Workers’
Compensation Board
OPINION
ENTERED: August 18, 2017
CLAIM NO. 201592512 & 201476150
APRIL MAYHEW PETITIONER
VS. APPEAL FROM HON. DOUGLAS W. GOTT,
CHIEF ADMINISTRATIVE LAW JUDGE
BOLSTER AND JEFFRIES HEALTH CARE GROUP,
LLC
d/b/a AUBURN NURSING
and HON. DOUGLAS W. GOTT,
CHIEF ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
STIVERS,
Member.
April
Mayhew (“Mayhew”) appeals from the March 28, 2017, Opinion and Order dismissing
Mayhew’s claim and the May 1, 2017, Order overruling her petition for
reconsideration of Hon. Douglas W. Gott, Administrative Law Judge (“ALJ”). In
the March 28, 2017, Opinion and Order, the ALJ dismissed Mayhew’s claim for
alleged injuries to her low back sustained on July 7, 2014, and February 26,
2015. On appeal, Mayhew asserts the ALJ’s dismissal of her low back claims is
not supported by substantial evidence.
The Form
101 for Claim No. 2014-76150 alleges Mayhew sustained a work-related injury to
her back on July 7, 2014, while working as a Certified Nursing Assistant
(“CNA”) for Auburn Nursing Home (“Auburn”) in the following manner: “Plaintiff
was transferring a resident from his chair, when she fell and felt pain in her
back.”
The Form
101 for Claim No. 2015-92512 alleges Mayhew sustained a work-related injury,
also to her back, on February 26, 2015, in the following manner: “Plaintiff was
transferring a resident from her bed to her wheelchair, when she felt pain in
her back.”[1]
On July 14,
2016, Mayhew filed a Motion to Consolidate Cases requesting the ALJ consolidate
the claims, which was sustained by order
dated August 4, 2016.
Mayhew was
deposed on October 24, 2016. She described the alleged work injury occurring on
July 7, 2014, as follows:
A: There – everybody was getting ready for
dinner, and he [the patient] wanted to be lifted up in his chair. And I lifted
him up. And when I did that, pain, like, it just came, and I fell to the floor.
Q: Where do you recall feeling pain?
…
A: Yeah. I don’t – I just remember I don’t –
like in my (indicating) back. Like, I don’t – it’s been a long time ago, and
I’ve had that other one since. But I don’t know. My groin, my sciatic nerve, I
don’t – I just felt pain.
…
A: And I fell.
Q: You’re pointing – right now, you’re
pointing to the front area of your body?
…
Q: Can you tell me where you felt pain in
relation to your belt line on the front part of your body?
A: The first – I don’t – I’m trying to – I
don’t know. I just remember it being, like, in – I’m trying not to get it mixed
up with the second one. Because I – but I don’t know. I just remember, like, my
low – it’s like my lower back and, then, my whatever, right here. (Indicating.)
Q: And now, again, you’re pointing to the
front area of your body –
A: Yeah.
…
Q: And now, you say you had pain in the rear
of your body on both sides of your buttocks?
A: Yeah.
Q: Okay. Can you describe that pain for me?
A: No. It hurt.
Q: Okay. Was it a burning sensation?
A: It was – that first one, it was just pain.
But as time went on after that, well, it was just, like, burning, burning.
…
Q: The burning progressed?
A: Yes.
After this alleged injury, Mayhew was
treated at UrgentCare and then Greenview Hospital. She did not take time off
from work and performed her normal job duties until the second incident.
Mayhew described the alleged work
injury of February 26, 2015:
A: I went in there and got her up. And when I
– when we sat up on the side of the bed, when I got up and we went to turn, I
felt pain in my back and – so bad.
Q: When you say ‘her,’ you mean the resident?
A: Yes.
Q: Okay. So you were attempting to move a
patient or a resident?
A: Yes.
Q: And you turned?
A: Yeah. Turned with her – when I – we stood
up and I went to turn and put her in her wheelchair, I felt that pain.
Q: Where did you feel the pain?
A: Right there. (Indicating.)
Q: Okay. You’re pointing to the left side of
your body –
A: Yeah.
