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Workers’
Compensation Board
OPINION ENTERED: January 11, 2019
CLAIM NO. 201594425
KENNETH TURNER PETITIONER
VS.
APPEAL FROM HON. JONATHAN R. WEATHERBY,
ADMINISTRATIVE
LAW JUDGE
COMMONWEALTH OF
KY-DEPARTMENT OF CORRECTIONS
And HON. JONATHAN R. WEATHERBY,
ADMINISTRATIVE LAW
JUDGE RESPONDENTS
OPINION
VACATING
AND REMANDING
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* * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER,
Members.
RECHTER,
Member. Kenneth
Turner appeals from the July 23, 2018 Opinion, Award and Order and the
September 4, 2018 Order rendered by Hon. Jonathan R. Weatherby, Administrative
Law Judge (“ALJ”). The ALJ concluded
Turner sustained no permanent injury as a result of a work accident,
and awarded a period of temporary total disability benefits and medical
benefits. On appeal, Turner argues the medical
opinion upon which the ALJ relied does not constitute substantial evidence, the
decision contains material factual errors, and the findings of fact are
insufficient to inform the parties of the basis of the decision or to allow
meaningful review. For the reasons set
forth herein, we vacate and remand.
Turner testified he was
leaving work at Commonwealth of Kentucky Department of Corrections after his
shift on February 16, 2015, when he slipped and fell on ice. He alleged injuries to his hips, ribs, right
shoulder and neck. Turner denied having
any neck problems prior to the work accident, but acknowledged he was taking
pain medication for his knees and low back.
Turner stated he went to a pain clinic every three months for these
conditions prior to the work accident.
The following week, on
February 23, 2015, Turner visited Holly McCormick, APRN with complaints of
headaches, right shoulder pain, and right-sided chest pain. He reported the work accident to Nurse
McCormick, who ordered x-rays and a CT scan.
The x-rays revealed a shoulder abnormality of the clavicle and in the AC
joint, and broken ribs. Turner was
referred to an orthopedic surgeon for his shoulder condition. When he returned to Nurse McCormick on March
4, 2015, Turner continued to complain of pain in his right shoulder and
ribs.
Turner was referred to
Trigg County Hospital Rehabilitation Department for physical therapy. On March 24, 2015, he complained of right
upper extremity radicular pain since the work accident. Office notes indicate Turner had a positive
Spurling’s test for cervical radiculitis, with limitation of cervical range of
motion. At a March 31, 2015 visit,
Turner continued to complain of neck pain with headaches, and the office note
indicates cervical pathology was suspected.
Turner returned on April 13, 2015, and again had positive testing for
right upper extremity radiculopathy. Turner
again reported the right upper extremity pain began a few days after the injury
on February 16, 2015.
Turner returned to Nurse
McCormick on April 6, 2015, and reported he had
experienced gradually worsening neck pain since the work accident. At a May 7, 2015 follow-up, he again reported
ongoing neck pain and indicated he was awaiting a referral to an orthopedic
specialist for the condition. On July
16, 2015, Nurse McCormick noted an MRI of Turner’s neck was abnormal. The MRI had been obtained by Dr. Timothy Chang,
whom Turner had visited for his right shoulder condition. Nurse McCormick noted Dr. Chang recommended
Turner visit a cervical specialist for the pathology found on the MRI. She indicated, “This all stems from a
worker’s comp claim when he fell and hit his neck, head, and shoulder area.”
Turner was referred to Dr.
Miles M. Johnson of Bingham Nerve & Muscle for neck pain. On July 3, 2015, Dr. Johnson found normal
results for both upper extremities with no median nerve or ulnar
neuropathy. However, the study suggested
a right cervical radiculopathy.
Turner
was then referred to Dr. Gregory
Lanford on September
17, 2015. He
noted Turner had failed
conservative treatment and recommended a cervical fusion at C4-6. Dr. Lanford diagnosed right C6 radiculopathy, weakness in the
right biceps, and absent right biceps jerk consistent with foraminal stenosis
at C5-6 on the right.
Dr. Lanford’s surgical recommendation
was analyzed by Dr. Paul Phillips, Jr. through utilization review on September
29, 2015. Dr. Phillips found the
requested anterior cervical fusion at C4-6 was not medically necessary and
appropriate. He noted the records did
not include significant findings of recent electrodiagnostic studies confirming
negative cervical radiculopathy. Though
the records indicated Turner’s condition was not relieved by physical therapy
or medicaiton, nerve root blocks to define the pain
generator prior to surgery had not yet been performed.
