Opinion
NO. 2014-CA-001866-WC
04-29-2016
MARCIA GEMMELL APPELLANT v. WALGREENS; JEANIE OWEN MILLER, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: James D. Howes Louisville, Kentucky BRIEF FOR APPELLEE: Aziza H. Ashy Lexington, Kentucky
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. 12-WC-93882 OPINION
AFFIRMING
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BEFORE: JONES, TAYLOR AND THOMPSON, JUDGES. THOMPSON, JUDGE: Marcia Gemmell appeals the decision of the Workers' Compensation Board, affirming the Administrative Law Judge's (ALJ) award which denied her request for permanent partial disability (PPD) benefits.
Gemmell suffered two work-related injuries while employed as a head photo specialist at a Walgreens' photo lab. On December 15, 2011, while working in the photo lab she tripped over photo paper canisters and injured her back. She was treated with physical therapy, pain medication and a TENS-unit. She continued working under a "light-duty status" until her second injury.
Gemmell incurred other injuries during both work-related falls, but we do not discuss the injuries for which she did not seek PPD benefits.
On February 23, 2012, Gemmell slipped and fell in the Walgreens parking lot while walking to the store to begin her shift. She injured her right ankle. Her physician ordered her off work, treated her ankle with physical therapy and prescribed an ankle brace. Gemmell was eventually cleared to return to work but she determined she could not perform her job, never returned to work and was constructively terminated in November 2012.
The ALJ heard testimony from Gemmell, reviewed treating physician Dr. Dana Soucy's records, other medical records, the Independent Medical Evaluation (IME) of Dr. Anthony J. McEldowney, and the IME of Dr. Gregory E. Gleis.
Gemmell testified that despite various treatments, her back and ankle injuries have not resolved. Gemmell testified she continues to take pain medication, but still has back pain that radiates down her legs. Her ankle constantly swells, is painful and very weak and unsteady. She continues to wear her ankle brace every day. Every night she awakens due to pain in her back and right ankle.
On December 21, 2011, Dr. Soucy examined Gemmell and noted her report of severe back pain. He determined her lumbar spine range of motion was limited. He ordered an x-ray and an MRI of her lumbar spine.
The radiologist's MRI report stated Gemmell had a central L1-2 annular tear and superiorly extruded disc causing mild central canal stenosis, small central L5-S1 annular tear and disc protrusion without convincing root compression. Dr. Soucy diagnosed Gemmell with backache unspecified and a lumbar sprain/strain, ordered physical therapy and prescribed pain medication. In February 2012, Dr. Soucy issued work restrictions of no lifting greater than twenty-five pounds and frequent sit breaks, and prescribed a TENS-unit for her chronic back pain and radiculitis.
On February 23, 2012, after Gemmell's second fall, she was seen by Dr. Dobner who x-rayed her ankle, diagnosed an ankle sprain and ordered physical therapy. When she did not improve, on March 21, 2012, Dr. Dobner sent her for an MRI of her ankle and the radiologist's impression included bone bruising and a tear of the anterior talofibular ligament and partial tears of the calcaneofibular ligament and deltoid ligament.
Dr. Soucy agreed with those findings and ordered Gemmell to continue physical therapy. On April 28, 2012, Dr. Soucy ordered an ankle brace for her and wrote an off-work order. The off-work order was repeated on May 9, 2012, and June 19, 2012. Dr. Soucy discontinued physical therapy for both her back and her ankle as it was not helping. On July 11, 2012, Dr. Soucy permitted Gemmell to return to sedentary work with restrictions, but continued to treat her with lumbar epidural steroid injections on July 25, 2012, and August 22, 2012. On September 4, 2012, Dr. Soucy noted Gemmell still had occasional radiating pain down her legs, but did not recommend surgical intervention. He restricted her activities as follows: "[Gemmell] should avoid lifting over 10 pounds. No bending or twisting. She may stand or walk up to 15 minutes at a time; no more than an hour in a day. This work status is permanent." Dr. Soucy referred Gemmell for a functional capacity examination (FCE), by Rick Pounds.
Pounds opined in his October 1, 2012 report that Gemmell self-limited herself on static strength tasks but gave consistent and reliable effort with dynamic strength tasks and "met and/or exceeded the physical demands of the essential functions for work as a Photographic Finisher." Pounds recommended she consider returning to work unless there was a clinical contraindication by Dr. Soucy and expected Gemmell to successfully return to work.
On October 8, 2012, Dr. Soucy noted Gemmell's FCE suggested she would be able to perform the duties of her usual job. He opined Gemmell had reached maximum medical improvement (MMI).
