Opinion
NO. 2018-CA-001511-WC
06-21-2019
DENISE ZOELLER APPELLANT v. AMAZON; HON. TANYA PULLIN, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: James D. Howes Louisville, Kentucky BRIEF FOR APPELLEE: Lori V. Daniel Louisville, Kentucky
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NOS. 15-WC-64228 AND 15-WC-63513 OPINION
AFFIRMING
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BEFORE: COMBS, DIXON, AND GOODWINE, JUDGES. DIXON, JUDGE: Denise Zoeller seeks review of a Workers' Compensation Board opinion affirming an Administrative Law Judge's order dismissing Zoeller's claims for benefits. After careful review, we affirm.
Zoeller began working for Amazon in December 2012. On July 18, 2015, she felt pain in her neck and right shoulder when she moved shoe boxes from a pallet and then reached up to use the computer mouse at her station. Zoeller reported the injury and sought treatment at Amcare and Hardin Memorial Hospital. She was diagnosed with right shoulder strain and right arm paresthesia. Zoeller returned to light duty work on July 21, 2015. Thereafter, Zoeller continued to seek medical treatment for her ongoing complaints of neck and right arm pain, and in September 2015 was released to regular duty work without restriction. On October 1, 2015, Zoeller was unable to complete her shift due to neck pain. She sought treatment at Amcare and followed up with Drs. Rodney Chou, Craig Roberts, and David Changaris. Zoeller continued working at Amazon on light duty until November 21, 2015. After leaving her employment at Amazon, Zoeller worked for several other companies through temporary employment agencies.
Zoeller ultimately filed two claims for workers' compensation benefits alleging work-related injuries to her right shoulder on July 18, 2015, and to her neck on October 1, 2015. In addition to asserting affirmative defenses, Amazon denied the claims due to lack of work-relatedness/causation. In her deposition, Zoeller testified that no specific event occurred on October 1, 2015; rather, she asserted that she experienced pain from constantly moving her arm toward the conveyor belt. At the formal hearing, Zoeller testified that she continued to have pain, numbness, and tingling in her right arm but was not receiving medical treatment at that time. Zoeller asserted that her symptoms prevented her from returning to her prior employment at Amazon.
Zoeller submitted medical records from several providers. In the records from WorkWell Occupational Health and Hardin Memorial Hospital following the July 18, 2015, work incident, Zoeller reported feeling sharp pain in her shoulder when she reached up to use a computer mouse. She was diagnosed with right shoulder strain and right arm paresthesia. The treatment note signed by Dr. Robert Berlin indicated that Zoeller's neck was non-tender with range of motion or palpation. On July 24, 2015, Zoeller sought treatment at the Medical Center South emergency room for complaints of right shoulder and neck pain radiating to her arm. X-rays of the right shoulder were normal, and she was diagnosed with a shoulder sprain.
Dr. Stacie Grossfeld's treatment records document three visits for Zoeller's complaints of right shoulder pain. Dr. Grossfeld noted that cervical x-rays revealed pre-existing advanced DJD of the cervical spine at C5-C6. A right shoulder MRI showed anterior labrocapsular thickening, small shoulder joint effusion, and mild hypertrophic arthropathy of the AC joint. Dr. Grossfeld diagnosed Zoeller with mild AC joint arthropathy, possible flareup secondary to the work injury.
The medical records of Dr. Rodney Chou indicate that Zoeller treated with him between October and December 2015. On October 1, 2015, Zoeller reported neck and bilateral arm pain, but no new work incident. Dr. Chou diagnosed Zoeller with a cervical sprain and pain in the limb. He found her to be at MMI for her neck on December 1, 2015.
Dr. Craig Roberts's treatment records indicate that Zoeller's shoulder x-rays revealed mild degenerative changes involving the right AC joint. He diagnosed acute right shoulder pain, arthrosis of the AC joint, and right shoulder impingement syndrome. Dr. Roberts also referred Zoeller to physical therapy.
