Bluegrass Oakwood, Inc. v. Robin Stubbs ( 2020 )


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  •                RENDERED: NOVEMBER 13, 2020; 10:00 A.M.
    NOT TO BE PUBLISHED
    Commonwealth of Kentucky
    Court of Appeals
    NO. 2019-CA-0699-WC
    BLUEGRASS OAKWOOD, INC.                                         APPELLANT
    PETITION FOR REVIEW OF A DECISION
    v.           OF THE WORKERS’ COMPENSATION BOARD
    CLAIM NOS. WC-16-78248, WC-17-64748, WC-18-00506,
    WC-18-00510, AND WC-18-00511
    ROBIN STUBBS; HONORABLE
    GRANT ROARK, ADMINISTRATIVE
    LAW JUDGE; AND WORKERS’
    COMPENSATION BOARD                                               APPELLEES
    OPINION
    AFFIRMING
    ** ** ** ** **
    BEFORE: CLAYTON, CHIEF JUDGE; JONES AND LAMBERT, JUDGES.
    JONES, JUDGE: Bluegrass Oakwood, Inc., has petitioned this Court for review of
    the decision of the Workers’ Compensation Board (the Board), which affirmed in
    part and remanded the decision of the Administrative Law Judge (ALJ) awarding
    benefits to Robin Stubbs. At issue is whether Stubbs had any pre-existing active
    impairment. Having reviewed the record in conjunction with all applicable legal
    authority, we affirm.
    I. BACKGROUND
    Stubbs was born in 1960. She began working as a rehabilitation
    counselor for Bluegrass Oakwood in 2006. Bluegrass Oakwood serves
    intellectually and developmentally challenged individuals. During the course of
    her employment, Stubbs sustained several injuries for which she filed workers’
    compensation claims. She alleged an injury on June 16, 2016, to her neck, left
    arm, left shoulder, and back during a physical altercation with a patient. (Claim
    No. 2016-78248). Her second injury date was May 2, 2017, when she was struck
    on the left shoulder and left arm while she and other staff members were changing
    a patient (Claim No. 2017-64748). Stubbs’s third injury date was July 11, 2017,
    when a patient she was transporting fell off a sidewalk and pulled her off with her,
    causing Stubbs to injure her left shoulder, arm, and elbow (Claim No. 2018-
    00506). Her fourth injury date was September 18, 2017, when she injured her left
    shoulder and back when lifting a client onto a bicycle (Claim No. 2018-00510).
    Her fifth injury date was October 13, 2016, when she was struck in the face by a
    resident (Claim No. 2018-00511). The five claims were all filed in March 2018
    and were later consolidated for all purposes. Bluegrass Oakwood denied her
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    claims for various reasons, including the amount of compensation she was owed,
    how the injury arose, and notice. Stubbs last worked for Bluegrass Oakwood in
    September 2017.
    Medical proof was filed, and the ALJ held a Benefit Review
    Conference (BRC) in August 2018. At that time, contested issues included
    whether Stubbs had any pre-existing disability or impairment, as well as causation.
    A final hearing was held in September 2018, after which the parties filed briefs
    supporting their respective positions.
    The ALJ entered an opinion, order, and award on November 16, 2018.
    The ALJ summarized the evidence from (1) Stubbs’s deposition; (2) the medical
    reports/records of her treating physician Dr. Jeffrey Golden; (3) Dr. John
    Vaughan’s independent medical examination (IME) report; (4) Dr. Michael Best’s
    IME report; (5) Dr. Ellen Ballard’s IME report; (6) Dr. Stephen Autry’s IME
    report; (7) records from Dr. Travis Hunt and Dr. Wallace Huff, who saw Stubbs in
    2017 for evaluation of her cervical spine complaints; (8) records from Dr. Ronald
    Dubin, who treated Stubbs following a motor vehicle accident in January 2012;
    and (9) records from Dr. Magdy El-Kalliny, who treated Stubbs for cervical spine
    complaints in 2012. The ALJ did not summarize or mention records from Dr.
    Bryan Nelson, a chiropractor who treated Stubbs from 2001 through 2015 for neck
    pain, thoracic spine/left shoulder pain, and low-back pain following a motor
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    vehicle accident in August 2001 and a second motor vehicle accident in January
    2012.