Q: - again, in your buttock area?
A: Like, right above my butt.
Q: Okay. In your low back?
A: Yes. It was just – phew.
Q: Can you describe that pain for me?
A: It was not like nothing [sic] I ever
experienced before in my life.
Q: Was it sharp?
A: Like, I guess you could say sharp. It was
– I don’t really – it was just – phew. Like nothing I’ve ever experienced
before or felt.
Mayhew described the low back symptoms
she continued to experience:
A: Some. If I sit too long, like – or if I –
and then a lot of nerve damage in my le- left leg and foot.
…
Q: Have you been diagnosed with drop foot?
A: Yes.
Q: Is that your left foot?
A: Yes.
Q: As we sit here today, do you have pain in
your low back?
…
A: Yes.
Q: The more you sit here?
A: But it’ll be okay, I think.
Q: Where else, if anywhere else, are you
feeling pain as we sit here today?
A: Under my butt, that – my left leg.
Q: Down your left leg?
A: Uh-huh. But it’s – yeah.
Q: Can you tell me what that pain feels like.
A: It’s – I’m trying to think of how to describe it. It’s just
like aching, thro- it’s almost like aching, throbbing, almost. I guess- I don’t
know how to describe it really.
Q: Is that pain always present in your body,
or do you have times-
…
Q: Or do you have times when you are not pain
– or when you are pain free?
A: There are – there are my good days. But
then…
Mayhew testified that she would not be
able to perform her pre-injury job at Auburn.
Mayhew also testified at the February
6, 2017, hearing.
Auburn
introduced in evidence the January 30, 2017, Independent Medical Examination
report of Dr. Dennis O’Keefe. After examining Mayhew and performing a medical
records review, Dr. O’Keefe set forth the following diagnoses:
A. Right
groin pull secondary to the work-related injury on July 7, 2014 – resolved
without residual.
B. Low
back and left leg pain, secondary to disc herniation at the L5-S1 level on the
left – not related to the work-related injury of February 26, 2015. This
appears to have represented a pre-existing active condition.
Dr. O’Keefe
expressed the following opinions in response to several questions:
2. Is
Plaintiff’s alleged July 2014 injury related to Plaintiff’s alleged 2/26/15
back injury? Specifically, is there any medical proof that Plaintiff suffered a
back injury of any kind in July 2014?
Review of records indicates that the
patient’s discomfort on July 7, 2014, involved the right lower quadrant of the
abdomen and the right groin. This does not appear to be related to the Plaintiff’s
low back injury of February 26, 2015. The two episodes appear to be
independent.
3. When
did the claimant reach maximum medical improvement (MMI) with regard to any
condition related to the work injury?
With regard to the right groin pain, Ms.
Mayhew was off work for only a day or two following the incident. She would
have reached MMI by July 14, 2014.
With regard to low back and left leg pain
that the patient described as being related to a work injury of February 26,
2015, records indicate that she had at least three visits to various medical
facilities prior to that date with similar complaints. It would appear that her
low back and left leg pain represents an active pre-existing condition not
related specifically to the events of February 26, 2015. [sic] The record
available to me, Ms. Mayhew had no complaints of low back or left leg pain
during the period of July 7, 2014 through December 8, 2014.
It would be my opinion that Ms. Mayhew
reached MMI following her lumbar spine surgery on or around July 1, 2016. This
would be a little over three months following surgery. However, the MMI from
her surgical intervention does not appear to be due to a work-related injury.
4. Based
upon the objective medical findings and using the AMA Guides to the Evaluation
of Permanent Impairment, 5th Edition, what is the claimant’s current
percentage of permanent impairment, if any? (if the Claimant is not at MMI,
please calculate tentative impairment in the event the judge finds the claimant
to be at MMI). Do you agree with Dr. Fishbein’s impairment ratings?
Based upon the AMA Guidelines, 5th
Edition, Table 15-3, page 384, Ms. Mayhew would fit into DRE Category III. I
would award her a 10% permanent impairment to the body as a whole based upon
her disc herniation and subsequent surgery.
