*/
Workers’
Compensation Board
OPINION
ENTERED: August 4, 2017
CLAIM NO. 201475716
CHRISTINA (WIMSATT) MOORE PETITIONER
VS. APPEAL FROM HON. JANE
RICE WILLIAMS,
ADMINISTRATIVE LAW JUDGE
USPIRITUS, INC. and
HON. JANE RICE WILLIAMS,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
ALVEY,
Chairman. Christina Wimsatt Moore (“Moore”)
appeals from the Opinion, Award and Order rendered April 20, 2017, by Hon. Jane
Rice Williams, Administrative Law Judge (“ALJ”), awarding temporary total
disability (“TTD”) benefits, permanent partial disability (“PPD”) benefits
increased by the three multiplier pursuant to KRS 342.730(1)(c)1, and medical
benefits for injuries she sustained in a July 15, 2014 work accident. Moore also appeals from the May 12, 2017
order overruling her petition for reconsideration.
On
appeal, Moore argues the ALJ’s analysis regarding impairment and permanent
total disability are insufficient and do not permit meaningful review. Moore also argues the ALJ erred by imputing a
psychosomatic component to her injury in the absence of supporting medical
evidence. Moore additionally argues the
ALJ’s reliance upon Dr. Ronald Fadel’s opinions to the exclusion of other
relevant evidence constitutes an abuse of discretion. Because the opinions of Drs. Fadel and Luca
Conte constitute substantial evidence supporting the ALJ’s determinations, and
because she provided a sufficient analysis in supporting her determinations, with
no contrary result compelled, we affirm.
Moore
filed a Form 101 alleging she fell down a flight of stairs on July 15, 2014,
injuring her left lower extremity. She
subsequently developed symptoms in her pelvis, low back and tail bone. Moore began working for Uspiritus Inc.
(“Uspiritus”) in July 2015, and had only been training a few days for her
position as a youth care worker at the time of her injury. Uspiritus subsequently filed the job
description for a youth care worker.
Moore
testified by deposition on September 20, 2016, and at the hearing held February
28, 2017. Moore was born in April 1981
and resides in Underwood, Indiana. Moore
graduated from high school and earned her CNA certification which has now
expired. Moore worked part-time as a
cashier for McDonalds while in high school.
She then worked at Save-a-Step for two years as a cashier followed by a
two-year period of not working. Moore
then worked at a nursing home for two years, followed by a three-year period of
not working. Moore then worked as an
assistant manager at a Family Dollar store for two years, a bank teller for two
years, and then did not work for another two years. Moore worked for two months in a factory
before starting her job with Uspiritus in July 2014.
Moore
fell down a flight of stairs on July 15, 2014 fracturing her left
calcaneus. Moore agreed her low back and
tailbone complaints occurred subsequent to the accident. Moore initially treated at OPS, and was then
referred to Dr. Navin Kilambi after diagnostic studies confirmed the fracture. Dr. Kilambi prescribed a boot and crutches,
and ordered a course of physical therapy before referring Moore to Dr. Dean
Collis, with whom she began treating in November 2014. Dr. Collis recommended a trial spinal cord
stimulator which was implanted in July 2015.
Moore indicated the trial stimulator provided significant, but not
complete, relief. Dr. Collis referred
Moore to Dr. Michael Cassaro for the implantation of a spinal cord stimulator,
which was done in August 2015. Moore
indicated her symptoms temporarily improved following this procedure. Her symptoms subsequently returned.
Dr. Cassaro referred Moore to a pain management physician, Dr. Lawrence
Peters, who prescribed Elavil, Methadone, Lamictal and Topamax. He also prescribed a quad cane and a
wheelchair in July 2016.
Moore
has not returned to work since the July 15, 2014 accident. Moore experiences pain and swelling in her
left foot and leg, which is sensitive to touch.
Moore walks with a limp, and is unable to wear jeans or socks. She wears only flip-flops or shoes made of a
stretchy material. At her deposition,
Moore stated she is unable to move her left foot and is barely able to bend her
left leg. Regarding her low back, Moore
stated she experiences pain, is unable to bend, and has to sleep in a recliner
or chaise. Moore indicated the pain in
her tailbone began approximately a year ago, and she has now developed a cyst
from prolonged sitting. Moore explained
she has to sit sideways due to this condition.
