Opinion
NO. 2018-CA-000385-WC
05-24-2019
FLOYD COUNTY BOARD OF EDUCATION APPELLANT v. JAMES SLONE; HON. JANE RICE WILLIAMS, ADMINISTRATIVE LAW JUDGE; and WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Clayton D. Scott Paintsville, Kentucky BRIEF FOR APPELLEE: Frank M. Jenkins, III Lexington, Kentucky
NOT TO BE PUBLISHED PETITION FOR REVIEW OF DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-15-65728 OPINION
AFFIRMING
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BEFORE: COMBS, DIXON, AND MAZE, JUDGES. MAZE, JUDGE: Floyd County Board of Education (Floyd County) petitions for review of an opinion of the Kentucky Workers' Compensation Board (the Board) affirming in part, reversing in part, and remanding an award of benefits by the Administrative Law Judge (ALJ). For the reasons set forth below, we affirm.
I. Facts and Procedural History
Appellee, James Slone, was employed by Floyd County to perform general maintenance work. In September 2015, Slone was removing cheerleading mats from a school when he felt a zipping sensation and pain in his lower back. After the incident, Slone continued to experience low back, hip, and leg pain. His family physician took Slone off work and he was never cleared to return. Slone was eventually referred to Dr. Phillip Tibbs for an MRI, who had previously performed an MRI on Slone in 2014 and treated him for back pain. After the 2015 MRI, Dr. Tibbs diagnosed Sloan with radiating low back pain and an annular tear. Dr. Tibbs prescribed physical therapy for Slone's back pain, but it provided only minor relief.
Slone moved for workers' compensation benefits and testified by deposition in support of his claim. Slone alleged he had trouble walking for more than five minutes at a time and could only lift four to five pounds. Slone testified that he wanted to continue working but did not believe he would ever be physically able to return to full-time employment. Slone admitted to a prior back pain episode in 2013 but claimed it had resolved prior to his 2015 workplace injury.
In support of his claim, Slone filed a Form 107-I completed by Dr. James Owen, a primary care physician. Dr. Owen performed a physical examination on Slone and reviewed radiologist reports of Slone's 2014 and 2015 MRIs. Dr. Owen diagnosed Slone as suffering from L5-S1 left-sided radiculopathy. Dr. Owen did not review Slone's actual MRIs because he is not trained to do so. Nonetheless, he opined that Slone's 2015 injury was the cause of his complaints and assigned him an 11% permanent impairment rating based on the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides).
Dr. Owen testified by deposition and conceded on cross-examination that Slone's MRI reports evidenced right-sided radiculopathy, not the left-sided radiculopathy he diagnosed following his physical examination. Dr. Owen also testified that Slone had not reached maximum medical improvement (MMI) at the time of his examination. He therefore conceded that his impairment rating was not consistent with the AMA Guides, which state that impairment should not be considered permanent until MMI has been reached.
Dr. David Jenkinson, an orthopedic surgeon, evaluated Slone at Floyd County's request. Dr. Jenkinson also reviewed Slone's MRIs and Drs. Webb's and Tibbs' medical records. Dr. Jenkinson opined that Dr. Tibbs' observation of annular tears was incorrect. Dr. Jenkinson believed they were actually annular fissures, which had a non-traumatic origin. Dr. Jenkinson found no evidence of structural damage due to Slone's 2015 injury because he saw no interval changes between Slone's 2014 and 2015 MRIs. Dr. Jenkinson found no "anatomical basis" for Slone's complaints and concluded Slone was faking his symptoms on examination. Dr. Jenkinson opined Slone had suffered, at most, a strained back and assigned a 0% permanent impairment rating. He found Slone reached MMI as of April 5, 2016.