It would be my opinion that the right groin
pull suffered by Ms. Mayhew in July 2014 was a temporary condition which
resolved without residual impairment. I feel that she would have a 0% permanent
impairment to the body as a whole with regard to the right groin pull.
5. Do
you agree with Dr. Fishbein’s assessment that Plaintiff retained an active
impairment rating as it pertains to her back as it related to the alleged July
7, 2014, injury?
No, I do not feel that Ms. Mayhew retained an
active impairment rating as it pertains to the injury of July 7, 2014. By my
review of records, she did not have any significant period of being off work
following the July 7, 2014, injury. There are no records available for my
review that indicate any kind of medical treatments or continuing problems with
regard to the right groin pull during the period July 7, 2014 to December 8,
2014.
6. If
an impairment rating is assessed, is any percentage attributable to (a) a
pre-existing active condition; (b) prior injuries; (c) prior symptomatic
degenerative changes; or (d) the natural aging process? If so, using the AMA
Guides, 5th Edition, what was the permanent impairment rating
immediately before the alleged work incidents?
Based upon the AMA Guides, 5th
Edition, and Ms. Mayhew’s medical evaluations on December 8, 2014, January 14,
2015, and January 27, 2015, it would appear that Ms. Mayhew had evidence of
active impairment within reasonable medical probability represented a lumbar
disc herniation at the L5-S1 level with S1 root compression. This would be
considered a pre-existing active condition prior to the patient’s reported work
injury of February 26, 2015. Her impairment rating prior to February 26, 2015
would be a 10% permanent impairment to the body as a whole.
7. What
permanent work restrictions would be reasonable, necessary and causally related
to the work injury, if any?
If one accepts the statements that the right
groin pull was a transient injury with no long-term residual and the low back
and left leg pain problems pre-existed the reported work injury of February 26,
2015, Ms. Mayhew would not have any restrictions related to her work injuries.
Given the fact that Ms. Mayhew did undergo surgery and did have a clearly demonstrated
lumbar disc herniation, I would recommend that she left or carry no more than
50 pounds on an occasional basis.
8. In
your opinion, is the claimant physically capable of performing the type of work
that was performed at the time of the alleged work injury? Is [sic] she is not,
is that inability due to the effects of a work injury?
I feel that Ms. Mayhew is physically capable
of returning to work as a Certified Nursing Assistant. As noted above, I
recommend that she not lift more than 50 pounds on an occasional basis. If she
is required to assist heavy patients, she should only do so with the assistance
of a coworker.
9. What
future medical treatment would be reasonable, necessary and causally related
[sic] the work injury?
In my opinion, Ms. Mayhew has reached MMI. I
feel that she does not need continuing care with regard to her low back and
legs at this point in time. She may require the use of occasional
over-the-counter analgesics for transient episodes of pain.
10. Was
the surgical procedure performed by Dr. Schwank related to plaintiff’s alleged
work injury? If not, please explain. If so, was it reasonable and necessary for
the cure and relief of plaintiff’s work injury?
Based upon the issues as noted above, it
would be my opinion that Dr. Schwank’s surgery was related to a pre-existing
active condition that existed prior to February 26, 2015.
Dr. Schwank’s surgical procedure was
reasonable, necessary and appropriate for treatment of the patient’s herniated
lumbar disc. However, based upon the information listed above, it did not
appear that the disc herniation was due to a work-related injury on February
26, 2015.
11. Do
you find any objective medical evidence of malingering, exaggeration, symptom
magnification, drug seeking behavior, or voluntary self-limiting behavior by
the claimant?
Ms. Mayhew appeared to demonstrate some
symptom magnification behavior in that her voluntary range of motion at the low
back was much less than what would have been reasonably expected for someone
her age and overall general health and currently at MMI. Her gait was also
somewhat histrionic and much slower and atypical for a normal gait after having
undergone simple laminotomy [sic] and discectomy.
The
December 15, 2016, Benefit Review Conference
Order lists the following contested issues: work-relatedness/causation;
notice (2014 injury); benefits per KRS 342.730; injury as defined by the Act;
temporary total disability (“TTD”) benefits; pre-existing active; and average
weekly wage.