At
her deposition, Moore indicated she is able to get around with the use of the
quad cane “if I don’t go very far” and she uses a wheelchair “if I have to go
further than like just from here to my car.”
For example, “if I need to go to the grocery store, I have to take my
wheelchair.” Moore stated when she wakes
up her husband assists her out of her chair and helps her walk to the
bathroom. She spends most days sitting,
switching from side to side due to her back and tailbone pain. Moore occasionally goes to the grocery store
and is able to drive.
At
the hearing, Moore stated she does not have to use the quad cane for ambulation
every day. Moore stated, “there are
times” her symptoms are better, but would not say she had good “whole” days. During a good time, she might be able to go
up to four or five hours without use of her cane, “but other than that I’m
mostly at home in the chair, because it hurts too bad to get up and move
around.”
Moore
does not believe she has the physical capability to return as a youth care
worker at Uspiritus, nor any of her former jobs in her current condition. Moore testified she does not believe there is
any job she could do eight hours a day in her current condition.
Moore
testified she had an opportunity to review surveillance videos, portions of
which depict her working at a bake sale and driving to and shopping at
Walmart. Moore explained these videos
show her having a good day. On a good day,
Moore is able to go to Walmart using a cart for balance. Regarding the bake sale video, Moore stated
she wore a boot and had leggings on under her jeans. Moore has not worn jeans again since the bake
sale. Moore did not stand the entire
duration of the bake sale, which lasted four or five hours. The video did not show her cane, which was
obscured by a pole. Although Moore
acknowledged the video showed her putting boxes in her car, she stated they
were empty and “probably didn’t weight anything.” Moore also pointed to several events which
occurred that day which the video did not depict.
Moore
filed the records of Dr. Kilambi, who treated her from July 16, 2014 through
November 4, 2014. Dr. Kilambi diagnosed
a nondisplaced fracture of the calcaneus and possible early complex regional
pain symptoms (“CRPS”) of the left lower extremity. Dr. Kilambi treated the fracture, recommended
physical therapy, and prescribed medication to address his concerns of early
CRPS. On October 29, 2014, Moore
reported she fell at home on October 7, 2014 when her left leg gave out. He referred Moore to pain management for
evaluation of CRPS.
Moore
also filed the treatment records of Dr. Cassaro who treated her for reflex
sympathetic dystrophy (“RSD”) from July 2015 to December 2015. In July 2015, Dr. Cassaro noted Moore
completed a trial of spinal stimulation, which relieved more than 50% of her
pain in her left lower extremity and back.
Dr. Cassaro recommended implantation of a permanent stimulator system,
which he performed on August 19, 2015.
On September 15, 2015, Dr. Cassaro performed an autologous epidural
blood patch for persistent dural puncture spinal fluid leak. Despite the permanent implantation, Moore
complained of worsening low back pain, tailbone pain, and lower left extremity symptoms
of burning, swelling and discoloration.
On December 14, 2015, Dr. Cassaro diagnosed CRPS with co-morbidities of
RSD affecting left lower extremity, spinal stimulator in situ, and post-dural
puncture headache with persistent spinal fluid leak. Dr. Cassaro believed Moore’s low back and tailbone
symptoms are due to spreading RSD or an unrecognized/missed lesion. He referred Moore to a pain management
physician for medication management.
Moore
filed the records from Dr. Peters, which are handwritten and mostly
illegible. He began treating Moore in
January 2016. Dr. Peters diagnosed Moore
with CRPS of the left leg and prescribed Elavil, Methadone, Lamictal and
Topamax. Dr. Peters found Moore reached
maximum medical improvement (“MMI”) on March 23, 2016. On May 23, 2016, Dr. Peters assessed a 45%
impairment rating pursuant to Table 13-22 of the 5th Edition of the
American Medical Association, Guides to the Evaluation of Permanent
Impairment (“AMA Guides”), entirely attributable to the work
injury. He assigned the following
permanent restrictions: “no use of LLE
for any work duty. Ability to Δ
positions and raise LLE as needed.