On November 21, 2012, Dr. Soucy reexamined Gemmell. As to her ankle, he noted three of her ankle ligaments were tender to palpitation but she had normal range of motion and strength. As to her back, he noted her lower lumbosacral spine was tender to palpitation but her lumbar spine flexion was grossly normal for her age. His diagnosis was of radiculitis, backache unspecified, lumbar sprain/strain and sprains and strains of ankle and foot. He determined Gemmell could return to full duty employment, had no impairment and no permanent work restrictions. Dr. Soucy did not indicate his finding of no impairment was based on the American Medical Association's Guides to the Evaluation of Permanent Impairment, 5th Edition (AMA Guides).
In December 2012, Gemmell saw podiatrist Dr. Michael C. Allen for follow-up care for her ankle injury. Dr. Allen sent her for another MRI. The radiologist determined she had mild achilles tendinosis, paratenonitis, retrocalcaneal bursitis without macrotear or myotendinous injury, mild early central cord plantar fasciitis and soft tissue swelling. In January 2013, Dr. Allen diagnosed an ankle sprain and ligament injury and ordered her to continue to wear an Unnaboot. In April 2013, Dr. Allen prescribed an ankle brace.
In his report, Dr. McEldowney opined Gemmell had reached MMI to her spine, had a permanent 5% impairment of the whole person resulting from this injury pursuant to the AMA Guides based upon her having a DRE lumbar category II impairment. He opined Gemmell did not retain the physical capacity to return to her prior work and would place restrictions on her work activities including no prolonged standing or walking, and lifting limited to twenty pounds non-repetitive and not frequent. He opined she had not reached MMI for her right ankle and should be evaluated for surgery to reconstruct torn ankle ligaments.
Dr. Gleis opined in his report that Gemmell had low back pain with no subjective reporting of radicular symptoms or objective findings of permanent injury and had a right ankle sprain which was not a permanent injury resulting in an impairment rating. He opined she had reached MMI for her spine on June 8, 2012, and for her right ankle on July 11, 2012. Based on Dr. Gleis's objective physical exam, he opined Gemmell did not require any permanent work restrictions and had a 0% whole body impairment rating per the AMA Guides.
In Dr. McEldowney's rebuttal report, made after he reviewed Gemmell's deposition and Dr. Gleis's IME report, he added an impairment rating for Gemmell's ankle because it did not appear that any further treatment would be performed. He opined Gemmell had a 3% whole person impairment for her ankle injury because she had mild to moderate instability caused by a tear of her anterior talofibular ligament and a partial tear of her calcaneofibular ligament, causing ligamentous instability of the right ankle in the lateral aspect. The two injuries resulted in an 8% whole person impairment pursuant to the AMA Guides.
The ALJ found the opinion of treating physician, Dr. Soucy, and the medical history of Gemmell to be more persuasive than that of the IME physicians. She noted, "[s]ignificant to this fact finder was the opinion from Dr. Soucy, a treating orthopedic surgeon, that [Gemmell] could return to work, she had no impairment, no permanent work restrictions and that she did not need to make a future appointment." The ALJ stated Gemmell's medical history included an unusual history of falls and she was seen multiple times for her right foot and back prior to her work injuries.
The ALJ found Gemmell suffered work-related injuries that resulted in no permanent impairment per the AMA Guides by relying on the opinions of Dr. Soucy and Dr. Gleis. The ALJ found Gemmell was temporarily totally disabled from February 23, 2012, through October 8, 2012, based on Dr. Soucy's opinion on when she had reached MMI and could return to work. The ALJ also found that Gemmell may be able to demonstrate the need for medical treatment in the future for her lumbar spine and right ankle injury if she demonstrates disability, despite the finding that the injury warranted no permanent impairment rating.
Gemmell filed a petition for reconsideration, requesting an acknowledgment that Dr. Soucy's impairment rating was not based on the AMA Guides and requesting further findings of fact regarding the ALJ's opinion that she suffered no permanent impairment as a result of her ankle injury. The ALJ denied the petition.
Gemmell appealed to the Workers' Compensation Board arguing she was entitled to PPD benefits and the ALJ erred by: (1) considering her medical history when whether she had a pre-existing and active impairment was not listed as a contested issue at the benefit review conference and such history only served to create prejudice against her; (2) relying on Dr. Soucy's medical opinion which was not based upon the AMA Guides when he had the same diagnosis as Dr. McEldowney, who rated Gemmell as having an AMA Guides DRE Lumbar Category II impairment, necessitating an impairment rating; and (3) blindly accepting Dr. Gleis's opinion when it contradicts the medical findings of Dr. Soucy, ignores that other physicians found evidence of subjective radiculopathy, and ignores the torn ligaments in her ankle and continuing need to wear an ankle brace for stability.