    The ALJ first analyzed the issue of causation, concluding that
    Stubbs’s cervical and shoulder injuries were work-related and compensable (but
    that she failed to establish that she had suffered a permanent lumbar injury):
    As threshold issues, [Bluegrass Oakwood] maintains that,
    despite [Stubbs’s] multiple alleged dates of injury,
    [Stubbs has not suffered] any new, permanent injuries to
    her neck, back or left shoulder beyond those problems
    which were pre-existing and active prior to any of the
    injuries alleged herein. It therefore argues [Stubbs] has
    no compensable permanent injuries and is not entitled to
    permanent income benefits or payment of medical
    expenses. In support of this position, [Bluegrass
    Oakwood] relies on opinions from its experts, Dr.
    Ballard, Dr. Vaughan, and Dr. Best, each of them
    concluded [Stubbs’s] cervical problems were pre-existing
    prior to her alleged work injuries and that none of the
    work incidents caused any structural change. They also
    concluded [Stubbs] suffered no lumbar injury. For her
    part, [Stubbs] relies on her expert, Dr. Autry, who
    acknowledged [Stubbs’s] prior cervical treatment from a
    2012 motor vehicle accident, but concluded she had
    neck, back, and left shoulder injuries due to the work
    injuries she described.
    Having reviewed the evidence of record, the
    Administrative Law Judge is plainly aware of the fact
    that [Stubbs] had prior cervical and lumbar complaints,
    and even some left shoulder complaints, prior to any of
    the work injuries alleged herein. But the question is
    whether any portion of her current cervical, left shoulder,
    or lumbar issues are new and caused by any of the work
    injuries alleged. Ultimately, the ALJ is persuaded
    [Stubbs] has suffered some new cervical and left
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    shoulder injuries as a result of the June 15, 2016 work
    injury. Despite prior treatment and even a 2012 motor
    vehicle accident, [Stubbs] was always able to return to
    work and perform the full duties associated with her
    position. After June 15, 2016, her neck and left
    arm/shoulder conditions never significantly abated. All
    physicians agree [Stubbs] has significant cervical
    degenerative disc disease but the ALJ is persuaded by Dr.
    Autry’s opinion that [Stubbs’s] work injury caused a
    permanent aggravation of her cervical spondylosis and
    accompanying radiculopathy. His opinion is simply
    found more persuasive and more in keeping with
    [Stubbs’s] ability to continue working and performing the
    full range of her duties before she was struck by a
    resident at work on June 15, 2016. It is therefore
    determined [Stubbs’s] cervical condition is work-related
    and compensable.
    Similarly, the ALJ is persuaded by Dr. Autry’s opinion
    that [Stubbs] has rotator cuff tendinosis and impingement
    as a result of her work injury. In reaching this
    conclusion, it is noted that Dr. Huff, to whom [Stubbs]
    was referred by the insurance carrier, indicated
    [Stubbs’s] diagnostic testing and examination indicated
    cervical impingement after her work injury with
    persistent weakness in the left upper extremity
    hyperreflexia. His findings seem to support Dr. Autry.
    Conversely, the defendant’s experts offer contradictory
    conclusions which undermine their collective credibility.
    For example, Dr. Vaughan indicated [that while Stubbs]
    had genuine pain into her left upper extremity, he
    believed it was referred pain from her cervical condition
    and not due to any shoulder injury. However, Dr. Best
    indicated [Stubbs’s] shoulder complaints were due to a
    left rotator cuff tear diagnosed in 2012 after [a] motor
    vehicle accident and that [Stubbs] suffered only shoulder
    and neck contusions in the work incidents, which
    resolved without any permanency. In addition, Dr.
    Ballard’s initial report indicates she never even examined
    [Stubbs’s] neck, yet she still concluded in a subsequent
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    report, after reviewing additional records, that [Stubbs]
    only had pre-existing cervical and bilateral shoulder
    problems. Based on Dr. Autry’s more persuasive opinion
    in this instance, it is determined [Stubbs] also suffered a
    compensable shoulder injury.
