Opinion
NO. 2012-CA-000465-WC
10-12-2012
PADUCAH PUBLIC SCHOOLS APPELLANT v. ROSLIN DUMAS; HON. GRANT S. ROARK, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Kamp T. Purdy Pierre J. Coolen Lexington, Kentucky BRIEF FOR APPELLEE ROSLIN DUMAS: Geordie Garatt Paducah, Kentucky
NOT TO BE PUBLISHED
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-10-93818
OPINION
AFFIRMING
BEFORE: CLAYTON, MAZE, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Paducah Public Schools (PPS) petitions for review of an opinion of the Workers' Compensation Board (Board) entered February 7, 2012. The Board affirmed the finding of the Administrative Law Judge (ALJ) that PPS employee Roslin Dumas sustained a work-related injury to her left knee, and that consequently the total surgical replacement of that knee was compensable.
Dumas, who was born in 1943, worked as a custodian for PPS from 1993 to 1999, and then again from August 2006 until February 19, 2009, when she tripped and fell while at work. She sustained multiple injuries, and ultimately underwent a total left knee replacement surgery in July 2010. PPS argued that the knee replacement was not causally related to her fall at work, based on medical evidence of extensive prior treatment of the knee, including two arthroscopies.
The ALJ, citing the evidence of the employer's medical expert, Dr. Gregory Snider, found that the left knee injury and the replacement surgery were work-related and compensable. PPS filed a petition for reconsideration, arguing that the ALJ improperly relied on the testimony of Dr. Snider, since Dr. Snider had expressly opined that the knee replacement surgery was not work-related.
In his order on reconsideration, the ALJ acknowledged that Dr. Snider had ultimately concluded that the left knee replacement was not caused by the work injury, but by pre-existing, degenerative and chronic changes to the knee. The ALJ further observed that another expert, Dr. Warren Bilkey, who was retained by the claimant, had concluded that the knee replacement was due to the 2009 work injury. At the time he rendered this opinion, however, Dr. Bilkey did not have Dumas's full medical history and was unaware of her prior left knee treatments and surgeries. Later, Dr. Bilkey submitted a supplemental letter in which he agreed with Dr. Snider that a large percentage of Dumas's permanent impairment was attributable to her pre-existing active degenerative joint disease. The ALJ noted that Dr. Bilkey did not, however, revise his opinion regarding the work-relatedness of the knee replacement surgery.
The ALJ further observed that there was no evidence that the degenerative disease in Dumas's left knee would have required a total knee replacement by July 2010, had it not been for the work injury. He described the degenerative condition of the knee as essentially dormant, noting that prior to her fall, Dumas had received no treatment for the left knee for five years, was not taking any medication for it, and that no physician had recommended a replacement before that time. The ALJ noted Dr. Snider's admission that he had seen instances in which an injury had accelerated or necessitated such a surgery in individuals with pre-existing degenerative changes with chronic ACL insufficiency, although he did not believe that was the case with Dumas. The ALJ concluded that the February 2009 injury caused enough of an exacerbation of her pre-existing degenerative condition to require the knee replacement.
On appeal to the Board, PPS argued that the ALJ had exceeded his authority on reconsideration. The Board disagreed, on the grounds that the ALJ is free to accept all or part of the evidence, even when it comes from the same witness. The Board held that substantial evidence supported the ALJ's conclusion that the knee replacement surgery was causally related to the work injury. This petition for review followed.
Our standard of review requires us to show considerable deference to the rulings of the Board. "The function of further review of the WCB [Workers' Compensation Board] in the Court of Appeals 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, 687-688 (Ky. 1992).
PPS argues that the Board (1) misidentified the primary issue on appeal, which was that the ALJ had exceeded the scope of his authority in his order on reconsideration, and (2) committed flagrant error in holding that substantial evidence supported the ALJ's conclusion that the left knee replacement was related to the work injury.
As outlined above, the ALJ, upon reconsideration, fully agreed with PPS that it was Dr. Snider's unequivocal opinion that the injury was not work-related. The ALJ further explained that his decision on causality was supported by the opinion of Dr. Bilkey, and also by parts of Dr. Snider's evidence.
KRS 342.281 provides that in considering a petition for reconsideration, "[t]he administrative law judge shall be limited in the review to the correction of errors patently appearing upon the face of the award, order, or decision . . . ." This language precludes an ALJ . . . from reconsidering the case on the merits and/or changing the findings of fact.Garrett Mining Co. v. Nye, 122 S.W.3d 513, 520 (Ky. 2003).
PPS argues that the ALJ changed and expanded the evidentiary basis of his original decision, which PPS asserts constitutes an impermissible reconsideration of the case on its merits and changing the findings of fact. PPS contends that the Board failed to address this issue adequately when it simply stated: "We find no merit in PPS's claim the ALJ improperly altered his findings in the order ruling on the petition for reconsideration . . . . In that order, the ALJ merely provided a detailed analysis and rationale for his decision." Board's Opinion at 19.
