Opinion
NO. 2017-CA-000240-WC
08-03-2018
JAMES COMBS APPELLANT v. CORRECTIONS CORPORATION OF AMERICA, D/B/A LEE ADJUSTMENT CENTER; HON. WILLIAM RUDLOFF, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: McKinnley Morgan London, Kentucky BRIEF FOR APPELLEES: Sarah H. Best Allison M. Helsinger Lexington, Kentucky
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-13-59455 OPINION
AFFIRMING
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BEFORE: ACREE, DIXON, AND JONES, JUDGES. ACREE, JUDGE: James Combs appeals from the January 20, 2017, decision of the Workers' Compensation Board vacating an Administrative Law Judge's award of permanent partial disability and medical benefits, and remanding for additional findings to support its decision. We affirm.
FACTS AND PROCEDURE
Appellee Corrections Corporation of America (CCA) employed Combs as an internal affairs investigator at the Lee Adjustment Center for many years. Combs investigated criminal and disciplinary matters involving inmates that occurred within the prison, performed computer installations, and provided technical support. He primarily worked at a desk, but occasionally carried printers weighing seventy-five to eighty pounds; at times, he had to restrain unruly inmates. Combs also worked as a rural mail carrier for the United States Postal Service on Saturdays since August 2012.
In November 2012, Combs injured his lumbar spine in a non-work-related, deer hunting incident when he lifted a deer that had been killed; he experienced an onset of pain in his low back. Dr. Robert Owens, a neurosurgeon, performed a L4-L5 laminectomy and discectomy on April 15, 2013. Combs was off work for approximately one month. Dr. Owens stated Combs did well after the surgery, but had subsequent flare ups. His medical records indicate:
A couple of weeks ago [Combs] had a flash flooded house and had to rescue his dogs. Since then, he's had more back and hip/iliac pain. The right side is worse than the left. [Combs] again aggravated pain just today [May 21, 2013] when his son was unloading a generator
from the truck. The generator almost fell and [Combs] had to help with it.(R. 156). Combs returned to full, unrestricted duties in June 2013, but testified he was still having stiffness in his back for which he was taking prescription pain medication.
On June 28, 2013, Combs was lifting a box of old broken phones at work when he rose up and struck his low back on a shelf, causing a 6 cm long abrasion on the left side of his low back above a surgical scar. He visited the onsite nurse who cleaned the abrasion. Combs did not report neck or left arm pain. He returned to work and completed his shift.
Four months later, Combs sought treatment for low back pain. He was seen by Dr. Salem Hanna at an Immediate Care Center. Combs reported fluctuating and intermittent pain with radiation into the left thigh and buttock. He made no mention of cervical or neck pain at this time. Dr. Hanna diagnosed Combs with lumbago, recommended over-the-counter pain medication and, at Combs's request, referred him back to his neurosurgeon.
On October 29, 2013, Dr. Owens and a physician's assistant (PA) treated Combs at the Lexington Clinic. Combs complained of persistent and worsening pain along his left lower back radiating around his left anterior thigh. Combs also complained, for the first time, of "posterior left arm pain down to the elbow." He denied any neck pain. Dr. Owens ordered lumbar and cervical MRIs.
The MRI of the cervical spine revealed a left paracentral disc protrusion at C5-C6 resulting in severe stenosis, and left-sided protrusions at C3-C4, C4-C5, and C6-C7. The lumbar MRI revealed a left partial laminectomy and discectomy at L4-L5 with no recurrent disc protrusion.
Combs filed a Form 101 seeking compensation based on the June 2013 incident. He claimed injury to his back, left shoulder, and left arm. CCA stipulated Combs sustained a work-related injury, but contended the injury did not result in an impairment rating meriting an award of permanent income benefits. It also challenged Combs's claim that the work incident caused injury to his cervical spine, left shoulder, and left arm.
