Opinion
NO. 2016-CA-000892-WC
01-20-2017
GREGORY RANDOLPH ANDERSON APPELLANT v. RHINO ENERGY, LLC/CAM MINING, INC.; HONORABLE STEVEN G. BOLTON, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Sherry Brashear Harlan, Kentucky BRIEF FOR APPELLEE: J. Gregory Allen Terri Smith Walters Pikeville, Kentucky
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-15-01038 OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, JONES, AND VANMETER, JUDGES. VANMETER, JUDGE: Gregory Randolph Anderson appeals the Workers' Compensation Board's order denying his claim for worker's compensation benefits for cumulative injury. For the following reasons, we affirm.
Judge Laurance B. VanMeter authored this opinion prior to being elected to the Supreme Court of Kentucky. Release of this opinion was delayed by administrative handling.
I. Factual and Procedure Background.
Anderson is a fifty-two-year-old man with a high school education, who has worked thirty years in and around the coal industry, primarily as a roof bolter. He has also worked running a shuttle car and scoop, and on the beltline the last few months of his employment. Anderson was a roof bolter for twenty years, and a scoop operator for ten years. His job as a roof bolter required him to bend down/forward at the waist continuously, flex his neck upward, and swivel his body at the waist to control the drilling and insert the bolt and glue in the top of the mine roof. His job as a scoop operator required him to steer a cart with his hand, alternating hands depending on the direction the cart was going; rock dusting, which involves shoveling 4-5 hours a shift; and changing rollers. He worked under no physical restrictions, and employment records show he was not written up for failure to perform his duties.
Anderson worked for Rhino Energy, LLC/Cam Mining, LLC ("Rhino") from 2008 to 2014 as a shuttle car operator, with the exception of the last two months of his employment, when he performed belt work. This position change was not requested by Anderson. In 2013, Anderson filled out an accident report after lifting a miner cable and water line. He reported injuring his neck and back at that time, but received no medical treatment and continued working in the same position performing his job duties, and earning the same pay. Anderson did not take any time off work as a result of any of these neck, back, and upper extremity issues, and did not request any accommodations. He continued to work regular duty until he was laid off from Rhino in September 2015.
Shortly before being laid off, Anderson filed this workers' compensation claim on July 2, 2015, alleging injury to his neck, low back, and upper extremities on September 15, 2014 while working for Rhino, with the alleged injuries occurring from cumulative trauma due to repetitive activities over the many years he has worked in the coal industry.
While working, Anderson received treatment from his family physician, Dr. April Hall, for neck and back pain, diabetes, hypertension, and high cholesterol. Dr. Hall reported that records of Anderson's treatment at Mountain Comprehensive Health Corporation ("MCHC") showed he had made complaints of low back pain in 2001, twice in 2004, and twice in 2005; he complained of neck pain in 2004. Dr. Hall further reported that between 2005 and 2009, Anderson had no treatment for back symptoms, but thereafter, he had two "flare-ups" in 2009, one in 2010, and three in 2011, and the "ongoing spine pathology" began in 2012 with "fluctuating" and "intermittent" back pain.
Fred Newsome, Anderson's supervisor prior to his lay-off, testified that the only issue Anderson had performing his job duties was controlling his blood pressure. During that time, Rhino agreed to let him work another job until his medication was regulated for his blood pressure.
Medical records show the following: in 2001, Anderson was treated for low back pain radiating down into his left thigh and up to his shoulder, related to an accident in the late 1980s in which he was caught between some mining equipment and the wall of the mine. He was diagnosed with lumbar facet syndrome, bilateral sacroiliitis, a sacroiliac joint sprain, and lumbar back pain with left leg radiculopathy, treated with facet joint injections. From 2004 to 2014, Anderson was treated for hypertension, GERD, rhinitis, chronic neck and back pain, allergies, hyperlipidemia, rash, diabetes, numbness, and depression. He also underwent a physical examination for new employment in 2005, which revealed degenerative changes at the disk spaces of the L1-L2, L2-L3, and L3-L4 levels. He was cleared for work with a final diagnoses of hypertension, hyperlipidemia, lumbago, esophageal reflux, neuropathy, diabetes, myalgia and myositis, COPD, and anxiety.
