Opinion
NO. 2018-CA-001026-WC
03-01-2019
NICHOLAS BASS APPELLANT v. ZENITH LOGISTICS; HON. GRANT S. ROARK, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Joy L. Buchenberger Louisville, Kentucky BRIEF FOR APPELLEE: Lee Jones Rachel Wagner Kennedy Pikeville, Kentucky
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NOS. WC-16-95061 AND WC-17-00136 OPINION
AFFIRMING
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BEFORE: DIXON, JONES, AND K. THOMPSON, JUDGES. DIXON, JUDGE: Nicholas Bass seeks review of a Workers' Compensation Board opinion affirming an Administrative Law Judge's order dismissing his claim for a cervical cumulative trauma injury and awarding permanent partial disability benefits for a lumbar injury. After careful review, we affirm.
In 2010, Bass began working as an order selector at Zenith Logistics, a warehouse fulfillment center for Kroger stores. In addition to using a pallet jack for loading boxes, Bass was also required to lift forty to eighty pounds, climb, reach, and move at a fast pace. Bass typically worked ten-hour shifts and averaged seventy hours per week. In September 2015, Bass began experiencing pain in his neck and upper back, which he believed was related to his work at Zenith. Bass sought chiropractic treatment for his symptoms for approximately five months.
On January 6, 2016, Bass injured his low back at work, and sought treatment with Dr. John Cole, a neurosurgeon. Dr. Cole ultimately performed a L2-3 discectomy and released Bass to return to work on September 4, 2016. When Bass attempted to return to work, he began experiencing symptoms of tingling and weakness in his hands and legs, pain in his upper and lower back, and difficulty walking, sitting, and standing. He returned to Dr. Cole, who ordered an MRI of the thoracic spine, but did not provide any further treatment. Bass then sought treatment with an orthopedic surgeon, Dr. David Rouben. Dr. Rouben ordered a cervical MRI and diagnosed significant cervical disc protrusions. Bass ultimately underwent a cervical fusion procedure with Dr. Rouben in September 2017.
Bass filed a claim for workers' compensation benefits alleging work-related cumulative trauma to his cervical spine on September 4, 2015, and an injury to his low back on January 6, 2016. Zenith accepted the low back claim as compensable and denied Bass's cervical cumulative trauma claim due to lack of work-relatedness/causation.
At the final hearing, the ALJ heard testimony from Bass and received medical evidence submitted by both parties. Dr. Cole's treatment records primarily addressed Bass's low back injury. In October 2016, when Bass saw Dr. Cole for his complaints of bilateral leg symptoms and arm tingling, Dr. Cole noted the thoracic MRI showed mild degenerative disc disease without significant cord contouring or signal change. Dr. Cole could not determine the cause of Bass's cervical complaints, and he released Bass from any further treatment.
Dr. Rouben's medical records indicated Bass first sought treatment for neck and thoracic pain with paresthesia in extremities on December 12, 2016. Bass reported his low back injury of January 6, 2016, and he advised his cervical symptoms began after he attempted to return to work in September 2016. Dr. Rouben noted a cervical MRI showed significant disc protrusions at C4-5 and C5-6, as well as persistent protrusions at C3-4 and C6-7. Dr. Rouben noted Bass lifted boxes at work daily and diagnosed a work-related cervical herniated disc with radiculopathy, cervical stenosis, and severe cervical spondylosis with direct cord compression. It was in September 2017 that Bass underwent an anterior cervical discectomy and fusion at C4-5 and C5-6.
Bass filed the IME report of Dr. Jules Barefoot. Dr. Barefoot diagnosed Bass as status post L2-3 microdiscectomy, ongoing radicular symptoms in the lumbar spine, and multilevel cervical disc disease with non-verifiable radicular complaints. Dr. Barefoot concluded Bass would have difficulty returning to his prior employment and recommended lifting restrictions. Dr. Barefoot assessed a 13% impairment rating for Bass's lumbar spine; however, he did not address causation or impairment relating to Bass's cervical symptoms.
Zenith submitted the IME report of Dr. Russell Travis. Dr. Travis diagnosed Bass as status post discectomy at L2-3 for an extruded fragment and assessed a 10% impairment rating for Bass's lumbar spine. Dr. Travis noted imaging showed minor degenerative changes but no evidence of neural foramen or nerve root compromise that would explain Bass's continued complaints of low back pain, numbness, tingling, subjective weakness, and pain in both lower extremities. Dr. Travis opined Bass was unable to return to his previous employment and recommended lifting restrictions.