Combs testified by deposition and at the final hearing. He stated that, since the June 2013 work incident, he has suffered radiating left leg pain, low back pain, neck pain, shoulder pain, numbness in his ring and pinky fingers, and muscle spasms. He stated he developed pain in his upper shoulders radiating down his left arm, and numbness from his neck to the fingers of his left hand in the days after the work incident. He admitted, though, that he did not strike his neck as part of the work event. Combs also admitted he had previously experienced muscle spasms in his shoulders as a result of the 2012 hunting accident, but not any numbness or radiating pain. He testified he was not physically capable of resuming his former job duties at CCA; he retired from CCA in the fall of 2013.
Dr. Jeffrey Uzzle conducted an independent medical examination (IME) on April 26, 2014. Dr. Uzzle noted Combs's prior low back injury resulting in the April 2013 surgery. The doctor also described the work incident, and Combs's complaint that his back pain worsened and he developed left leg and cervical radiculopathy following that accident. Dr. Uzzle concluded that the June 2013 work incident caused Combs's C5-C6 disc herniation with non-verifiable radiculopathy as well as a lumbar sprain or strain with an aggravation of left lower extremity radiculopathy relative to the pre-existing lumbar injury and surgery. However, the doctor left blank the portion of his opinion requiring him to "explain how the work-related injury caused the harmful change in the human organism." (R. 61). Dr. Uzzle assessed a 13% permanent whole person impairment rating related to the lumbar spine, of which he apportioned 10% to a pre-existing active condition, leaving the remaining 3% attributable to the work injury, and assessed a 6% impairment rating for the cervical condition, all attributable to the work incident, for a total whole person impairment of 9%.
Dr. Michael Best, at CCA's request, conducted an IME on April 29, 2014. As did Dr. Uzzle, Dr. Best acknowledged Combs's prior back injury and surgery and that he struck his back on the corner of a shelf while at work. The doctor noted Combs did not seek treatment for the work injury for over three and a half months. Dr. Best diagnosed Combs with an abrasion and contusion of the low back with no causal relationship to his current cervical and lumbar complaints. He found no pre-existing active condition or impairment of Combs's low back. The doctor assessed a 10% to 13% whole person impairment related to the 2012 deer hunting incident, but found no impairment attributable to the 2013 work incident. Dr. Best also noted Combs may have a 5% impairment rating for his cervical condition but found it not causally related to the work event.
In his decision dated August 14, 2014, the ALJ found Combs sustained work-related injuries to the neck and low back due to the June 2013 work incident. Relying on Dr. Best's opinion, the ALJ found no active, pre-existing condition related to Combs's low back. Relying on Dr. Uzzle's opinion, the ALJ assigned Combs a 9% whole person impairment rating - 3% for the lumbar spine and 6% for the cervical spine - and awarded permanent partial disability benefits trebly enhanced pursuant to KRS 342.730(1)(c)1.
Kentucky Revised Statutes. --------
CCA filed a petition for reconsideration requesting additional findings supporting the ALJ's conclusion that the work incident caused Combs's neck condition. It also argued the ALJ erred in finding Combs had no pre-existing active condition or impairment of his low back in light of his recent lumbar surgery, for which Dr. Owen noted Combs was still having complaints as late as June 18, 2013, only ten days prior to the work incident. CCA further asked the ALJ to make additional findings regarding Combs's entitlement to an enhanced benefits award.
The ALJ denied CCA's petition, reiterating its original findings. CCA appealed to the Board. On February 27, 2015, the Board issued an opinion vacating and remanding. It directed the ALJ to provide specific evidentiary findings to support its determination regarding causation of the cervical condition, the determination of no pre-existing active impairment or condition, and the application of the 3-multiplier.
The ALJ issued an amended opinion and order on June 26, 2015, awarding the same benefits as in the initial decision. The ALJ found Combs's testimony and Dr. Uzzle's medical opinion persuasive, then provided the following additional findings:
I make the determination that Dr. Uzzle's medical evidence was persuasive, compelling, and reliable to the effect that his diagnoses were that due to the plaintiff's work incident on June 28, 2013 he sustained a left non-verifiable cervical radiculopathy from his injury associated with a herniated disc at the C5-6 level and also associated with a lumbar sprain/strain with aggravation of left lower extremity radiculopathy from his injury relative to the pre-existing lumbar injury and surgery. I make the determination that Dr. Uzzle stated in a persuasive, compelling and reliable manner that this was a rather complex case and that the plaintiff's history examination and the straightforwardness of his presentation leads to increased credibility of said diagnoses and his complaints.CCA filed another petition for reconsideration, which the ALJ again denied.
