Opinion
NO. 2014-CA-000849-WC
03-13-2015
KENNETH TRUETT APPELLANT v. WAL-MART DISTRIBUTION CENTER; HON. JEANIE OWEN MILLER, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: McKinnley Morgan London, Kentucky BRIEF FOR APPELLEE: Andrew F. Manno Lexington, Kentucky
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-13-00642
OPINION
AFFIRMING
BEFORE: MAZE, THOMPSON, AND VANMETER, JUDGES. MAZE, JUDGE: Kenneth Truett petitions for review of an Opinion of the Workers' Compensation Board (Board) which affirmed an Opinion and Order by the Administrative Law Judge (ALJ) dismissing his claim based upon cumulative trauma injuries. We agree with the Board that there was substantial evidence to support the ALJ's finding that Truett's condition was not work-related. Hence, we affirm.
Truett worked for Wal-Mart Distribution Center beginning in 1996, first as an order-filler and later as a quality assurance agent. In 2008, he was transferred to a fork lift operator position, and fulfilled various duties in this position. He began experiencing symptoms in his low back and left hip in 2011, which gradually worsened.
In 2011, Truett sought treatment with his family physician, Dr. Dennis Ulrich. He was later referred to Dr. Munawar Siddiqui for pain management, who administered injections and prescribed painkillers. Dr. Siddiqui referred Truett to Dr. James Bean, a neurosurgeon, who recommended a course of physical therapy and chiropractic care. Truett then began to treat with Dr. Chad Morgan, a chiropractor.
Dr. Morgan referred Truett to Lake Cumberland Neurosurgery Clinic, where he was examined by Dr. Magdy El-Kalliny and Dr. Amr El-Naggar. Dr. El-Naggar recommended muscle relaxants and anti-inflammatory medications. Dr. Morgan also referred Truett to Dr. Arden Acob, a neurosurgeon, who did not recommend surgery. Finally, Dr. Morgan referred Truett to Dr. Gay Richardson for pain management.
Truett filed a claim for cumulative trauma injuries to his low back, left shoulder and left hip. In support of his claim, Truett relied on Dr. Morgan's report, in which he stated Truett's low back problems were caused "either wholly or in part by his job activities." Truett also submitted the report of Dr. Arthur Hughes, who opined his work activities led to the development of lower back pain, left hip pain and left shoulder pain through repetitive trauma. Dr. Hughes assessed a whole person impairment rating of 18% pursuant to the American Medical Association, Guides to the Evaluation of Permanent Impairment, 5th Edition ("AMA Guides").
In response, Wal-Mart Distribution Center relied upon the reports of Dr. John Vaughn and Dr. Daniel Primm. Both physicians diagnosed mild to moderate degenerative changes, and neither believed the condition was due to any work-related trauma. Dr. Vaughn found a mild range of motion restriction, and assessed a 5% whole person impairment based on the AMA Guides. Dr. Primm found no permanent impairment.
After reviewing the evidence, the ALJ denied the claim, finding that Truett had not sustained his burden of proof "regarding the causal relationship between the cumulative trauma averred and his back condition." The ALJ specifically noted that none of Truett's treating physicians made any contemporaneous reference to his work activities in their records. "I find the absence of on-going treatment records discussing his work activities and their relationship to his back condition significant." Further, the ALJ explained she was not persuaded by the opinions of Drs. Morgan and Hughes, primarily because they were "hind-sight diagnosis" offered as "blanket statements" with little explanation or elaboration.
Truett then appealed to the Board. The Board affirmed, concluding that the ALJ's findings were supported by the medical evidence and were not unreasonable. Truett now petitions for review from the Board's order.
As the claimant in a workers' compensation proceeding, Truett bore the burden of proving each of the essential elements of his cause of action, including whether his condition was work-related. Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979). Because he 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 Court's review 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).
We agree with the Board that the ALJ's conclusions were reasonable in light of the evidence presented, and the parties' conflicting proof did not compel a singular result. As the fact-finder, the ALJ has the sole discretion to determine the quality, character, and substance of the evidence. Square D Co. v. Tipton, 862 S.W.2d 308, 309 (Ky. 1993). Moreover, the ALJ may choose to accept or reject any testimony, or to believe or disbelieve any part 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).
In this case, the ALJ was not convinced by the reports of Drs. Morgan and Hughes which attributed Truett's condition to his job duties. The ALJ pointed out that these physicians simply made conclusory findings that Pruett's condition was work-related. The ALJ also noted that none of Truett's treating physicians or specialists had made such a connection. Under the circumstances, we agree with the Board that Truett's evidence was not so overwhelming as to compel a different result.
Accordingly, we affirm the Board's April 25, 2014 Opinion which affirmed the ALJ's December 11, 2013 Opinion and Order.
ALL CONCUR. BRIEF FOR APPELLANT: McKinnley Morgan
London, Kentucky
BRIEF FOR APPELLEE: Andrew F. Manno
Lexington, Kentucky