In 2012, Anderson presented for back pain and indicated he was taking Lortab; his diagnosis was lumbago. In 2013, he was referred to Kentucky Pain Physicians, and the initial provider, Marion Kunkel, APRN, noted Anderson was complaining of "low back pain and neck pain that developed gradual[ly] from working in the coal mine; gradual wear and tear." Ms. Kunkel performed a clinical examination of the entire spine, which was positive for tenderness to palpation; mild to moderately reduced range of motion; muscle spasms; right lower extremity weakness; decreased motor function; and diagnoses of cervical and lumbar disk disorder. She prescribed ten milligram Lorcet tablets to be taken three times a day, and ordered a spinal MRI. Two MRIs in 2013 showed mild bulging of the disc and osteophyte formation in his lumbar region and cervical region with mild bilateral neural foraminal encroachment, and no disc herniation. Thereafter, Anderson visited Kentucky Pain Physicians monthly with consistent findings of cervical and lumbar radiculopathy.
From August 2013 until January 2015, as part of his treatment at Kentucky Pain Physicians, Anderson was administered a urine drug screen and a pill count was conducted. Although deemed compliant with his drug regiment, he did test positive for alcohol twice, resulting in additional screenings. He continued his screenings and pill count appointments until he was laid off and lost his insurance coverage. Anderson testified that he stopped treatment at Kentucky Pain Physicians because he could no longer afford it; records indicate he was discharged as a patient after failing to present at the clinic for several pill counts.
In 2014, Anderson was referred to a neurologist, Dr. Sujata Gutti, when he began complaining of burning and tingling in his extremities. She diagnosed neck and back pain with radicular symptoms bilaterally in his upper and lower extremities, cervical and lumbar spondylosis, right carpal tunnel syndrome, and mild diabetic polyneuropathy. In September 2015, Anderson was referred to the spouse of Dr. Gutti, Dr. Sai P. Gutti, also a neurologist, for pain management who treated with neck and back exercises and lumbar epidural steroid injections and medications.
At the time of his deposition in this case, Anderson described his cervical and lumbar symptoms as neck pain radiating down his arm to his elbow, and low back pain running "across" his beltline and down his right leg. He also reported tingling and loss of grip in his right hand. At the hearing, Anderson testified he had neck pain, headaches, muscle spasms, low back pain, and pain, numbness, weakness, and giving way in his right leg. He testified his hand and upper extremity symptoms had improved since he stopped working, but that he continued to experience the symptoms in his right hand.
Anderson has since seen numerous physicians and specialists for examination and treatment. The reports of Drs. April Hall, DO; Jeffrey A. Uzzle, MD; David Muffly, MD; and Joseph Zerga, MD, are summarized in relevant part as follows:
Dr. Hall, Anderson's primary care physician, filed a report in this case including medical records from March 2014 to September 2015, showing treatment for rash, diabetes, hypertension, hyperlipidemia, numbness, and depression. Dr. Hall opined that the degenerative changes seen in Anderson's 2013 film to his cervical and lumbar spine were more extensive and advanced than typical age related changes; a comparison with his 2015 films shows a rapid progression of changes. Dr. Hall opined that the speed at which the severity of the degenerative changes increased implicated the manual labor work Anderson performed for thirty years. Anderson's current neck and back symptoms are unchanged since 2000: he had sporadic symptoms of back pain through the years, but his regular treatment ended in 2005, and he made no complaints of spine symptoms from 2009-2011, although he was affected by ongoing spine pathology beginning in 2012, when Dr. Hall believes he developed cervical and lumbar spine impairment. Dr. Hall reports that she told Anderson he was near being unfit for employment shortly before he was laid off, although this is not in the medical records from MCHC. Dr. Hall placed the following restrictions on Anderson for future activities: he should not sit, stand, or walk more than six hours out of an eight-hour period; he should take rest breaks of fifteen minutes for every thirty minutes of activity; he should not lift over five pounds; and he should avoid stooping, crouching, bending, crawling, working above shoulder level, pulling, flexing or extending his right upper extremity, or performing tasks which require more than minimal focus.
