*/
Workers’
Compensation Board
OPINION
ENTERED: December 1, 2017
CLAIM NO. 201371389
TAMMY PHILLIPS
and JOHNNIE L. TURNER PETITIONER
VS. APPEAL FROM HON. GRANT ROARK,
ADMINISTRATIVE LAW JUDGE
AISIN AUTOMOTIVE CASTING
and HON. GRANT ROARK,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
STIVERS,
Member.
Tammy
Phillips (“Phillips”) appeals from the May 15, 2017, Opinion, Award, and Order
and the September 7, 2017, Order overruling her petition for reconsideration of
Hon. Grant Roark, Administrative Law Judge (“ALJ”). In the May 15, 2017,
Opinion, Award, and Order, the ALJ awarded temporary total disability (“TTD”)
benefits already paid, permanent partial disability (“PPD”) benefits in the
amount of $33.56 per week for 425 weeks, and medical benefits for an alleged
left wrist injury. The ALJ dismissed Phillips’ claims for right foot and low
back injuries. On appeal, Phillips seeks remand to the ALJ for review of his
findings regarding the dismissal of her claim for the right foot injury and the
denial of her request for vocational rehabilitation benefits.
The Form 101 alleges on August 9,
2013, Phillips sustained injuries to her left wrist, right foot, and back while
in the employ of Aisin Automotive Casting (“Aisin”) in the following manner:
“Plaintiff was pulling parts to her line, pulled 2 racks and when [sic] pulled
the third rack, she fell on her left wrist.”
Attached to the Form 101 is the
November 6, 2014, orthopedic evaluation report and the Form 107-I of Dr. David Muffly. After performing an examination and medical records
review, Dr. Muffly diagnosed the following:
Left distal radius fracture related to the
work accident dated 8-9-2013 with residual post-traumatic loss of motion. She
has had a stress fracture of the right 3rd metatarsal with full
recovery but I don’t think this is a work related injury.
Regarding
an impairment rating, Dr. Muffly opined as follows:
Impairment is 7% to the whole person
regarding loss of motion of the left wrist using Figures 16-28, 16-29 and 16-37.
The 5th Edition AMA Guidelines are used. This 7% impairment is
related to the work injury dated 8-9-2013.
The Form
107-I offers no additional opinions.
Dr. Muffly was also deposed on November 11, 2015. During this deposition,
Dr. Muffly reiterated that he does not believe the
stress fracture of Phillips’ right 3rd metatarsal bone is a
work-related injury. However, Dr. Muffly acknowledged
he would defer to the treating doctors regarding Phillips’ right foot injury, explaining
as follows:
Q: Did you examine her foot at all?
A: No.
Q: In your Assessment you state that she had
had a stress fracture of the right 3rd metatarsal with full recovery
but you don’t think that that is [sic] work injury. Is that based off of the
history you took from her?
A: Yes. She provided all the information and
I didn’t have, I didn’t have the backup of records to verify if that was true
or not, and actually it was an opinion that I shouldn’t have even put on the
report because I didn’t have any, I didn’t examine it, I didn’t have records. I
don’t know what else to tell you.
Q: So you are not making any opinion as to
her right foot today?
A: No, I am not.
Aisin introduced
the December 14, 2015, combined Independent Medical Examination (“IME”) and
Functional Capacity Evaluation report of Dr. Michael Best in which he set forth
the following answers to assigned questions:
Q1: What is the current diagnosis for the
alleged injury date of August 9, 2013, and May 13, 2014?
A1: a. Chronic post-traumatic degenerative
arthritis left wrist.
b. Healed third metatarsal ‘stress fracture.’
c. Persistent right foot pain secondary to
chronic metatarsalgia (status-post Weil osteotomy
fourth digit).
Q2: Is she currently at MMI, and on what date
did she reach MMI based on the history?
A2: The patient is clearly at maximum medical
improvement. She was at maximum medical improvement regarding the right wrist
as of May 14, 2014, when she was returned to full and unrestricted duties by
Dr. Beliveau.
The patient is at maximum medical improvement
in regard to the stress fracture as of the date of this exam December 1, 2015,
(and may have been a number of months ago. However, I did not evaluate the
patient at that point.)
Q3: As for causation for the left wrist, back
and right foot, has the plaintiff sustained a work-related injury?
A: In regard to the low back, the patient has
chronic mid and low back pain dating to numerous additional injuries, including
motor vehicle accidents, as well as abuse. This resulted in chronic mid and low
back pain treated by pain management prior to the August 9, 2013, slip and
fall. The patient admits that the back pain is at its normal, preinjury level.