Ability to not wear shoe on left.
No climb stairs.” Dr. Peters
opined Moore is unable to return to the same job she was performing at the time
of her injury. He stated he doubts Moore
will be able to work full-time even if she responds positively to
treatment. On June 27, 2016, Dr. Peters
prescribed a quad cane and a wheelchair.
Moore
filed the June 20, 2016 report of Dr. Keith Myrick. Following an examination, Dr. Myrick diagnosed
a healed calcaneus fracture and CRPS.
Dr. Myrick agreed with Dr. Peters’ assessment and the fact Moore had
reached MMI. Dr. Myrick also agreed with
Dr. Peters’ 45% impairment rating due to the CRPS diagnosis and Moore’s
inability to stand without an assistive device.
Uspiritus
filed the October 5, 2016 report of Dr. Ronald Fadel, who summarized the
treatment for the fracture and subsequent development of CRPS. Moore reported outdoor ambulation is impossible
without the constant assistance of her husband, and she requires a wheelchair
when traveling anywhere. Moore reported
swelling and pain after standing for ten minutes, the inability to lie flat for
sleep, and the inability to tolerate jeans against the skin of her lower
leg. Moore complained of symptoms in her
left leg, foot, ankle and low back.
Dr.
Fadel performed an examination and reviewed the records, including a series of
surveillance videos of Moore dated June 20, 2016, July 15, 2016, September 20,
2016, and October 1, 2016. Dr. Fadel
diagnosed Moore with a calcaneal fracture of the left foot with resulting mild
to moderate CRPS as a result of the July 15, 2014 injury. Dr. Fadel noted the CRPS diagnosis, “is
marginally supported by the examination and record review.” Dr. Fadel opined Moore did not sustain
injuries to her pelvis, tailbone or low back based upon his examination, review
of records, and the surveillance videos.
Dr. Fadel noted the videos depict Moore stooping, lifting boxes, and
bending forward to place them in the rear of her vehicle without assistance and
in the presence of associates. Dr. Fadel
assessed a 4% impairment rating based upon Table 13-15 on page 336 and Table
17-5 on page 529 of the AMA Guides.
Dr. Fadel stated the medication regimen by Dr. Peters is reasonable and
necessary. Dr. Fadel opined Moore’s
subjective complaints are not consistent with the objective findings. He noted the video surveillance footage
belies the profile offered by Moore and her husband, and found “considerable
exaggeration and overstatement” present.
Dr.
Fadel prepared an October 19, 2016 addendum after reviewing a job description
and Moore’s deposition testimony. He
reiterated his conclusion of “marked exaggeration and overstatement by the
claimant and her spouse.” He stated the
video surveillance footage refutes Moore’s assertions regarding her disability
during his October 4, 2016 examination and her September 20, 2016
deposition. Dr. Fadel opined Moore is
able to return to her former job with restrictions of no lifting or moving over
twenty-five pounds. He opined Moore is
capable of standing, walking, reaching with hands and arms, sitting, climbing
steps, stooping, kneeling, crouching and crawling. He also questioned Moore’s ability to operate
a vehicle with passengers safely.
Moore
filed the August 23, 2016 vocational report of Mr. Robert Piper (“Mr. Piper”),
MRC, CRC, QRC, VE, who reviewed Dr. Myrick’s report, the May 23, 2016 note of
Dr. Peters, and the Form 101. Mr. Piper
also reviewed Moore’s education, work history, reported symptoms, and
limitations. Mr. Piper opined, “based
upon the need for frequent position changing, days absent from work, and
unscheduled breaks, it is my vocational opinion that Ms. Moore would be unable
to perform fulltime competitive employment at the present time.” Mr. Piper did not mention the surveillance
videos, and it is unclear whether he personally reviewed them.
Uspiritus
filed the November 4, 2016 vocational report of Dr. Luca Conte, who reviewed
the reports and records from Drs. Peters, Fadel, and Myrick, the Form 101, Mr.
