Opinion
NO. 2012-CA-001456-WC
03-15-2013
KELLY PASS APPELLANT v. PASCHALL TRUCK LINES; HON. ROBERT L. SWISHER, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Edward A. Mayer Louisville, Kentucky BRIEF FOR APPELLEE, PASCHALL TRUCK LINES, INC.: Sharlott K. Higdon Paducah, Kentucky
NOT TO BE PUBLISHED
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-08-71970
OPINION
AFFIRMING
BEFORE: CAPERTON, COMBS, AND DIXON, JUDGES. CAPERTON, JUDGE: The Appellant, Kelly Pass, asserts that the Workers' Compensation Board (hereinafter "Board") failed to apply the law correctly as it relates to the physical injuries she sustained while employed by the Appellee, Paschall Truck Lines. The Administrative Law Judge (hereinafter "ALJ") initially entered a March 22, 2011, opinion and order in which he dismissed all claims for benefits under the Kentucky Workers' Compensation Act, finding that Pass did not give due and timely notice of the alleged psychological injury, and did not sustain a physical injury as defined by the Act. Pass eventually appealed to the Board, which found that the opinion of the ALJ concerning the physical injury was supported by substantial evidence. However, the Board reversed the ALJ regarding the issue of notice with respect to the psychological injury, and remanded for additional findings of fact and conclusions of law. Upon remand, the ALJ entered an award for psychological impairment based upon a 3% permanent partial impairment rating (1.95% permanent partial disability), which the Board affirmed in an order dated July 26, 2012. Pass now appeals the October 21, 2011, order of the Board denying her physical injury claim as well as the Board's refusal to increase her permanent indemnity benefits for the psychological claim in the order of July 26, 2012. Upon review of the record, the arguments of the parties, and the applicable law, we affirm.
Pass disagreed with the Board's October 21, 2011, opinion affirming the ALJ's finding that she did not sustain a physical injury as defined by the Act. She filed a petition for review with this Court, which was received by the Clerk of the Court of Appeals on November 22, 2011. Because she did not timely file the petition for review on or before November 21, 2011, it was rejected as defective by notice dated November 23, 2011.
Pass filed an application for resolution of injury claim alleging that she sustained an injury arising out of the course and scope of her employment with Paschall Truck Lines, Inc. Pass, 49, possesses a Commercial Driver's License, and worked for Paschall with her husband as a truck-driving team. Her employment with Paschall began on October 1, 2008, and her average weekly wage was stipulated at $515.31. Prior to working for Paschall, Pass had worked as a security guard, a daycare assistant director, a secretary, and a custodian.
Pass acknowledges having received prior treatment, including medication, for her cervical condition but denied any other type of active medical treatment for any other conditions prior to the accident at issue. Pass denied any burning, stabbing, or pins and needles sensations prior to the accident.
Pass previously sustained a cervical injury in 1995, when she was struck as a pedestrian by a car driven by a former husband. When she was struck by the car, Pass fell back and hit her head on the cement. Pass received treatment for those injuries in California, as well as at North Central Family Physicians (Firelands Medical Association). Throughout the years, she has received treatment for a variety of cervical diagnoses, including neck pain, cervical spondylosis, bilateral upper extremity paresthesias, cervical spasm, and cervical disc herniation, as well as for back pain, fatigue, and dizziness.
In 2000, a cervical MRI revealed cervical spondylosis. Additionally, December 28, 2004, while under the care of Dr. Daniel Herring, Pass underwent another cervical MRI because of numbness in the arms, primarily right-sided. That MRI showed cervical spondylosis with narrowing of the C4-C5, C5-C6, C6-C7, and C7-T1 interspaces, as well as mild bulging of the intervertebral discs at those levels. This MRI also indicated disc herniations at C4-C5 and C5-C6 posterolaterally on the right, a C6-C7 disc herniation centrally, a C7-T1 disc herniation posterolaterally on the right, and neural foraminal encroachments on the right at C4-C5, C5-C6, and C6-C7. Because of the effects of the cervical spondylosis, Pass has taken Darvocet on a continuous basis since 2005.
