Opinion
NO. 2019-CA-001052-WC
05-29-2020
CANDY CURRENS APPELLANT v. RJ INSULATION; HON. JEFF V. LAYSON, III, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Larry Ashlock Elizabethtown, Kentucky BRIEF FOR APPELLEE RJ INSULATION: Clarke Cotton Ft. Mitchell, Kentucky Stephanie Ross Ft. Mitchell, Kentucky
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-17-67168 OPINION
AFFIRMING
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BEFORE: CALDWELL, JONES, AND TAYLOR, JUDGES. JONES, JUDGE: The Appellant, Candy Currens, petitions this Court for review of an opinion rendered by the Workers' Compensation Board ("Board") on June 14, 2019. Following its review, the Board affirmed the administrative law judge ("ALJ") with respect to his conclusion that Currens suffered only a temporary work-related injury when she fell during the course of her employment with the Appellee, RJ Insulation. On appeal, Currens asserts the evidence established she suffered a permanent and compensable work-related injury for which she should have been awarded permanent partial disability benefits, and the Board failed to correct the ALJ's rejection of Dr. Steven S. Wunder's medical report as a misapplication of Cepero v. Fabricated Metals Corporation, 132 S.W.3d 839 (Ky. 2004), and its progeny. Having reviewed the record in conjunction with all applicable legal authority, we affirm.
With respect to Currens's benefits, the Board could not ascertain the ALJ's evidentiary basis for ordering Currens's temporary total disability ("TTD") benefits to commence on September 6, 2017, the date Currens first sought medical care for her injuries. Accordingly, the Board vacated the award of TTD and remanded for additional findings regarding the date TTD should begin. The Board also determined that because Currens alleged injuries to numerous body parts in her Form 101 Application for Resolution of Injury ("Form 101"), the ALJ should have been more specific with respect to the nature of the temporary injuries Currens suffered. On remand, the Board directed the ALJ to specify the exact nature of the temporary work-related injury or injuries Currens sustained when she fell on August 31, 2017, and to formally dispense with all remaining injury claims alleged in the Form 101 by way of dismissal. Currens does not appeal the Board's determinations with respect to the start date of her TTD or the need for greater specificity regarding the nature of her injuries, whether temporary or permanent.
I. BACKGROUND
Currens was hired by RJ Insulation in December of 2014. At this time, she was 51 years old. RJ Insulation provides commercial and residential insulation installation and related services to its customers. Currens's duties included driving a truck, installing fiberglass insulation, using a blower to put cellulose installation in attics, and using tanks and hoses to apply foam insulation. She was regularly required to lift insulation and hosing that weighed upwards of 120 pounds. She also had to do a lot of climbing, crawling, and reaching with her arms.
On Thursday, August 31, 2017, RJ Insulation dispatched Currens to a residence in Mason, Ohio, where she was directed to install some spray-foam insulation. Currens was working in the basement of the home when she tripped and fell down about fifteen stairs. Currens testified that she lost consciousness for a brief period following her fall but was eventually able to get up and finish the job. Afterwards, Currens called her supervisor and reported her fall. Currens reported to work the next morning, a Friday, and showed her supervisor her injuries. She was told RJ Insulation had a lot of jobs to complete that day, and her supervisor needed her to work. Due to her injuries, Currens was assigned a "helper" to assist and together they worked a full day. Currens had planned to work the next Monday, Labor Day, but was too sore from her fall to do so. She told her supervisor that she was "trying to doctor" herself and would attempt to come in the next day, Tuesday. However, when Tuesday arrived, Currens was "even hurting worse" and could not go to work.
