Workers’
Compensation Board
OPINION ENTERED: September 8, 2017
CLAIM NO. 201602553
RICKEY THACKER PETITIONER
VS.
APPEAL
FROM HON. BRENT E. DYE,
ADMINISTRATIVE LAW JUDGE
SIDNEY COAL COMPANY
AND HON BRENT E. DYE,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. Rickey Thacker
(“Thacker”) appeals from the June 9, 2017 Opinion, Award and Order rendered by
Hon. Brent E. Dye, Administrative Law Judge (“ALJ”) awarding medical benefits
in a hearing loss claim, but dismissing his claim for cumulative trauma
injuries to the neck, back and knees. On
appeal, Thacker argues the ALJ erred in finding timely notice was not given and
in dismissing the cumulative trauma claim.
For the reasons stated herein, we affirm.
Thacker’s injury claim alleged cumulative trauma/repetitive
stress injuries to multiple body parts sustained on November 21, 2014. He also filed a hearing loss claim that is
not a subject of this appeal.
Thacker was born on December 29, 1962. He began his employment with Sidney Coal
Company (“Sidney”) in 2005 as an outside utility man and has worked underground
as a rock duster, underground utility man, belt man and dispatcher. His work was physically demanding, requiring
him to lift, carry, push and pull throughout the work shift.
Thacker denied any low back or neck symptoms prior to his
employment with Sidney. Around 2007 or
2008, he began to experience knee and back pain. His pain was worsening in 2008, prompting him
to see Dr. Raymond Bishop, who indicated Thacker’s problems were the result of
the kind of work he was doing. Thacker
ceased working for Sidney when he was laid off in November 2014. He eventually secured employment as a
maintenance worker/custodian and he has performed some lawn mower repair
work. Thacker admitted that prior to
filing his claim he did not give notice of a work injury to Sidney.
Thacker submitted the November 22, 2016 report of Dr. Anbu Nadar who performed an independent
medical evaluation (“IME”) on
October 4, 2016. Dr. Nadar
noted a history of back problems as early as 2008. X-rays were obtained and he received
conservative treatment with medication.
He had also treated for ongoing neck and back pain with Dr. Bishop. Thacker’s symptoms progressively worsened
over the years and he sought treatment with Dr. Adam Akers. Dr. Nadar diagnosed
chronic cervical and lumbosacral strains, degenerative disc disease, and
bilateral patellofemoral arthrosis. Dr. Nadar opined Thacker sustained repetitive injuries over his
employment history causing permanent soft tissue changes in the cervical spine,
lumbar spine, and knees. Dr. Nadar assigned a 5% impairment rating for the cervical
condition, 5% for the lumbar condition, and 2% for each knee for a combined 14%
whole person impairment rating pursuant to the American Medical Association, Guides
to the Evaluation of Permanent Impairment, 5th Edition (“AMA Guides”). Thacker did not have an active impairment
prior to the work injury.
Thacker submitted medical records from
Pikeville Medical Center, including CT scans taken April 29, 2012. The cervical CT scan showed mild C5-6 and
C6-7 disc space narrowing, large anterior and posterior spurs in the lower
cervical spine, and degenerative changes.
The thoracic and lumbar CT scans revealed degenerative changes without
fractures.
Thacker submitted Dr. Akers’s records documenting chiropractic treatment for mid
and lower back pain from August 10, 2015 through November 12, 2015. In the initial visit, Thacker gave a history
of right lower back and right hip pain for approximately one year that was
recently aggravated by getting out of a car.
Sidney submitted the report of Dr.
Michael Best who performed an IME on March 7, 2017. Thacker reported no specific cervical
work-related injury, but did relate trauma to his neck following an ATV
accident in 2012. He was off work for
five months following the accident, then returned to
work on unrestricted duty. Thacker
denied any specific injury to his low back or knees at work, though he
experienced some knee pain in 2008 while working in low coal.
Dr. Best indicated the mild
degenerative changes shown in the 2012 CT scans following the ATV accident were
normal findings for Thacker’s age and were part of the normal aging
process. He found no indication of
cumulative trauma. Dr. Best disagreed
with Dr. Nadar’s assessment of impairment for the
spine. Dr. Best noted there is no basis
for an impairment rating because the mild degenerative changes are insufficient
pursuant to the AMA Guides to establish a rating. Furthermore, Dr. Best opined Thacker does not
meet any of the DRE Category II criteria.