Zenith also filed the IME report of Dr. Gregory Gleis. Bass reported his history of the lumbar injury and the onset of his cervical symptoms when he attempted to return to work. Dr. Gleis noted Bass's MRI showed multi-level cervical disc protrusions, and he opined such multiple disc level involvement was much more likely attributable to the natural aging process than to Bass's work activities. Based on Bass's description of his work, Dr. Gleis did not find his job to be of a repetitive nature that would cause degenerative changes to his cervical spine or aggravate/accelerate his degenerative condition. Dr. Gleis concluded Bass's cervical complaints were related to the natural aging process rather than cumulative trauma attributable to his employment. Dr. Gleis assessed 0% impairment rating for Bass's cervical spine and a 10% impairment for the lumbar spine.
The ALJ rendered an opinion and order dismissing Bass's cervical cumulative trauma claim and awarding permanent partial disability benefits for his lumbar injury. The ALJ relied on the records of Dr. Gleis to conclude Bass failed to establish he sustained a cumulative cervical injury that was causally related to his work at Zenith. The ALJ denied Bass's petition for reconsideration, and Bass appealed to the Board. On appeal, Bass argued the ALJ misinterpreted the evidence, and when considered in totality, the evidence compelled a finding his cervical condition was work-related. In its opinion affirming, the Board concluded the ALJ's dismissal of the cervical claim due to lack of work-relatedness/causation was supported by substantial evidence. This petition for review followed.
Bass raises the same arguments here as he did before the Board, contending the ALJ misunderstood and overlooked evidence favorable to his position. Bass opines his own testimony as to his job requirements and the opinion of Dr. Rouben established his work at Zenith caused a cumulative trauma injury to his cervical spine.
"It has long been the rule that the claimant bears the burden of proof and the risk of nonpersuasion before the fact-finder with regard to every element of a workers' compensation claim." Magic Coal Co. v. Fox, 19 S.W.3d 88, 96 (Ky. 2000). Where, as here, the claimant is unsuccessful before the ALJ and appeals to the Board, the question is "whether the evidence was so overwhelming, upon consideration of the entire record, as to have compelled a finding in [the claimant's] favor." Wolf Creek Collieries v. Crum, 673 S.W.2d 735, 736 (Ky. App. 1984). When this Court reviews the Board's decision, our function is to correct the Board only where we believe it "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).
KRS 342.0011(1) defines injury 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."
We have thoroughly reviewed the proceedings in the administrative record. Unfortunately, Bass's arguments ignore the discretion vested in the ALJ to weigh the evidence and determine witness credibility. An ALJ "has the authority to determine the quality, character and substance of the evidence[,]" Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985), and he is free "to believe part of the evidence and disbelieve other parts of the evidence whether it came from the same witness or the same adversary party's total proof." Caudill v. Maloney's Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977). Further, "an ALJ is vested with broad authority to decide questions involving causation." Miller v. Go Hire Employment Development, Inc., 473 S.W.3d 621, 629 (Ky. App. 2015).
In the case at bar, we are constrained to agree with the Board's opinion, which stated, in relevant part:
We find Bass' arguments on appeal are nothing more than a re-argument of the evidence before the ALJ. After careful review, we find the ALJ accurately summarized the evidence and had a complete understanding of the issues before him. The ALJ clearly relied upon Dr. Gleis' opinion in determining the cervical condition is unrelated to his work activities at Zenith. On appeal, Bass does not challenge Dr. Gleis' opinion. After review of the July 25, 2017 report, we find Dr. Gleis' opinion alone constitutes substantial evidence supporting the ALJ's determination, and no contrary result is compelled. The ALJ also noted no physician of record
has explained with any specificity which of plaintiff's job duties, if any, could have led to symptomatic multilevel cervical degenerative disc disease. While Bass is able to point to evidence which would support a finding of a work-related cervical condition, this does not compel a contrary result.
In sum, although Bass contends the ALJ overlooked evidence favorable to his position, it was within the province of the ALJ to pick and choose what evidence to believe, and the ALJ chose to rely on the report of Dr. Gleis. Bass has simply not shown there was evidence in his favor as to work-relatedness/causation of the cervical condition that was "so overwhelming that no reasonable person would fail to be persuaded by it[.]" Magic Coal Co., 19 S.W.3d at 96. After careful review, we find no error in the ALJ's dismissal of Bass's cervical cumulative trauma claim.
For the reasons stated herein, the opinion of the Workers' Compensation Board is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Joy L. Buchenberger
Louisville, Kentucky BRIEF FOR APPELLEE: Lee Jones
Rachel Wagner Kennedy
Pikeville, Kentucky