CCA again appealed to the Board, challenging the ALJ's findings regarding the occurrence of a work-related cervical injury and the lack of a pre-existing active low back condition or impairment. The Board again vacated the ALJ's decision and remanded for additional findings. We quote:
The ALJ relied solely upon Dr. Uzzle's opinion to conclude Combs' cervical condition is work-related, which is the only medical opinion in the record attributing the condition to the work incident. Combs reported to Dr. Uzzle that his cervical complaints arose a few days after the work incident. Dr. Uzzle also reviewed a November 27, 2013 cervical MRI which revealed a herniated disc at C5-6. Based on the MRI and Combs' description of the onset of his symptoms, Dr. Uzzle concluded Combs' neck complaints are associated with the herniated disc at C5-6 level.
In completing his evaluation form, Dr. Uzzle left blank a portion which requested him to "explain how the work-related injury caused the harmful change in the human organism." In a narrative portion of the report, Dr. Uzzle acknowledges the complexity of Combs' case but reasons "his history, exam and straightforwardness of his presentation lead to increased credibility of these diagnosis and his complaints." Dr. Uzzle then concludes Combs' cervical condition is related to a herniated disc at C5-6 which was caused by the work incident, but provided no further explanation for this conclusion.
In short, Dr. Uzzle's opinion as to causation is based solely on the history Combs provided to him, including the assertion his cervical complaints began a few days after the work incident. Combs similarly testified. However, we also note Combs never described any trauma to his neck or shoulder in the incident report, and
he acknowledged that he had experienced neck spasms since the deer lifting incident. Furthermore, it is not clear whether Dr. Uzzle reviewed the medical records from early October 2013, which contain no reference to an injury or treatment for any condition other than the low back. Most importantly, Dr. Uzzle provides no explanation of how the work injury to his lumbar spine caused a herniated cervical disc. When the cause of a condition is not readily apparently to a lay person, medical testimony supporting causation is required. Mengel v. Hawaiian-Tropic Northwest & Central Distributors, Inc., 618 S.W.2d 184 (Ky. App. 1981). Medical causation must be proven by medical opinion within "reasonable medical probability." Lexington Cartage Co. v Williams, 407 S.W.2d 395 (Ky. 1966). The mere possibility of work-related causation is insufficient. Pierce v. Kentucky Galvanizing Co., Inc., 606 S.W.2d 165 (Ky. App. 1980).
Dr. Uzzle is a physician and therefore qualified to give an opinion as to causation, even if somewhat vague or tenuous. He is also entitled to base his opinion as to causation on the history provided by the patient. Furthermore, Combs testified his neck and shoulder symptoms developed shortly after the work incident, which the ALJ found credible. For these reason[s], we cannot agree with CCA that Dr. Uzzle's opinion is insufficient or otherwise cannot be relied upon. However, the circumstances of Combs' neck injury are unusual, given that he struck only his low back during the work accident, simultaneously worked as a letter carrier, and had experienced neck spasms since his hunting accident. Due to these circumstances, it is insufficient for the ALJ to merely state he found Dr. Uzzle's opinion persuasive. CCA is entitled to an opinion which weighs the testimony and proof, and offers a sufficient basis for the finding of a work-related neck injury. Cornett v. Corbin Materials, Inc., 807 S.W.2d 56 (Ky. 1991). The finding of a work-related cervical injury and the award of permanent partial disability benefits must be vacated, and
remanded to the ALJ for further findings of fact, including an adequate discussion of the proof relating to Combs' cervical injury.