The records from Dr. David Changaris document Zoeller's complaints of cervical pain and right shoulder/arm pain with numbness and tingling. An MRI of the right shoulder showed productive changes at the AC joint with small joint effusion. A cervical MRI demonstrated straightening of normal cervical lordosis possibly due to spasm, multilevel spondylosis from C3-4 through C6-7, and C6-7 cord flattening. Dr. Changaris diagnosed Zoeller with a restrictive painful lumbar spine with sprain/strain, restrictive painful neck with sprain/strain, and painful right shoulder/arm.
Zoeller also filed the IME report of Dr. Anthony McEldowney. He diagnosed a right paracentral disc protrusion at C6-7 causing cervical stenosis, which he attributed to Zoeller's work injury. Dr. McEldowney asserted that the work incident caused Zoeller's condition because she had performed her job without any problems prior to July 18, 2015. Dr. McEldowney assigned Zoeller a 16% impairment rating, with no active impairment prior to the work injury. In a subsequent re-evaluation report, Dr. McEldowney opined that an April 2016 cervical MRI showed disc herniation at C6-7 and indentation on the spinal cord. Dr. McEldowney diagnosed Zoeller with restricted motion in her neck and radicular symptoms in her right arm with atrophy and weakness. Dr. McEldowney did not alter his finding of a 16% impairment rating.
Amazon filed the IME reports of Dr. Ellen Ballard from March 22, 2016, and February 7, 2018. Dr. Ballard noted that Zoeller's cervical MRI demonstrated a broad-based disc protrusion with an associated ridge of osteophytes resulting in mild spinal and intervertebral foraminal stenosis with slight effacement of the ventral aspect at C6-7. Dr. Ballard opined that the MRI established age-related changes to Zoeller's cervical spine that were unrelated to any work event. Dr. Ballard also emphasized Dr. Berlin's assessment on the day of the work injury that Zoeller's neck was non-tender to palpation or range of motion. Dr. Ballard found that this did not correlate with Zoeller's cervical spine as the cause of her complaints. Dr. Ballard re-examined Zoeller in February 2018 and issued a second IME report. Dr. Ballard diagnosed Zoeller with cervical degenerative disc disease unrelated to her job activities. He further opined that Zoeller's original injury could have been a strain related to the work incident, but the initial strain had resolved and was not related to her current symptoms, as her right shoulder showed no significant abnormalities. In Dr. Ballard's opinion, the findings were not consistent with, or proportional to, Zoeller's subjective complaints. Dr. Ballard assessed a 6% impairment rating for Zoeller's cervical spine due to degenerative changes, and not attributable to any work incident. Dr. Ballard found Zoeller to be at MMI on August 18, 2015, one month after the work incident. Dr. Ballard also noted that Zoeller had returned to warehouse work multiple times since working for Amazon.
The ALJ rendered an opinion and order dismissing Zoeller's claims. The ALJ made thorough and specific findings regarding the evidence, stating, in relevant part:
After careful review of the medical and lay testimony, the ALJ finds that Plaintiff has not borne her burden of proving that she suffered a work-related injury to her shoulder(s) as a result of a work incident of July 18, 2015. Dr. McEldowney opined that Plaintiff did suffer a work-related injury on July 18, 2015. Dr. Ballard opined, "It is difficult to correlate her complaints that she developed pain when moving a mouse to her current symptomatology." Dr. Ballard also opined that an "original injury may have been a strain," but she said, "If indeed that could be an injury, she would appear to have recovered." Dr. Ballard also opined that the cervical degenerative disease is not [sic] "not due to her job." Dr. Ballard assigned no permanent impairment rating due to a work injury. Relying upon the opinion of Dr. Ballard, the ALJ finds the plaintiff sustained a temporary injury
that "recovered" or resolved and has not borne her burden of proving that she sustained a permanent injury as a result of a July 18, 2015 work incident.