    The ALJ went on to decide that Stubbs had sustained a permanent,
    partial disability and relied on Dr. Autry’s impairment ratings to conclude that she
    had a 12% whole person impairment (an 8% cervical impairment and a 4% left
    shoulder impairment). As to whether Stubbs had any active impairment, the ALJ
    concluded:
    [Bluegrass Oakwood] maintains at least 5% of [Stubbs’s]
    cervical impairment rating should be carved out [as] pre-
    existing and active based on the opinions of its experts
    and [Stubbs’s] treatment records. However, although
    [Stubbs] previously receive[d] significant treatment for
    cervical complaints, the ALJ is not persuaded her
    condition was significantly symptomatic and disabling
    immediately prior to June, 2016. The fact that she was
    able to perform the full range of duties of her job
    supports this conclusion. As such, the ALJ is persuaded
    by Dr. Autry’s opinion that no portion of [Stubbs’s]
    cervical impairment rating was pre-existing and active.
    Both parties petitioned the ALJ for reconsideration on matters
    unrelated to this appeal, which the ALJ granted and corrected. Bluegrass
    Oakwood appealed the ALJ’s decision to the Board.
    In an opinion rendered April 5, 2019, the Board affirmed the ALJ’s
    opinion in part. The Board set out Bluegrass Oakwood’s arguments related to the
    ALJ’s interpretation of Finley v. DBM Technologies, 
    217 S.W.3d 261
    (Ky. App.
    -6-
    2007), related to proof for a pre-existing condition; whether it is a question for
    medical experts to decide whether a condition is symptomatic; whether the IME
    report Stubbs submitted constituted substantial evidence; and whether the ALJ’s
    finding regarding Stubbs’s condition being asymptomatic was arbitrary and
    capricious. The Board rejected Bluegrass Oakwood’s arguments, noting that the
    ALJ, as the fact-finder, had the discretion to determine that Dr. Autry’s opinions
    were credible and to rely upon those opinions. However, the Board determined
    that the ALJ only addressed the June 15, 2016, injury, not the four later injury
    claims. Therefore, it remanded the matter for the ALJ to decide those claims. This
    petition for review now follows.
    Our review in this matter is premised on the Supreme Court of
    Kentucky’s statement describing this Court’s role in reviewing workers’
    compensation actions. In Western Baptist Hospital v. Kelly, 
    827 S.W.2d 685
    (Ky.
    1992), the Supreme Court directed that this Court’s function is to correct a decision
    of the Board only where we perceive that “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.”
    Id. at 687-88.
    The Supreme Court later addressed this standard in McNutt
    Construction/First General Services v. Scott, 
    40 S.W.3d 854
    , 860 (Ky. 2001),
    explaining:
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    KRS[1] 342.285(2) provides that when reviewing the
    decision of an ALJ, the Board shall not reweigh the
    evidence and substitute its judgment for that of the ALJ
    with regard to a question of fact. The standard of review
    with regard to a judicial appeal of an administrative
    decision is limited to determining whether the decision
    was erroneous as a matter of law. See American Beauty
    Homes v. Louisville & Jefferson County Planning &
    Zoning Commission, Ky., 
    379 S.W.2d 450
    , 457 (1964).
    Where the ALJ determines that a worker has satisfied his
    burden of proof with regard to a question of fact, the
    issue on appeal is whether substantial evidence supported
    the determination. Special Fund v. Francis, Ky., 
    708 S.W.2d 641
    , 643 (1986). Substantial evidence has been
    defined as some evidence of substance and relevant
    consequence, having the fitness to induce conviction in
    the minds of reasonable people. Smyzer v. B.F. Goodrich
    Chemical Co., Ky., 
    474 S.W.2d 367
    (1971). Although a
    party may note evidence which would have supported a
    different conclusion than that which the ALJ reached,
    such evidence is not an adequate basis for reversal on
    appeal. McCloud v. Beth-Elkhorn Corp., Ky., 
    514 S.W.2d 46
    (1974). The crux of the inquiry on appeal is
    whether the finding which was made is so unreasonable
    under the evidence that it must be viewed as erroneous as
    a matter of law. Special Fund v. 
    Francis, supra, at 643
    .
    In addition, the ALJ has the authority to decide the assessment of the
    credibility of witnesses and the persuasive weight of the evidence. KRS 342.285.
    The ALJ, not the Board, is empowered “to determine the quality, character and
    substance of evidence.” American Greetings Corp. v. Bunch, 
    331 S.W.3d 600
    , 602
    (Ky. 2010) (footnote omitted). The ALJ is also free to reject testimony
    , id., and 1 Kentucky
    Revised Statutes.
