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Workers’
Compensation Board
OPINION
ENTERED: September 15, 2017
CLAIM NO. 201459633
KEVIN STORY PETITIONER
VS. APPEAL FROM HON. R.
ROLAND CASE,
ADMINISTRATIVE LAW JUDGE
KELLY SERVICES and
HON. R. ROLAND CASE,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
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BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
ALVEY,
Chairman. Kevin Story (“Story”) appeals from the Opinion, Award and Order
rendered April 3, 2017 by Hon. R. Roland Case, Administrative Law Judge (“ALJ”). The ALJ awarded temporary total disability
(“TTD”) benefits, permanent partial disability (“PPD”) benefits based upon a 6%
impairment rating for bilateral carpal tunnel syndrome/hand conditions enhanced
pursuant to KRS 342.730(1)(c)1, and medical benefits for injuries Story
sustained on October 21, 2014 while working for Kelly Services at Toyota. The ALJ dismissed Story’s claim for a
cervical injury. Story also seeks review
of the May 8, 2017 order denying his petition for reconsideration.
On appeal, Story argues
the ALJ’s conclusions regarding his cervical spine are not based upon
substantial evidence. Because substantial
evidence supports the ALJ’s determination and no contrary result is compelled,
we affirm.
Story filed a Form 101 on
August 4, 2016, alleging he injured his neck, both arms and both hands in the
course and scope of his work as an assembly worker for Kelly Services at Toyota
on October 24, 2014. Kelly Services
provides employees to Toyota in the automobile manufacturing process. He is a high school graduate and has a
commercial drivers’ license. His work
history consists of employment as a home remodeling sales representative, beer
delivery/sales representative, farm delivery/sales representative, ER
Technician/ICU CNA, and as a special needs bus driver.
Story testified by
deposition on October 3, 2016, and at the hearing held February 1, 2017. He is a resident of Louisville,
Kentucky. He stated Kelly Services
provides temporary employees for the Toyota manufacturing facility in
Georgetown, Kentucky. He had to pass
testing to begin working there. After
orientation and training, he was placed in the assembly department at
Toyota. After satisfactorily completing
a period of employment with Kelly Services, he hoped he would be hired by
Toyota on a permanent basis.
On October 21, 2014,
his job involved installing hoods and fenders on cars. The installation of the hoods involved
working with a co-worker and using lifting devices. He also used power tools to install
bolts. At the time he experienced
problems in his arms, he was a “little behind” in the process, and had to push
a hoist out of the way, due to the speed of the co-worker. He was in an awkward position when the
incident occurred. As he was driving
home, his fingers began cramping and clamping.
When he woke up the next morning, he could not open his hands, and he
was unable to work. He missed work that
day, but returned the following day, and went to the Toyota medical
department. He was placed on light duty
for a few weeks, and he never returned to the assembly line.
Story later treated
with Dr. Thirkannad (no first name provided) at Kleinert & Kutz who
administered injections to his wrists.
He stated the injections provided no relief. He also had physical therapy and two EMGs. He was eventually referred to Dr. Martin
Favetto who performed carpal tunnel releases on both the left (October 2015)
and right (January 2016) wrists. Story
stated he continues to experience problems with pain, weakness and numbness in
the hands. He has difficulty gripping. He stated he also has headaches and a pain in
his neck. He additionally stated his
arms go numb. He stated he has
difficulty with both house and yard work, and would be unable to perform his
job duties for Kelly Services at Toyota.
He currently takes baby aspirin for his symptoms, and uses ice on his
neck. He last worked in November 2014.
In support of his
claim, Story filed Dr. Favetto’s May 24, 2016 report. Dr. Favetto noted Story is post-op for his
carpal tunnel releases. He noted Story
has not seen a spine surgeon, nor has he undergone physical therapy or an MRI
for his neck. He stated if a spine
surgeon determines his neck condition is not work-related, then Story has
reached maximum medical improvement (“MMI”).