Dr. Ballard's opinion is more persuasive to the ALJ because Dr. Ballard went into detail to explain how she arrived at her conclusion as to causation. Whereas, Dr. McEldowney said Plaintiff "arrived at work on July 18, 2015 without restrictions and performing full work activities." Dr. McEldowney said, "because of work-related injuries on July 18, 2015, there has been a harmful change to the human organism of [Denise Zoeller], who despite conservative treatment, suffers neck and proximal right upper extremity pain and notable weakness in her right arm, with MRI revealing rather significant central canal narrowing at C6-7 level." Dr. McEldowney's conclusory statements as an explanation of a causative relationship are not as persuasive to the ALJ as the causation opinion of Dr. Ballard. Furthermore, Dr. Ballard included in her explanation information from treatment records and reports, some inconsistent with one another, from Plaintiff. Therefore, based on the opinion of Dr. Ballard, the ALJ finds on July 18, 2015 Plaintiff suffered a temporary injury/strain from which Plaintiff recovered.
While a number of treatment records support Dr. Ballard's opinion, the ALJ specifically points to the July 21, 2015 Hardin Memorial Hospital record noting that Plaintiff presented with right shoulder, neck pain and right arm numbness and tingling that began on July 18, 2015. This record noted that Plaintiff "denied any specific event that precipitated these particular symptoms." Plaintiff reported reaching with her arm above her shoulder to use a mouse when she began experiencing pain. The doctor's impression was right shoulder strain and right arm paresthesia. The July 24, 2015 emergency department treatment record included a diagnosis of neck pain, shoulder pain and swelling with a report from Plaintiff that onset was one week earlier with
a lifting injury at work. The diagnosis from the emergency department doctor was shoulder sprain after reviewing a three-view shoulder x-ray with impression of "normal shoulder."The ALJ relied upon Dr. Ballard's opinion regarding MMI for a temporary strain and concluded that Zoeller reached MMI on August 18, 2015. The ALJ found that Zoeller was not entitled to TTD benefits for the temporary injury because she continued working following the initial injury in a position for which she had sufficient training and experience. Finally, the ALJ concluded, based on Dr. Ballard's opinion, that Zoeller was entitled only to medical expenses already paid by Amazon for the temporary injury. The ALJ summarily denied Zoeller's subsequent petition for reconsideration, and Zoeller appealed to the Board. Zoeller argued that the ALJ's determination as to causation was not supported by substantial evidence. Zoeller also asserted that the ALJ overlooked evidence that supported her claim and erred in failing to analyze her degenerative cervical condition pursuant to Finley v. DBM Technologies, 217 S.W.3d 261, 265 (Ky. App. 2007). In its opinion affirming, the Board concluded the ALJ's determination as to work-relatedness/causation was supported by substantial evidence, which rendered Zoeller's remaining arguments moot. This petition for review followed.
. . .
As to the alleged injury of October 1, 2015, Plaintiff testified that she did not suffer an injury on October 1, 2015. Plaintiff testified that she was "just experiencing pain" on October 1, 2015. There is no medical evidence in the record sufficient to support the claim of an injury at work on October 1, 2015. Dr. Ballard opined that Plaintiff has cervical degenerative disc disease, but this "is not due to her job." Dr. McEldowney said Plaintiff had central canal narrowing but attributed it to a July 18, 2015 work injury. Therefore, relying upon the opinion of Dr. Ballard the ALJ finds that Plaintiff has not borne her burden of proving a work-related injury to her vertebrae-neck on October 1, 2015.
Zoeller raises the same arguments here as she did before the Board. She challenges the sufficiency of the evidence, and she contends that the ALJ overlooked evidence favorable to her position and failed to address the application of Finley to her degenerative cervical condition.
