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Workers’
Compensation Board
OPINION ENTERED: November 2, 2018
CLAIM NOS. 201798576, 201701494 & 201700963
DOUG BURKHART PETITIONER
VS.
APPEAL FROM HON. JOHN H. McCRACKEN,
ADMINISTRATIVE
LAW JUDGE
NALLY & HAMILTON
ENTERPRISES, INC.
And HON. JOHN H. McCRACKEN,
ADMINISTRATIVE LAW
JUDGE RESPONDENTS
OPINION
AFFIRMING
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* * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER,
Members.
RECHTER,
Member. Doug
Burkhart appeals from the April 26, 2018 Opinion, Award and Order and the June
11, 2018 Order on Reconsideration rendered by Hon. John H. McCracken,
Administrative Law Judge (“ALJ”). The
ALJ determined Burkhart suffered work-related hearing loss, low back and right
shoulder injuries. The ALJ dismissed Burkhart’s
claim for a psychological injury. On
appeal, Burkhart argues the evidence establishes a work-related psychological
injury, and that he is entitled to permanent total disability benefits. For the reasons set forth herein, we affirm.
Burkhart worked for Nally &
Hamilton Enterprises, Inc. as a coal miner.
He holds a foreman certification and worked both underground and on the
surface of the coal mine. On May 17,
2016, Burkhart slipped while prying a pipe.
He fell and landed on his right shoulder. A second work injury occurred on January 10,
2017, when he was preparing coal for a portable crusher. He lifted a rock and felt his back
“pop”. He experienced immediate pain and
was unable to stand straight or walk.
The medical evidence in this claim
consists of independent medical examination (“IME”) reports. Dr. Ronald Dubin examined Burkhart on March
28, 2017 and April 27, 2017. Burkhart
reported low back pain, which Dr. Dubin diagnosed as moderate lumbar pain. He reviewed prior MRI scans, CT scans and
medical history. He placed Burkhart at
maximum medical improvement for his low back condition on March 28, 2017 and
assigned a 5% whole person impairment rating pursuant to the American Medical Association, Guides to
the Evaluation of Permanent Impairment, 5th Edition (“AMA Guides”). Dr. Dubin opined Burkhart is not able to
return to work as a coal miner.
Dr.
David Jenkinson examined Burkhart on August 28, 2017. Dr. Jenkinson recorded Burkhart’s complaints of
constant low back pain which radiates into his hips and legs. He also reported
limited range of motion and pain in his right shoulder. After a physical examination and records
review, Dr. Jenkinson found no specific abnormality to support any structural
injury in the right shoulder or low back.
Instead, he suspected a sprain or strain injury to the low back and a
right shoulder contusion, both of which had resolved. He found no basis upon which to assign a
permanent impairment rating, and challenged Dr.
Dubin’s rating as based solely on subjective complaints of pain. He opined Burkhart could return to his
employment as a coal miner. Later, Dr.
Jenkinson was provided a July 25, 2017 MRI of the low back. He interpreted the MRI to indicate
age-appropriate degenerative changes. He
again opined the January 10, 2017 work accident caused only a temporary sprain
or strain.
Dr.
David Muffly examined Burkhart on October 4, 2017. Burkhart reported his low back and right
shoulder injuries, and denied any prior problems. Dr. Muffly diagnosed lumbar disc protrusions
at L4-5 and L5-S1, and a partial right rotator cuff tear. He concluded both injuries are work-related. He assessed a 7% whole person impairment for
the lumbar injury, and a 3% impairment for the right shoulder injury. Dr. Muffly placed Burkhart at maximum medical
improvement on October 4, 2017 and opined he does not retain the physical
capacity to return to his prior employment.
Dr.
Daniel Primm conducted an IME on November 17, 2017. Dr. Primm conducted a physical exam and
medical records review. He diagnosed a
lumbar strain and mild right shoulder tendinosis with impingement
syndrome. He found no permanent impairment
to the lumbar spine, but assigned a 1% whole person
impairment rating for the right shoulder condition pursuant to the AMA Guides. He further opined Burkhart could return to
his pre-injury employment.
Dr.
Stephen Lamb conducted an independent psychological evaluation on September 6,
2017. Burkhart reported feelings of irritability,
racing thoughts, excessive worry and panic attacks since the work
injuries. These feelings impacted his
ability to sleep and function in groups of people. Burkhart also reported feelings of
worthlessness over the fact he is physically unable to work, and therefore
cannot provide for his family. Dr. Lamb
diagnosed adjustment disorder with mixed emotional features. He assigned a 26% whole person impairment
using the American Medical Association Guides to the Evaluation of Permanent
Impairment, 4th Edition.
Dr.
David Shraberg conducted an independent psychological evaluation on January 15,
2018. Burkhart again reported racing
thoughts, anxiety, and excessive worry.
Upon evaluation, Dr. Shraberg found Burkhart to be highly irritable and
defensive, though his thought process was lucid and unimpeded, with normal
memory and comprehension. Dr. Shraberg
concluded Burkhart was essentially “disabling himself” by exaggerating the
impact of his injuries. He described
Burkhart’s claims of catastrophic and global inability to perform any task
inconsistent with the physicians’ assessment of his physical condition. In essence, Burkhart
had adopted an unrealistic assessment of his symptoms and impairment. Dr. Shraberg diagnosed a temporary adjustment
disorder that requires no psychiatric treatment and does not preclude Burkhart
from returning to work. He assigned no
permanent impairment rating.
Additional
proof was submitted concerning Burkhart’s claim for hearing loss. That portion of the ALJ’s award has not been
specifically appealed and therefore a detailed recitation of the proof is
unnecessary. The university evaluator,
Brittany Brose, concluded Burkhart suffers work-related hearing loss resulting
in a 6% whole person impairment.