Story also filed Dr.
Thomas Gabriel’s March 22, 2015 report.
Dr. Gabriel diagnosed Story with bilateral carpal tunnel syndrome cause
by his “short employment exposure” at Toyota.
He advised Story to avoid using air guns and vibratory equipment. He also advised Story to avoid engaging in
forceful gripping or grasping. He stated
Story had not reached MMI. He recommended
wrist decompression surgery, after which Story would reach MMI in three to four
months.
Story additionally
filed Dr. Anthony McEldowney’s October 25, 2016 report. Dr. McEldowney noted Story was status post
left and right carpal tunnel releases. He
diagnosed a cervical sprain/strain versus a cervical disc abnormality caused by
the October 21, 2014 work injury. He did
not believe Story had reached MMI. He
additionally stated he did not believe Story retained the physical capacity to
return to the type of work performed at the time of the injury. He recommended Story avoid stress or strain
to the cervical spine, and should avoid lifting, carrying, pushing or pulling,
as well as prolonged static placement or repetitive motion of the neck.
Kelly Services filed
the report of Dr. Michael Best who evaluated Story at its request on March 23,
2016. Dr. Best noted Story’s job duties,
the history of his injuries, and his medical treatment. Dr. Best also reviewed the results of the EMG
ordered by Dr. Ellen Ballard on December 17, 2014, which reflected findings of
mild bilateral carpal tunnel syndrome, but no radiculopathy. He noted a repeat EMG performed on March 9,
2015 reflected the same findings. On
physical examination, he noted Story had full cervical range of motion, no
anatomical sensory deficit, and a negative Spurling’s test for radiculopathy
and numbness. Based upon the physical
examination, and the review of the EMG results, he did not believe Story had sustained
a cervical injury.
In a supplemental
report dated November 15, 2016, Dr. Best stated he had reviewed, and noted
inconsistencies with Dr. McEldowney’s report.
He again stated Story’s cervical condition was not related to the
October 21, 2014 work event.
Dr. Best testified by
deposition on December 8, 2016. He noted
the EMG testing revealed evidence of mild carpal tunnel syndrome, but not
cervical radiculopathy. He found no
signs of cervical radiculopathy on physical examination. He noted Dr. Ballard commented the EMG showed
no cervical radiculopathy. He based his
determination of no cervical radiculopathy on the EMG reports, and the results
of the physical examination. He stated a
cervical MRI is not indicated because there are no cervical symptoms.
Kelly Services filed the EMG/NCS report from Dr. Ballard
dated December 17, 2014. In the report,
as reflected by Dr. Best, Dr. Ballard noted the study revealed Story has
bilateral carpal tunnel syndrome, right worse than left. In her correspondence dated October 17, 2016,
Dr. Ballard stated as follows:
There
is no evidence of any cervical radiculopathy or any other nerve condition,
neuropathy or radiculopathy, other than carpal tunnel. All of my opinions are with a reasonable
degree of medical probability. The test
included both upper extremities and cervical paraspinals. Therefore, if there was any evidence of
radiculopathy, this would have been apparent.
Kelly Services also
filed the December 8, 2016 report of Dr. Richard Dubou who evaluated Story at
its request. Dr. Dubou noted the
treatment by Dr. Thirkannad, including the injections. He also noted the evaluations by Dr. Gabriel,
and treatment by Dr. Favetto which included bilateral carpal tunnel
releases. He opined Story reached MMI
four months after the right carpal tunnel release performed in January
2016. He noted a functional capacity
evaluation revealed Story could perform medium work. He additionally noted Story takes only low
dose aspirin to treat his complaints.
Dr. Dubou found Story
is status post bilateral carpal tunnel surgery with an excellent symptomatic
result. He assessed a 6% impairment
rating pursuant to the 5th Edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (“AMA Guides”).