The workers’ compensation carrier also
requested Dr. Richard Berkman evaluate Turner. On December 8, 2015, Dr. Berkman diagnosed
cervicalgia and primary right shoulder injury, cervical sprain, and possible
exacerbation of pre-existing cervical spondylosis with a right C5
radiculopathy. He concluded Turner’s
pain was related to disuse and recommended a work hardening program.
Dr. Gregory Gleis
performed an independent medical evaluation on August 12, 2015. Dr. Gleis indicated
a May 12, 2015 cervical spine x-ray and a June 25, 2015 cervical MRI revealed
pre-existing degenerative changes. He
felt the left shoulder condition
was consistent with pain from the cervical spine, and the initial right
shoulder symptoms were consistent with an AC joint separation, but symptoms
were now suggestive of referred cervical pain.
Dr. Gleis found sufficient correlation between
the neck and right arm symptoms, and concluded that
the head contusion from the February 16, 2015 incident could have caused a neck
injury. He concluded Turner was not yet
at maximum medical improvement for the cervical spine.
There was a lapse in treatment for a period of time after the workers’ compensation insurance
carrier denied the proposed cervical fusion, and Turner obtained private
insurance coverage. By July 6, 2016,
however, Turner began treating with Dr. John Yezerski
for his shoulder and neck. Dr. Yezerski diagnosed a right rotator cuff tear and treated
the condition conservatively with injections.
These measures failed and, on August 1, 2016, a total shoulder
replacement was performed.
After the shoulder surgery, Turner again
sought treatment for his neck pain.
Because his insurance would not permit a return to Dr. Lanford, Turner
visited Dr. Thomas Gruber on November 8, 2016, for neck pain and numbness. Turner returned on January 10, 2017, and Dr.
Gruber’s records indicate physical therapy and traction for Turner’s neck and
medication provided minimal improvement.
An MRI of the cervical spine revealed right foraminal stenosis at C4-5
and C5-6 and an EMG and nerve conduction study showed no peripheral
neuropathy. Dr. Gruber performed a
two-level fusion on February 6, 2017. Turner’s
cervical condition improved following the fusion and Dr. Gruber recommended
trigger point injections to improve stiffness in his neck. Following a July 11, 2017 visit, Dr. Gruber
concluded Turner was at maximum medical improvement for his neck condition.
In an August
15, 2017 report, Dr. Gruber noted a history of neck and upper extremity pain
since a slip and fall at work. In the
causation section of his report, Dr. Gruber noted Turner had “exacerbation of a
likely chronic existing problem.” He
assigned a 25% impairment rating pursuant to the American Medical Association, Guides to the Evaluation of
Permanent Impairment, 5th Edition. Dr.
Gruber explained Turner’s condition is due in part to the arousal of
pre-existing, dormant, non-disabling condition or congenital abnormality. He concluded Turner had no active impairment
rating prior to the injury.
Dr. Thomas O’Brien conducted an independent
medical evaluation on April 3, 2018. He
diagnosed minor bruises/contusions to the shoulder, ribs, and hip as a result
of the work incident on February 16, 2015.
Dr. O’Brien concluded Turner did not sustain a permanent injury in the
fall. Rather, his rib and hip contusions
resolved a few days after the incident and his shoulder pain improved.
Turning to the neck
condition, Dr. O’Brien emphasized Turner did not complain of neck pain until
almost two months after the work accident. According to Dr. O’Brien’s review of the
medical records, the first time Turner reported neck pain was to Dr. Chang at a
May 12, 2015 office visit. According to Dr. O’Brien, “the two month hiatus where there are no symptoms of neck pain or
cervical radiculopathy effectively rules out a causal association with Turner’s
neck symptoms and the ultimate surgical procedure that was carried out by Dr.
Gruber.” Dr. O’Brien further noted the
MRI scan of the cervical spine on June 23, 2015 depicts longstanding mild
degenerative disc changes with no acute objective findings that can be in any
way associated with an acute injury resulting from the work incident. Based on
these circumstances, Dr. O’Brien concluded that Turner had non-work-related,
multi-level, cervical degenerative disc disease, and the work injury of
February 16, 2015, did not cause any temporary or permanent aggravation,
acceleration or precipitation of the degenerative cervical condition beyond its
expected natural progression. He
assessed a 0% impairment for the neck and opined Turner could return to
unrestricted work by May 12, 2015.
The ALJ made the
following findings relevant to this appeal:
18. The ALJ finds that the report of Dr.
O’Brien in this matter is the most comprehensive, thorough, and persuasive. Dr.