Piper’s vocational report, the job description, Moore’s deposition and the
surveillance videos. Regarding the
videos, Dr. Conte noted Moore was observed standing and/or walking for
prolonged periods for up to 2.5 hours; lifting, carrying and otherwise handling
boxes, bags and objects which appear to be in the light range of exertion;
bending, stooping, crouching and squatting; climbing steps; and, pushing a
wheeled cart. He noted Moore stood and
walked without the aid of an assistive device and wore typical footwear on both
feet. Dr. Conte stated these observed
activities are consistent with the performance of sustained remunerative
employment tasks in the sedentary and light exertional categories, with or
without a sit/stand option.
Dr.
Conte reviewed Moore’s education and work history, and he administered
tests. He opined Dr. Peters’
restrictions are inconsistent with Moore’s described physical abilities, as
well as her capabilities demonstrated on the surveillance videos. Based upon the reviewed medical opinions and
Moore’s activities documented on DVD, Dr. Conte opined Moore is capable of
returning to at least sedentary and light occupations where there is the
ability to change positions as needed and lifting no more than twenty-five
pounds. He opined Moore’s residual functional
abilities would allow for a return to most of her prior occupations and, “a
host of personal care occupations” which would remain within her function
restrictions.
The
December 15, 2016 benefit review conference (“BRC”) order reflects the
following contested issues: whether
Moore retains the physical capacity to return to work, benefits per KRS
342.730, work-relatedness/causation, unpaid or contested medical expenses, and
whether Moore is permanently, totally disabled.
Uspiritus later withdrew the issue of work-relatedness/causation and
unpaid or contested medical expenses at the final hearing.
In
the opinion, the ALJ summarized Moore’s testimony and the medical
evidence. The ALJ provided the following
findings of fact and conclusions of law supporting her award of TTD, PPD, and
medical benefits:
A. Benefits per KRS 342.730.
1. Principle of law.
To qualify for an award of permanent partial
benefits under KRS 342.730, the claimant is required to prove not only the
existence of a harmful change as a result of the work-related traumatic event,
he is also required to prove the harmful change resulted in a permanent
disability as measured by an AMA impairment. KRS 342.0011(11), (35), and
(36). Furthermore, if, due to an injury,
an employee does not retain the physical capacity to return to the type of work
that the employee performed at the time of the injury, the benefit for
permanent partial disability shall be multiplied by three (3) times the amount
otherwise determined. KRS 342.730 (1)(c)(1).
The determination of a total disability award
remains within the broad authority of the ALJ. Ira A. Watson Department
Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000). To determine the likelihood
that a worker can resume some type of work under normal employment conditions,
the ALJ should consider the worker’s age, education level, vocational skills,
medical restrictions, emotional state and how those factors interact. Id.
“A worker's testimony is competent evidence of his physical condition and of
his ability to perform various activities both before and after being injured.”
Id. at 52 (citing Hush v. Abrams, 584 S.W.2d 48 (Ky. 1979)).
2. Findings of fact and conclusions of law.
Moore’s disability as a result of her work injury is not
permanent and total. Her impairment is 4%. She cannot return to the type of
work she performed at the time of her injury.
3. Evidentiary basis and analysis.
In so finding, the ALJ notes, as summarized above, all the
evidence – medical, lay and vocational – has been carefully reviewed and
considered. It is the opinion of Dr. Fadel relied upon herein as he summarized
the medical evidence in the manner most consistent with the ALJ’s impressions.
Plaintiff presented as credible, but her condition from the broken foot has
appeared to the ALJ to develop into something much greater in her mind than it
really is. While surveillance video is rarely useful, the dramatic contrast
from Plaintiff’s presentation at her deposition, the BRC and the hearing to how
she presented on the day of the surveillance (bake sale) is not explained by
simply stating she had a good day that day. The two drastic presentations are
not reconcilable as both being true. It is not believable that the same
physical condition claimed by Plaintiff would allow the behavior displayed at
the bake sale.
The factors considered for
total disability are:
i. Age
Moore is only 35 years old. She has not even reached the prime
of life. Her age will be an asset when
trying to find work.
ii. Education and
Vocational Skills
The opinions of the vocational experts are very different. Moore
presented as intelligent, articulate and socially in tune. The report of Dr.
Conte is relied upon as it most fits the profile she displayed. Her work
history is full with experience in jobs requiring more than just average
intelligence. She has experience as a bank teller and has worked in management.