Dr. Jeffrey Uzzle conducted an Independent Medical Examination (IME) of Anderson on June 6, 2015. Anderson's history provided to Dr. Uzzle includes whole body pain in the neck, back, and four extremities, with the worst pain in his lower back, and he avows a history of carpal tunnel syndrome. Dr. Uzzle noted Anderson's history was remarkable for degenerative disk disease, hypertension, high cholesterol, hiatal hernia, pancreatitis, diabetes, anxiety, depression, nerve damage to the spine, right wrist fracture, clavicle fracture, corneal burns from an electrical injury, tympanomastoidectomy surgery, hemorrhoid surgery, and surgery on his left knee in 1994. Dr. Uzzle examined medical records from 2013 onward, including those from MCHC and Kentucky Pain Physicians, as well as reports of test results, although not the actual test results. Dr. Uzzle conducted a physical examination that was notable for: a musculoskeletal exam that showed guarded range of motion in the spine and all four extremities, a limited range of spinal motion in all directions, as well a positive Phalen's test for right carpal tunnel syndrome. However, no atrophy was present in the extremities, reflexes were normal and symmetrical in all four extremities, and neurological tests were essentially negative with normal muscle tone. Dr. Uzzle did not review the 2013 MRIs of the cervical and lumbar spine, but did review the 2014 EMG/NCV that showed right S-1 radiculopathy, right carpal tunnel, and diabetic neuropathy. Dr. Uzzle diagnosed Anderson with chronic pain syndrome, probable right carpal tunnel syndrome, chronic cervical and lumbar sprain, cumulative trauma disorder related to the nature of his work in heavy labor and cramped spaces, mild right side hearing loss, and diabetic neuropathy. According to Dr. Uzzle, Anderson's "dormant non-disabling progressive disease developed into a disabling condition significantly due to the last work performed." Dr. Uzzle opined that Anderson has a degenerative cumulative process that developed over work history, and that a series of mini traumas and excessive forces which were placed on the musculoskeletal systems have led to this condition; these have been developing "over years of exposure, however, were largely not symptomatic until his last employment." Dr. Uzzle assigned Anderson's whole person impairment ("WPI") to be 15% with the apportionment of 7% WPI due to occupational cumulative trauma, and the remaining 8% due to non-occupational factors. Dr. Uzzle found that Anderson had reached maximum medical improvement ("MMI") on June 6, 2015 and did not retain the physical capacity to return to the type of work he had previously performed. Dr. Uzzle's recommended restrictions included no lifting, pushing, pulling, overhead 20 pounds occasionally; 35 pounds at the waist; 30 pounds below the waist; and only on occasion, bending, twisting, stooping, kneeling, crawling, squatting, climbing stairs or ladders, standing, sitting, walking, operation of vibratory equipment, and driving.
In his supplemental report, October 27, 2015, Dr. Uzzle lists the "non-occupational" factors as diabetes with neuropathy, prior traumas injuring multiple body regions, and aging. He stated the 8% was his "best estimate for apportionment due to insufficient data available."
Dr. Joseph Zerga conducted an IME of Anderson on September 23, 2015 and reported that the EMG/NCV report showed a normal study with no evidence of peripheral neuropathy, entrapment neuropathy, or radiculopathy. Dr. Zerga assessed that Anderson has some osteoarthritis, but no specific diagnosis related to his spine and he does not have carpal tunnel syndrome. Dr. Zerga observed that the symptoms Anderson currently reports are very similar to those he reported starting in 2000, and he does not require treatment for cumulative trauma as he has reached MMI. Dr. Zerga assessed that Anderson does not have a permanent impairment due to cumulative trauma, rather he has age-related changes in his spine as evidenced by his exam and MRI scans. In Dr. Zerga's opinion, no reason for restriction exists; he disagreed with Dr. Uzzle's impairment rating for both the cervical and lumbosacral spine since he found the impairment to be zero, and also that Anderson does not have carpal tunnel syndrome.
Dr. David Muffly conducted an Orthopedic Evaluation of Anderson on October 14, 2015, and diagnosed Anderson with chronic low back pain for more than 15 years. Dr. Muffly opined that Anderson has congenital fusion of the cervical spine, and mild degenerative change of the lumbar spine which is appropriate for his age; no sign of nerve root impingement is present. Dr. Muffly also found no sign of carpal tunnel based on NCV testing dated September 2015, and a negative physical examination for carpal tunnel syndrome. Dr. Muffly suspected symptom exaggeration as no sign of cumulative trauma disorder existed since Anderson has had chronic low back pain since at least age 35 that has remained unchanged since that time; the work exposure at age 35 is insufficient to cause cumulative trauma disorder. Dr. Muffly opined Anderson has mild degenerative changes consistent with other males his age with long-term smoking exposure. He assessed Anderson at a 0% WPI rating for cervical, thoracic, and lumbar spine impairment and did not diagnose carpal tunnel syndrome. He further opined that Anderson has long-term use of opioid medications and should be weaned from this medication. Last, Dr. Muffly determined Anderson has reached MMI and requires no recommended restrictions.