"It has long been the rule that the claimant bears the burden of proof and the risk of nonpersuasion before the fact-finder with regard to every element of a workers' compensation claim." Magic Coal Co. v. Fox, 19 S.W.3d 88, 96 (Ky. 2000). Where, as here, the claimant is unsuccessful before the ALJ and appeals to the Board, the question is "whether the evidence was so overwhelming, upon consideration of the entire record, as to have compelled a finding in [the claimant's] favor." Wolf Creek Collieries v. Crum, 673 S.W.2d 735, 736 (Ky. App. 1984). When this Court reviews the Board's decision, our function is to correct the Board only where we believe it "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).
KRS 342.0011(1) defines injury as "any work-related traumatic event or series of traumatic events . . . 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."
We have thoroughly reviewed the administrative record, and Zoeller's arguments simply ignore the discretion vested in the ALJ to weigh the evidence and determine witness credibility. An ALJ "has the authority to determine the quality, character and substance of the evidence[,]" Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985), and is free "to believe part of the evidence and disbelieve other parts of the evidence whether it came 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). Further, "an ALJ is vested with broad authority to decide questions involving causation." Miller v. Go Hire Employment Development, Inc., 473 S.W.3d 621, 629 (Ky. App. 2015).
We agree with the Board's well-reasoned opinion, which stated, in relevant part:
Since the rendition of Robertson v. United Parcel Service, 64 S.W.3d 284 (Ky. 2001), this Board has consistently held it is possible for an injured worker to establish a temporary injury for which temporary benefits may be paid, but fail to prove a permanent harmful change to the human organism for which permanent benefits are payable. In Robertson, the ALJ determined the claimant failed to prove more than a temporary
exacerbation and sustained no permanent disability as a result of his injury. Therefore, the ALJ found the worker was entitled to only medical expenses the employer had paid for the treatment of the temporary flare-up of symptoms. The Kentucky Supreme Court noted the ALJ concluded Robertson suffered a work-related injury, but its effect was only transient and resulted in no permanent disability or change in the claimant's pre-existing spondylolisthesis. The Court stated:
Thus, the claimant was not entitled to income benefits for permanent partial disability or entitled to future medical expenses, but he was entitled to be compensated for the medical expenses that were incurred in treating the temporary flare-up of symptoms that resulted from the incident. Id. at 286.
FEI Installation, Inc. v. Williams, 214 S.W.3d 313 (Ky. 2007), established a worker suffering an injury with no permanent impairment may nonetheless qualify for future medical benefits. However, Williams does not require an award of future medical benefits. Instead, the ALJ enjoys the discretion to determine if an award of future medical benefits is appropriate.
Here, the ALJ clearly found Zoeller "sustained a temporary injury that 'recovered' or resolved and has not borne her burden of proving that she sustained a permanent injury as a result of a July 18, 2015 work incident" based upon Dr. Ballard's opinion and portions of the treatment records. Dr. Ballard evaluated Zoeller on two occasions and reviewed all relevant treatment records. In her first report, Dr. Ballard diagnosed complaints of shoulder and neck pain, but noted the difficulty in correlating her complaints due to moving a mouse to her present symptomatology. Dr. Ballard requested a new cervical MRI. Dr. Ballard noted if Zoeller indeed has a cervical condition, it would not have
been caused by the reported mechanism of injury. She also emphasized the July 21, 2015 treatment record in which Dr. Berlin assessed shoulder pain and arm paresthesia, but documented her neck as being non-tender with range of motion or palpation. Dr. Ballard found this would not correlate with her cervical spine causing her problems.
In the April 2016 addendum, Dr. Ballard noted an April 11, 2016 cervical MRI demonstrated a broad based disc protrusion with an associated ridge of osteophytes resulting in mild spinal and intervertebral foraminal stenosis with slight effacement of the ventral aspect at C6-7. Dr. Ballard opined the MRI showed age-related changes which are unrelated to any work event. After the second examination, Dr. Ballard opined, "the patient's original injury may have been a strain. In addition, she has cervical degenerative disc disease. This is not due to her job. Her right shoulder does not show any significant abnormalities." Dr. Ballard opined the strain may have been related to the work events, but it had resolved. Dr. Ballard determined Zoeller reached MMI from her strain injury by August 18, 2015, and declined to assess an impairment rating or assign permanent restrictions. She also stated further treatment is not necessary; Zoeller is not totally or partially disabled; and she is capable of returning to her former work with Amazon.