On October 29, 2008, Pass was involved in a motor vehicle accident on Interstate 64 in West Virginia. The truck, which her husband had most recently been driving, broke down and was on the side of the road awaiting the arrival of the police. Pass was sitting in the sleeper berth, phoning for assistance, when she felt an impact. Pass stated that when she came to, she was in the passenger foot well of the cabin, screaming for her husband, who was outside of the truck. The driver's side of the truck was gone, and Pass saw flames. She escaped the vehicle. It was later determined that another tractor-trailer had struck the Pass's vehicle and pushed the Pass's tractor-trailer approximately 65 feet. As a result of that accident, Pass asserts that she sustained injuries to the right side of her body, head, neck, back, bilateral upper extremities, and right lower extremity. As noted, Pass later amended her claim to allege a psychological impairment resulting from the physical injuries.
Immediately following the accident, EMS responders spoke with Pass, performed an evaluation, and transported her to Beckley Appalachian Regional Hospital where she was treated in the emergency room. At that time she complained of pain in the shoulder and neck. Tests indicated cervical spine spondylosis, disc space disease, and posterior osteophytes at C4-C5, C5-C6, and C6-C7 but no evidence of acute injury or toxic substance contamination. A CT scan of the head was normal, as were pelvic and lumbar spine x-rays. Pass was diagnosed with blunt force trauma to the upper body secondary to a fall from the sleeping berth during the motor vehicle accident. Pass has not returned to work since the date of the accident. Pass was subsequently examined by Dr. David Pocos at Erie Neurosurgery. Dr. Pocos opined that Pass was status post-motor vehicle accident with subsequent onset of new-old arm pain, and right side neck and facial pain. An MRI report of the cervical spine indicated small herniations at C4-C5 and C5-C6 posterior laterally on the right, C6-C7 centrally, and a herniation at C7-T1 disc, and neuro-foraminal encroachment.
Pass underwent physical therapy in February and March of 2009. She was also seen by Dr. Yoo at Erie Neurosurgery and Associates on March 10, 2009. Dr. Yoo diagnosed status post-motor vehicle accident with subsequent onset of new whole right arm pain along with right-sided neck and right facial pain. At that time, she denied any left-sided complaints. A neurological evaluation conducted by Dr. Yoo at that time was normal. Following his evaluation, including a review of both the 2004 and 2009 MRI studies, Dr. Yoo found that:
Both the 2009 and 2004 MRIs show evidence of multiple cervical spondylosis and spurs with foraminal stenosis, more to the right at multiple levels. In fact there appears to be a disc herniation present in 2004 MRI, which is somewhat diminished in the picture of the MRI in 2009....Thereafter, on April 28, 2009, Pass was examined by Dr. Steven Cremer, who performed an EMG study of the right upper and lower extremities with comparison to the left upper and lower extremities. Dr. Cremer interpreted the bilateral upper extremity EMG as normal, and opined that, "there is no electrodiagnostic evidence on this examination of right upper or right lower extremity radiculopathy, plexopathy, or isolated mononeuropathy." Pass did not present any psychological complaints at that appointment.
The MRI findings show continuing cervical spondylosis and spurs with foraminal stenosis without any new disc herniation. Given the MRI findings, in my opinion, I do
not see any new findings suggestive of result from this accident, but more of chronic findings in nature.
At the time of the first hearing below, Pass was treating with Dr. Mhedaya, a pain management specialist at Fisher-Titus Medical Center, whom she first saw on January 12, 2010. At that time, she described problems in her right leg, including feelings of having a "patch" in the upper part of her leg, along with burning, and pins and needleS sensations in the upper part of her leg. Pass was given medication, and it was suggested that she undergo a series of cervical steroid injections as well as a lumbar sympathetic block.
Pass was also examined by Dr. William Gavigan on June 17, 2009, at the request of Paschall. After examining Pass, Dr. Gavigan opined that all of her symptomology was related to pre-existing conditions. He did not recommend cervical injections, and felt that Pass had reached maximum medical improvement. Dr. Gavigan determined that Pass needed no additional medical treatment. Pass did not present any psychological complaints at that time. On the basis of his opinion, Paschall stopped paying temporary total disability (TTD) and medical expenses.
Paschall also requested that Pass be evaluated by Dr. Henry Tutt. After examining Pass on April 9, 2010, and reviewing her medical records and diagnostic imaging studies, Dr. Tutt was "unable to define any evidence that Ms. Pass has sustained any harmful change in the human organism." He concluded that she had a pre-existing cervical impairment, which he felt was a Cervical DRE Category III. Dr. Tutt attributed 15% impairment to the body as a whole as a result of this condition. Pass did not present any psychological complaints at that evaluation.