Dr. Best further concluded Dr. Nadar’s
impairment rating for the knees is inappropriate because he did not use x-rays
in assigning his impairment rating, as required by the AMA Guides.
The ALJ found Thacker’s alleged cumulative trauma
injuries to his knee, neck, and back manifested sometime in 2008. Thacker did not give notice until the filing
of his Form 101 on November 21, 2016. Therefore,
the ALJ determined Thacker did not provide notice, “as soon as practicable.” The ALJ further found KRS 342.200’s provisions
did not excuse Thacker’s significant delay in giving notice. The ALJ next noted Thacker may recover for
any injury caused by cumulative trauma within two years of the filing of the
claim. However, the ALJ determined
Thacker did not meet his burden of proving he sustained work-related cumulative
trauma injuries. He explained:
After
reviewing and weighing the medical evidence, as well as Thacker’s testimony,
the ALJ finds Thacker did not meet his burden, and prove,
he sustained cumulative trauma, neck, low back, and bilateral knee, injuries.
Not only did Thacker not prove he sustained cumulative trauma injuries within
the two-year period before he filed his claim, he did not prove his job duties
caused any cumulative trauma injuries. The ALJ is unpersuaded Thacker’s job
duties caused or aggravated degenerative conditions, culminating in a physical
impairment sooner than would have occurred, had he performed less strenuous
work. The ALJ finds Dr. Best’s opinions credible and the most persuasive. The
three April 29, 2012 CT scans support Dr. Best’s opinions. Although conducted approximately
five years before Dr. Best’s exam, the cervical, thoracic, and lumbar CT scans only
showed mild degenerative changes. These changes were not severe or advanced. These objective, diagnostic, studies support Dr. Best’s
opinion that Thacker has normal, age appropriate, degenerative changes, which
his job duties did not cause, aggravate, arouse, or exacerbate.
Dr. Best
thoroughly examined Thacker’s neck, low back, and knees. He found Thacker had normal
cervical and lumbar findings, other than slightly decreased motion. Dr. Best
found Thacker had normal knees. He did not appreciate any edema, effusion, crepitus,
or ecchymosis. Dr. Best reviewed x-ray reports.
The results indicated Thacker had mild spinal degenerative changes. He opined
natural aging caused the changes. The
changes were normal, considering Thacker’s age and sex. Dr. Best opined
Thacker’s job duties did not cause any cumulative trauma injuries.
The ALJ
does not find Dr. Nadar’s opinions credible. The main reason is Dr. Nadar
did not adequately explain how Thacker’s job duties caused or aggravated his
alleged injuries. Instead, he merely indicated “[f]rom his history and the
nature of his employment in the coalmines, I do agree with the patient’s
history of repetitive injuries…[.]” Dr. Nadar did not explain the exact science and medicine,
concerning how performing these activities caused Thacker’s alleged symptoms.
Although
Dr. Nadar reviewed the diagnostic study reports, and
indicated what they showed, he did not indicate the degenerative changes were
advanced or severe. Dr. Nadar did not opine the changes were greater than what he
would expect to find in a 54-year old man. He did not explain how the work’s
nature, and duration, aggravated and/or accelerated Thacker’s conditions into a
symptomatic, disabling, state sooner than would have occurred had Thacker
performed less strenuous work.
The ALJ
finds Thacker did not sustain cumulative trauma injuries. The ALJ is
unconvinced Thacker’s mild degenerative changes are greater than had he
performed less strenuous work.
The natural
aging process caused Thacker’s changes [sic] degenerative changes. They are age appropriate. Accordingly, the ALJ
is dismissing Thacker’s alleged physical cumulative trauma injuries with prejudice.
Thacker did not file a petition for reconsideration and appealed
directly to the Board. On appeal, Thacker
first argues the ALJ erred in finding notice was not given in a timely
manner. He asserts he was first notified
of an actual injury by Dr. Nadar in November 2016,
because he previously reported only pain to Dr. Bishop and was given no
diagnosis. Thacker also contends the
evidence compels a finding he suffered cumulative trauma injuries.