Dr. Henry Tutt also examined Slone at Floyd County's request. Dr. Tutt found no evidence of radiculopathy based on his examination and review of Slone's medical records. Dr. Tutt believed Slone's complaints exceeded any anatomical or physiological explanation. Like Dr. Jenkinson, Dr. Tutt opined that Slone was exaggerating his symptoms and suffered, at most, a strained back. He assigned Slone a 0% permanent impairment rating.
Following a benefits review conference, the ALJ found Slone had suffered a work injury, as defined by the Workers' Compensation Act. The ALJ specifically noted that she found credible Slone's testimony that he wanted to keep working but could not do so solely because of his 2015 injury. The ALJ also weighed Dr. Owen's testimony as convincing and relied on it to find Slone's injury resulted in an 11% permanent impairment rating and that Slone reached MMI on June 27, 2016, the date Dr. Owen assigned the impairment rating. Based on these findings, the ALJ awarded Slone temporary total disability (TTD) benefits and permanent total disability (PTD) benefits.
Floyd County appealed to the Board, which affirmed the ALJ's finding that Slone sustained an injury under the Workers' Compensation Act. However, the Board held that the ALJ erred by relying on Dr. Owen's permanent impairment rating; therefore, it vacated the portions of her order finding that Slone's injury resulted in an 11% impairment rating, Slone attained MMI on June 27, 2016, and awarding TTD and PTD benefits. The Board concluded that Dr. Owen's impairment rating was not in accordance with the AMA Guides, as required under KRS 342.0011(35), because it was assessed prior to Slone's reaching MMI. However, the Board explained that Dr. Owen's impairment rating could be rehabilitated on remand because other physicians had given an opinion on the date Slone reached MMI. As it explained,
Kentucky Revised Statutes. --------
[T]he ALJ may accept Dr. Owen's impairment rating if, based upon other medical testimony in the record, she determines Slone attained MMI prior to the date Dr. Owen examined Slone on June 27, 2016. This is significant because in Dr. Jenkinson's initial report dated April 5, 2016, he opined Slone "has already reached maximum medical improvement as of the date of this evaluation 4/5/16." Thus, on remand, if the ALJ determines Slone attained MMI on the date he was seen by Dr. Jenkinson, the impairment rating assessed by Dr. Owen is in accordance with the AMA Guides, as it would have been assessed after Slone attained MMI.
As there is evidence in the record which could rehabilitate the impairment rating assessed by Dr. Owen, we may not reverse the award of the ALJ and remand for a limited award, if appropriate, of TTD benefits and medical benefits. Rather, the award of all income
benefits and the finding regarding the date of MMI must be vacated and the claim remanded for a finding of the date of MMI, as the ALJ is precluded from finding Slone attained MMI on the date he was seen by Dr. Owen. If the ALJ chooses to rely upon the opinion of Dr. Jenkinson as the date MMI was attained, the impairment rating assessed by Dr. Owen is in accordance with the AMA Guides and may be relied upon.Floyd County disputes the portions of the Board's opinion holding that there was substantial evidence Slone sustained an injury under the Workers' Compensation Act and that Dr. Owen's permanent impairment rating can be rehabilitated on remand.
II. Standard of Review
As fact-finder, the ALJ has the sole authority to determine the quality, character, and substance of the evidence. Square D Co. v. Tipton, 862 S.W.2d 308, 309 (Ky. 1993). Similarly, it is within the ALJ's discretion alone to judge the weight to be afforded to and inferences to be drawn from the evidence. Miller v. East Kentucky Beverage/Pepsico, Inc., 951 S.W.2d 329, 331 (Ky. 1997). 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 proof. Magic Coal Co. v. Fox, 19 S.W.3d 88, 96 (Ky. 2000). Mere evidence to the contrary of the ALJ's decision is not sufficient to require a reversal. Id. Rather, in order to reverse the decision of the ALJ below, it must be shown there was no substantial evidence of probative value to support his decision. Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986). Substantial evidence is defined to mean evidence of relevant consequence which would induce conviction in the minds of reasonable people. Smyzer v. B. F. Goodrich Chemical Co., 474 S.W.2d 367, 369 (Ky. 1971). The function of this Court's review of the Board is to correct the Board only where 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).
