ERNA CUMMINS V. PACIFIC MUTUAL LIFE INSURANCE; SPECIAL FUND; THOMAS A. NANNEY, Administrative Law Judge, and WORKERS' COMPENSATION BOARD
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RENDERED: April 3, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
NO. 97-CA-000687-WC
ERNA CUMMINS
APPELLANT
PETITION FOR REVIEW OF A DECISION OF
THE WORKERS' COMPENSATION BOARD
NO. WC-94-026563
V.
PACIFIC MUTUAL LIFE INSURANCE;
SPECIAL FUND; THOMAS A. NANNEY,
Administrative Law Judge, and
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** ** ** **
BEFORE:
DYCHE, HUDDLESTON and KNOPF, Judges.
HUDDLESTON,
JUDGE.
Erna
Cummins
seeks
review
of
a
Workers'
Compensation Board opinion affirming an Administrative Law Judge's
decision to deny her benefits, dismiss her claim against Pacific
Mutual Life Insurance, and refer her case to the fraud unit of the
office of the Attorney General for prosecution.
We affirm and
adopt the majority opinion of the Workers' Compensation Board.
ABELL, CHAIRMAN.
Petitioner, Erna Cummins ("Cummins"),
appeals from an opinion and order rendered by the Hon.
Thomas A. Nanney, Administrative Law Judge ("ALJ"), on
September 23, 1996 and from an order overruling her
petition for reconsideration entered October 21, 1996.
The ALJ dismissed Cummins' claim for disability benefits
attributable to carpal tunnel syndrome ("CTS"), reflex
sympathetic dystrophy ("RSD"), and associated depression
after determining that she had filed and maintained a
fraudulent claim.
unit
in
the
He referred her claim to the fraud
Department
of
Workers
Claims
for
investigation and possible prosecution by the Office of
the Attorney General.
Cummins was born in 1938 in Germany.
Prior to
coming to the United States, she had worked 12 years as
a secretary at a bank.
She initially came to the United
States in 1968, but shortly thereafter, she and her
husband were sent back to Germany, he being a United
States serviceman. While there, she did secretarial work
in the fashion industry for approximately two years.
Then, after moving back to the United States, she raised
a daughter for about nine years before going back to work
in 1979 in the Cincinnati area.
years,
she
did
various
jobs
Over the next several
with
various
insurance
companies, dealing mainly as a claims examiner handling
health
insurance
claims.
She
began
working
for
respondent, Pacific Mutual Life Insurance ("Pacific") in
May of 1993.
She testified that the following January,
she began experience symptoms in her hands and wrists and
2
sought medical attention in March of 1994. She was taken
off work at the end of May 1994 and has not returned to
work in any capacity since that time.
Temporary total
disability benefits in the amount of $20,690 have been
paid together with $14,421.80 in medicals.
She has
treated with several physicians, receiving treatment for
bilateral CTS and has had one bilateral carpal tunnel
release.
At
She has also been treated for RSD.
her
deposition
she
described
her
current
activities as consisting of taking walks, if she is not
too depressed; doing some household chores with her left
hand; and fixing a sandwich with her left hand, saying
she did not cook anything.
She testified that her
daughter did most of the cleaning in the house and the
laundry.
She indicated she could not straighten out the
fingers in her right hand and that most of her symptoms
are in her right arm and hand, with the cold weather
making the symptoms much worse.
At the administrative hearing, after a videotape
done by a private investigator for Pacific's workers'
compensation
carrier
was
shown
depicting
Cummins'
activities on January 30, 1996 being performed without
difficulty, she testified that she felt pretty good on
that day because she had aqua-therapy about four weeks
previously and that her hands were doing better because
she was taking medication.
3
The videotape captures Cummins performing a number
of activities on the day in question, using her right
hand at all times in a completely normal fashion, using
her keys to lock and unlock doors, and opening the trunk
of her car with the strength only of her right hand and
right arm.
The video reveals her lifting groceries from
a cart and lifting several sacks of laundry using her
right hand with no evidence of pain or any difficulty.
Although she was wearing a heavy coat, leaving one with
an impression that the day in question was cold, she did
not wear gloves.
The ALJ indicated that her activities
on that date totally and completely contradicted her
testimony as to her capabilities.
The medical testimony in this claim consists of
reports from Drs. John Kelly, O. M. Patrick, and John
Larkin and depositions from Drs. Kelly, Patrick, Donal
Cullen, and Morton Kasdam.
Drs. Kelly and Cullen were
Cummins' treating physicians for her CTS and RSD.
Dr. Kelly testified that he first examined Cummins
on July 19, 1995 upon referral from Dr. Larkin and saw
her
again
on
November
9,
1995,
shortly
before
the
videotape at issue, and again on February 20, 1996,
shortly after the videotape.
He testified that over the
time he treated her, her condition remained about the
same with some slight variation.
There were times when
she was a little better and times when she was a little
4
worse.
He confirmed that for the most part when he saw
her, she was holding her right hand in a guarded position
close to her body and unable to use it and that her
fingers were tight and unable to hold things in her hand.