Dr. Conte points to the many jobs for which she could apply.
iii. Restrictions
While Moore’s restrictions would limit her ability to work heavy
labor intense jobs, she would not be prohibited from the employment options in
the Sedentary and Light exertional categories.
iv. Emotional state
The evidence is not convincing that her emotional state would
keep her from entering the workforce.
Uspiritus
filed a petition for reconsideration requesting the ALJ to modify the award by
eliminating the language stating Moore’s benefits terminate when she qualifies
for normal old-age Social Security.
Moore filed a petition for reconsideration, raising the same arguments
she now raises on appeal.
In
the May 12, 2017 order, the ALJ granted Uspiritus’ petition for
reconsideration. In overruling Moore’s
petition, the ALJ stated as follows:
Plaintiff requests the ALJ
reconsider the Opinion, Award and Order rendered April 20, 2017 arguing the ALJ failed to
properly analyze the evidence and should change the outcome. Among other
things, Plaintiff takes issue with the statement in the opinion that Moore over
estimates her condition in her own mind. This statement could certainly be
eliminated from the opinion and was not intended as a psychological analysis but was intended to address the
enormous disparity in the medical evidence. This disparity and the potential
outcomes were discussed at length as the proof left the choice of 4%
impairment or 45%. The potential for an opinion that did not offend one party
simply did not exist. Plaintiff's petition essentially reargues the merits and
asks for a change of the opinion.
On
appeal, Moore argues the ALJ failed to state the evidentiary basis for her
conclusions with sufficient specificity to permit meaningful review. Moore asserts the ALJ did not articulate a
sufficient basis for adopting the 4% impairment rating assessed by Dr. Fadel,
over the 45% impairment rating assessed by Drs. Peters and Myrick. Also, Moore asserts the opinion does not
discuss portions of the video surveillance depicting her having difficulty
ambulating and using an assistive device.
Moore asserts the video surveillance supports her testimony she has both
good and bad days. Moore asserts the
ALJ’s permanent total disability analysis is deficient since she did not
discuss her treating physician’s assessments and restrictions or Mr. Piper’s
vocational report, and did not articulate her rationale for relying upon Dr.
Conte’s opinions. She also asserts Dr.
Fadel’s opinion is unreasonable and contrary to the majority of the evidence in
the claim. She asserts Dr. Fadel
erroneously relied upon the surveillance video of the bake sale in forming his
opinions. Moore asserts the ALJ’s determination
she can work in sedentary or light work is contrary with the medical
proof.
Moore
asserts the ALJ erred by imputing a psychosomatic component to her condition in
the absence of reliable, probative and material expert testimony. Specifically, Moore is referring to the ALJ’s
statement “her condition from the broken foot has appeared to the ALJ to
develop into something much greater in her mind than it really is.” Similarly, Moore argues Dr. Fadel’s
conclusion of exaggeration and overstatement is not based upon the medical
records, but only from his assumptions from a portion of the surveillance
videos. Moore additionally argues the
ALJ’s reliance on Dr. Fadel’s opinions and mischaracterization of evidence to
the exclusion of all other relevant evidence constitutes an abuse of
discretion.
For the first time in her reply brief,
Moore argues her spinal cord stimulator is an “assistive device” pursuant to
Table 13-15 of the AMA Guides, which establishes a range of impairment
for those who cannot stand without help, mechanical support, and/or assistive
device. Moore asserts neither the ALJ
nor Dr. Fadel addressed the spinal cord stimulator. She asserts she is “left to wonder how a
Table 13-15, Class 4 impairment reached by two separate physicians (at KEMI’s
request, not of the Petitioner’s) is not the correct impairment given the help,
mechanical support and assistance the stimulator provides with respect to
Moore’s station and gait.” Moore asserts
the ALJ erred by misinterpreting the correct impairment classification
delineated in Table 13-15. If the ALJ
had properly applied the correct Class 4 impairment of 45%, Moore asserts she
should be deemed permanently and totally disabled.
In her reply brief, Moore argues the
ALJ did not address two videos dated June 20, 2016 and September 20, 2016
showing her having difficulty ambulating and using a cane. She additionally argues the bake sale video
relied upon by the ALJ shows Moore doing activities she is not restricted from
doing. Moore argues a video cannot be
construed as a functional capacity evaluation.