On January 15, 2016, the opinion, order, and award of the administrative law judge (ALJ) was rendered. The ALJ found that
In reliance on Mr. Newsome's un-rebutted lay testimony, my review of the medical records. . . and the opinions of Dr. David Muffly and Dr. Joseph Zerga, all of which I find to be persuasive with regard to this issue, I find the Plaintiff has failed to carry his burden of proof that he has suffered an injury defined by the Act. Further, that he has not proven by probative evidence that the alleged cumulative trauma injury was, within the bounds of reasonable medical probability, caused by his work or that the subject injured was related to the work. KRS 342.0011(1).
. . .
I find that the plaintiff does not have a permanent, compensable physical impairment. KRS 342.0011(1). In making this finding I concur with, and rely upon the medical opinions of Dr. Muffly and Dr. Zerga, which I find to be persuasive with regard to this issue for reasons which I have articulated[.]
Kentucky Revised Statutes.
KRS 342.0011(1) defines a compensable injury, including cumulative trauma as "any work-related traumatic event or series of traumatic events. . . arising out of and in the course of employment which is the proximate cause producing a harmful change in the human organism evidenced by objective medical findings. 'Injury' does not include the effects of the natural aging process[.]"
The opinion of the Workers' Compensation Board affirming the ALJ was entered May 20, 2016. The Board cited a significant portion of the ALJ's opinion, and stated that
The ALJ's thorough opinion evinces a comprehensive understanding and consideration of the conflicting evidence. He weighed the entirety of the proof and reached a conclusion supported by substantial evidence. Clearly, the record does not compel a different result. Therefore, the decision of the ALJ dismissing Anderson's claim for permanent income and medical benefits must be affirmed.From the decision of the Board, Anderson now appeals.
II. Standard of Review.
The well-established standard of review for the appellate courts of a workers' compensation decision "is to correct the [Workers' Compensation] Board only where the Court perceives the Board has overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause gross injustice." E.g., W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992); Butler's Fleet Serv. v. Martin, 173 S.W.3d 628, 631 (Ky. App. 2005); Wal-Mart v. Southers, 152 S.W.3d 242, 245 (Ky. App. 2004). See also Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986) (holding that if the fact-finder finds in favor of the person having the burden of proof, the burden on appeal is only to show that some substantial evidence supported the decision); cf. Gray v. Trimmaster, 173 S.W.3d 236, 241 (Ky. 2005) (If the ALJ finds against the party having the burden of proof, the appellant must "show that the ALJ misapplied the law or that the evidence in her favor was so overwhelming that it compelled a favorable finding[.]").
III. Issues on Appeal.
Anderson makes numerous arguments on appeal. Anderson first argues that the ALJ erred in finding, and the Board erred in affirming, that Dr. Uzzle's testimony was less credible than Drs. Zerga and Muffly based on objective findings or the failure to review the actual films of Anderson's imaging studies. Second, Anderson argues the ALJ erred in concluding he had no cumulative trauma injury because he continued to work continuously until he was laid off. Last, he argues he was not required to expressly object to the admissibility of Drs. Zerga and Muffly's opinions as to whether objective findings are required to find impairment or to expressly designate noncompliance as a contested issue in order to preserve these issues for appeal.
A. Reliance on Drs. Zerga and Muffly.
First, Anderson argues that the ALJ and Board erred in relying on Drs. Zerga and Muffly's testimony rather than that of Dr. Uzzle in finding he did not suffer a compensable injury.
In affirming the ALJ, the Board held
The opinions and impairment ratings provided by Drs. Zerga and Muffly constitute the requisite substantial evidence to support the decision.(internal citations omitted). In his order, the ALJ stated that he found Drs. Zerga and Muffly's reports to be the most compelling and persuasive as to Anderson's impairment rating over that of Dr. Uzzle because his physical examination was "dramatically different" from the examinations of Drs. Zerga and Muffly. Specifically, only Dr. Uzzle noted a positive Phalen's test for carpal tunnel or cervical/lumbar spasms. Further, Dr. Uzzle did not personally review any of the MRIs performed on the cervical and lumbar spine; in fact, he only reviewed reports of the 2013 MRIs when more current studies were performed in 2015, whereas Dr. Zerga personally reviewed those more recent films. The ALJ further noted that Dr. Uzzle relied on subjective complaints and not objective evidence.
We find no merit to Anderson's contention the ALJ rejected Dr. Uzzle's opinion on improper grounds. The ALJ's finding that Anderson did not sustain an injury as defined by the Act is supported by substantial evidence. Causation is a factual issue to be determined within the sound discretion of the ALJ as fact finder.