    -8-
    “to believe part of the evidence and disbelieve other parts of the evidence[.]”
    Caudill v. Maloney’s Discount Stores, 
    560 S.W.2d 15
    , 16 (Ky. 1977). For these
    reasons, the Board “shall not substitute its judgment for that of the administrative
    law judge as to the weight of evidence on questions of fact.” KRS 342.285(2); see
    also FEI Installation, Inc. v. Williams, 
    214 S.W.3d 313
    , 316 (Ky. 2007). And “if
    the physicians in a case genuinely express medically sound, but differing, opinions
    as to the severity of a claimant’s injury, the ALJ has the discretion to choose which
    physician’s opinion to believe.” Jones v. Brasch-Barry General Contractors, 
    189 S.W.3d 149
    , 153 (Ky. App. 2006).
    Bluegrass Oakwood urges us to examine Finley in light of the facts of
    this case. It further asserts that the ALJ’s criteria in finding that Stubbs’s condition
    was asymptomatic—namely the mere fact that she was still working—is arbitrary
    and capricious. Finally, Bluegrass Oakwood argues that it submitted no fewer than
    244 pages of treatment notes from Stubbs’s chiropractor chronicling treatment to
    Stubbs’s cervical spine as early as October 2001 and as recently as December 11,
    2015, a mere twenty-seven weeks prior to the first date of injury.
    In Finley, we held that “a pre-existing condition that is both
    asymptomatic and produces no impairment prior to the work-related injury
    constitutes a pre-existing dormant condition.” 
    Finley, 217 S.W.3d at 265
    . “[T]he
    burden of proving the existence of a pre-existing condition falls upon the
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    employer.” Comair, Inc. v. Helton, 
    270 S.W.3d 909
    , 914 (Ky. App. 2008)
    (quoting 
    Finley, 217 S.W.3d at 265
    ). Bluegrass Oakwood argues that the IME
    reports it submitted in combination with Stubbs’s chiropractic records conclusively
    establish that she suffered from a pre-existing, active, and impairment-ratable
    condition. The ALJ disagreed. In so doing, the ALJ relied on Dr. Autry’s opinion
    that no portion of Stubbs’s cervical impairment rating was pre-existing and active.
    The ALJ noted that he found Dr. Autry’s opinion on this issue more persuasive
    because it was consistent with the fact that Stubbs was able to perform the full
    range of duties prior to June 2016. Despite Bluegrass Oakwood’s arguments to the
    contrary, the ALJ’s reliance on Stubbs’s ability to continue working without
    restrictions was an appropriate consideration in assessing the persuasiveness of the
    differing medical opinions presented to him. See Holcim v. Swinford, 
    581 S.W.3d 37
    , 41 (Ky. 2019) (applying Finley and affirming that condition was not
    preexisting where ALJ “considered the fact that [the claimant] had been working
    full time without any restriction as a heavy equipment operator for more than two
    decades after his cervical fusion surgery”).
    Additionally, we cannot agree with Bluegrass Oakwood that the ALJ
    should have outright rejected Dr. Autry’s report as unreliable. In Cepero v.
    Fabricated Metals Corp., 
    132 S.W.3d 839
    (Ky. 2004), an ALJ awarded a claimant
    benefits for an alleged work-related knee injury based upon evidence from two
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    doctors who indicated that his knee condition was related to a work injury.
    However, neither doctor had been informed that Cepero had suffered a severe knee
    injury several years prior.
    Id. at 842.
    The Board reversed the ALJ’s finding that
    the doctors’ opinions were based upon substantial evidence and therefore sufficient
    to support findings of causation. The Supreme Court of Kentucky affirmed,
    quoting the Board’s holding:
    [I]n cases such as this, 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. Medical opinion predicated upon such
    erroneous or deficient information that is completely
    unsupported by any other credible evidence can never, in
    our view, be reasonably probable.
    Id. (emphasis added). In
    Eddie’s Service Center v. Thomas, 
    503 S.W.3d 881
    (Ky. 2016), the
    Supreme Court of Kentucky applied Cepero to hold that an ALJ has the discretion
    to reject a medical report based on a substantially inaccurate understanding of the
    facts and medical history.
    Id. at 887-89.