O’Brien was also most familiar with the Plaintiff’s medical history as
demonstrated in his report. Dr. O’Brien diagnosed minor bruises and contusions
to the shoulder, ribs, and hip as a result of his work incident but concluded
that the Plaintiff did not sustain a permanent injury in the fall.
19. Dr. O’Brien opined that the
Plaintiff’s rib and hip contusions resolved a few days after the incident and
that his shoulder pain improved. He also pointed out that the Plaintiff didn’t
complain of neck pain until almost two months after the incident and concluded
that the Plaintiff had non-work-related, multi-level, cervical degenerative
disc disease and that the work injury of February 16, 2015, did not cause an
injury to the cervical spine.
20. Dr. Gruber convincingly stated that
the Plaintiff’s neck surgery was not related to the work injury and pointed out
that the cervical MRI dated June 23, 2015, revealed longstanding, mild,
degenerative disc changes at C4-5 and C5-6 with no objective findings showing
work-relatedness.
21. Dr. Gruber also
convincingly opined that the surgery performed by Dr. Yezerski
on September 1, 2016, had no causal relationship to the healed minor right
shoulder bruise that the Plaintiff sustained on February 16, 2015. He
convincingly stated that had the work injury had [sic] caused the tear, he
would have had an immediate onset of severe pain. Dr. O’Brien added that when
the Plaintiff was seen in the emergency room, he did not have clinical findings
of an acute and chronic rotator cuff tear and that Dr. Chang’s findings after
the work injury supported a minor shoulder contusion and not a traumatic
rotator cuff tear or aggravation of a pre-existing rotator cuff, degenerative
tear or impingement. Dr. O’Brien concluded therefore that the Plaintiff’s
shoulder surgery by Dr. Yezerski and cervical surgery
by Dr. Gruber were not related to the work injury of February 16, 2015.
22. Finally, Dr.
O’Brien assessed a 0% impairment for the neck and shoulder and found that the
Plaintiff could return to work unrestricted after the work incident by May 12,
2015. He also said that the Plaintiff needed no further medical treatment and
was at [maximum medical opinion] as of May 12, 2015. While Dr. O’Brien found
that the Plaintiff needed no restrictions due to the work injury. The opinions
of Dr. O’Brien have convinced the ALJ and the ALJ thus finds that the Plaintiff
sustained only temporary injuries that resolved as of May 12, 2015.
Turner filed a petition
for reconsideration making essentially the same arguments he raises on
appeal. The
ALJ overruled Turner’s petition for reconsideration, stating the petition
failed to point out any patent error appearing on the face of the opinion.
On appeal, Turner argues
Dr. O’Brien’s opinion regarding causation of the cervical condition is based
upon an inaccurate and incomplete history.
Therefore, it cannot constitute substantial evidence. Dr. O’Brien based his medical opinion on the
cervical MRI, which he interpreted to reveal degenerative disc changes at C4-5
and C5-6. He also based his opinion on
the fact Turner did not report neck symptoms until May 12, 2015, to Dr.
Chang.
Turner emphasizes the
medical records from Trigg County Hospital Rehabilitation Department and Nurse
McCormick. On March 24, 2015, Turner complained
of neck pain during a physical therapy visit and had a positive Spurling’s
test. Turner also complained of
gradually worsening neck pain to Nurse McCormick on April 6, 2015. Dr. O’Brien’s medical records review does
not reference these office notes.
In a related argument,
Turner claims the ALJ also mischaracterized the onset of his cervical
condition. He emphasizes that the ALJ
did not acknowledge the physical therapy record from March 24, 2015, which
objectively documented the cervical problem. The decision also incorrectly states Dr.
Gruber opined the neck surgery was not related to the work injury. Turner notes the ALJ failed to address these
inconsistencies once raised in the petition for reconsideration.
The parties to a
workers’ compensation dispute are entitled to findings of fact based upon a
correct understanding of the evidence submitted during
adjudication of the claim. Where it is
demonstrated the fact-finder may have held an erroneous understanding of
relevant evidence in reaching a decision, the claim must be
remanded to the ALJ for further findings. Cook v. Paducah Recapping Service,
694 S.W.2d 684 (Ky. 1985); Whitaker v. Peabody Coal Company, 788 S.W.2d
269 (Ky. 1990). Because the ALJ may not
have had an accurate understanding of the onset of Turner’s cervical
complaints, this claim must be remanded for additional findings.