CCA next argues the evidence relied upon by the ALJ is insufficient to support his finding Combs suffered no pre-existing active lumbar condition. CCA notes the ALJ did not address the fact Dr. Uzzle carved out 10% of the rating as pre-existing impairment, or acknowledge the fact Combs testified he was symptomatic prior to the work incident. CCA contends the evidence overwhelmingly is in favor of a finding of pre-existing active impairment.
Again, the ALJ's analysis regarding pre-existing impairment is insufficient. He identified the correct standard enunciated in Finley v. DBM Technologies, 217 S.W.3d 261 (Ky. App. 2007) i.e. that to be considered a pre-existing active condition, the condition must be impairment ratable and symptomatic immediately prior to the occurrence of the work-related injury. However, the ALJ seems to have solely relied on the release to return to work by Dr. Owen which does not equate to the lumbar condition being asymptomatic. The release standing alone is an insufficient basis to conclude Combs had no pre-existing active impairment. Combs testified that he was symptomatic and continued to treat for the low back condition which had resulted in surgery just ten weeks prior to the work incident.
Further, the ALJ's determination of no pre-existing active impairment for the low back and reliance on the impairment rating of Dr. Uzzle is contradictory. Dr. Uzzle clearly indicated 10% of the 13% impairment rating he assigned for the low back was related to a pre-existing condition, and described the work accident as "an aggravation" of the prior condition. He opined only 3% was attributable to the work injury. Dr. Best assigned a range of 10% to 13% impairment attributable to the deer carrying incident. Given the contradiction
between the ALJ's findings and the medical opinions regarding pre-existing lumbar condition, it was incumbent upon the ALJ to more thoroughly explain his reasoning. Therefore, we vacate the award of benefits relating to the lumbar condition and remand this claim for further findings of fact relating to a pre-existing condition. We note that if, on remand, the ALJ determines there was a pre-existing active impairment, the evidence still could support a finding the incident produced a 3% increase in the low back impairment rating attributable to an aggravation of the pre-existing condition.(R. 1301-06). Combs appealed.
REVIEW STANDARDS
Our role in reviewing a decision of the Board "is to correct the 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." Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992). Assessment of the credibility of the witnesses and the persuasive weight of the evidence is entirely within the ALJ's authority. KRS 342.285. The ALJ, not the Board, is empowered "to determine the quality, character and substance of the evidence." American Greetings Corp. v. Bunch, 331 S.W.3d 600, 602 (Ky. 2010) (footnote omitted). The ALJ is also free to reject testimony, id., and "to believe part of the evidence and disbelieve other parts of the evidence[.]" Caudill v. Maloney's Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977). For this reason, the Board "shall not substitute its judgment for that of the administrative law judge as to the weight of evidence on questions of fact." FEI Installation, Inc. v. Williams, 214 S.W.3d 313, 316 (Ky. 2007).
ANALYSIS
Combs argues the Board erred as a matter of law in vacating and remanding the ALJ's decision. He claims the ALJ's findings are more than adequate to support its decision and, by requiring additional factual findings, the Board substituted its opinion for that of the ALJ. We are not persuaded.
We start with Combs's cervical condition. The Board asked the ALJ to provide additional factual findings supporting its conclusion that the June 2013 work accident where Combs scraped his low back caused Combs's herniated cervical disc. The issue is causation.
KRS 342.0011(1) defines a compensable injury as being a work-related traumatic event that is the proximate cause producing a harmful change in the human organism as evidenced by objective medical findings. Sweeney v. King's Daughters Medical Center, 260 S.W.3d 829, 832 (Ky. 2008). To be compensable, the work-related event must cause the harmful change in the human organism. Ford Motor Company (LAP) v. Curtsinger, 511 S.W.3d 922, 924 (Ky. App. 2017).
Combs argues the ALJ's finding of a work-related cervical injury must stand because "Combs testified that he injured his neck as well as his low back at work on June 18, 2013, there is objective medical evidence of both injuries, and there is substantial evidence in the form of Dr. Uzzle's medical opinion that he retains a permanent impairment rating to both his lumbar and cervical spine as a result of his work-related injury." (Appellant's Brief, 4). We find Combs's argument suspect.