The above opinions rendered by Dr. Ballard constitute substantial evidence supporting the ALJ's determination the July 18, 2015 work event resulted in a temporary injury which has since resolved. The ALJ additionally relied upon portions of the medical records in reaching her determination. The ALJ provided a complete explanation and analysis for her decision in finding Dr. Ballard's opinions more credible than Dr. McEldowney's in determining Zoeller sustained only a temporary injury due to the July 18, 2015 work incident. Although Zoeller is able to point to evidence contrary, a different decision is not compelled.
After careful review, we agree with the Board that Zoeller has simply not shown that there was evidence in her favor as to work-relatedness/causation that was "so overwhelming that no reasonable person would fail to be persuaded by it." Magic Coal Co., 19 S.W.3d at 96.
Finally, Zoeller opines that the ALJ erred in failing to analyze her degenerative cervical condition pursuant to Finley, contending the work incident aroused her condition into disabling reality. We disagree.
Under Finley, "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." Finley, 217 S.W.3d at 265. Here, the pre-existing condition analysis did not apply because the medical evidence supported the ALJ's finding that Zoeller sustained only a temporary strain, with no permanent harm to her degenerative cervical condition caused by the work incident. Sweeney v. King's Daughters Medical Center, 260 S.W.3d 829, 833 (Ky. 2008). Accordingly, the ALJ did not need to engage in an analysis pursuant to Finley. After careful review, we find no error in the ALJ's dismissal of Zoeller's claims.
For the reasons stated herein, the opinion of the Workers' Compensation Board is affirmed.
GOODWINE, JUDGE, CONCURS.
COMBS, JUDGE, CONCURS IN RESULT AND FILES A SEPARATE OPINION. COMBS, JUDGE, SEPARATE CONCURRING: I file a separate concurrence in this case when I would really prefer to dissent. Because the majority opinion is, no doubt, legally correct, I can merely protest the state of the law by means of the procedural vehicle of a separate concurrence.
Ample medical evidence in this record substantiates that Zoeller suffered a work-related injury, or at least an exacerbation of a pre-existing condition or of an age-related deterioration. She had to leave her job at Amazon. Yet, the current state of Workers' Compensation law gives both the ALJ and the Board virtually unbridled discretion to "pick and choose" the evidence, quite often producing the untenable (but legally correct!) result that the beneficient purpose underlying the very genesis of the legislation is wholly undermined. Finley, supra, would afford some relief to this claimant. However, the opinion of Dr. Ballard was the preeminent choice of the ALJ as to which evidence to believe. As the Board noted in its opinion affirming the ALJ, "Dr. Ballard opined the strain may have been related to the work events, but it had resolved."
Unfortunately for the claimant, it had not resolved in terms of her pain and incapacity to perform the job at Amazon. Four other examining physicians found degenerative changes in Zoeller. The most compelling diagnosis was that of Dr. Anthony McEldowney, who directly and unequivocally attributed Zoeller's pain to the work incident at issue. Yet, the ALJ summarily characterized his evaluation as "conclusory."
It is a lamentable state of affairs that needs to be revisited by General Assembly, which I hope will reinstate the very purpose and spirit underlying the enactment of Workers' Compensation legislation. It was intended to benefit both employee (by being compensated for work-related injury without resort to litigation) and employer (without having to litigate claims on a constant basis). Unfortunately, the allocation of a sometimes insurmountable burden of proof to the employee has emasculated that balanced and equitable legislative intent. Only the legislature can correct this situation and restore equilibrium to the equation. BRIEF FOR APPELLANT: James D. Howes
Louisville, Kentucky BRIEF FOR APPELLEE: Lori V. Daniel
Louisville, Kentucky