On Wednesday, September 6, 2017, Currens first sought medical treatment for her injuries. She took herself to Urgent Care. Medical personnel at Urgent Care advised Currens not to return to work, gave her a pair of crutches, and referred her to an orthopaedic surgeon, Dr. Glen McClung, for further evaluation. Currens saw Dr. McClung two days later. He ordered x-rays and prescribed a boot for Currens's right leg. He also recommended Currens have an MRI performed on her lumbar and thoracic spine areas as well as both of her knees. Currens did not have the MRIs performed at that time, and she eventually stopped treating with Dr. McClung because of insurance-coverage issues. Sometime thereafter, Currens began treating with Dr. Stephen Heiss. Currens returned to work at RJ Insulation in January of 2018. She continued to work there until approximately March 12, 2018, when she was allegedly terminated when she did not show up for work or call in to report her absence.
Currens filed a Form 101 with the Department of Workers' Claims seeking both temporary and permanent wage and medical benefits for her alleged work-related injuries. In her Form 101, Currens alleged she sustained work-related injuries when she fell on August 31, 2017. Currens's claim was submitted to the ALJ for adjudication. On October 9, 2018, the ALJ conducted a Benefit Review Conference ("BRC"). As part of the BRC, the parties stipulated, among other matters, that Currens sustained work-related injuries on August 31, 2017, and that TTD benefits were voluntarily paid from September 6, 2017, through December 12, 2017. While RJ Insulation stipulated that Currens suffered some injuries while in its employment, it contested the extent and duration of Currens's work-related injuries. Specifically, the parties disputed whether the work injury caused Currens to have any permanent impairment rating. While Currens argued that her fall caused her to suffer a permanent impairment ratable injury, RJ Insulation maintained that the fall caused only a temporary injury that did not require additional medical treatment or work-related restrictions.
Because RJ Insulation argued that any impairment rating was due to Currens's pre-existing, active, and nonwork-related degenerative conditions, Currens's prior medical complaints and treatment were the focus of much of the proof. Currens testified that, in 2010, she received treatment from a pain management physician, Dr. Sairam Atluri, who administered injections for back and neck pain. Currens also admitted prior treatment for bilateral knee pain with Dr. Laura Barczewski. She denied any prior injury or medical treatment for her mid-back, upper back, left arm, or right leg. In addition to Currens's testimony during deposition and at the final hearing, the parties also submitted portions of Currens's prior medical records to the ALJ.
Records from Interventional Pain Specialists indicated Currens began treating with that provider on December 12, 2008, when she was seen by Dr. Atluri for pain following an injury to her left ankle. She continued to be seen for that condition until February 12, 2010. Then, on March 4, 2010, she began treating for chronic neck and low back pain upon a referral from Dr. Williams dated February 18, 2010. An MRI of the cervical spine done on February 21, 2010, showed degenerative changes and stenosis. An MRI of the lumbar spine indicated advanced spondylosis at L5-S1, broad central disc protrusion at L4-5, and degenerative changes. Dr. Atluri's diagnosis was cervical radiculopathy and lumbar radiculitis. From March 4, 2010, through July 26, 2011, Currens underwent at least four injections in her cervical spine and seven injections in her lumbar spine. An office note dated May 21, 2010, indicated Currens described her neck pain as being located at the base of the neck and that it went down into the left shoulder and arm. She indicated to the provider that she received a trigger point injection in the thoracic spine about ten years earlier. According to a treatment note dated November 4, 2011, Dr. Atluri advised Currens that he would no longer prescribe narcotics for her after she refused alcohol and drug testing following a traffic stop.
Medical records from Christ Hospital indicated that Currens was admitted on June 4, 2011. The records contain a notation that Currens reported experiencing back pain into the left leg as well as knee pain.
Medical records from Dr. Barczewski indicated that Currens treated with her several times between April 13, 2015 and August 22, 2017. During her visits, Currens reported chronic back, knee, and neck pain shooting down into the right arm intermittently. Dr. Barczewski treated Currens with oral medications and injections. Eventually, Dr. Barczewski recommended Currens for MRI studies of Currens's cervical and lumbar spine. She also referred Currens to pain management. The last day Currens saw Dr. Barczewski before her work injury was August 22, 2017. The diagnoses during this visit were biceps tendonitis, cervical radicular pain, complex regional pain syndrome of the left lower extremity, ADD, and hypertension.
