Opinion
NO. 2012-CA-001556-WC
04-05-2013
UNIVAR USA APPELLANT v. BRYANT GRUBB; CHRIS DAVIS, Administrative Law Judge; and WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Walter E. Harding Louisville, Kentucky BRIEF FOR APPELLEE BRYANT GRUBB: Robert L. Catlett, Jr. Louisville, Kentucky
NOT TO BE PUBLISHED
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-11-89975
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; COMBS AND STUMBO, JUDGES. COMBS, JUDGE: Univar USA Inc., petitions for review of an opinion of the Workers' Compensation Board that affirmed the decision of the Administrative Law Judge (the ALJ). The ALJ awarded Bryant Grubb temporary total disability benefits, permanent partial disability benefits, and medical benefits for his work-related back injury based upon an 8% impairment rating. Univar contends that the Board erred by concluding that the decision of the ALJ was supported by the evidence. After our review, we find no error and affirm the opinion of the Board.
Grubb was a truck driver and material handler with Univar (a global distributor of industrial and specialty chemicals) when he suffered a work-related back injury on or about October 1, 2009, as he attempted to pick up a 55-gallon drum in order to set it upright. He underwent a series of epidural steroid injections and returned to full duty. Medical records indicate that although Grubb returned to work, he continued to take medication to control his back pain. This injury was not treated as a work-related injury; Grubb's extended time off was compensated under a short-term disability insurance policy.
Grubb indicated that he suffered another low-back injury on January 24, 2011, when he slipped and fell on ice that had accumulated in the company parking lot near his truck. He was diagnosed at the hospital emergency room with an acute lumbosacral strain injury. He participated in physical therapy and eventually returned to work with light-duty restrictions. He was terminated from his position on June 15, 2011. According to Grubb, he continues to suffer with chronic low back pain radiating into his right leg.
On September 14, 2011, Grubb filed an Application for Resolution of Injury Claim. Grubb indicated that he suffered with low back and right leg pain as a result of the separate work-related injuries sustained on October 1, 2009, and January 24, 2011. Grubb submitted the medical report of Dr. Gregory Nazar along with his claim.
Dr. Nazar evaluated Grubb on April 28, 2011. Dr. Nazar reported that Grubb showed no signs or symptoms of radiculopathy or myelopathy and had a normal MRI study for his age. Dr. Nazar diagnosed Grubb with a soft tissue sprain and determined that he was not a candidate for further epidural injections or surgical intervention. He suggested that Grubb undergo physical therapy.
Grubb also submitted the report of Dr. Warren Bilkey, who performed an independent medical evaluation on August 11, 2011. Dr. Bilkey's report indicated that Grubb suffered with a pre-existing active impairment of 5% attributable to the October 2009 work-related injury. He assigned a 13% impairment rating exclusively to the work-related injury of January 24, 2011, and imposed work restrictions (not necessarily permanent) attributable to that injury - precluding Grubb from being able to resume his usual work duties. Univar denied the claim.
On October 31, 2011, Univar filed the medical report of Dr. Ellen Ballard, whose report indicated that Grubb experienced pain to palpation with range of motion testing of his lumbar spine. She assigned an 8% impairment rating but attributed no part of the impairment to the work-related injury of January 24, 2011.
On January 4, 2012, Univar submitted the medical report of Dr. Martin G. Schiller. In his report, Dr. Schiller indicated that Grubb suffered a lumbosacral strain when he fell on January 24, 2011. He also described a pre-existing condition of back discomfort attributable to degenerative changes. Dr. Schiller rejected Dr. Bilky's disability assessment method and was persuaded that Grubb suffered no impairment whatsoever as a result of his work-related injuries.
An evidentiary hearing was conducted before the ALJ on February 21, 2012. After analyzing the evidence, the ALJ concluded that Grubb did not have any pre-existing, active disability or impairment prior to his first work-related injury on October 1, 2009. Relying on the opinion and medical report of Dr. Ballard, the ALJ concluded that the injury of October 1, 2009, resulted in an 8% impairment rating. He was unpersuaded that the injury of January 24, 2011, resulted in any impairment. The ALJ awarded benefits in accordance with his conclusions.
Each party filed a petition for reconsideration, but each was denied. On appeal, the Workers' Compensation Board affirmed the ALJ's opinion, order, and award in an opinion entered on August 8, 2012. This petition for review followed.
Univar contends that the Board erred in affirming the ALJ's decision since there is no evidence to support an 8% impairment rating attributable to a work-related injury that occurred in October 2009. We disagree.