In regard to the left wrist, obviously the
slip and fall resulted in the comminuted intraarticular fracture of the left
wrist. Following the surgery, the patient has developed chronic post-traumatic
arthritis, work-related conditions.
Finally, the right foot is certainly a
puzzle. Typically, stress fractures are transversely oriented fractures without
displacement. This was an oblique fracture, which is a bit atypical.
Nevertheless, this condition healed about the third digit of the right foot.
The podiatrist, however, found what he considered to be pathology about the
fourth digit of the right foot that he described as a ‘clinically subluxed fourth metatarsal head.’ Clearly, for the fourth
metatarsal head to have subluxed, the patient would
have been required to have had a traumatic fracture of the foot (and not
a stress fracture). Therefore, either the patient has had a stress fracture of
the right third metatarsal – work related, or she had a nonwork-related
traumatic fracture of the right third digit, resulting in the metatarsal head
subluxation, a nonwork-related condition.
Q4: Using The
Fifth Edition AMA Guides, what is the patient’s permanent whole body
impairment?
A4: In regard to the lumbar spine, the
patient is a Lumbosacral DRE Category I. She has low back pain only. She has no
findings of even a ‘nonverifiable radiculopathy’ and
has no objective abnormality on physical examination, and previous MRI showed
no evidence of disc herniation, stenosis or nerve root impingement. As such,
she meets no criteria for permanent impairment – 0% to the lumbar spine.
According to The Fifth Edition AMA Guides,
pages 467 through 469, Figures 16-28 and 16-31, the patient’s impairment rating
for loss of range of motion to the left wrist is 6% to the upper extremity,
which is equal to a 4% whole person impairment rating.
If the patient indeed sustained a stress
fracture of the right third metatarsal, she meets criteria for a 1% whole
person impairment by Table 17-33, page 546.
If the patient were to be rated for her
clinical metatarsal head subluxation, then this would not be a work-related
condition. Therefore, the patient’s total impairment by Table 604 is equal to a
5% whole person impairment rating.
Q5: What continuing ongoing medical treatment
does the plaintiff require as a result of the work injuries and/or any
resulting residuals?
A5: I am unable to adequately answer this
question without x-rays of the left wrist. The left wrist x-ray of June 23,
2014, showed significant ‘post-traumatic changes’ and, therefore, a new plain
x-ray of the wrist would be appropriate to assess the interval worsening of the
condition.
Q6: What restrictions, if any, would you
place on the patient?
A6: The patient has been returned to full and
unrestricted work activities. She performs these on a daily basis. I would not
limit her employability by placing restrictions. This would not be medically
reasonable or supported by the literature.
Dr. Best
was also deposed on December 18, 2015. Regarding the alleged stress fracture of
the right foot and its cause, Dr. Best testified as follows:
Q: Okay. Given that, then, and the history
that she gave you, that she had worked light duty up until May 14th,
2014, and on that day, after going back to regular duty for one day, not even a
full day, she noticed the pain in her right foot, is it medically likely that
that stress fracture occurred from that work activity?
A: When you say ‘medically likely,’ what
percent are we talking about? Are we saying more likely than not, 51 to 49, or
what are we talking about?
Q: Yes, more likely than not that a stress
fracture would occur within one day of walking in a factory.
A: Indeed that would be very unlikely, so
more likely than not that this was not a symptomatic stress fracture caused by
one day of walking.
…
Q: Okay. Is there anything that was corrected
in that surgery that you felt was related in any way to either her initial fall
or walking that one day or related to the stress fracture itself?
A: No.
The March
15, 2017, Benefit Review Conference
Order and Memorandum lists the following contested issues: “benefits per
KRS 342.730; work-relatedness/causation (back/foot); average weekly wage
(2014); unpaid or contested medical expenses; injury as defined by the ACT
(back/foot); TTD; vocational rehabilitation; and date of injury. The parties
stipulate to a work-related injury occurring on August 9, 2013, but dispute the
occurrence of a work-related injury on May 14, 2014.”
In the May
15, 2017, Opinion, Award, and Order, the ALJ set forth the following findings
of fact and conclusions of law:
Causation/Work Relatedness/Injury under the Act
As a threshold issue, the defendant
disputes whether plaintiff's right foot stress fracture and any lower back
problems are causally related to either work injury alleged. It acknowledges
and accepts a left wrist injury which occurred on August 9, 2013. Plaintiff
relies on the opinions of her treating physician, Dr. Ball, who concluded her
stress fracture was caused by standing and twisting on her right leg on the day
she returned to work on May 14, 2014. For its part, the defendant relies on its
expert, Dr. Best and the plaintiff's expert, Dr. Muffly,
who each concluded plaintiff's right foot fracture was not due to the original work
injury or to any activities on May 14, 2014.