First, Combs does not cite that portion of the record where he testified that he injured his neck at work on June 18, 2013. Our review of the record fails to reveal the existence of any such testimony. In fact, Combs testified he did not strike his neck during the work incident, only his back. Combs did report, however, that he experienced an onset of cervical radiculopathy beginning a few days after the work event.
Second, we agree with Combs that there is objective medical evidence of a herniated disc at Combs's C5-C6. There is not, however, objective medical evidence establishing that the work incident caused the herniated disc.
That leads us to the third part of Combs's argument - Dr. Uzzle's medical opinion. Dr. Uzzle opined Combs had developed a C5-C6 disc herniation with non-verifiable radiculopathy as a result of the June 2013 work incident. We agree with the Board, however, that Dr. Uzzle's medical opinion fails to adequately establish how Combs scraping his low back on a shelf caused a herniated cervical disc. It is this disconnect coupled with the unique factual posture of this case that gave the Board pause. Even Combs's lay testimony as to the timing of the onset of pain in his shoulders, arm, and neck is inadequate to establish causation. Kingery v. Sumitomo Electric Wiring, 481 S.W.3d 492, 499 (Ky. 2015) ("[R]eliable expert proof on issues such as medical causation and the necessity of medical treatment [is required] when they would not be apparent to a layperson.").
We agree with CCA that the Board did not substitute its judgment for the ALJ's. Rather, the Board directed the ALJ to adequately explain the evidentiary basis for its finding that the work incident is causally related to Combs's cervical condition. We cannot say the Board's decision "overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause gross injustice." Kelly, 827 S.W.2d at 687-88. On this issue, we affirm.
Combs's second argument relates to the existence of a pre-existing impairment. He again argues that the Board substituted its judgment for that of the ALJ's when it demanded that the ALJ adequately explain the evidentiary basis for its finding that Combs did not have a pre-existing condition. Again, we disagree.
A pre-existing condition that is both asymptomatic and produces no impairment prior to the work-related injury constitutes a pre-existing dormant condition. Finley v. DBM Techs., 217 S.W.3d 261, 265 (Ky. App. 2007). The work-related arousal of a pre-existing dormant condition into disabling reality is compensable. Id. However, a pre-existing active condition is not compensable. Id. To be active, an underlying pre-existing condition must be symptomatic and impairment ratable under the AMA Guidelines immediately prior to the work-related injury. Id. Further, when a work-related event aggravates or exacerbates a pre-existing condition, a worker "sustains a new and separate 'injury' within the meaning of KRS 342.0011(1)[.]" Ford Motor Company (LAP) v. Curtsinger, 511 S.W.3d 922, 927 (Ky. App. 2017).
Here, Dr. Best checked a box on page 18 of his report indicating Combs "did not have an active impairment prior to this injury." (R. 50). Dr. Best further noted in his report that Dr. Owens, Combs's treating neurosurgeon, allowed Combs to return to full and unrestricted work duties prior to the work incident. However, Combs testified his condition was symptomatic mere days before the June 2013 work incident. Specifically, he admitted his back was often stiff and he was taking prescription medication to regulate his pain. The ALJ failed to explain why he gave no credence to Combs's own testimony that his low back was symptomatic despite describing Combs as a "credible and convincing lay witness" and finding that "his testimony rang true." Having so stated, however, we acknowledge it is within the ALJ's discretion to rely on bits and pieces of a witness's testimony. Maloney's Discount Stores, 560 S.W.2d at 16.
Both IME physicians found Combs's prior low back condition impairment ratable: Dr. Uzzle attributed a 10% whole person impairment rating to the "pre-existing lumbar injury and surgery," (R. 61) and Dr. Best assigned a 10%-13% whole person impairment attributable to the nonwork-related low-back injury and subsequent surgery. Significantly, Dr. Uzzle's 3% lumbar impairment rating attributable to the work incident, on which the ALJ relied, was characterized as a "lumbar radiculopathy aggravation." (R. 62).