III. Analysis
First, Floyd County challenges the ALJ's finding that Slone sustained a compensable injury. The Workers' Compensation Act defines "injury" as "any work-related traumatic event or series of traumatic events, including cumulative trauma, 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." KRS 342.0011(1). Objective medical findings "means information gained through direct observation and testing of the patient applying objective or standardized methods[.]" KRS 342.0011(33). A diagnosis based solely on a worker's subjective complaints does not provide sufficient proof of an "injury" under the Workers' Compensation Act. Gibbs v. Premier Scale Company/Indiana Scale Co., 50 S.W.3d 754, 762 (Ky. 2001). However, an injury can be compensable under the Act even when it is not observed directly through testing. Id. As the Kentucky Supreme Court has explained, "We know of no reason why the existence of a harmful change could not be established, indirectly, through information gained by direct observation and/or testing applying objective or standardized methods that demonstrated the existence of symptoms of such a change." Id.
Despite Floyd County's contention, the ALJ's finding that Slone sustained a compensable injury under the Workers' Compensation Act did not rely on a diagnosis based solely on Slone's subjective complaints. Rather, Dr. Owen's diagnosis was the result of findings from his physical evaluation of Slone and his review of Slone's prior medical history. Although there was evidence supporting a different finding, that is not a basis for reversing the Board. Accordingly, the ALJ's finding that Slone experienced an injury under the Workers' Compensation Act was supported by substantial evidence and must be affirmed.
Floyd County also appeals the Board's holding that Dr. Owen's permanent impairment rating can be rehabilitated on remand. It argues that a factual finding cannot be considered reasonable under the evidence if an ALJ is "given unfettered discretion to concoct an award by essentially combining opposite, competing opinion." We believe Copar, Inc. v. Rogers, 127 S.W.3d 554 (Ky. 2003), is dispositive to this argument. In that case, one physician assigned a claimant a 15% permanent impairment rating, which he attributed to the claimant's workplace injury. Id. at 557. However, he testified the claimant had not reached MMI. Id. A second physician assigned a 5% impairment rating, which he attributed to an incident that occurred before the workplace injury. Id. Nonetheless, the second physician opined the claimant had reached MMI. Id. The ALJ subsequently found the claimant totally disabled and awarded PTD benefits. Id. at 558. On appeal, the employer contended that the first physician's impairment rating was invalid because it was assigned before he thought the claimant reached MMI. Id. at 561. The Kentucky Supreme Court rejected this argument, holding that substantial evidence supported the ALJ's award:
We note . . . that an ALJ may pick and choose among conflicting medical opinions and has the sole authority to determine whom to believe. Pruitt v. Bugg Brothers, Ky., 547 S.W.2d 123 (1977). Thus, the ALJ was free to rely upon Dr. Gleis in order to conclude that the claimant reached MMI before November, 2000, but to rely on Dr. Taylor with respect to the cause and extent of her impairment. Likewise, the ALJ was free to rely upon Dr. Taylor with respect to causation but Dr. Gleis with respect to the extent of permanent impairment at MMI. In either event, there was sufficient evidence in the record to support a finding of total disability.Id. The Board's opinion regarding the potential rehabilitation of Dr. Owen's impairment rating is consistent with the Kentucky Supreme Court's opinion in Copar, Inc. Moreover, the ALJ has yet to make any findings on remand, let alone one we could deem so unreasonable that it must be viewed as erroneous as a matter of law. Accordingly, there is no basis to reverse the Board's instructions on remand.
IV. Conclusion
The opinion of the Workers' Compensation Board is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Clayton D. Scott
Paintsville, Kentucky BRIEF FOR APPELLEE: Frank M. Jenkins, III
Lexington, Kentucky