The ALJ has the sole discretion to determine the quality, character, and substance of the evidence and has the prerogative of rejecting any testimony. He may believe or disbelieve various parts of the evidence regardless of whether it comes from the same witness or the same party's proof. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky.1985). When the party with the burden of proof and risk of persuasion prevails before the ALJ, the question on appeal is whether there was some evidence of substance to support the finding in his favor. Special Fund v. Francis, 708 S.W.2d 641 (Ky.1986). The Board is charged with deciding whether the ALJ's finding "is so unreasonable under the evidence that it must be viewed as erroneous as a matter of law." Kentucky Revised Statutes (KRS) 342.285; Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky.2000). When reviewing the Board's decision, we reverse only where the Board has overlooked or misconstrued controlling law 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 (Ky.1992).
In this case, the Board carefully evaluated the evidence and considered and applied the controlling law. The Board observed as follows:
The ALJ relied primarily upon the opinion of Dr. Ballard, as well as medical records and testimony of Grubb in finding the October 1, 2009 incident resulted in a permanent, work-related low-back strain injury. On June 1, 2011, Dr. Ballard noted a history of back injury in August 2009, with subsequent [epidural steroid injections] in March 2010, and hydrocodone usage since 2010. She also noted the January 2011 slip and fall and subsequent treatment. Dr. Ballard noted an underlying spine condition and recommended restrictions. She then assessed an 8% impairment rating pursuant to the AMA Guides, but did not relate it to a specific injury date. The ALJ acknowledged this, and pointed to other evidence in the record to support a finding of permanent injury as a result of the October 2009 incident.Opinion at 18 - 22. The Board did not overlook or misconstrue controlling law or so flagrantly err in evaluating the evidence that it has caused gross injustice by affirming the ALJ on this point. On the contrary, it carefully analyzed all the evidence before it to resolve any internal contradictions. Its opinion cannot be reversed on this basis.
The ALJ found Grubb's testimony to be credible. Grubb testified in October 2009, he injured his low back while picking up a heavy drum. He testified he eventually sought medical treatment from his family doctor and subsequently received [epidural steroid injections] in March 2010. Grubb testified he missed approximately six weeks of work and received short term disability
benefits. He then returned to the same position at Univar as a driver and material handler, with the help of medication, until January 2011. Grubb also testified he was unsure of the exact injury date, and he mistakenly informed Dr. Ballard it to be August 2009, when he intended to say October 2009.
Dr. Nazar, in a report dated April 28, 2011, noted a previous back injury in 2009 where Grubb responded to [epidural steroid injections], made a good recovery and had no significant pain prior to the January 2011 injury. On August 11, 2011, Dr. Bilkey also noted a past medical history which was "significant for a lift injury occurring at work in approximately 2009" after attempting to lift a 55 gallon drum. Grubb stated he underwent [epidural steroid injections], which Dr. Bilkey confirmed with medical records from Dr. Janson dated in March 2010. Dr. Bilkey noted Grubb returned to work, but was taking medications for pain control prior to January 2011. Dr. Ballard and Dr. Schiller noted a history of back injury in August 2009, and [epidural steroid injections] in March 2010. In his deposition, Grubb explained he had gotten his dates confused and had intended to say October 2009.
We therefore believe substantial evidence supports the ALJ's finding of permanent injury due to the October 2009 accident.
Substantial evidence also supports the ALJ's finding Grubb had no pre-existing, active disability or impairment rating immediately prior to October 2009 . . . .
* * * * *
Grubb testified at his deposition he received treatment for low back pain in March 2009, describing it as a stretch or strain. At the hearing, he stated he pulled a low back muscle on March 23, 2009 while lifting a heavy drum. Grubb testified he went to [Occupational Physician Services of Louisville] on one occasion, and was prescribed a steroid injection. Grubb testified his low back symptoms resolved, and he did not miss any work
due to the March 2009 incident. The medical records submitted by Univar demonstrate Grubb treated with [Occupational Physician Services of Louisville] only once for the March 2009 incident. We also note, Univar's own medical expert, Dr. Schiller noted a history of a low back injury occurring March 23, 2009, from which he missed no work.
Based upon the foregoing, we believe substantial evidence supports the ALJ's decision.
The evidence that the ALJ chose to accept indicates that Grubb injured his back in October 2009 while maneuvering a 55-gallon drum onto a pallet. Dr. Bilkey and Dr. Ballard noted expressly that Grubb suffered with an active impairment in connection with this work-related injury. Dr. Ballard assigned an 8% impairment rating. The record clearly refutes Univar's contention that there was absolutely no medical evidence to support a finding that Grubb sustained any injury or suffered any impairment as a result of the work-related injury of October 2009. The Board did not err either in its application of the law or in its assessment of the evidence.
We affirm the opinion of the Workers' Compensation Board.
ALL CONCUR. BRIEF FOR APPELLANT: Walter E. Harding
Louisville, Kentucky
BRIEF FOR APPELLEE BRYANT
GRUBB:
Robert L. Catlett, Jr.
Louisville, Kentucky