GLORIA D. SEBREE v. INTERNATIONAL PAPER; HON. GRANT S. ROARK, ADMINISTRATIVE LAW JUDGE; and WORKERS' COMPENSATION BOARD
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RENDERED:
DECEMBER 29, 2005; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-000885-WC
GLORIA D. SEBREE
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-03-01941
INTERNATIONAL PAPER;
HON. GRANT S. ROARK,
ADMINISTRATIVE LAW JUDGE; and
WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
HENRY AND VANMETER, JUDGES; MILLER, SENIOR JUDGE. 1
VANMETER, JUDGE:
Gloria D. Sebree filed this petition for
review from an opinion of the Workers’ Compensation Board
(Board) which affirmed a decision of an administrative law judge
(ALJ) denying Sebree’s claim for income benefits pertaining to a
work-related cervical injury.
We affirm.
Our review of the record shows that the relevant facts
were accurately summarized by the Board as follows:
1
Senior Judge John D. Miller sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
Kentucky Revised Statutes 21.580.
Sebree, born October 10, 1958, has a
tenth grade education. Her work history
consists of employment in food preparation
and with International at its Hopkinsville,
Kentucky plant. Sebree worked for
International from February 1983 until April
2003.
At the time of her injury on June 26,
2002, Sebree was a tow motor operator. She
testified the job required a substantial
amount of sitting, bending, and twisting and
the ability to lift thirty pounds. Sebree
stated she sustained a work injury when she
ran over a pot hole, which jolted her
causing injury to her neck, back, and
shoulders. She also complained of numbness
in her left arm with tingling in the two
middle fingers of her left hand. On the day
of the injury, Sebree completed her shift
and continued to perform her normal duties.
Sebree continued her regular duties for
one week following her injury. She was then
examined by Dr. Roderic McGregor who
recommended light duty work. Sebree
continued to perform light duty work until
November 2002, when she came under the care
of Dr. John Ebert. According to Sebree, her
pain had gotten worse and Dr. Ebert took her
off work.
When International closed its
Hopkinsville plant in April 2003, Sebree was
on leave. She received unemployment
benefits from April 2003 until September
2003. She was unemployed until June 2004,
when she obtained employment working in the
kitchen at Fort Campbell Army Base.
At her hearing, Sebree testified her
current work involved peeling potatoes and
cleaning the kitchen for KCA, the government
contractor at Fort Campbell. She explained
that physically the work was very painful,
resulting in pain in the neck, shoulders and
left arm. She testified she had received no
TTD benefits due to her work injury with
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International. Sebree stated she currently
takes Valium and Lortab prescribed by Dr.
Ebert. She also testified she wanted to
undergo the surgery recommended by Dr.
Ebert.
Sebree introduced the Form 107 of Dr.
David DeRigis, who she saw nine times
between July and October 2002. Dr. DeRigis
diagnosed cervical disc bulge at C6-7 with
neck and left arm pain. An MRI study
revealed a minimal disc bulge at C6-7, but
was otherwise negative. Dr. DeRigis
indicated Sebree’s injury was work-related.
He did not assign an impairment rating. Dr.
DeRigis placed a temporary restriction of no
lifting or carrying over twenty-five pounds.
He did believe, however, Sebree retained the
physical capacity to return to the type of
work performed at the time of injury.
International introduced the medical
report of Dr. Richard Berkman, a
neurosurgeon in Nashville, Tennessee. He
examined Sebree at the request of her
original treating physician, Dr. McGregor,
after Dr. Ebert suggested surgery. In a
report dated October 1, 2002, Dr. Berkman
indicated he reviewed an MRI Scan of
Sebree’s neck, which revealed a small disc
bulge at C6-7 to the right and some disc
bulging at C4-5 and C5-6 centrally, but very
mild. There did not appear to be any nerve
root compression and nothing on the left
side that would match Sebree’s complaints.
On physical examination, Sebree had good
strength in her deltoid[,] biceps, triceps,
and grip. Dr. Berkman summarized that he
did not have an explanation, based on the
imaging studies, for Sebree’s current pain
complaints. He thought it was possible one
of the small disc bulges could have worsened
or could have occurred as a result of the
work injury, but he felt they were not large
enough to warrant surgery. Dr. Berkman saw
Sebree again on February 18, 2003. She had
undergone a follow-up MRI Scan which
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revealed a small disc bulge or spur at C6-7,
asymmetric to the right side. Again, Dr.
Berkman found it hard to explain the left C7
radicular arm pain. He recommended a
myelogram and again felt Sebree was not a
surgical candidate.
Medical reports from Dr. John Ebert
were introduced into the record by Sebree.
Dr. Ebert first saw Sebree on November 8,
2002. He received a history of the workrelated injury and noted Dr. McGregor’s
plain x-rays and MRIs showed a “bulging
disc.” Dr. Ebert’s impression was chronic
cervical strain with left radicular
symptoms, chronic low back strain with left
lower extremity symptoms. He prescribed
Lortab and Valium and took Sebree off work
for three weeks because she needed
diagnostic testing for neck and back pain.