The Board found the ALJ's findings inconsistent and irreconcilable. On one hand, the ALJ relied on Dr. Best's finding of no pre-existing lumbar condition or injury. On the other hand, it relied on Dr. Uzzle's 3% whole person impairment rating, which was predicated on a finding of an aggravation of a pre-existing lumbar injury. It is contradictory to find no pre-existing condition, but then rely on a medical opinion that based its impairment rating on the aggravation of a pre-existing condition. The Board took considerable care to explain that it was not seeking to usurp the ALJ's authority as factfinder, but instead was seeking clarification and additional factual findings to support the ALJ's decision. We think this reasonable in light of the ALJ's contradictory findings.
For the foregoing reasons, we affirm the Workers' Compensation Board's January 20, 2017 Opinion vacating and remanding the ALJ's June 26, 2015 amended opinion and order on remand for additional factual findings.
DIXON, JUDGE, CONCURS.
JONES, JUDGE, DISSENTS BY SEPARATE OPINION. JONES, JUDGE, DISSENTING. Respectfully, I dissent. The majority and the Workers' Compensation Board make several valid points with respect to the evidence in this case. While additional explanation from the ALJ could have provided greater insight into his thought processes, our case law has never required an ALJ to justify his decision to believe one expert over another with the type of explanatory language ordered on remand. An ALJ is simply required to summarize the evidence, weigh that evidence, make findings of fact, and identify the evidence the ALJ relied on to make those findings. On appeal, the Board and this Court then must decide whether the evidence the ALJ relied on supports his findings. Arnold v. Toyota Motor Mfg., 375 S.W.3d 56, 61-62 (Ky. 2012) ("KRS 342.275(2) and KRS 342.285 contemplate an opinion that summarizes the conflicting evidence concerning disputed facts; weighs that evidence to make findings of fact; and determines the legal significance of those findings."). It has never been our role to question the ALJ's decision to place more weight on one piece of evidence than another, and, therefore, we have never required the ALJ to formally justify his evidentiary evaluations with explanatory reasoning. Miller v. Go Hire Employment Development, Inc., 473 S.W.3d 621, 630 (Ky. App. 2015) ("The parties' understanding of an ALJ's opinion—in addition to appellate review—requires that basic facts supporting any ultimate conclusion be clearly set out.").
In this case, the ALJ complied with his duties. The Board, however, remanded this case for "additional findings." No additional findings are necessary in this case. The ALJ made the "findings" required to support his award. The question on appellate review is whether the ALJ identified the evidence of record that he relied on to support his findings and whether that evidence indeed supports his findings. The Board only pointed out various issues that it believes weakens the evidence the ALJ relied upon. However, the Board stopped short of holding that the evidence the ALJ relied upon is insufficient to support his findings. Likewise, the Board failed to identify any necessary factual findings the ALJ failed to make or any errors of law the ALJ committed.
The Board (and this Court) may believe that the other evidence of record is stronger. However, it is not the role of either the Board or this Court to reweigh the evidence. If we cannot say that that the evidence the ALJ identified and relied on is insufficient to support the award, then we are bound to affirm. Carnes v. Parton Bros. Contracting, Inc., 171 S.W.3d 60, 68 (Ky. App. 2005) ("The Board should have determined if there was substantial evidence to support the CALJ's conclusions, and if so, then it was the Board's duty to affirm.").
I cannot find any error of law committed by the ALJ. And, while I may have reached a difficult conclusion than the ALJ, I cannot say that the evidence identified by the ALJ and upon which he relied is insufficient to support the award. The ALJ complied with his duties in summarizing and identifying the evidence he relied on. I do not believe that the ALJ was required to provide any additional explanation. Therefore, I disagree that the Board had the authority to remand this matter. For these reasons, I respectfully dissent. BRIEF FOR APPELLANT: McKinnley Morgan
London, Kentucky BRIEF FOR APPELLEES: Sarah H. Best
Allison M. Helsinger
Lexington, Kentucky