In her
brief to the ALJ, Mayhew argued entitlement to permanent partial disability (“PPD”)
benefits and medical benefits as a result of the alleged injuries to her back
occurring on July 7, 2014, and February 26, 2015.
In the March 28, 2017, Opinion and
Order, the ALJ set forth the following conclusions regarding the alleged injuries
of July 7, 2014, and February 26, 2015:
16. The dots simply do not connect for
Mayhew for either of her back injury claims. She has not satisfied her burden
of proof.
July 7, 2014 injury claim. The evidence fails to show
Mayhew suffered a low back injury on July 7, 2014. She had a groin strain, as
noted by Dr. O’Keefe, but not a back injury. She sought treatment from two
medical facilities on the date of injury – an unspecified immediate care
center, believed to be CorpCare, and Greenview Hospital. At Corpcare she had “lower
abdominal and groin pain.” Examination of systems, including “Musculoskeletal,”
“Neurologic,” and “Back,” were normal. At Greenview, she had “rt groin pain.” The
fact no lumbar x-ray was taken at either facility confirms the lack of a low
back complaint.
Mayhew was released to return to work, and
did so without restrictions. She had no subsequent treatment for five months
until she had a lumbar x-ray at The Medical Center at Franklin on December 8,
2014. The x-ray was normal. The history on the report was that Mayhew had back
pain “since yesterday.” This is the first mention of back pain in a medical
record after July 7, 2014. The note contains no history of a work injury on
July 7, 2014. (No accompanying treatment or clinical notes were filed.)
The evidence from Dr. Poe and Dr. Reynolds
will be discussed in greater detail in connection with the 2015 injury claim,
but, for present purposes, it is noted that neither received a history of a
July 7, 2014 work injury when they saw Mayhew in January of 2015.
Mayhew was asked to explain why there was
no history of a July 7, 2014 injury in the records of The Medical Center at
Franklin, Dr. Reynolds, and Dr. Poe through January of 2015. She did not
directly answer the question. She suggested she was confused by dates, which
was not in context with the question. (depo p. 70-71).
Along those lines, Mayhew was not a good
witness. Her testimony was often non-responsive, and confusing. An example was
being asked about the specifics of her 2014 injury. She said, “The first – I
don’t – I’m trying to – I don’t know. I just remember it being, like in – I’m
trying not to get it mixed up with the second one. Because I – but I don’t
know. I just remember, like my low – it’s like my lower back and, then, my
whatever, right here.” (depo p. 45-46)
As to treatment that continued after the
second alleged injury on February 26, 2015, a history of an injury in 2014 was
never documented.
Dr. Fishbein’s assignment of impairment to
a 2014 injury is not persuasive for at least two reasons. His opinion of
permanency flies in the face of all the evidence above; none of the treatment
records Dr. Fishbein summarized document a low back injury. Further, his
assignment of either 2% or 3% impairment is not in accordance with the AMA
Guides. Impairment commences at 5% under Table 15-3 of the Guides; there is no
allowance for a rating less than that, other than 0%.
Finally, there is the unique circumstance
of this claim being amended to assert an injury prior to the injury originally
alleged on the Form 101; one would expect the 2014 injury to have been asserted
with the 2015 injury on the Form 101. The revelation of the treatment discussed
above in December 2014-January 2015 creates an impression that low back
complaints from a July 7, 2014 incident were conjured after the fact to explain
treatment prior to the 2015 injury and serve as the original source of back
pain.
17. February
26, 2015 injury. The evidence supporting dismissal of the two injury claims
runs together. A bridge between the two would be Mayhew’s testimony that “all
my problems have been on my left leg,” and began after the 2015 injury. (p.
36). If all her problems began in 2015, then they do not relate to the 2014
injury.
But the problem with relating her problems
to a February 26, 2015 injury is that they began before that date. She gave Dr.
Poe a history of two years of low back pain on January 14, 2015. She gave Dr.
Reynolds a history of two years of low back pain on March 2, 2015. This
coincides with the records from The Medical Center at Bowling Green, where she
was given diagnoses of back pain and sciatica in 2012 and 2013.