As the claimant in a workers’
compensation proceeding, Moore had the burden of proving each of the essential
elements of her cause of action. Snawder
v. Stice, 576 S.W.2d 276 (Ky. App. 1979).
Since Moore 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 that which 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. 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 discretion to determine 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).
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). Although a party may note
evidence supporting 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). The Board, as
an appellate tribunal, may not usurp the 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 that otherwise could have been drawn from the
record. Whittaker v. Rowland, 998 S.W.2d 479, 481 (Ky.
1999). 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, 708 S.W.2d 641, 643 (Ky. 1986).
The December 15, 2016 BRC order
reflects the parties stipulated Moore sustained a work-related injury on July
15, 2014 for which Uspiritus had due and timely notice. It also reflects Uspiritus voluntarily paid
TTD benefits from July 16, 2014 through March 23, 2016, as well as medical
expenses totaling $131,802.50.
Therefore, the ALJ was presented with two impairment ratings for her
work injury. The disparity of the
impairment ratings reflect the differing opinions as to the severity of Moore’s
CRPS.
Moore’s treating physician assessed a
45% impairment rating pursuant to the AMA Guides at Table 13-22. We note Table 13-22 is for criteria for rating
impairment for chronic pain in “One Upper Extremity.” (Emphasis
added). Page 343 of the AMA Guides
directs if a lower extremity needs to be rated for RSD, “use the station and
gait impairment criteria given in Table 13-15.”
Dr. Peters did not indicate whether he reviewed the surveillance videos,
and if so, what impact they had on his assessment of impairment. However, Dr. Myrick stated he agreed with the
45% impairment rating assessed by Dr. Peters, based upon Table 13-15. Dr. Myrick placed Moore in Category 4
(40-60%) “because she cannot stand without the help of an assistive device and
due to her diagnoses of CRPS.”
Dr. Fadel also diagnosed Moore with a calcaneal
fracture of the left foot with resulting mild to moderate CRPS, but assessed a
much lower impairment rating. He
performed an examination, and reviewed the medical records, including the
surveillance videos. Based upon his
diagnosis and upon the observed behavior seen in the surveillance videos, Dr.
Fadel placed Moore in Class 1 (1-9%) in accordance with Table 13-15, and
assessed a 4% impairment rating pursuant to the AMA Guides.
In this instance, differing medical
opinions in the record address the severity of Moore’s CRPS. We
note that 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). The ALJ is not
required to afford Dr. Peters’ opinion more weight because he was a treating,
rather than an evaluating, physician. Sweeney
v. King’s Daughters Medical Center, 260 S.W.3d 829 (Ky. 2008).
Moore’s arguments discrediting the
opinion of Dr. Fadel go to the weight of the evidence and do not serve to
render his opinions unsubstantial. In
this instance, the ALJ found Dr. Fadel’s assessment of impairment most
persuasive and his opinion constitutes substantial evidence supporting the
ALJ’s determination. We also note Moore
does not argue in her brief that Dr. Fadel’s assessment of impairment is not in
accordance with the AMA Guides, nor was this raised as a contested issue
at the BRC. It is clear the ALJ ultimately
found the opinions of Dr. Fadel persuasive in determining Moore sustained a 4%
impairment rating due to the July 2014 accident. After reviewing the record, we find Dr.
Fadel’s opinion constitutes substantial evidence upon which the ALJ could rely
in reaching her determination, and no contrary result is compelled.
We likewise find the ALJ articulated
her findings and provided sufficient analysis required by Ira A. Watson
Department Store v. Hamilton, supra, in determining Moore is not
permanently and totally disabled. Permanent total disability is the condition of an employee who, due to
an injury, has a permanent disability rating and has a complete and permanent
inability to perform any type of work as a result of the injury. KRS 342.0011(11)(c). In determining whether a worker is totally
disabled, the ALJ must consider several factors including the
workers’ age,
educational level, vocational skills, medical restrictions,
and the likelihood he can resume some type of work under normal employment
conditions. Ira A. Watson Department
Store v. Hamilton, supra. Additionally,
a claimant’s own testimony as to his condition has some probative value and is
appropriate for consideration by the ALJ. Hush v. Abrams, 584 S.W.2d 48 (Ky.