He did not assess any restriction. Dr.
Ebert continued to issue off work slips for
Sebree while she underwent diagnostic
testing and was scheduled to see a
neurosurgeon. The last slip was dated March
11, 2003 and was in effect until Sebree had
an appointment with a neurosurgeon that was
not yet scheduled. Dr. Ebert concluded
Sebree had a significant posterior
protrusion at C6-7 with disc bulge at C5-6.
He referred Sebree to Dr. John Chung at the
Vanderbilt University Clinic. In a report
dated March 15, 2004, Dr. Ebert indicated
Sebree was not at maximum medical
improvement, and therefore the assessment of
an impairment rating was “monumentally
inappropriate.” He believed Sebree had
never been properly treated for her neck and
left upper extremity and he had repeatedly
recommended that her protruded disc at C6-7
needed surgical resection. He felt an
impairment rating should be deferred until
such time as Sebree recovered from the
necessary surgery. On July 9, 2004, Dr.
Ebert completed an additional medical report
concluding Sebree had radiographic markedly
significant posterior protrusion at C5-6
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compressing the spinal cord. He stated the
absolute minimum surgical intervention
needed by Sebree was a resection of the
posterior protruded disc at C5-6 and a
foraminotomy on the left.
When seen at the Vanderbilt University
Clinic, Sebree was evaluated by Jack G.
Garrett, a nurse practitioner. By avowal,
Sebree introduced the report of Nurse
Garrett which contained an impairment rating
of 5% for the cervical spine. The ALJ
denied a request to submit Nurse Garrett’s
report into the record.
On the issue of medical expenses, the
ALJ determined that only medical treatment
for Sebree’s C6-7 neck problem was
compensable. The ALJ relied on the evidence
of Dr. Berkman to conclude the surgery
recommended by Dr. Ebert was not
compensable.
Thereafter, Sebree filed a petition for
reconsideration, arguing nurse practitioner
Garrett’s evidence was admissible. She
further contended her cervical condition at
C4-5, C5-6 and C6-7 all occurred due to the
incident at International. The ALJ
summarily denied the petition for
reconsideration and Sebree’s appeal before
this Board ensued.
The Board affirmed on appeal.
This petition for review
followed.
First, Sebree contends that the Board erred by
affirming the ALJ’s exclusion from evidence of the report of a
nurse practitioner.
We disagree.
KRS 342.033 addresses the limitations on the
introduction of medical evidence as follows:
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In a claim for benefits, no party may
introduce direct testimony from more than
two (2) physicians without prior consent
from the administrative law judge. The
motion requesting additional testimony shall
clearly demonstrate the need for such
additional testimony. A party may introduce
direct testimony from a physician through a
written medical report. The report shall
become a part of the evidentiary record,
subject to the right of an adverse party to
object to the admissibility of the report
and to cross-examine the reporting
physician. The executive director shall
promulgate administrative regulations
prescribing the format and content of
written medical reports.
The statute’s limitation on medical evidence is further
clarified by KRS 342.011(32), which defines “physician” as
including only “physicians and surgeons, psychologists,
optometrists, dentists, podiatrists, and osteopathic and
chiropractic practitioners acting within the scope of their
license issued by the Commonwealth.”
Although the Kentucky
Supreme Court recognized a limited exception for an audiologist
in Bright v. American Greetings Corporation 2 , that exception was
based on the fact that the audiologist was a designated
university evaluator whose testimony was admissible pursuant to
the university medical school evaluation provisions of KRS
342.315(2).
Clearly, a nurse practitioner does not fall within
this definition of persons who may provide medical evidence on
2
62 S.W.3d 381 (Ky. 2001).
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behalf of a party, and the Board did not err by affirming the
ALJ’s refusal to admit the practitioner’s report.
Next, Sebree contends that the evidence compelled a
finding that she was removed from work due to work-related
injuries at the C5-6 and C6-7 levels of her neck.
We disagree.
As the finder of fact, the ALJ possesses the sole
authority to determine the “quality, character and substance” of
evidence, 3 and to determine what if any inferences shall be drawn
from the evidence.
The ALJ may choose not only which expert to
believe, but also what parts of the evidence or witness’s
testimony to believe or disbelieve. 4
Moreover, KRS 342.285(2)
specifically provides that the Board
shall not substitute its judgment for that
of the administrative law judge as to the
weight of evidence on questions of fact, its
review being limited to determining whether
or not:
(a)
(b)
(c)
(d)
(e)
The administrative law judge acted
without or in excess of his powers;
The order, decision, or award was
procured by fraud;
The order, decision, or award is not in
conformity to the provisions of this
chapter;
The order, decision, or award is
clearly erroneous on the basis of the
reliable, probative, and material
evidence contained in the whole record;
or
The order, decision, or award is
arbitrary or capricious or
3
See Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985).
4
Caudill v. Maloney’s Discount Stores, 560 S.W.2d 15 (Ky. 1977).
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characterized by abuse of discretion or
clearly unwarranted exercise of
discretion.