Mayhew seemed impressed to have been given
a diagnosis of sciatica to explain her complaints. She used the label at least
seven times in her deposition alone. (p. 34-36, 45, 49, 51). She said, “And
then I got told it was sciatic nerve,” implying that diagnosis came following a
work injury and finally explained her problem. (p. 49). But she had been given
the sciatica diagnosis at The Medical Center at Bowling Green in 2013, before
either work injury. The 2014 work injury clearly did not cause a herniated
lumbar disc, for the reasons explained in the preceding paragraph. So that
leaves Mayhew to prove the radiating leg symptoms emanating from a herniated disc
stemmed from an injury on February 26, 2015. But she was diagnosed with
sciatica by Dr. Reynolds on January 27, 2015; and complained to Dr. Poe about
burning pain and numbness down the left leg on January 14, 2015, a month before
the alleged work injury.
Mayhew did not give a history of a work
related injury in her first appointments with Dr. Reynolds and Dr. Poe after
February 26, 2015. (3/2/15 for Dr. Reynolds and 1/14/15 for Dr. Poe). She gave
Dr. Reynolds a history of a work injury “in Feb or March” on her fourth
appointment with him after February 26, 2015. (5/21/15). She treated with Dr.
Poe through April 10, 2015, and never gave him a history of a work injury.
Mayhew’s presentation to The Medical
Center at Bowling Green on February 26, 2015 is not consistent with an operable
herniated disc causing radicular symptoms. An x-ray reported “no acute abnormalities,
chronic findings,” and Mayhew was released to unrestricted work immediately.
The ALJ believed Susan Taylor that Mayhew
complained of back and leg pain at work prior to either of the injury dates in
this case.
A lack of polish as a witness does not
disqualify a meritorious claim. But sometimes vague, confusing testimony
signals a greater concern. It is one thing not to be a good historian, but
another to fail to remember the names of businesses where applications for
employment have been made since the injury (p. 20), or significant details
about treatment that occurred in the not too distant past. Asked in her October
24, 2016 deposition about treatment during the time she saw Dr. Reynolds, she
said, “I don’t remember. It’s been a long time ago. To me, it’s been a long
time ago.” (p. 50). And then we have the added, significant concern about the
reliability of testimony. Mayhew denied any prior injuries or treatment before
her claimed work injuries (p. 51); that plainly is not true. She attempted to
rehabilitate herself at the Hearing by acknowledging sciatic nerve symptoms
before either injury injury [sic] but unpersuasively attempted to minimize the misrepresentation
by several times saying “it was nothing that changed my life.” (HT p. 26)
And
again on this second claim, Dr. Fishbein does not provide convincing evidence
on causation or impairment. His initial report was issued without knowledge of
the prior complaints and treatment. After he reviewed the prior records he said
the preexisting condition deserved some apportionment, so his recognition of
prior active impairment goes against Mayhew’s testimony that her complaints
were insignificant, and also against the argument in her brief that there is no
active impairment under Finley. (p. 12). As to the rating, the ALJ does not
find Dr. Fishbein’s opinion of 2% active impairment to be in accordance with
the AMA Guides because, as noted above in resolution of the 2014 injury claim,
there is no provision under Table 15-3 for an impairment rating between 0% and
5%. Further, there is no explanation for that 2% rating – no identification of
a condition for which impairment is assigned under Table 15-3. And then for the
reduced 11% rating, Dr. Fishbein arbitrarily assigns 2% to the 2014 injury and
9% to the 2015 injury, in essence compounding his error because Table 15-3 does
not provide for impairment between 8% and 10% either; DRE Lumbar Category II
impairment caps at 8% and Category III begins at 10%. So even if Mayhew had
proven causation, her claim for permanent income or medical benefits still
fails because she has not met her burden of establishing a reliable impairment
rating on which to base such an award. Jones v. Brasch-Barry Gen.
Contractors, 189 S.W.3d 149 (Ky. App. 2006).
Plaintiff’s supplemental brief attempts to
take this case down a path different from what was pled or practiced. She
argues that her condition is the result of an accumulation of lifting incidents
with patients that “became disabling” on February 26, 2015. This was not a
“cumulative trauma” case, but a claim of two acute injuries, neither of which
the ALJ finds to have been proven.