The ALJ noted that although Dr. Hall, DO was Anderson's primary care physician, her report lacked probative value as she did not personally review the studies, did not provide an impairment rating, by her own report, did not treat Anderson for the conditions on which she opines, and is "clearly not a specialist in this area." --------
"The ALJ, as the finder of fact, and not the reviewing court, has the sole authority to determine the quality, character, and substance of the evidence. Where . . . the medical evidence is conflicting, the question of which evidence to believe is the exclusive province of the ALJ." Square D Co. v. Tipton, 862 S.W.2d 308, 309 (Ky. 1993). "The fact-finder 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, 96 (Ky. 2000). Furthermore, "where it is irrefutable that a physician's history regarding work-related causation is corrupt due to it being substantially inaccurate or largely incomplete, any opinion generated by that physician on the issue of causation cannot constitute substantial evidence." Cepero v. Fabricated Metals Corp., 132 S.W.3d 839, 842 (Ky. 2004). An ALJ is not required to rely on the opinion of a physician that is based on the patient's clinical presentation or reported symptoms when other evidence indicates that the patient is malingering. See Cepero, 132 S.W.3d at 839; Osborne v. Pepsi-Cola, 816 S.W.2d 643 (Ky. 1991) (superseded by statute on other grounds).
In the instant case, the ALJ articulated his reasoning for finding the opinions of Drs. Zerga and Muffly more persuasive over conflicting medical evidence from Dr. Uzzle, and the Board determined that his articulation for his reasoning was well within his discretion. Both Drs. Zerga and Muffly explicitly found Anderson does not have cumulative trauma injury, but rather has age-appropriate degenerative changes, and that Anderson's symptoms are nearly identical to those he reported in 2000, with his degenerative changes identified as early as 2001. Furthermore, Dr. Uzzle provided no medically objective breakdown of the 7% WPI rating he attributed to employment factors, remarking this was his "best estimate." Although Anderson contends that Drs. Zerga and Muffly did not correctly assess his impairment rating under the appropriate AMA Guides, as noted by both physicians and the ALJ, the issue in this case is that employment-related causation was not supported by substantial evidence. The question of work-relatedness is fundamentally an evidentiary one, and a "mere possibility" that the injury arose from employment "is not alone sufficient." Pierce v. Kentucky Galvanizing Co., 606 S.W.2d 165, 168 (Ky. App. 1980).
The ALJ was free to weigh the evidence and reasonably relied on Drs. Zerga and Muffly's opinions over that of Dr. Uzzle. The Board did not err in affirming the ALJ's finding that no compensable cumulative trauma injury occurred.
B. Continuous Work
Second, Anderson argues the ALJ erred in concluding that he had no injury because he worked continuously until he was laid off and thus did not support a finding of cumulative trauma injury.
The Board held that
There is nothing in the ALJ's decision to suggest he believed Anderson was required to miss work as a result of the condition in order to find a work injury. Rather, this reference was part of a large discussion of the evidence as to whether there was a harmful change to the neck, back, and upper extremities. The ALJ did not base his determination solely on Anderson's ability to continue to labor.We agree. As discussed above, the conclusion that Anderson did not suffer a work-related cumulative trauma injury while employed by Rhino is supported by ample expert medical opinion. In the absence of a compensable injury, necessarily also is an absence of an impairment rating for that injury. The Board did not err in affirming the ALJ's dismissal of Anderson's claim for permanent income and medical benefits.
C. Preservation of Issues for Appeal.
Last, Anderson argues he was not required to expressly object to the admissibility of Drs. Zerga and Muffly's opinions as to whether objective findings are required to find impairment, or to expressly designate noncompliance as a contested issue in order preserve these issues for appeal.
Anderson argues that he was not required to expressly object to the misuse of the Guides by Drs. Zerga and Muffly to preserve this issue for appeal. Additionally, Anderson argues that he tacitly designated the issue of whether Drs. Zerga and Muffly failed to assess his lumbar and cervical impairments in conformity with the rules for evaluating the spine as set out in the AMA Guides by listing this issue in the "Contested Issues" section of the preprinted benefit review conference order entered February 11, 2015. However, as discussed at length, whether Drs. Zerga and Muffly used the "latest edition" of the AMA Guides in assigning WPI ratings is not really at issue, but rather, the issue was the work-relatedness of any neck and back pain. As such, we will not address these arguments.
IV. Conclusion
For the aforementioned reasons, the Board's order is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Sherry Brashear
Harlan, Kentucky BRIEF FOR APPELLEE: J. Gregory Allen
Terri Smith Walters
Pikeville, Kentucky