    Our Supreme Court held that because of
    a number of internal inconsistencies within the report, along with the doctor’s
    inaccurate understanding of the facts, the report could not constitute substantial
    evidence.
    Id. at 889.
    “Evidence is substantial if it is of ‘relevant consequence
    having the fitness to induce conviction in the minds of reasonable men.’”
    Id. at -11- 887
    (quoting Smyzer v. B.F. Goodrich Chemical Co., 
    474 S.W.2d 367
    , 369 (Ky.
    1971)).
    Finally, this Court held in GSI Commerce v. Thompson, 
    409 S.W.3d 361
    (Ky. App. 2012), that an ALJ was not required to disregard a medical report
    that was “not ‘unsupported by other credible evidence.’”
    Id. at 365.
    In that case,
    an employer contended that a physician’s report could not be considered because it
    did not mention a prior relevant injury; however, the doctor explained during
    deposition that he was aware of the claimant’s past injury.
    Id. We differentiated between
    GSI Commerce and Cepero, stating “[i]n Cepero, there was a complete
    omission of a significant and clearly relevant past injury [and] the medical opinion
    described in Cepero was completely unsupported by any other credible evidence.”
    Id. at 364
    (emphasis in original). Conversely, in GSI Commerce, the physician
    making the report was aware of the prior injury and there was other evidence
    before the court corroborating the physician’s opinion.
    Id. at 365.
    We cannot agree with Bluegrass Oakwood that the ALJ’s reliance on
    Dr. Autry’s opinion was improper in this circumstance. Dr. Autry was aware of
    Stubbs’s prior injuries and had the opportunity to examine Stubbs as well as review
    prior records. We cannot conclude that Dr. Autry’s IME was so corrupt as to make
    it incapable of being substantial evidence.
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    Finally, Bluegrass Oakwood points out that the ALJ paid little
    attention to the many chiropractic records it submitted. It is undisputed that Stubbs
    received this treatment. The ALJ acknowledged in his opinion that Stubbs had
    prior injuries and received treatment for those injuries. Moreover, the ALJ
    summarized the medical opinions/reports the parties submitted in this case. Those
    opinions considered Stubbs’s prior complaints and treatment making it
    unnecessary for the ALJ to separately summarize the chiropractic treatment
    records.
    Moreover, the chiropractic records would only substantiate what the
    ALJ had clearly accepted—Stubbs had prior injuries that caused her pain and she
    received treatment for those injuries in the years leading up to the work injury at
    issue. The determinative question is whether Stubbs was suffering from a
    pre-existing, active, impairment-ratable condition at the time of her work injury.
    
    Finley, 217 S.W.3d at 265
    (“To be characterized as active, an underlying
    pre-existing condition must be symptomatic and impairment ratable pursuant to the
    AMA Guidelines immediately prior to the occurrence of the work-related injury.”).
    The chiropractic records would not fully answer that question because a
    chiropractor lacks the expertise to assign an impairment rating. See AMA Guides
    5th ed., Sec. 2.2. (“Impairment evaluations are performed by a licensed physician.
    The physician may use information from other sources . . . [h]owever, the
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    physician is responsible for performing a medical evaluation that addresses
    medical impairment in the body or organ system and related systems.”).
    In this circumstance, evaluating the credibility and proper weight of
    Dr. Autry’s report fell on the ALJ. The ALJ may determine whom and what to
    believe when there is conflicting evidence. Pruitt v. Bugg Brothers, 
    547 S.W.2d 123
    , 124 (Ky. 1977). The Board is charged with making sure the ALJ’s opinion is
    based on an accurate understanding of the facts and evidence and a proper
    application of the law. It did not err in this instance in affirming the ALJ’s
    decision with respect to the June 15, 2016, injury. Moreover, we agree with the
    Board’s decision to remand for consideration of the other injury claims Stubbs
    alleged, which were omitted from the ALJ’s opinion.
    For the foregoing reasons, the opinion of the Workers’ Compensation
    Board is affirmed.
    CLAYTON, CHIEF JUDGE, CONCURS.
    LAMBERT, JUDGE, DISSENTS AND DOES NOT FILE
    SEPARATE OPINION.
    BRIEF FOR APPELLANT:                      BRIEF FOR APPELLEE ROBIN
    STUBBS:
    Robert F. Ferreri
    Lexington, Kentucky                       McKinnley Morgan
    London, Kentucky
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