Having reviewed the evidence of record,
the administrative law judge is simply not persuaded plaintiff has carried her
burden of proving her right foot stress fracture was caused by her work. In
reaching this conclusion, Dr. Best’s opinion seems to make the most sense. He
concluded it is highly unlikely plaintiff would develop a stress fracture due
to the activities after just one day of returning to work. This opinion is
further corroborated by plaintiff's own expert, Dr. Muffly.
Conversely, Dr. Ball's opinion in favor of causation is simply not found
persuasive. For these reasons, it is determined plaintiff's right foot injury is
not work related or compensable.
Similarly, it is noted that plaintiff did
not initially report lower back pain after the August 9, 2013 fall at work. Dr.
Best noted plaintiff had a long history of intermittent back problems. He
ultimately concluded plaintiff's back problems were not work related. Based on
the evidence available, Dr. Best's opinion in this regard is found persuasive.
It is therefore determined plaintiff's back claim must also be dismissed.
Extent & Duration
The next issue becomes the extent of
plaintiff's impairment for her compensable left wrist injury. On this issue, it
is noted that Dr. Muffly assigned a 7% impairment
rating, while Dr. Best assigned a 4% impairment rating. As between these
ratings, Dr. Muffly's is found to more completely
account for plaintiff's injury, treatment, and ongoing symptoms. It is
therefore determined plaintiff has a 7% impairment rating. Moreover, given the
fact that plaintiff has returned to her former job and that Dr. Best assigned
no permanent restrictions, it is determined plaintiff retains the physical
ability to return to her former job, thereby precluding application of the 3x
multiplier in KRS 342.0011(1). Instead, her award of benefits is calculated as
follows:
$946.06 x 2/3 =
$630.71 → 564.02 (maximum 2013 PPD rate) x .07 x .85 = $33.56 per week.
TTD Benefits
The plaintiff also seeks an award of
additional TTD benefits. It is noted that plaintiff was paid TTD benefits until
she returned to regular duty. It is also noted that she only ceased working
when she was terminated for failing a drug test. Therefore, it is determined
plaintiff is not entitled to any additional TTD benefits because she did not
cease working due to her injury.
Vocational Rehabilitation
Benefits
Plaintiff also seeks an award of
vocational rehabilitation benefits under KRS 342.710. However, having concluded
plaintiff retains the physical ability to return to the job she held at the
time of her injury, she remains capable of returning to work for which he [sic]
has prior training and experience and, as such, is not entitled to vocational
rehabilitation.
The remaining issues regarding date of
injury and/or unpaid medical expenses are therefore rendered moot. Plaintiff is
entitled to payment of reasonable and necessary medical expenses for the cure
or relief of the effects of her left wrist injury.
Phillips
filed a petition for reconsideration requesting additional findings on the same
issues she now raises on appeal. In the September 7, 2017, Order overruling
Phillips’ petition for reconsideration, the ALJ set forth the following
additional findings:
...
Having reviewed the plaintiff’s petition,
the Administrative Law Judge is not persuaded plaintiff has pointed out any
patent errors to justify altering the findings set forth in the May 15, 2017
Opinion. With respect to plaintiff's argument that the ALJ incorrectly noted
that Dr. Muffly reported that plaintiff's right foot
injury was not work related because Dr. Muffly did
not even examine the right foot, the ALJ is not persuaded by this argument.
While Dr. Muffly testified he did not examined [sic] plaintiff's
right foot and did not have all of her records regarding that, he did, in fact,
originally conclude plaintiff's right foot condition was not work-related. At
no point in his deposition testimony did he conclude otherwise. Moreover, the
Opinion only referred to Dr. Muffly as corroborating
Dr. Best's own conclusion that plaintiff did not develop a right foot stress
fracture injury at work. Dr. Best's opinion that plaintiff did not develop the
stress fracture from repetitive use after only one day of work when she had
returned to regular duty is simply found more believable then Dr. Ball's contrary
opinion.
Plaintiff also argued in her petition that
her right foot was actually hurting before she returned to regular duty for the
one day and so it was not accurate to conclude her stress fracture was not
caused by one day of work. However, none of the treatment records prior to
plaintiff returning to regular duty work for one day show any evidence that she
complained of right foot problems before that date, despite her testimony that
she did report pain previously. Quite simply, plaintiff's testimony is not
found credible on this point.