The Board affirmed the ALJ. It determined Gemmell's medical history was relevant to causation and as to whether her ongoing complaints of pain were related to her pre-existing conditions rather than to her workplace injuries.
The Board determined Dr. Soucy could opine Gemmell had no impairment without referring to the AMA Guides. It noted Dr. Gleis used the Guides; therefore, his opinion was sufficient to support the ALJ's ultimate decision.
The Board determined Dr. Gleis's and Dr. McEldowney's findings differed and each applied different DRE Categories to what they did find. Dr. Gleis used DRE Lumbar Category I based on his clinical findings of no lumbar muscle guarding, muscle spasm or dysmetria, while Dr. McEldowney used DRE Lumbar Category II and found evidence of radiculopathy. Similarly, Dr. Gleis did not find any instability in Gemmell's right ankle based on his clinic exam which revealed no range of motion or strength deficit, while Dr. McEldowney had different findings. The Board declined to reweigh the conflicting evidence in Gemmell's favor. Gemmell appealed.
"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). The claimant must prove each element through substantial evidence, which is "defined as some evidence of substance and relevant consequence, having the fitness to induce conviction in the minds of reasonable men." Whittaker v. Rowland, 998 S.W.2d 479, 481-82 (Ky. 1999).
The ALJ is the exclusive finder of fact pursuant to KRS 342.285(1). The ALJ "has the sole discretion to determine the quality, character, weight, credibility, and substance of the evidence, and to draw reasonable inferences from the evidence." Bowerman v. Black Equip. Co., 297 S.W.3d 858, 866 (Ky.App. 2009). "[A]n ALJ 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." FEI Installation, Inc. v. Williams, 214 S.W.3d 313, 316 (Ky. 2007). See e.g. Copar, Inc. v. Rogers, 127 S.W.3d 554, 561 (Ky. 2003).
"[W]here the party with the burden of proof is not successful before the ALJ, the issue on appeal is whether the decision was unreasonable." FEI Installation, Inc., 214 S.W.3d at 316. See Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986). The Board or the appellate courts can correct an error in the ALJ's decision if the decision was erroneous as a matter of law. James T. English Trucking v. Beeler, 375 S.W.3d 67, 70 (Ky. 2012).
Our standard of review of a decision of the Board "is limited to determining whether the decision was erroneous as a matter of law." Ira A. Watson Dept. Store v. Hamilton, 34 S.W.3d 48, 52 (Ky. 2000). We will only correct the Board 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." Pike County Bd. of Educ. v. Mills, 260 S.W.3d 366, 368 (Ky.App. 2008) (quoting Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992)).
Gemmell argues the Board erred in affirming the ALJ's denial of PPD benefits because it misinterpreted the effect of the ALJ's reliance on her previous medical history regarding prior back and foot problems and idiopathic falls, which was the basis of its determination that she did not have a PPD. While the ALJ did set out Gemmell's previous medical history in great detail, we agree with the Board that this evidence was properly considered as being relevant to whether Gemmell established causation. See e.g. Cepero v. Fabricated Metals Corp., 132 S.W.3d 839 (Ky. 2004). There is no evidence that admitting these records prejudiced Gemmell because, despite her consideration of them, the ALJ still determined Gemmell suffered two work-related injuries.
Gemmell speculates that because the ALJ discusses her prior medical history at length this must have impacted the ALJ's decision not to award her PPD benefits. However, there is absolutely no indication the ALJ's recitation of Gemmell's prior medical history had any impact on her ultimate decision to award only TTD benefits. Instead, the ALJ fully supports her decision based upon the medical evidence provided regarding the two work injuries. We will not infer otherwise.
Gemmell argues the Board misconstrued KRS 342.730(1)(b) by determining it only applies to an award of PPD benefits rather than to a denial of PPD benefits, thus it erred by determining the ALJ could properly rely on Dr. Soucy's opinion that Gemmell had 0% impairment when there was no evidence Dr. Soucy made such a finding in reliance on the AMA Guides. KRS 342.730(1)(b) provides that permanent partial disability benefits are calculated by multiplying a percentage of the employee's average weekly wage "by the permanent impairment rating caused by the injury or occupational disease as determined by the 'Guides to the Evaluation of Permanent Impairment,' times the factor set forth in the table[.]" The first portion of the table provides the factor by which a 0-5% impairment should be multiplied. Id. KRS 342.0011(35) defines "[p]ermanent impairment rating" as meaning the "percentage of whole body impairment caused by the injury or occupational disease as determined by the 'Guides to the Evaluation of Permanent Impairment'[.]"