He cautioned Story to avoid using
vibratory tools and not engage in repetitive or overhead work. He also advised Story to avoid repetitive
lifting greater than ten pounds, or infrequent lifting greater than fifteen
pounds.
A Benefit Review
Conference was held on January 10, 2017.
The issues preserved were whether Story sustained a work-related
cervical injury, his capacity to return to work at the job performed at the
time of the injury, benefits per KRS 342.730, average weekly wage, unpaid/contested
medical bills, and TTD benefits.
In the Opinion, Award
and Order issued April 3, 2017, the ALJ awarded TTD benefits from November 17,
2014 (the date Story last worked for Kelly Services) through December 8, 2016
(the date Dr. Dubou examined him). He
awarded PPD benefits based upon the 6% impairment rating assessed by Dr. Dubou,
and medical benefits for the bilateral carpal tunnel condition. The ALJ also determined Story does not retain
the capacity to return to the job performed at the time of the injury, and
enhanced the award of PPD benefits by the three-multiplier contained in KRS
342.730(1)(c)1.
The ALJ, relying upon
the opinions of Drs. Ballard and Best, additionally determined Story did not
sustain a work-related cervical injury.
He awarded no TTD benefits, PPD benefits, or medical benefits for the
alleged cervical condition.
Story filed a petition
for reconsideration arguing the ALJ failed to address the opinions of Drs.
Favetto and McEldowney in his decision.
Story additionally argued Dr. Best’s opinions are inconsistent with the
AMA Guides. In the order denying
the petition for reconsideration, issued May 8, 2017, the ALJ noted he had
considered Story’s evidence regarding the alleged cervical injury. The ALJ noted the opinions of Drs. Best and
Ballard persuaded him that Story did not sustain a work-related cervical
injury.
On appeal, Story argues
the ALJ erred in dismissing his claim for a work-related cervical injury. He argues the ALJ’s determination is not
supported by substantial evidence. As the claimant in a workers’
compensation proceeding, Story 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 Story
was unsuccessful in his burden regarding his alleged cervical condition, 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.
We find Story’s
appeal to be nothing more than a re-argument of the evidence before the
ALJ. After careful review, we find the
ALJ accurately summarized the evidence and had a complete understanding of the
issues before him. Contrary to Story’s assertion
in his petition for reconsideration, we
note the ALJ summarized the evidence from both Drs. Favetto and McEldowney in
his decision.
Both Drs. Ballard and Best opined Story had
no cervical radiculopathy. Dr. Best
determined there were no physical findings supporting a diagnosis of cervical
radiculopathy. Dr. Best stated the lack
of physical findings coupled with the absence of radiculopathy on electrical
testing support his determination that Story did not require the referral for
an MRI, and did not sustain a work-related cervical injury.
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 ALJ chose to rely upon the opinions
of Drs. Ballard and Best, and he provided his reasoning for doing so. Those opinions constitute substantial
evidence supporting the ALJ’s determination.
We note Story introduced evidence which could have supported a
determination by the ALJ. However, this
does not compel a contrary result. Therefore,
we will not disturb the ALJ’s determination.
Accordingly, the April 3, 2017
decision and the May 8, 2017 order on petition for reconsideration by Hon. R. Roland Case, Administrative Law Judge, awarding TTD benefits, PPD
benefits, and medical benefits for Story’s bilateral carpal tunnel condition,
and finding he did not sustain a cervical injury, are hereby AFFIRMED.
ALL
CONCUR.
COUNSEL
FOR PETITIONER:
HON SCOTT C JUSTICE
111 WEST WASHINGTON ST, STE 100
LOUISVILLE, KY 40202
COUNSEL
FOR RESPONDENT:
HON RODNEY J MAYER
600 EAST MAIN ST, STE 100
LOUISVILLE, KY 40202
ADMINISTRATIVE
LAW JUDGE:
HON R ROLAND CASE
657 CHAMBERLIN AVE
FRANKFORT, KY 40601