Concerning her alleged psychological impairment, Pass was treated by Dr. Susan Dorski, to whom she initially presented on December 22, 2008. At that time, Pass was diagnosed with post-traumatic stress disorder. Dr. Dorski opined that Pass appeared anxious and reported having nightmares about the accident. After seeing Dr. Dorski, Pass presented to the Cleveland Clinic, where she was again diagnosed with post-traumatic stress disorder, as well as a reflex sympathetic nerve disorder which is a chronic degenerative disease alleged to be attributable to the accident. On June 1, 2010, Dr. Dorski issued a psychological report diagnosing post-traumatic stress disorder, adjustment disorder with prolonged depressive reaction, spondylosis and reflex sympathetic dystrophy. Dr. Dorski recommended that Pass be allowed to continue to attend a treatment program at the Cleveland Clinic for a diagnosis of reflex sympathetic dystrophy. Dr. Dorski opined that Pass would not be able to return to her former line of work for emotional and physical reasons, but stated that if she went through the treatment program at the Cleveland Clinic and learned to manage the limits of her disease, she could find employment that suited her, which would serve to ease her depression. Dr. Dorski opined that Pass needed retraining in a career that was not physically demanding.
A medical report from Dr. M.R. Bauer at Advance Neurological Associates dated July 24, 2010, was also introduced into evidence below. Dr. Bauer was a practicing neurologist for 40 years, and had experience in neuropathic pain with a specialty in research and imaging pain, particularly complex regional pain. Dr. Bauer found that the forces of the motor vehicle accident of October 29, 2008, were enough to have killed Pass and were competent to have produced the injuries she complained of. He assessed a 30% whole person impairment rating according to the 5th Edition of the AMA Guides, as a result of chronic pain from CRPS. In addition, he assigned a BRE Lumbar Category III rating of 10% for the lumbar spine.
Lastly, on April 19, 2010, Pass was evaluated by Dr. David Shraberg, at the request of Paschall. Dr. Shraberg is board-certified in neurology and psychiatry. He reviewed Pass's medical history and medical records, and conducted an evaluation, after which he diagnosed acute stress reaction with elements of chronic post-traumatic stress disorder and phobic avoidance, narcotic dependency, elements of chronic post-traumatic stress disorder from childhood onward, dependent personality with avoidant traits and symptom magnification, pre-existent chronic cervical spondylosis, and cervicalgia, temporarily exacerbated by soft tissue injuries caused by the October 29, 2008, accident, from which she had recovered with baseline non-disabling chronic cervicalgia, and stressors of occupational uncertainty and litigation.
Dr. Shraberg noted that Pass functioned as a Class II Impairment, using the 5th Edition of the AMA Guides, with the accommodation that Pass would not be inclined to or capable of possibly driving an over-the-road truck again, there was approximately 3 to 5% impairment. Dr. Shraberg felt there could be further improvement with elimination of narcotics and pain medications. Dr. Shraberg felt that at this junction, Pass would be best served by a release to work with accommodation of working in the office or in some capacity other than driving due to her rather heightened fear and phobic avoidance of driving a truck. Dr. Shraberg also issued a supplemental report on August 4, 2010, in which he noted that he had reviewed additional medical reports from Drs. Tutt and Bauer, neither of which altered the opinions expressed in his original report.
Below, Lea Wells, Director of Safety and Risk Management for Paschall since 1991, also testified concerning the accident and her job duties in managing workers' compensation claims. Wells testified that she had occasion to speak with Pass after the accident and during the months that followed. Wells testified that Pass never reported a psychological injury to her personally or to her staff.
As noted, this claim was originally accepted by Paschall as being work-related. Paschall paid temporary total disability and medical benefits to and on behalf of Pass immediately following the injury and continuing through June 17, 2009. TTD benefits were paid at the rate of $313.34 per week, in the total amount of $24,127.18, which represented an underpayment of $30.20 per week for 36.14 weeks. Medical benefits were paid in the total amount of $13,455.42. At the time of the final hearing in this matter, Pass was continuing to treat with Dr. Medaya and Dr. Dorski, and was taking Vicodin, Neurontin, Flexeril, Amitriptyline, and Klonopin. She has not worked since the date of the accident at issue, and has not applied to work since that time. She has not applied for unemployment benefits, but did apply for Social Security disability benefits and was denied.