Dr. Bart Goldman conducted a medical records review at the request of RJ Insulation's insurance carrier. After reviewing Currens's medical records, Dr. Goldman concluded in a report dated September 18, 2017, that conservative treatment, including physical therapy, was appropriate but that the recommended MRIs of Currens's thoracic spine, lumbar spine, and both knees were not medically necessary at that time. Dr. Goldman submitted a second, updated report on December 5, 2017. After reviewing additional medical records documenting treatment to Currens's neck, back, and knees prior to the work-related incident, he concluded that "the trip and fall injury sustained at work on 8/31/2017 was likely a temporary exacerbation of chronic active problems." In his third report dated December 6, 2017, Dr. Goldman opined that, since three months had passed from the date of injury, Currens should be back at her pre-injury baseline and that the recommended MRIs were still not medically necessary.
The parties deposed Dr. McClung on May 30, 2018, and his deposition testimony transcript was also submitted to the ALJ. Dr. McClung testified that he saw Currens on September 8, 2017, for her work injury; she was referred to him after she first sought treatment at Urgent Care. Currens told Dr. McClung that she was experiencing pain in her low back, right lower leg, and left knee following a fall down some stairs while working on August 31, 2017. Dr. McClung was initially concerned about the possibility of a lumbar fracture and torn meniscus, and he recommended MRIs of the lumbar spine and knees. He also took Currens off work at that time and prescribed a course of physical therapy. Currens subsequently said the physical therapy did not improve her pain and she began to report pain in her scapula with numbness into her hands. Dr. McClung then recommended an additional MRI for the cervical spine. The MRIs were never authorized by any insurance carrier. Dr. McClung released Currens to return to work with restrictions on January 8, 2018. Dr. McClung did not believe he was in a position to address Currens's current work restrictions or AMA impairment rating as she had not treated with him for several months.
On cross-examination, Dr. McClung confirmed that Currens did not describe any past medical history regarding her knees, back, legs, or arms. He was aware of a knee condition for which he had treated her in 2012 but could not say whether it had resolved before the incident at work on August 31, 2017. He admitted that Currens did not complain of cervical or arm symptoms during her initial visit with him on September 8, 2017. He further indicated that the findings from Currens's 2010 MRI would account for the chronic neck pain Currens complained of while treating with him in 2017. After reviewing Currens's treatment records from before her 2017 work injury, Dr. McClung agreed that "the entirety of the symptoms of which [Currens] now complains were pre-existing and active at the time of this work incident." He also agreed there were no objective medical findings in Currens's case to indicate a permanent harmful change to the human organism. He opined that Currens's fall caused only a temporary injury, which he believed would have completely resolved itself within at least twelve weeks.
Dr. Thomas A. Bender performed a records review and independent medical examination ("IME") of Currens at the request of RJ Insulation's insurance carrier. In his written report, Dr. Bender concluded that Currens had a pre-existing, active impairment of 19% related to the combination of neck, back, and knee conditions at the time of her work-related fall. He did not believe the fall caused any additional impairment. Dr. Bender opined that the fall caused only temporary soft tissue contusions, which he believed would have fully resolved no later than December 1, 2017. He did not believe the fall caused or contributed to the need for any work-related restrictions or that the resulting injuries required any additional medical treatment.
Dr. Steven S. Wunder conducted an IME of Currens at the request of her attorney on July 24, 2018. Prior to his examination, Dr. Wunder reviewed Currens's pre-injury and post-injury medical records, as well as the reports from Drs. Goldman and Bender and Dr. McClung's deposition transcript. Dr. Wunder noted that Currens indicated she was currently experiencing neck and left shoulder pain with some numbness into the thumb and first two fingers. Dr. Wunder agreed with Dr. Goldman that Currens's fall exacerbated chronic, active problems in her knees and low back. However, Dr. Wunder disagreed that Currens's neck condition was active immediately prior to her fall. To this end, he noted that Currens "had not had radicular pain in the neck for years." He opined that the fall caused "neck sprain with aggravation of pre-existing spondylosis in the cervical region" which "led to a radicular component into the left upper extremity." Dr. Wunder indicated that Currens reached maximum medical improvement ("MMI") in January of 2018 when she returned to work. He assessed an overall 15% AMA impairment rating for Currens's cervical condition, 5% of which was pre-existing and active, with the remaining 10% being attributable to the work injury. He recommended restrictions of no overhead work and no lifting more than 30-40 pounds. He did not believe Currens was able to return to her pre-injury job.
