JONATHAN WOOSLEY v. KROGER DISTRIBUTION; HON. JAMES L. KERR, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED: July 8, 2005; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-000651-WC
JONATHAN WOOSLEY
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-03-73554
KROGER DISTRIBUTION;
HON. JAMES L. KERR,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS' COMPENSATION
BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI AND TAYLOR, JUDGES; HUDDLESTON, SENIOR JUDGE.1
GUIDUGLI, JUDGE: Jonathan Woosley has petitioned this Court for
review of an order of the Workers’ Compensation Board (the
Board) which affirmed the order of the Administrative Law Judge
(ALJ) that concluded Woosley did not sustain an injury as
defined in KRS 342.0011(1) and dismissed his claim.
1
We affirm.
Senior Judge Joseph R. Huddleston sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
Woosley alleged that he injured his wrist on July 4,
2003, while working at the Kroger Distribution Center (Kroger).
He claimed that he was filling grocery orders when he lifted a
five pound box and his left hand and left wrist gave way.
Woosley developed swelling and pain in the wrist and hand and
was treated in the emergency room.
He received temporary total
disability benefits from September 5, 2003, through November 13,
2003.
Woosley then returned to work and worked until January
2004, when he took medical leave due to his problems.
He
continued on medical leave until May 28, 2004, when he was
terminated for not reporting to work.
At the hearing before the
ALJ, Woosley stated that he continues to have pain and swelling
in the outer side of his left wrist and he loses feeling in his
small and ring fingers.
His fingers also become cold.
He
stated that he can no longer play the guitar, play basketball or
work on an old truck he has.
The medical records of Doctors S. Pearson Auerbach, B.
Thomas Harter, and Thomas M. Gabriel were introduced into
evidence.
Dr. Auerbach had performed an independent medical
evaluation on March 30, 2004.
Dr. Auerbach diagnosed Woosley
with a left wrist injury with a loss of grip strength.
assessed a 12% impairment pursuant to the AMA guides.
He
He placed
numerous restrictions on Woosley and indicated that Woosley
would be unable to perform his prior work activities.
-2-
The
doctor also stated that Woosley had reached maximum medical
improvement.
The medical records of Dr. Harter indicated that he
first saw Woosley on August 8, 2003, and at that time diagnosed
Woosley with possible synovitis tendonitis of the extensor carpi
ulnaris of the left wrist.
Dr. Harter later ordered two MRIs
and nerve conduction studies which resulted in normal findings.
In a letter dated May 7, 2004, Dr. Harter stated that he was
unable to make a specific medical diagnosis due to a lack of
objective medical findings.
Dr. Gabriel performed an independent medical
evaluation of Woosley at the request of Kroger.
Following the
evaluation of November 18, 2003, Dr. Gabriel diagnosed Woosley
with chronic left wrist pain.
He found Woosley to be at maximum
medical improvement and found no notable impairment due to any
known anatomic pathology.
Based upon the above medical records, the ALJ
determined that Woosley had failed to meet his burden of proof
that he had incurred an injury as defined by KRS 342.0011 as
there was “no credible evidence of objective medical findings to
support [Woosley’s] claim of an injury.”
The ALJ found that the
MRIs and the nerve conductive studies reveal no pathology to
explain Woosley’s subjective claims of wrist pain.
Relying
primarily on the two hand surgeons, Drs. Harter and Gabriel, the
-3-
ALJ determined that Woosley had not sustained his burden of
proof in establishing that he incurred an injury as defined by
KRS 342.0011(1) and dismissed the claim.
On appeal to the Board, Woosley argued that the ALJ
committed reversible error by misinterpreting the medical
evidence and by trying to equate “objective medical findings” to
be the two MRI studies and/or the nerve conduction studies.
Board, finding no error, affirmed.
The
The Board reviewed the
medical records and made the following findings in affirming the
order of the ALJ:
We begin by noting Woosley is mistaken
when he states that the term “objective
medical findings” is not defined within the
statute. That term is defined by KRS
342.0011(33) as “information gained through
direct observation and testing of the
patient applying objective or standardized
methods.” We are instructed in Gibbs v.
Premier Scale Corp., 50 S.W.3d 754 (Ky.
2001), that a claimant must demonstrate by
way of objective medical findings the
occurrence of a change in the human organism
caused by a work injury. KRS 342.0011(1).
However, subsequent opinions from our
supreme court lend further guidance. While
it is the burden of the claimant to prove by
objective medical findings that the workrelated incident produced a harmful change,
it is unnecessary for the claimant to
establish either causation or a permanent
impairment rating by way of “objective
medical findings.” Staples, Inc. v.