After having been shown the January 30, 1996 videotape,
he confirmed that the way the videotape depicted Cummins
was inconsistent with the way she presented herself in
his office and that she appeared to be in remarkably
better
condition
in
the
videotape
than
she
did
on
examination. He testified that Cummins never reported to
him that anything had offered her dramatic improvement
other than some intervention by a pain psychologist which
had helped her depression. He confirmed that in February
he had assessed her as being approximately 90 percent
disabled, indicating that he believed that she had fully
disabled her right arm.
He testified that the aqua-
therapy treatment she received would not have helped her
condition on a sustained basis and would have given her
relief only while she was actually in the water.
He
testified that his diagnosis of her condition was based
upon
objective
physical
findings
plus
her
physical
description of her pain and that without that pain, he
would not have diagnosed RSD.
Dr. Cullen, a specialist in plastic or hand surgery,
began treating Cummins in May 1994 for symptoms of CTS,
treating
her
conservatively
5
initially
and
later
performing a carpal tunnel release.
After her surgery,
her condition began to deteriorate to the extent that
after two months, he referred her to a pain clinic.
She
had indicated to him that she had lost motion in her
right hand and that her fingers were stiff and would not
move.
In December, she complained of cold intolerance
and a total inability to use her right arm.
After
viewing
still
the
videotape
and
being
asked
if
he
believed she had RSD, he responded that he had very
definite doubts and that the things he saw her doing with
her hand on the videotape were inconsistent with the
complaints she presented to him. He later testified that
there was no question that Cummins did have CTS in both
the right and left wrists.
When asked if the diagnosis
of CTS was based on subjective complaints together with
an EMG, he responded in the affirmative.
Dr. Patrick examined Cummins on March 27, 1996 at
the
request
of
the
Special
examination,
he
assessed
an
Fund,
and
impairment
after
rating
that
of
approximately 100 percent to the right upper extremity,
translating into 54 percent to the body as a whole.
also
opined
that
she
had
an
impairment attributable to CTS.
additional
2
He
percent
During the examination,
Cummins presented herself with the third, fourth, and
fifth fingers of her right hand partially flexed and in
a fixed position as if making a partial fist. When asked,
6
if after viewing the videotape, his opinions expressed in
his report changed as to Cummins' condition, he responded
that it had, stating:
I mean, because what I saw on the tape was a
totally different picture of what I saw when I
examined Ms. Cummins.
her hand.
I mean, Ms. Cummins guarded
She held her hand, her arm flexed at
ninety (90) degrees, and held it up against her
body.
not
She held the fingers in flexion and could
move
them,
as
if
it
were
an,
an
actual
contracture.
He noted that on the videotape she had free use of that
hand and, in fact, was dominantly right handed, using the
right hand more than anything.
As to any change in the
impairment rating he assessed, he stated:
The only, only assumption I could possibly
make, or that anybody else could make, would be
that instead of having a fifty-four (54) percent
impairment,
she
would
have
a
zero
(0)
percent
impairment.
Dr. Larkin evaluated Cummins at the request of
Pacific's insurance carrier and arrived at an impairment
rating of 5 percent to the body as a whole.
No testimony
was taken from Dr. Larkin concerning the videotape.
7
The ALJ noted that Cummins had presented herself at
the administrative hearing as begin totally disabled
without any use of her dominant right arm and indicating
she was in severe pain and suffering from depression. He
also indicated he had observed the videotape and heard
Cummins' explanation as to her condition on that date.
After summarizing what the videotape depicted, the ALJ
noted that office notes from Cummins' treating physician
did not indicate aqua-therapy presented any relief and
that in subsequent visits to physicians Cummins never
mentioned a period of significant relief.
In fact, she
stated that her condition continued to deteriorate.
He
then concluded, in that her activities depicted on the
videotape
were
so
totally
inconsistent
with
her
appearance at the hearing and the appearance she gave to
her
physicians,
she
had
presentation of her claim.
not
been
honest
in
the
He concluded by stating:
Although I'm not saying that the plaintiff did
not develop a mild carpal tunnel syndrome in the
upper extremity, I find that this is completely
overshadowed
by
the
plaintiff's
attempt
to
exaggerate her claim and to seek further workers'
compensation benefits over and above that to which
she might be entitled through false allegations.
Plaintiff
having
filed
8
and
maintained
what
I
consider to be fraudulent claim, her claim shall be
dismissed in its totality.
The ALJ then ordered her claim dismissed and referred to
the fraud unit for possible prosecution.
On appeal, Cummins contends the ALJ's finding of
fraud without showing that each of the elements of fraud
had been proven by clear and convincing evidence was
arbitrary and capricious, referring us to Divita v.
Hopple Plastics, Ky.App., 858 S.W.2d 214 (1993), and
Larson's, Workers' Compensation, Section 47.53.