As previously noted herein, the ALJ initially entered a March 22, 2011, opinion and order in this matter, in which he dismissed all claims for benefits under the Act, finding that Pass did not give due and timely notice of the alleged psychological injury, and did not sustain a physical injury as defined by the Act. Pass eventually appealed to the Board, which found that the opinion of the ALJ concerning the physical injury was supported by substantial evidence. However, the Board reversed the ALJ regarding the issue of notice with respect to the psychological injury, and remanded for additional findings of fact and conclusions of law. Upon remand, the ALJ entered an award for psychological impairment based upon the 3% permanent partial impairment rating assessed by Dr. Shraberg, which the Board affirmed in an order dated July 26, 2012. Pass now appeals the October 21, 2011, order of the Board denying her physical injury claim as well as the Board's refusal to increase her permanent indemnity benefits for the psychological claim in the order of July 26, 2012.
Prior to reviewing the arguments of the parties, we note that the function of this Court on review is to correct the Board only where the Court perceives that the Board has overlooked or misconstrued controlling statutes or precedent, or has committed an error in assessing the evidence so flagrant as to cause gross injustice. See Western Baptist Hospital v. Kelly, 827 S.W.2d 685, 687088 (Ky. 1992). We review this matter with this standard in mind.
On appeal, Pass argues first that the Board erred in affirming the ALJ's decision to dismiss Pass's claim for physical injuries, finding that she had failed to prove that she sustained an injury as defined by the Act. She argues that the emergency room records document that she had sustained an injury in the accident which was further confirmed by follow-up evaluations and treatment. Pass contends that the ALJ erroneously decided to rely upon the opinions of the paid medical evaluators, rather than the treating physicians. Particularly, she disagrees with the conclusion of the ALJ that Dr. Bauer's testimony was "completely unpersuasive and of little probative value." Pass argues that the ALJ had no basis for this finding. Pass contends that the evidence compels the finding that she did in fact sustain an injury under the Act, and that the ALJ failed to adequately explain why he chose to exclude the testimony of all treating physicians and rely instead upon the opinions of the IME physicians selected by the employer. Finally, Pass argues that the ALJ erred by not awarding total and permanent disability benefits for the psychological claim.
In response, Paschall argues that the ALJ's reliance upon the opinion of Dr. Shraberg in determining that Pass sustained 3% psychological impairment was within his authority and discretion, and should not be disturbed by this Court on appeal. Paschall asserts that the opinion of Dr. Shraberg provides a sound basis for determining that Pass is not totally disabled as a result of her psychological injury. Concerning Pass's claim for income and medical benefits for the alleged physical injury, Paschall argues that this issue was finally decided and not properly appealed, and is thus res judicata, and not properly before us at this time. We turn first to that issue.
Concerning Pass's claim for income and medical benefits for the alleged physical injury, this Court is of the opinion that this issue has been finally decided and is not appropriately before us for review. These issues were initially decided by ALJ Swisher and upheld by the Board in an opinion rendered on October 21, 2011. Pass failed to timely file an appeal to this Court following the October 21, 2011, Board opinion. Accordingly, we are in agreement with Paschall that this issue is res judicata, and we decline to revisit it at this time. As our courts have repeatedly held, the doctrine of res judicata prohibits re-litigation of issues which have been finally determined on the merits. See Garrett Mining Co. v. Nye, 122 S.W.3d 512, 522 (Ky. 2003).
Sub judice, the ALJ reviewed the medical evidence of record concerning the alleged physical injury, and found that no substantial evidence existed to support such a finding. Instead, the ALJ chose to rely upon the opinions of Drs. Tutt and Gavigan, which he found "more credible, authoritative, and persuasive." These were findings that were affirmed by the Board in its October 21, 2011, opinion, an opinion which became final and, thus, the law of the case on November 21, 2011. Pass did not timely appeal those findings and, accordingly, we decline to address them further herein.