Konvelski, 56 S.W.3d 412 (Ky. 2001); Ryan’s
Family Steak House v. Thomasso, 82 S.W.3d
889 (Ky. 2002).
-4-
Here, the ALJ was faced with three
medical opinions. Both Dr. Gabriel and Dr.
Harter were in agreement that sophisticated
diagnostic testing, as well as their
findings on physical examination, did not
yield information necessary to render any
diagnosis or assess an impairment rating.
Dr. Harter went so far as to comment that
Woosley’s persistent pain symptoms could not
be explained on the basis of any known
anatomic pathology. On the other hand, Dr.
Auerbach’s physical examination did yield
evidence of objective medical findings
including loss of grip strength, signs of
puffiness, and diminished sensation to
pinprick. However, even those findings did
not provide Dr. Auerbach a basis for a
diagnosis any more specific than “left wrist
injury and loss of grip strength.” This is
apparent in view of his comments: “I think
there is something going on, I just do not
know exactly what.”
When the medical testimony is
divergent, it is the responsible (sic) of
the ALJ to weigh the probative value of the
evidence and determine which is more
credible. The ALJ was more persuaded by
Dr. Harter and Dr. Gabriel. Those opinions
established that no diagnosis could be made
based on Woosley’s complaints of persistent
pain.
Since Gibbs, supra, it is the law that
a diagnosis must be supported by objective
medical findings in order to establish the
presence of a compensable injury. This is
true even in instances that exclude what
appears to be a worthy claim. Since the
evidence lacked objective medical findings
to support a diagnosis of a harmful change
in the human organism, Woosley’s complaints
are rendered non-compensable, both as to
income benefits and future medical benefits.
This is especially true of Woosley’s request
for additional TTD and medical benefits.
-5-
Woosley, in his petition for
reconsideration and his brief before this
Board, has pointed to absolutely no evidence
that would support an award of additional
TTD benefits. The ALJ awarded TTD that was
voluntarily paid by Kroger from the time
Woosley took medical leave until a week
after Dr. Harter’s November 6, 2003 office
note wherein he stated Woosley was at
maximum medical improvement. Dr. Harter
further noted he did not think there was
anything he could do for Woosley medically.
Dr. Gabriel, in his report, agreed with Dr.
Harter’s opinion. Woosley has failed to
point to any evidence of record that would
support, much less compel, a finding that he
reached maximum medical improvement later
than November 16, 2003. The same is true
with respect to the issue of medical
expenses. There is no indication from any
of the physicians that Woosley needs
additional medical treatment. In fact, Dr.
Harter specifically opined that no more
diagnostic testing or treatment was
indicated.
On petition for review to this Court, Woosley makes
the same arguments that he made before the Board.
We have
thoroughly reviewed the record and the medical records before
the ALJ and believe Gibbs, supra, is controlling in this case.
As noted in Gibbs, 50 S.W.2d at 761-62:
KRS 342.0011(33) limits “objective
medical findings” to information gained by
direct observation and testing applying
objective or standardized methods. Thus,
the plain language of KRS 342.0011(33)
supports the view that a diagnosis is not an
objective medical finding but rather that a
diagnosis must be supported by objective
medical findings in order to establish the
presence of a compensable injury. The fact
that a particular diagnosis is made in the
-6-
standard manner will not render it an
“objective medical finding.” We recognize
that a diagnosis of a harmful change which
is based solely on complaints of symptoms
may constitute a valid diagnosis for the
purposes of medical treatment and that
symptoms which are reported by a patient may
be viewed by the medical profession as
evidence of a harmful change. However, KRS
342.0011(1) and (33) clearly require more,
and the courts are bound by those
requirements even in instances where they
exclude what might seem to some to be a
class of worthy claims. A patient’s
complaints of symptoms clearly are not
objective medical findings as the term is
defined by KRS 342.0011(33). Therefore, we
must conclude that a diagnosis based upon a
worker’s complaints of symptoms but not
supported by objective medical findings is
insufficient to prove an “injury” for the
purposes of Chapter 342.
In that the Board did not overlook or misconstrue controlling
statutes or precedent, or commit an error in assessing the
evidence as to cause gross injustice, we find no error.
Western
Baptist Hospital v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).
For the foregoing reason, the opinion of the Board
entered February 25, 2005, is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Ched Jennings
Louisville, KY
Brian Gannon
Louisville, KY
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