Mayhew filed a petition for
reconsideration requesting the ALJ to reconsider his Opinion and Order and award
TTD benefits, PPD benefits, and medical benefits. As previously noted, the order
of May 1, 2017, overruled the petition for reconsideration.
On appeal, Mayhew asserts the ALJ
erred in dismissing her claims arising from the alleged work injuries to her
back occurring on July 7, 2014, and February 26, 2015. We affirm.
As the claimant in a workers’ compensation proceeding, Mayhew had
the burden of proving each of the essential elements of her cause of action,
including “injury” as defined by the Workers’ Compensation Act. KRS 342.0011(1);
Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979); and Eck Miller
Transportation Corp. v. Wagers, 833 S.W.2d 854, 858 (Ky. App. 1992). Since
Mayhew was unsuccessful in meeting her burden of proof, the question on appeal
is whether the evidence compels a different result. Wolf
Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984). Compelling
evidence is defined as evidence that is so overwhelming no
reasonable person could reach the same conclusion as the
ALJ. REO Mechanical v. Barnes, 691 S.W.2d 224 (Ky. App. 1985).
In rendering a
decision, KRS 342.285 grants an ALJ as fact-finder the sole discretion to
determine the quality, character, and substance of evidence. Square D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993). An ALJ may draw reasonable inferences from the
evidence, reject any testimony, and believe or disbelieve various parts of the
evidence, regardless of whether it comes from the same witness or the same
adversary party’s total proof. Jackson v. General Refractories Co.,
581 S.W.2d 10 (Ky. 1979); Caudill
v. Maloney’s Discount Stores, 560 S.W.2d 15 (Ky. 1977).
When reviewing a decision on
appeal, the function of the Board is limited to a determination of whether the
findings made are so unreasonable under the evidence that they must be reversed
as a matter of law. Ira A. Watson Department Store v. Hamilton, 34
S.W.3d 48 (Ky. 2000). The Board, as an appellate tribunal, may not usurp the
ALJ's role as fact-finder by superimposing its own appraisals as to weight and
credibility or by noting other conclusions or reasonable inferences that
otherwise could have been drawn from the evidence. Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999).
Here, substantial evidence supports
the ALJ’s determination that Mayhew did not sustain work-related injuries to
her back on July 7, 2014, and February 26, 2015. We acknowledge
there is medical evidence in the record in support of a finding Mayhew
sustaining work-related injuries on said dates.[2]
However, the ALJ has the discretion to exclusively rely upon the opinions of
Dr. O’Keefe, as set out herein, which are substantial evidence in support of
the ALJ’s decision. The fact Mayhew can cite to evidence that would have
supported a different outcome than that reached by the ALJ is not an adequate
basis to reverse on appeal. McCloud
v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974). Rather, it must be shown there was no evidence of
substantial probative value to support the ALJ’s decision dismissing Mayhew’s
claim for injuries sustained on these dates.
Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986).
Accordingly, the March 28,
2017, Opinion and Order and the May 1, 2017, Order are hereby AFFIRMED.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON DONALD D ZUCCARELLO
3209 W END AVE
NASHVILLE TN 37203
COUNSEL
FOR RESPONDENT:
HON RICHARD W HARTSOCK
730 FAIRVIEW AVE STE B5
BOWLING GREEN KY 42101
CHIEF
ADMINISTRATIVE LAW JUDGE:
HON DOUGLAS W GOTT
657 CHAMBERLIN AVE
FRANKFORT KY 40601
[1] On February 15, 2016, Mayhew filed a “Motion
to Amend Form 101” (Claim No. 2015-92512) in order to clarify the name of the
Defendant Employer as “Bolster and Jeffries Health Care Group, LLC, d/b/a
Auburn Nursing.” By order dated March 2, 2016, Hon. Jeanie Owen Miller, Administrative
Law Judge, sustained Mayhew’s motion.
[2] This evidence includes but is not limited to
the October 11, 2016, Independent Medical Examination report and the November
3, 2016, and January 26, 2017, supplemental reports of Dr. Richard E. Fishbein.