In Jones v. Brasch-Barry General Contractors, 189 S.W.3d 149, 153-54 (Ky.App. 2006), the Court explained that when a physician's findings assigning an impairment rating are not in accordance with the AMA Guides, they cannot constitute competent, substantial evidence. "So to be useful for the fact-finder, a physician's opinion must be grounded in the AMA Guides." Id. at 154 (italics added).
While the Board has interpreted Jones as only requiring opinions of impairment to be made in reliance on the Guides, carving out an exception if the opinion is of 0% impairment, such an exception is not supported by either the workers' compensation statutes or case law. In Products Unlimited, Inc. v. Canales, No. 2003-CA-002135-WC, 2004 WL 362367, 1-2 (Ky.App. 2004) (unpublished), the Court determined that a physician's assessment of a 0% permanent impairment rating had to be based on the AMA Guides in order to constitute substantial evidence which could be relied upon by the ALJ in denying PPD benefits. It explained that "without such a reference the ALJ has no basis for finding that the assessment comports with KRS 342.0011(35)[.]" Products Unlimited, Inc., 2004 WL 362367 at 2. Similarly, in Napier v. Middlesboro Appalachian Reg'l Hosp., No. 2003-SC-0204-WC, 2004 WL 538123, 1 (Ky. 2004) (unpublished), the Court determined the ALJ could rely on the opinion of a physician who assigned a 0% permanent impairment rating using the Guides but could not rely on an opinion of a physician who assigned a 10% impairment rating without referencing the Guides. Additionally, it appears to be standard practice for physicians who find 0% permanent impairment to do so in reliance on the Guides. See e.g. Kroger v. Ligon, 338 S.W.3d 269, 271 (Ky. 2011); George Humfleet Mobile Homes v. Christman, 125 S.W.3d 288, 291 (Ky. 2004).
We may rely on unpublished decisions pursuant to Kentucky Rules of Civil Procedure (CR) 76.28(4)(c). --------
Therefore, we agree with Gemmell that the portion of Dr. Soucy's opinion determining Gemmell had 0% permanent impairment without reference to the AMA Guides could not be relied upon by the ALJ. However, excluding this evidence does not change the ultimate outcome in this matter because the ALJ also relied upon Dr. Gleis's opinion that Gemmell had 0% permanent impairment and that opinion was grounded in the AMA Guides. This is enough to sustain the ALJ's finding of 0% permanent impairment.
Gemmell next argues the Board erred in affirming the ALJ's denial of PPD benefits because the ALJ should have assigned impairment ratings based upon Dr. McEldowney's percentage of impairment which properly relied on the AMA Guides. Gemmell argues the ALJ relied upon Dr. Soucy's opinion as to diagnostic findings and Dr. McEldowney had the same findings. Therefore, since the ALJ could not rely on Dr. Soucy's opinion of 0% impairment reached by not applying the AMA Guides, she should have assigned impairment ratings based upon Dr. McEldowney's percentage of impairment which properly relied on the AMA Guides to interpret the percent of PPD. She argues the ALJ erred in relying upon Dr. Gleis's opinion on impairment when his opinion was based upon findings that were in conflict with Dr. Soucy's findings.
We disagree. While Dr. Soucy's initial and ongoing diagnoses appear to be similar to Dr. McEldowney's findings, they are actually distinct when their ultimate impressions are compared. While Dr. Soucy continued to make diagnoses which could have substantiated a finding of impairment, his ultimate diagnostic impression was that Gemmell could return to full-duty employment and had no impairment, which closely matched Dr. Gleis's impressions from which his opinion of 0% permanent impairment is derived. Additionally, as the fact-finder the ALJ may pick and choose which portions of medical testimony to believe. FEI Installation, Inc., 214 S.W.3d at 316; Copar, Inc., 127 S.W.3d at 561. Therefore, the ALJ could properly rely on Dr. Gleis's opinion in determining 0% PPD in combination with portions of Dr. Soucy's opinion. We clarify that a finding of 0% permanent impairment does not mean that Gemmell has not suffered an impairment. Instead, it means Gemmell's impairment did not rise to a level to warrant a permanent impairment rating and permanent income benefits. FEI Installation, Inc., 214 S.W.3d at 318-19. This distinction explains why Gemmell may be entitled to future medical benefits for her injuries.
Accordingly, we affirm the Board's opinion affirming the ALJ's opinion and award which denied Gemmell's request for PPD benefits.
ALL CONCUR. BRIEF FOR APPELLANT: James D. Howes
Louisville, Kentucky BRIEF FOR APPELLEE: Aziza H. Ashy
Lexington, Kentucky