In Garret Mining, the worker filed a claim for additional benefits after his original injury had worsened. The ALJ initially awarded benefits only for the increase in disability; upon reconsideration, he ruled that under the "whole man" theory, the entirety of the disability was attributable to the original injury and consequently awarded full benefits. See Garrett, 122 S.W.3d at 517. By contrast, the ALJ in the case before us fully acknowledged and corrected his error regarding Dr. Snider's report, and then explained how he arrived at his conclusion regarding causality with specific references to other evidence in the record. He did not change his holding, rely on a different legal theory, or alter the amount or character of benefits awarded. In concluding that the ALJ provided a sufficient analysis and rationale that did not exceed the scope of what is permissible on reconsideration, the Board effectively and adequately addressed PPS's argument and did not misidentify the issue on appeal.
Next, PPS argues that the Board erred in holding that substantial evidence supported the ALJ's finding of causation. PPS contends that the Board misused the evidentiary standard set forth in Magic Coal, which states as follows:
[T]he fact-finder has the sole discretion to determine the quality, character, and substance of evidence and to draw reasonable inferences from the evidence. The fact-finder has the sole authority to judge the weight to be afforded the testimony of a particular witness. The fact-finder 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.Magic Coal Co. v. Fox, 19 S.W.3d 88, 96-97 (Ky. 2000) (internal citations omitted). PPS contends that the Board allowed the ALJ to take an isolated portion of Dr. Snider's Independent Medical Evaluation (IME) out of context in order to support his finding of causation. The contested passage states: "[I]n my opinion this operation [total left knee replacement] was not done for any objectively identified sequela of the work injury. It was performed for pre-existing degenerative change with chronic ACL insufficiency. In my opinion, the work injury played a minor role in her knee problems." After quoting this passage, the ALJ made the following statement:
Dr. Bilkey could have concluded from that portion of Dr. Snider's report that Dr. Snider believed plaintiff's work injury played only a "minor" role in her condition, and, presumably, in her need for surgery. If he so concluded, it is not unreasonable to infer that Dr. Bilkey did not necessarily change his opinion on the cause of the need for the left knee replacement surgery.ALJ's Order on Petition for Reconsideration at 3-4.
PPS contends that this statement was a "giant leap of logic," and that the ALJ committed clear error in relying on Dr. Snider to support a conclusion that the knee replacement was related to the work injury, and blatantly misrepresented what Dr. Snider had said. PPS further argues that there is not any evidence that Dr. Bilkey saw Dr. Snider's IME, since his letter simply states that he was "informed" that Dr. Snider performed an IME and had assigned a pre-existing active impairment of the left knee of 18 percent.
This latter contention is directly contradicted by the following statement in PPS's brief to the Worker's Compensation Board: "Dr. Bilkey provided a one-page supplemental report on June 26, 2011. This followed his receipt of the April 2011 report of Dr. Snider. Dr. Bilkey makes no mention of the receipt of any additional records, apart from the IME of Dr. Snider." PPS's Brief to the Workers' Compensation Board at 9. By PPS's own admission, therefore, Dr. Bilkey was familiar with Dr. Snider's IME, in which Dr. Snider described in some detail the left knee treatment and arthroscopic surgeries Dumas had undergone before the work injury, and in which he opined that "the work injury amounted to simple contusion/sprain/strain and did not serve as an indication for total knee joint replacement." "Any party who seeks to appeal a decision of the Board to the court system must have preserved an assertion of error by having raised it first to the Board." Breeding v. Colonial Coal Co. 975 S.W.2d 914, 916-917 (Ky. 1998).
The ALJ repeatedly acknowledged in his order on reconsideration that Dr. Snider had denied any connection between the work injury and the knee replacement. The ALJ reasoned that Dr. Bilkey had not changed his opinion regarding causation, as he could have after reviewing Dr. Snider's IME. In quoting the passage from Dr. Snider's report, the ALJ attempted to elucidate why Dr. Bilkey had not changed his opinion regarding causation. The ALJ did not blatantly misrepresent the evidence in doing so.
PPS further contends that the ALJ erred in relying on Dr. Bilkey's opinion because it was founded on insufficient knowledge of Dumas's medical history. Dr. Bilkey was not aware of Dumas's prior left knee treatment and surgeries when he opined that the knee replacement was attributable to the 2009 injury. PPS argues that the situation is analogous to that found in Cepero v. Fabricated Metals Corp., 132 S.W.3d 839 (Ky. 2004), in which a workers' compensation claimant attributed his knee injury to a work-related accident, and did not tell his physicians about an earlier injury he had sustained while practicing martial arts. The physicians based their opinions regarding work-related causation on this incomplete history, and their opinions were in turn adopted by the ALJ. The Kentucky Supreme Court held that "where it is irrefutable that a physician's history regarding work-related causation is corrupt due to it being substantially inaccurate or largely incomplete, any opinion generated by that physician on the issue of causation cannot constitute substantial evidence." Cepero, 132 S.W.3d at 842. But in this case, Dr. Bilkey did learn of Dumas's medical history from Dr. Snider's IME, and submitted another report regarding her level of impairment, yet Dr. Bilkey gave no indication that he had revised his ultimate opinion regarding the work-relatedness of the surgery. Under these circumstances, the Board did not commit flagrant error in affirming that the ALJ's finding of work-relatedness was supported by substantial evidence.
For the foregoing reasons, the opinion of the Workers' Compensation Board is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Kamp T. Purdy
Pierre J. Coolen
Lexington, Kentucky
BRIEF FOR APPELLEE
ROSLIN DUMAS:
Geordie Garatt
Paducah, Kentucky