1979). The ALJ enjoys wide ranging
discretion in granting or denying an award of permanent
total disability benefits. Seventh Street Road Tobacco Warehouse v.
Stillwell, 550 S.W.2d 469 (Ky. 1976); Colwell v. Dresser Instrument Div.,
217 S.W.3d 213 (Ky. 2006).
The ALJ noted Moore’s young age and
relied upon the vocational report of Dr. Conte over that of Mr. Piper. The ALJ also noted Moore’s restrictions
would not prevent her from working in a light or sedentary job, and her
emotional state would not keep her from entering the workforce. Dr. Conte reviewed the record, including
Moore’s deposition and the surveillance videos.
He opined the activities observed in the videos are consistent with the performance
of sustained remunerative employment tasks in the sedentary and light
exertional categories. Dr. Conte
reviewed Moore’s education and work history and administered tests. Based upon the reviewed medical opinions and
Moore’s activities documented on DVD, Dr. Conte opined she is capable of
returning to at least sedentary and light occupations where there is the
ability to change positions as needed and lifting no more than twenty-five
pounds. He opined Moore’s residual
functional abilities would allow for a return to most of her prior occupations
and, “a host of personal care occupations which would remain within her
function restrictions.”
The
ALJ considered Moore’s age, restrictions and emotional state, and found the
vocational report of Dr. Conte most persuasive.
Although Moore has identified evidence supporting a different
conclusion, substantial evidence supports the ALJ’s determination. The ALJ acted within her discretion in
determining which evidence to rely upon, and it cannot be said her conclusions
are so unreasonable as to compel a different result.
While
authority generally establishes an ALJ must effectively set forth adequate
findings of fact from the evidence in order to apprise the parties of the basis
for his decision, she is not required to recount the record with line-by-line
specificity nor engage in a detailed explanation of the minutia of his
reasoning in reaching a particular result.
Shields
v. Pittsburgh and Midway Coal Mining Co., 634 S.W.2d 440 (Ky. App. 1982); Big Sandy
Community Action Program v. Chaffins, 502 S.W.2d 526 (Ky. 1973). The ALJ’s analysis of the evidence in this
claim was sufficient to support her determination. Likewise, we do not believe the ALJ abused her
discretion or committed reversible error in arriving at her decision. The ALJ’s decision is supported by the
record, and therefore we affirm.
We also find no reversible error in
the ALJ’s statement, “Plaintiff presented as credible, but her
condition from the broken foot has appeared to the ALJ to develop into
something much greater in her mind than it really is.” We do not believe the ALJ intended the
statement to be a finding of a psychological or psychiatrist component or
diagnosis. Rather, the ALJ was merely
expressing her opinions regarding the credibility of Moore based upon her
personal observations, in light of the surveillance videos. In addition, Dr. Fadel found “considerable exaggeration and
overstatement” present during his examination of Moore. The ALJ clarified the purpose of the
statement in the order on petition for reconsideration, “this statement could certainly be eliminated from the opinion and
was not intended as a psychological analysis
but was intended to address the enormous disparity in the medical
evidence.” The ALJ simply compared and
weighed the medical and lay evidence, as well as the surveillance videos, which
was well within her authority to do.
Accordingly, the April 20, 2017 Opinion, Award and
Order and the May 12, 2017 Order on petition for reconsideration rendered by
Hon. Jane Rice Williams, Administrative Law Judge, are hereby AFFIRMED.
ALL
CONCUR.
COUNSEL
FOR PETITIONER:
HON PAUL A BRIZENDINE
300 MISSOURI AVE, STE 200
JEFFERSONVILLE, IN 47130
COUNSEL
FOR RESPONDENT:
HON LYN DOUGLAS POWERS
1315 HERR LANE, STE 210
LOUISVILLE, KY 40222
ADMINISTRATIVE
LAW JUDGE:
HON JANE RICE WILLIAMS
657 CHAMBERLIN AVE
FRANKFORT, KY 40601