Finding that plaintiff's petition
otherwise raises no arguments which have not already been addressed and finding
no patent errors to justify the remedy plaintiff seeks, plaintiff's petition
for reconsideration is overruled.
As the
claimant in a workers’ compensation proceeding, Phillips had the burden of
proving each of the essential elements of her cause of action, including
proving she sustained a work-related injury to her right foot. See 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 Phillips 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 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 that they must be reversed as a matter of law. Ira A. Watson Department Store v. Hamilton,
34 S.W.3d 48 (Ky. 2000).
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). Magic Coal Co.
v. Fox, 19 S.W.3d 88 (Ky. 2000).
Although a party may note evidence supporting a different outcome than
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). Rather, it must be shown
there is no evidence of substantial probative value to support the decision. Special
Fund v. Francis, 708 S.W.2d 641 (Ky. 1986).
The function of the Board in
reviewing an ALJ’s decision 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).
The ALJ
relied upon the opinions of Dr. Best in concluding Phillips did not meet her
burden of proving she sustained a work-related injury to her right foot. A
reading of Dr. Best’s December 14, 2015, IME report reveals some equivocation
on this issue. Dr. Best stated, “either the patient has had a stress fracture
of the right third metatarsal – work related, or she had a nonwork-related
traumatic fracture of the right third digit, resulting in the metatarsal head
subluxation, a nonwork-related condition.” However,
in his December 18, 2015, deposition, Dr. Best unequivocally opined that, more
likely than not, Phillips did not sustain a work-related stress fracture after
only one day of walking in a factory. The opinions offered by Dr. Best, as
presented in both the IME report and his deposition, constitute substantial
evidence amply supporting the ALJ’s conclusion Phillips did not carry her
burden of proving she sustained a work-related injury to her right foot. Further,
the only opinion offered by Dr. Muffly on this issue
was that the right foot fracture is not work-related. As a contrary result is
not compelled, the ALJ’s decision will not be disturbed.
We next address Phillips’ argument concerning the ALJ’s refusal to award
vocational rehabilitation benefits. Entitlement to vocational rehabilitation
benefits is governed by KRS 342.710(3) which states, in relevant part, as
follows:
When as a result of the
injury he is unable to perform work for which he has previous training and
experience, he shall be entitled to such vocational rehabilitation services,
including retraining and job placement, as may be reasonably necessary to
restore him to suitable employment. In all such instances, the administrative
law judge shall inquire whether such services have been voluntarily offered and
accepted. The administrative law judge
on his own motion, or upon application of any party or carrier, after affording
the parties an opportunity to be heard, may refer the employee to a
qualified physician or facility for evaluation of the practicability of, need
for, and kind of service, treatment, or training necessary and appropriate to
render him fit for a remunerative occupation.
Upon receipt of such report, the administrative law judge may
order that the services and treatment recommended in the report, or such other
rehabilitation treatment or service likely to return the employee to suitable,
gainful employment, be provided at the expense of the employer or his insurance
carrier. Vocational rehabilitation
training, treatment, or service shall not extend for a period of more than
fifty-two (52) weeks….
(emphasis added.)
Use of the word "may" in KRS
342.710(3) indicates the issue of vocational rehabilitation benefits is
entirely within the discretion of the ALJ. Alexander v. S & M Motors,
Inc., 28 S.W.3d 303 (Ky. 2000). In this instance, the ALJ
clearly outlined the reasons he declined to award such benefits, including his determination
Phillips remains capable of returning to the type of work she performed at the
time of the injury. Thus, the subject injury did not create an inability to
perform work for which Phillips had previous training and experience.
Consequently, Phillips did not qualify for vocational rehabilitation
services. The ALJ’s determination is
fully supported by the opinions of Dr. Best. Because the ALJ’s
decision regarding entitlement to vocational rehabilitation
benefits is supported by substantial evidence and a contrary result is not
compelled, his decision concerning this issue will not be disturbed.
Accordingly, the May 15, 2017,
Opinion, Award, and Order and the September 7, 2017, Order overruling Phillips’
petition for reconsideration are hereby AFFIRMED.
ALL CONCUR.
COUNSEL FOR PETITIONER:
HON JOHNNIE L TURNER
P O BOX 351
HARLAN KY 40831
COUNSEL FOR RESPONDENT:
|
HON KENNETH
DIETZ 1511 CAVALRY LN STE 201 |
ADMINISTRATIVE LAW JUDGE:
HON GRANT ROARK
657 CHAMBERLIN AVE
FRANKFORT KY 40601