Following a final hearing, at which Currens testified, the ALJ rendered his opinion, order, and award. The ALJ concluded that Dr. Wunder's assessment was not based on an accurate medical history insomuch as he failed to recognize that Dr. Barczewski treated Currens for neck pain several times in the two years before her fall and had diagnosed Currens with cervical radicular pain just a little more than a week before her fall. As a result, the ALJ concluded that Dr. Wunder's report lacked credibility and did not constitute substantial evidence. Instead, the ALJ relied on Dr. Bender's report along with Dr. McClung's deposition testimony to conclude that Currens's work fall caused only temporary injuries with no resulting permanent impairment. He further concluded that Currens reached MMI on December 31, 2017, and that she did not require any additional medical treatment. The ALJ awarded Currens TTD benefits in the amount of $442.12 from September 6, 2017, through December 31, 2017.
Currens appealed to the Board. The Board affirmed the ALJ's conclusion that the work fall caused only a temporary injury. The Board, however, did not believe the ALJ's finding that TTD benefits should have commenced on September 6, 2017, was supported by substantial evidence and remanded Currens's claim to the ALJ for additional findings regarding the commencement date of TTD. On remand, the Board also instructed the ALJ to "specify the exact nature of the temporary work-related injury or injuries Currens sustained on August 31, 2017, and formally dispense with all remaining injury claims alleged in the Form 101."
This appeal followed.
II. STANDARD OF REVIEW
Pursuant to KRS 342.285, the ALJ is the sole finder of fact in workers' compensation claims. Our courts have construed this authority to mean the ALJ has the sole discretion to determine the quality, character, weight, credibility, and substance of the evidence and to draw reasonable inferences from that evidence. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985); McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46, 47 (Ky. 1974). Moreover, an ALJ has sole discretion to decide whom and what to believe and 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. Caudill v. Maloney's Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977).
Kentucky Revised Statutes. --------
On review, neither the Board nor the appellate court can substitute its judgment for that of the ALJ as to the weight of evidence on questions of fact. Shields v. Pittsburgh & Midway Coal Mining Co., 634 S.W.2d 440, 441 (Ky. App. 1982). In short, the reviewing body cannot second-guess or disturb discretionary decisions of an ALJ unless those decisions amount to an abuse of discretion. Medley v. Board of Education, Shelby County, 168 S.W.3d 398, 406 (Ky. App. 2004). Discretion is abused only when an ALJ's decision is arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Downing v. Downing, 45 S.W.3d 449, 454 (Ky. App. 2001).
When reviewing questions of law, an appellate court is bound neither by the decisions of an ALJ nor the Board regarding proper interpretation of the law or its application to the facts, and in such matters, the standard of review is de novo. Bowerman v. Black Equipment Company, 297 S.W.3d 858, 866 (Ky. App. 2009).
III. ANALYSIS
On appeal, Currens argues the Board erred as a matter of law when it affirmed the ALJ's conclusion that Currens's work fall did not cause any permanent injury. To this end, Currens asserts that the ALJ should not have rejected Dr. Wunder's report based on Cepero, 132 S.W.3d 839, because Dr. Wunder was provided with a complete medical history. Currens asserts that Dr. Wunder's opinion was a permissible medical interpretation of the records that the ALJ should not have wholesale discounted pursuant to Cepero.