Cummins
contends that a finding of fraud requires a finding of a
knowing misrepresentation of a material fact and reliance
upon
that
misrepresentation
representative.
by
the
employer
or
its
She contends there was no evidence
produced that she made a false representation of the
material fact of her injury, noting that the ALJ himself
acknowledged that she did develop a mild CTS. She refers
to uncontroverted medical evidence that, in fact, she had
developed bilateral CTS and that failure to follow such
uncontroverted testimony is reversible error, referring
to Collins v. Castleton Farms, Inc., Ky.App., 560 S.W.2d
830 (1977).
In Divita, supra, the Court of Appeals adopted a
rule
set
forth
in
Larson's
that
relates
to
misrepresentation made in an employment application.
That is not the issue presented in this claim.
9
The
result of the Court's holding in Divita supra, is that
notwithstanding the fact he had sustained an otherwise
compensable injury, he could not recover in that the
employer relied upon false representations made by the
claimant when it first hired him, and there was a causal
connection between that false representation and the
claimant's subsequent injury.
In this claim, the ALJ's findings relating to fraud
go to the weight and credibility of the testimony to be
afforded Cummins both in her appearance before the ALJ
and in her statements to her physicians. The ALJ has the
sole
responsibility
credibility
of
the
to
determine
evidence.
the
Caudill
weight
v.
Maloney's
Discount Stores, Ky., 560 S.W.2d 15 (1977).
viewing
the
videotape,
the
ALJ
concluded
and
After
that
the
symptoms with which Cummins presented herself, both to
him
and
to
the
physicians
who
testified,
lacked
credibility. Having made that determination, the ALJ was
under no obligation to follow uncontroverted medical
testimony, assuming the medical testimony in this claim
was uncontroverted.
Medical evidence based upon a false
history is not afforded any special preferential weight
and may be rejected as unreliable.
Osborne v. Pepsi-
Cola, Ky., 816 S.W.2d 643 (1991). Furthermore, all three
physicians who viewed the tape acknowledged that their
opinions as to the severity of Cummins' condition were
10
altered by the activities they viewed her performing on
that tape.
The ALJ has the right to reject or accept any
testimony and to believe or disbelieve various parts of
the evidence, including evidence from the same witness.
Codell Constr. Co. v. Dixon, Ky., 478 S.W.2d 703 (1972).
The impairment ratings and opinions as to the severity of
Cummins' condition having been called into question by
the videotape, the ALJ was within his prerogative in
rejecting the medical evidence as to the severity of
Cummins' condition.
Cummins also contends that the total dismissal of
her claim on the basis of the finding of fraud was in
error,
contending
that
the
penalties
for
fraud
are
specifically set forth in KRS 342.990(8)(b) and (d) and
that neither of those statutes imposes as a penalty the
dismissal
of
an
otherwise
compensable
claim.
She
contends the ALJ did not find she had no injury, merely
that she had exaggerated her claim to seek benefits over
and above that to which she might be entitled.
contends
percentage
that
of
if
she
exaggerated
permanent
her
impairment
Cummins
claim,
should
the
still
legitimately be taken into account.
Cummins had the burden of proving the extent of her
occupational disability.
Jude v. Cubbage, [Ky.] 251
S.W.2d 584 (1952), and Snawder v. Stice, Ky.App., 576
S.W.2d 276 (1979).
Since she had the burden of proof on
11
that
issue,
the
question
on
appeal
is
whether
the
evidence was so overwhelming as to compel a finding in
her favor.
Paramount Foods, Inc. v. Burkhardt, Ky., 695
S.W.2d 418 (1985).
Compelling evidence is evidence so
persuasive that it is clearly unreasonable for the ALJ
not to be convinced by it.
Hudson v. Owens, Ky., 439
S.W.2d 565 (1969), and REO Mechanical v. Barnes, Ky.App.,
691
S.W.2d
224
(1985).
The
three
physicians
who
testified as to the degree of Cummins' occupational
disability all acknowledged that their opinions as to
that degree would be significantly reduced based upon the
level of activity she exhibited on the videotape.
They
provided no further testimony as to what, after viewing
the tape, their opinions were as Cummins' impairment
based upon the activities in which she engaged while on
tape. The burden was on Cummins to introduce evidence of
substance
as
disability.
subsequently
to
the
Other
degree
than
impeached
and
the
of
her
opinions
even
occupational
that
withdrawn
by
were
the
testifying physicians, Cummins has introduced no evidence
as to the degree of her occupational disability.
Accordingly, the decision of the ALJ is hereby
AFFIRMED and this appeal DISMISSED.
Further review of a Workers' Compensation Board opinion
in the Court of Appeals is guided by the standard set forth in
12
Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685 (1992),
where the Supreme Court pointed out that the function of this Court
is to "correct the Board only 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."
Id. at 687.
Since the Board correctly
assessed the evidence in this case and appropriately applied
controlling
statutory
and
decisional
authority,
there
is
no
occasion to disturb its decision. Accordingly, the Board's opinion
is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE
PACIFIC MUTUAL LIFE INSURANCE:
Robert C. Patton
Newport, Kentucky
William P. Swain
Douglas A. U'Sellis
BOEHL STOPHER & GRAVES
Louisville, Kentucky
BRIEF FOR APPELLEE
SPECIAL FUND:
David W. Barr
Louisville, Kentucky
13
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