Having so found, we now turn to Pass's argument that the evidence below compelled a finding of permanent total disability with respect to her psychological injury. In addressing this issue, we note first that Pass had the burden of proof and risk of non-persuasion with respect to every element of her claim. Gibbs v. Premier Scale Co., 50 S.W.3d 754, 763 (Ky. 2001); Magic Coal Co. v. Fox, 19 S.W.3d 88, 96 (Ky. 2000). Certainly this would include causation, and whether she was permanently and totally disabled with respect to her psychological injury. As Pass was unsuccessful in meeting this burden of proof below, the question on appeal is whether the evidence is so overwhelming, upon consideration of the record as a whole, as to compel a finding in her favor. Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986); Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985). Compelling evidence is that which is defined as evidence so overwhelming that no reasonable person could reach the same conclusion as the Administrative Law Judge. Magic Coal v. Fox, supra, and Special Fund v. Francis, supra. The fact that some evidence of substance would have justified or supported a finding in the claimant's favor is not compelling evidence. Id.
Where there is conflicting evidence, the decision of the Administrative Law Judge is conclusive, and will not be disturbed upon appeal if supported by substantial evidence. Oaks v. Beth-Elkhorn Corp., 438 S.W.2d 482, 486-7 (Ky. 1969); Rogers v. Deposit Service Corp., 410 S.W.2d 621, 622 (Ky. App. 1967). Substantial evidence is evidence of substance and relative consequence which would induce conviction in the minds of reasonable persons. Garret Mining Co. v. Nye, 122 S.W.3d 513, 518 (Ky. 2003).
Sub judice, the January 19, 2012, order of the ALJ awarded Pass temporary total disability benefits and permanent partial disability benefits for a 3% impairment (1.95% disability), and medical benefits solely for the alleged psychological injury of post-traumatic stress disorder. In a well-reasoned opinion, the ALJ thoroughly reviewed the evidence, determined which he found to be most credible, and made specific findings of fact and conclusions of law on the basis thereof. Pass subsequently filed a petition for reconsideration, and in a February 14, 2012, order, same was dismissed by the ALJ, who stated, correctly, that the award of permanent partial disability implicitly found that Pass was not permanently and totally disabled. Moreover, the ALJ went on to further address Pass's allegation of permanent and total disability, and made additional findings of fact based upon the factors set forth in Osborne v. Johnson, 432 S.W.2d 800 (Ky. 1968), and Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000).
In so doing, the ALJ indicated his decision to rely upon the opinions of Dr. David Shraberg, who is board certified in both neurology and psychiatry and who was the only physician to provide a medical opinion as to impairment based upon the 5th Edition of the AMA Guides. Consistent with the findings of Dr. Shraberg, the ALJ found that Pass had achieved maximum medical improvement as of April 19, 2010, and that she sustained a 3% permanent impairment as a result of the accident. Accordingly, the ALJ awarded medical and permanent partial disability (PPD) benefits based upon that impairment rating. In so finding, the ALJ noted that Pass did not sustain a permanent physical injury as a result of the motor vehicle accident of October 29, 2008, and that she was under no physical restrictions or limitations as a result of that accident. In finding that Pass could not return to her job as an over-the-road truck driver, the ALJ awarded the triple multiplier of KRS 342.730(1)(c)(1). These were findings that were well within the discretion of the ALJ, and which were supported by substantial evidence.
As we have repeatedly held, it is the administrative law judge who has the sole authority to determine the quality, character, and substance of the evidence. Square D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993). As fact-finder, the ALJ has the authority to reject any testimony, and to believe or disbelieve various parts of the evidence. Magic Coal Co. v. Fox, supra. In this instance, the ALJ acted within his discretion in reviewing the evidence, assessing the credibility of same, and determining to rely upon the opinion of Dr. Shraberg in finding that Pass was only permanently partially disabled. Our review of the record indicates that those findings were supported by substantial evidence, and we see no reason to disturb those findings on appeal.
Wherefore, for the foregoing reasons, we hereby affirm the July 26, 2012, decision of the Workers' Compensation Board, affirming the January 19, 2012, opinion, order, and award on remand, and the February 14, 2012, order on petition for reconsideration issued by the Administrative Law Judge.
ALL CONCUR. BRIEF FOR APPELLANT: Edward A. Mayer
Louisville, Kentucky
BRIEF FOR APPELLEE,
PASCHALL TRUCK LINES, INC.:
Sharlott K. Higdon
Paducah, Kentucky