We begin with the ALJ's rejection of Dr. Wunder's report. The ALJ stated as follows in his opinion:
As mentioned above, [Currens] bears the burden of proof with regard to establishing that she has a condition or
injury which is causally related to the incident at work. To that end, she has submitted a medical report from Dr. Wunder, who agrees that the alleged injuries to [Currens's] knees and low back are pre-existing, active conditions. He does not assign an AMA rating for these conditions. Dr. Wunder does assign an AMA rating for [Currens's] current cervical radicular complaints which he believes are causally related to the work injury. In support of this particular finding, he states that "she had not had radicular pain in the neck for years" and "the neck radicular symptoms appeared to be quiescent and had not been active since 2010."
These statements by Dr. Wunder are simply not true. The records from [Currens's] family physician, Dr. Barczewski, establish Currens reported cervical radicular symptoms on a consistent basis in 2016 and 2017, with the most recent office note documenting such complaints being dated August 22, 2017—just nine days before the work-related injury. Medical opinions that are based upon inaccurate information or incomplete information do not constitute substantial evidence to support a finding of work-related causation. Cepero v. Fabricated Metals Corp., 132 S.W.3d 839 (Ky. 2004). Because Dr. Wunder cited an incorrect medical history as the basis for his opinion that [Currens] sustained a work-related cervical injury, the Administrative Law Judge finds that his medical opinions in this case lack credibility and do not constitute substantial evidence.
Having rejected Dr. Wunder's medical testimony, the Administrative Law Judge finds no other competent, substantial medical evidence in the record which establishes that Currens has sustained any type of permanent work-related injuries as a result of the event on August 31, 2017. The Administrative Law Judge does find credible the opinions from Dr. Bender, who stated in his report that [Currens] reached MMI within four months after the work injury on August 31, 2017 and that he did not believe that there was any evidence of a
permanent, harmful change to the human organism affecting any body part. This opinion from Dr. Bender is consistent with the testimony of Currens's treating orthopaedic surgeon, Dr. McClung, who, when made aware of [Currens's] preinjury medical history, agreed that there were no objective findings which indicated a permanent injury.(ALJ's 12/20/2018 Opinion, Award, & Order at 13-14.)
Based on the foregoing, the Administrative Law Judge finds that Currens sustained a temporary injury when she fell down some stairs on August 31, 2017, and that she reached MMI four months later on December 31, 2017. There is no substantial evidence of any permanent injury, impairment or disability affecting any body part after December 31, 2017.
The Board did not agree with Currens that the ALJ erred in failing to accept the opinions expressed by Dr. Wunder in his report. The Board concluded that even though the ALJ cited Cepero, "the language utilized by the ALJ in the December 20, 2018, Opinion, Award, and Order certainly suggests a lack of credibility, versus a rejection under Cepero was the primary reason the ALJ rejected the medical opinions of Dr. Wunder." (Board's 6/14/2019 Opinion at 14.)
The ALJ 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 party's total proof. Khani v. Alliance Chiropractic, 456 S.W.3d 802, 806-07 (Ky. 2015). If the party with the burden of proof fails to convince the ALJ, that party must establish on appeal that the evidence was so overwhelming as to compel a favorable finding. Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986). In other words, an ALJ's decision should not be overturned on appeal unless it "is so unreasonable under the evidence that it must be viewed as erroneous as a matter of law." Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48, 52 (Ky. 2000) (citation omitted); KRS 342.285.
In Cepero, the claimant alleged that he suffered a work-related knee injury. The ALJ awarded Cepero benefits based upon evidence from two physicians that indicated his knee condition was related to a work injury. However, neither doctor was aware that Cepero had suffered a severe injury to his knee several years earlier. The Board reversed the ALJ's finding that the doctors' opinions were sufficient evidence upon which to base an award of benefits. The Supreme Court of Kentucky affirmed and quoted the Board's holding as follows:
[I]n cases such as this, where it is irrefutable that a physician's history regarding work-related causation is corrupt due to it [sic] being substantially inaccurate or largely incomplete, any opinion generated by that physician on the issue of causation cannot constitute substantial evidence. Medical opinion predicated upon such erroneous or deficient information that is completely unsupported by any other credible evidence can never, in our view, be reasonably probable.Cepero, 132 S.W.3d at 842.