We begin by noting Thacker
did not file a petition for reconsideration and appealed
directly to the Board. An ALJ must
be afforded the opportunity to make any corrections, via petition
for reconsideration, concerning a misunderstanding of the evidence upon which
the fact-finder relies. Pursuant to KRS 342.285, an award or order of the ALJ shall be
conclusive and binding as to all questions of fact if a petition for
reconsideration is not filed as provided for in KRS 342.281. Absent a petition for
reconsideration, questions of fact, including the adequacy
of the ALJ’s findings of fact, are not preserved for appellate review. Brasch-Barry
General Contractors v. Jones, 175 S.W.3d 81, 83 (Ky. 2005). See
also Hornback v. Hardin Memorial
Hospital, 411 S.W.3d 220, 223 (Ky. 2013).
The issue is narrowed to whether the ALJ’s decision is supported by
substantial evidence in the record. Halls
Hardwood Floor Co. v. Stapleton, 16 S.W.3d 327 (Ky. App. 2000). Stated otherwise, inadequate, incomplete, or
even inaccurate fact-finding on the part of an ALJ will not
justify reversal or remand if there is substantial evidence in the record
supporting the ultimate conclusion. Eaton Axle Corp. v. Nally, 688 S.W.2d 334 (Ky. 1985).
As the claimant in a workers’ compensation proceeding, Thacker bore 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 he 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 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) superseded by statute on other grounds as
stated in Haddock v. Hopkinsville Coating Corp., 62 S.W.3d 387 (Ky.
2001).
Notice and causation are threshold
issues. The ALJ addressed the notice
issue prior to ruling on causation.
However, as noted by the ALJ, the notice issue is moot if Thacker cannot
show that he sustained cumulative trauma injuries to his neck, back, and/or
knees. Accordingly, we first address
Thacker’s argument regarding causation.
Thacker notes the ALJ found Dr. Best credible despite the
absence of any mention or discussion of the job duties by Dr. Best in
determining whether they could have led to the alleged conditions. In contrast, Dr. Nadar
thoroughly discussed the type of work and concluded the work activities were
the cause of the injuries that were of a cumulative traumatic nature.
The ALJ found the opinion of Dr. Best
to be the most credible regarding whether Thacker sustained cumulative trauma
injuries. Dr. Best opined Thacker had
degenerative changes of the spine that were merely the product of natural
aging. He stated the job duties did not
cause, aggravate, arouse or exacerbate the degenerative changes. He specifically stated there is no objective
evidence of cumulative trauma injury to the cervical and lumbar spine. Dr. Best’s opinion constitutes substantial
evidence supporting a determination that Thacker did not sustain a cumulative
trauma injury to the cervical or lumbar spine.
Regarding Thacker’s knees, Dr. Best
found no abnormality or injury on examination.
He also explained that, without reference to x-rays of the knees, the
impairment rating assessed by Dr. Nadar was improper pursuant
to the AMA Guides. Although not
required to do so, the ALJ explained why he did not find the opinions of Dr. Nadar persuasive.
Dr. Best’s opinions constitute
substantial evidence upon which the ALJ was free to rely in reaching a decision
on the merits. Where the evidence with regard to an issue 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 (Ky. 1977).
While Thacker has identified evidence supporting a
different conclusion, there was substantial evidence presented to the
contrary. As such, the ALJ acted within
his discretion to determine which evidence to rely upon, and it cannot be said
the ALJ’s conclusions are so unreasonable as to compel a different result. Ira A. Watson Department Store v. Hamilton,
34 S.W.3d 48 (Ky. 2000).
There being substantial evidence to support a finding that Thacker did not sustain an injury, all other issues are moot. An error, if any, relating to notice would therefore be harmless error.
Accordingly, the June 9, 2017 Opinion, Award and Order rendered by Hon. Brent E. Dye, Administrative Law Judge, is hereby AFFIRMED.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON JONATHAN MASTERS
28531 US HWY 119 #2
SOUTH WILLIAMSON, KY 41503
COUNSEL
FOR RESPONDENT:
HON SARAH MCGUIRE
PO BOX 351
PIKEVILLE, KY 41501
ADMINISTRATIVE
LAW JUDGE:
HON BRENT E. DYE
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601