Burkhart was examined by Dr. Samir Guindi, who assigned a 3% whole
person impairment for work-related hearing loss. Dr. Kara Kratzer also evaluated Burkhart, and found evidence of work-related hearing
loss. She assigned a 4% whole person
impairment rating for the condition.
The
ALJ first considered Burkhart’s claim for work-related hearing loss, and found no proof to rebut the report of the
university evaluator. He concluded
Burkhart suffers work-related hearing loss which does not reach the 8%
threshold set forth in KRS 342.7505. The
ALJ awarded medical benefits for this condition.
The ALJ next determined
Burkhart suffered a work-related right shoulder injury as a result of the May
17, 2016 incident. He noted several
concerns with Burkhart’s claim of a right shoulder injury, including the fact
Burkhart received no treatment until a year after the alleged incident and also Dr. Jenkinson’s belief he exaggerated his right
shoulder complaints. Nonetheless, the
ALJ concluded an injury had occurred and relied upon Dr. Primm’s report to
assign a 1% impairment rating for the right shoulder condition.
Turning to the low back
injury, the ALJ again noted Dr. Jenkinson’s concern about symptom
magnification. However, he found
Burkhart’s report of a work accident credible.
The ALJ relied upon Dr. Muffly to conclude a work-related low back
injury had occurred, and relied upon Dr. Dubin’s
assigned impairment rating of 5%.
The ALJ dismissed
Burkhart’s claim of a psychological injury.
In thoroughly weighing the opinions of Drs. Lamb and Shraberg, the ALJ
was persuaded by the evidence of symptom magnification which Dr. Shraberg
noted. Dr. Shraberg concluded Burkhart
has convinced himself his physical conditions are worse than they are, a
conclusion supported by the fact no physician has recommended any further
treatment for either the low back or right shoulder. The ALJ was also persuaded by Dr. Shraberg’s
critique of Dr. Lamb’s assessment.
Finally, the ALJ
addressed the extent of Burkhart’s disability, noting the analysis required by Ira
A. Watson Dep’t Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000) to determine
whether a claimant is permanently totally disabled. He noted Burkhart’s age of fifty-four, and
his limited education and work history.
He weighed these factors against the fact Drs. Jenkinson and Primm found
no significant structural abnormalities as a result of the work incidents, and assigned no restrictions. Both physicians opined Burkhart could return
to his usual employment, which the ALJ found persuasive. He concluded Burkhart is not permanently
totally disabled.
Burkhart filed a
petition for reconsideration, making the same arguments now raised on
appeal. The ALJ denied the
petition. On appeal, Burkhart argues the
ALJ erred in relying upon Drs. Shraberg, Jenkinson and Primm. He claims the opinions of Drs. Dubin, Muffly
and Lamb more accurately reflect his condition and establish he suffered
severely debilitating work injuries that render him permanently totally
disabled.
As
the claimant in a workers’ compensation proceeding, Burkhart
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 establishing a psychological injury and permanent total
disability, 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 the 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).
In arguing the ALJ erred in
dismissing his claim of a psychological injury and rejecting his claim for
permanent total disability benefits, Burkhart essentially asks this Board to
reweigh the proof. He points to evidence
which tends to undermine the conclusions of Drs. Shraberg, Jenkinson and
Primm. Despite the right shoulder
injury, Burkhart continued to work and did not seek medical attention,
reflecting his determination to work rather than the insignificance of the
injury. Similarly, Burkhart argues, his
failure to specifically report his right shoulder condition to Dr. Jenkinson
reflects a lack of understanding of the IME process. With respect to the psychological injury,
Burkhart argues his testimony comports with Dr. Lamb’s conclusions, and
undermines the credibility of Dr. Shraberg’s opinion. Though Dr. Shraberg characterizes him as
bitter with an exaggerated, resentful view of his physical condition, Burkhart
argues these exact symptoms actually reflect the
opinions of a depressed man robbed of his ability to labor.
Burkhart has emphasized proof which
could establish he suffered a work-related psychological injury and is
permanently totally disabled. However,
substantial evidence also exists to support the conclusion he is partially
disabled. Specifically, the opinions of
Drs. Shraberg, Primm and Jenkinson constitute the requisite substantial
evidence upon which the ALJ may base his ultimate conclusions. Though Burkhart has offered alternate
interpretations of the proof which would tend to support his claim, these
arguments go to the weight of the evidence.
He has identified no deficiency in the reports of Drs. Shraberg, Primm
or Jenkinson, which would render these opinions unreliable or
insufficient.
The ALJ thoroughly and comprehensively
reviewed the evidence. He cited and
applied the proper legal standards to evaluate whether Burkhart is permanently
totally disabled. He articulated the
reasons he was more persuaded by the opinions of Drs. Jenkinson, Primm and
Shraberg. Accordingly, it is not the
province of this Board to reweigh the proof and reach an alternate result.
Accordingly,
the April 26, 2018 Opinion, Award and Order and the June 11, 2018 Order on
Reconsideration rendered by Hon. John H. McCracken, Administrative Law Judge,
are hereby AFFIRMED.
ALL CONCUR.
DISTRIBUTION:
COUNSEL FOR PETITIONER: LMS
HON. RONALD C. COX
207 EAST CENTRAL STREET
HARLAN, KY 40831
COUNSEL FOR RESPONDENT:
LMS
HON. W. BARRY LEWIS
PO BOX 800
HAZARD, KY 41702
ADMINISTRATIVE LAW JUDGE: LMS
HON. JOHN H. McCRACKEN
ADMINISTRATIVE LAW
JUDGE
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601