A correct understanding
of the history of Turner’s cervical complaints may impact the ALJ’s view of the
persuasiveness of Dr. O’Brien’s opinion. Dr. O’Brien noted Turner did not relate a
history of cervical complaints until May 12, 2015, citing Dr. Chang’s
records. However, the Trigg
County Hospital Rehabilitation Department records document
cervical complaints and upper extremity radiculopathy on March 24, 2015. Dr. O’Brien did not summarize this record,
and the ALJ’s opinion states only that “[Turner] was seen on April 13,
2015, for a work injury and fall on February 16, 2015.” While the ALJ acknowledged Turner’s
complaints of neck pain to Nurse McCormick on April 6, 2015, it is unclear
whether the ALJ or Dr. O’Brien were aware of the March 24, 2015 physical
therapy records.
We note the
parties preserved exclusion for pre-existing disability/impairment as a
contested issue. To be characterized as active, a pre-existing
condition must be both symptomatic and impairment
ratable. Finley v. DBM Technologies,
217 S.W.3d 261 (Ky. App. 2007). Here, the
Department of Corrections presented no evidence that Turner’s cervical
condition was symptomatic and impairment ratable immediately prior to the work
injury. Thus, the cervical condition
does not constitute a pre-existing active condition.
A correct
understanding of the onset of Turner’s cervical complaints is especially
important because, even in situations involving pre-existing
conditions, surgery is compensable if a work injury hastens the need for the
surgery. Derr
Construction Co. v. Bennett, 873 S.W.3d 824, 827 (Ky. 1994). If an exacerbation caused Turner to undergo
the cervical fusion, the resulting impairment is compensable. There is no indication Turner was a candidate
for cervical fusion surgery prior to the work-related injury. No physician stated Turner would have
required cervical surgery without the contribution of the work injury. Based upon the record, as a matter of law,
the cervical condition as it existed immediately prior to the injury cannot be
the cause of the need for surgery. There
is no evidence of a subsequent injury. Thus,
based upon the evidence in the claim, the surgery must be either the result of
the work injury or the natural progression of the pre-existing condition occurring
after the work injury.
On remand, we direct no
specific result, as the inaccurate history may or may not render the entirety
of Dr. O’Brien’s opinions lacking in probative value. Because the Board has no fact-finding
authority, the ALJ must determine the appropriate weight to be given Dr.
O’Brien’s opinions based upon a correct understanding of the evidence. We note Dr. O’Brien’s opinion on causation
was not based solely on his mistaken belief that there were no cervical
complaints for two months following the injury.
He also formed his opinion based upon MRI studies that he stated
revealed longstanding mild degenerative disc changes with no acute
objective findings that can be associated with an acute injury resulting from
the work incident. Dr. O’Brien stated
the work injury did not cause any temporary or permanent aggravation,
acceleration or precipitation of the degenerative cervical condition above the
natural progression of this condition.
However, his opinion regarding the lack of any effect of the work injury would
also appear to be based in part upon his mistaken belief that no cervical
complaints were reported until two months after the work injury.
The
ALJ’s opinion in numbered paragraph 20 inaccurately indicates Dr. Gruber stated
the neck surgery is not related to the work injury, and in paragraph 21 that
Dr. Gruber felt the shoulder surgery was not related to the work injury. Our review of Dr. O’Brien’s report leads us
to believe the statements attributed by the ALJ to Dr. Gruber were actually Dr. O’Brien’s opinions. However, because the ALJ failed to address
this error on reconsideration, we cannot be certain it is simply a
typographical error or if the ALJ incorrectly believed Dr. Gruber felt the
surgeries were not work-related. Again,
we note Dr. Gruber actually stated Turner had
“exacerbation of a likely chronic existing problem.” Dr. Gruber further indicated Turner’s condition is due in part
to arousal of a pre-existing dormant non-disabling condition or congenital
abnormality, and that Turner did not have an active impairment rating prior to
the injury.
Accordingly, the July
23, 2018 Opinion, Award and Order and the September 4, 2018 Order rendered by
Hon. Jonathan R. Weatherby, Administrative Law Judge, are hereby VACATED and this claim is REMANDED for additional findings consistent with the views set
forth herein.
ALL CONCUR.
DISTRIBUTION:
COUNSEL FOR PETITIONER: LMS
HON. JEFFREY A. ROBERTS
509 MAIN STREET
MURRAY, KY 42071
COUNSEL FOR RESPONDENT:
LMS
HON. LEE JONES
208 SECOND STREET
PO BOX 1167
PIKEVILLE, KY 41502
ADMINISTRATIVE LAW JUDGE: LMS
HON. JONATHAN R. WEATHERBY
ADMINISTRATIVE LAW
JUDGE
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601
