active, pre-existing condition. To be characterized
as active, it must be symptomatic and impairment ratable pursuant to the AMA Guides
immediately prior to the occurrence of the work-related injury. Finley v. DBM Technologies, 217 S.W.3d
261 (
The ALJ, as fact-finder, has full discretion to determine the
physician or physicians upon which he relies.
If “the physicians in a case genuinely express medically sound, but
differing opinions as to the severity of a claimant's injury, the ALJ has the
discretion to choose which physician's opinion to believe.” Jones v.
Brasch-Barry General Contractors, 189 S.W.3d 149, 153 (Ky. App. 2006). Here, the CALJ chose to rely upon the
opinions of Dr. Bilkey, including his apportionment of the impairment rating,
and he provided his reasoning for doing so.
It was within the CALJ’s discretion to do so, and his determination will
not be disturbed.
Accordingly, the December 19,
2016 decision and the February 9, 2017 order on petition for reconsideration by
Hon. Robert L. Swisher, Chief Administrative Law
Judge, are hereby AFFIRMED.
ALL
CONCUR.
COUNSEL
FOR PETITIONER:
HON WAYNE C DAUB
600 WEST MAIN ST, STE 300
LOUISVILLE, KY 40202
COUNSEL
FOR RESPONDENT:
HON THOMAS C DONKIN
2452 SIR BARTON WAY, STE 300
LEXINGTON, KY 40509
CHIEF
ADMINISTRATIVE LAW JUDGE:
HON DOUGLAS W GOTT
657 CHAMBERLIN AVE
FRANKFORT, KY 40601