Currens argues that unlike the physicians in Cepero, Dr. Wunder received all relevant records of Currens's prior treatment and that we must presume his conclusions and opinions are permissible medical interpretations of those records that the ALJ, as a layperson, did not have the authority to reject. While we acknowledge that this case is different from Cepero insomuch as Dr. Wunder was given the relevant information, we cannot agree that the ALJ was bound to accept a medical opinion he believed was based on a factually inaccurate statement involving prior medical treatment. Dr. Wunder plainly stated in his report that his opinion was based on the fact that Currens had not experienced or sought treatment for cervical radiculopathy since 2010, several years before her fall. This is simply not accurate. Dr. Barczewski's records show that Currens complained of radicular neck pain numerous times in the year or so before her fall and that she was diagnosed with cervical radiculopathy-related pain just days before her fall.
Applying Cepero, the Supreme Court of Kentucky held in Eddie's Service Center v. Thomas, 503 S.W.3d 881, 889 (Ky. 2016), that an ALJ has the discretion to reject a medical report that is based on an inaccurate understanding of the facts and medical history. Such is the case here. Dr. Wunder's entire premise for concluding that Currens was not suffering from an active, pre-existing cervical condition was based on Currens not having experienced cervical radiculopathy since 2010, several years before her fall. As recounted above, this premise is faulty and plainly contradicted by Currens's prior medical records. Those records show she persistently complained of and was treated for cervical radiculopathy for at least a year before her fall with the last treatment and diagnosis occurring just days before the fall. The ALJ did not err in rejecting the report as it was clearly based on a faulty factual understanding of Currens's past symptoms and diagnoses.
Next, Currens argues the ALJ failed to conduct the analysis required by Finley v. DBM Technologies, 217 S.W.3d 261 (Ky. App. 2007). In Finley, we held:
[A] pre-existing condition that is both asymptomatic and produces no impairment prior to the work-related injury constitutes a pre-existing dormant condition. When a pre-existing dormant condition is aroused into disabling reality by a work-related injury, any impairment or medical expense related solely to the pre-existing condition is compensable. A pre-existing condition may be either temporarily or permanently aroused. If the pre-existing condition completely reverts to its pre-injury dormant state, the arousal is considered temporary. If the pre-existing condition does not completely revert to its pre-injury dormant state, the arousal is considered permanent, rather than temporary.Id. at 265.
The Board held that the ALJ was not required to undertake a Finley analysis because he found that the fall did not result in any additional impairment rating, obviating the need for the carve-out Finley aimed to address. We agree with the Board that a Finley analysis was unnecessary. Had the ALJ accepted Dr. Wunder's report, a Finley analysis would have been required. However, he did not. Instead, the ALJ relied on Drs. Bender and McClung. Dr. Bender concluded that Currens had a pre-existing, active impairment ratable cervical condition that was the independent cause of her cervical complaints. He did not believe the fall created an additional impairment rating or led to the need for additional work restrictions. Drs. Bender and McClung both opined that the work fall caused only temporary soft tissue injuries that resolved in about twelve weeks and left Currens without any additional impairment. As the Board correctly recognized, "a finding of a temporary work-injury is not the equivalent to a finding of a pre-existing active condition and does not necessitate an analysis under Finley." (Board's 6/14/2019 Opinion at 14.)
IV. CONCLUSION
For the reasons set forth above, we affirm the Workers' Compensation Board's June 14, 2019 Opinion.
ALL CONCUR. BRIEF FOR APPELLANT: Larry Ashlock
Elizabethtown, Kentucky BRIEF FOR APPELLEE RJ
INSULATION: Clarke Cotton
Ft. Mitchell, Kentucky Stephanie Ross
Ft. Mitchell, Kentucky