If a claimant appeals an adverse decision by an ALJ, the
question on appeal is “whether the evidence was so overwhelming,
upon consideration of the entire record, as to have compelled a
finding in his favor.” 5
Here, the evidence supported the ALJ’s findings that
MRI studies conducted in August 2002 and January 2003 showed
minimal bulging at Sebree’s C6-7 disc, with little or no bulging
in her other discs at that time.
More specifically, Dr. DeRigis
read Sebree’s August 2002 MRI and diagnosed a “very” minimal
cervical disc bulge only at C6-7, while Dr. Berkman diagnosed a
small disc bulge at C6-7 and very mild bulging at C4-5 and C5-6.
Dr. Ebert diagnosed a significant protrusion at C6-7 and a bulge
at C5-6.
Two years after the June 2002 injury, Dr. Ebert
concluded that the C5-6 protrusion was markedly significant.
The ALJ determined that there was no persuasive
evidence that Sebree suffered a work-related injury other than
to her C6-7 disc.
That analysis of the conflicting evidence
fell well within the ALJ’s discretion.
Further, the evidence
supports the ALJ’s finding that Sebree failed to meet her burden
of providing medical evidence, instead of mere assertions, that
she was removed from work due to the work-related injury rather
5
Wolf Creek Collieries v. Crum, 673 S.W.2d 735, 736 (Ky.App. 1984).
Paramount, 695 S.W.2d at 419.
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See
than a nonwork-related condition.
As the evidence was not so
overwhelming as to compel a finding in Sebree’s favor, 6 the Board
did not err by affirming the ALJ’s dismissal of Sebree’s claim.
Next, Sebree contends that the Board erred by
affirming the ALJ’s finding that she is not entitled to
temporary total disability (TTD) benefits.
We disagree.
KRS 342.0011(11)(a) defines “temporary total
disability” as “the condition of an employee who has not reached
maximum medical improvement from an injury and has not reached a
level of improvement that would permit a return to
employment[.]”
(Emphasis added.)
As the term “injury” is
limited by KRS 342.0011(1) to a “work-related” event, it follows
that an employee is entitled to TTD benefits only if the
employee can demonstrate both that he or she suffered a workrelated injury, and that both prongs of the definition were
satisfied because of that injury.
First addressing the second prong of the definition,
we note that the record shows that Sebree continued her regular
work duties for one week after the June 2002 injury.
On Dr.
McGregor’s recommendation, she then switched to light duty work.
Although Sebree asserts that Dr. Ebert took her off work
entirely in November 2002, she failed to produce any medical
evidence to meet her burden of showing that Dr. Ebert’s action
6
Id. at 736.
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was prompted by her work-related injury rather than by a
nonwork-related condition.
More specifically, although in
November 2002 Dr. Ebert began issuing a series of documents
excusing Sebree from work pending diagnostic testing, there is
nothing in the record to show that the excuses were prompted by
the June 2002 injury rather than by Sebree’s preexisting
condition.
Indeed, it appears that the June 2002 injury was not
mentioned in Dr. Ebert’s reports until January 30, 2003, when he
commented in a neurologic evaluation:
I have already seen the patient for her neck
and upper extremity symptoms, but she also
after the June 26, 2002 on-the-job injury at
International Paper, developed low back pain
which was significantly less than her
cervical pain and which she didn’t direct
much attention to it until a couple of weeks
after the accident. . . . It has not been
evaluated at all up until the present due to
the fact that she had other neurologic
symptoms that took precedence.
As this evidence did not compel a finding that Sebree was
removed from work due to the June 2002 work-related injury, the
ALJ did not err by failing to find that Sebree could not return
to work as a result of the injury. 7
Moreover, as the failure to
satisfy the second prong of the definition necessarily
eliminated Sebree from consideration for TTD benefits, we need
not consider Sebree’s contention that the evidence compelled a
7
See KRS 342.0011(11)(a).
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finding that she had not reached maximum medical improvement
under the first prong of the definition.
Finally, Sebree contends that the Board erred by
affirming the ALJ’s finding that she was not entitled to receive
additional medical benefits relating to the June 2002 injury.
We disagree.
KRS 342.020(1) provides in pertinent part that
[i]n addition to all other compensation
provided in this chapter, the employer shall
pay for the cure and relief from the effects
of an injury . . . the medical, surgical,
and hospital treatment, including nursing,
medical, and surgical supplies and
appliances, as may reasonably be required at
the time of the injury and thereafter during
disability . . . . The employer’s
obligation to pay the benefits specified in
this section shall continue for so long as
the employee is disabled regardless of the
duration of the employee’s income benefits.
Since the evidence supports the ALJ’s finding that Sebree’s
work-related injury was limited to the C6-7 level, Sebree is not
entitled to medical benefits pertaining to injuries to any other
part of her body.
Thus, Dr. Ebert’s assertion that Sebree needs
surgical treatment of a disc bulge at C5-6 is simply irrelevant.
Moreover, although Sebree asserts that Dr. Ebert found that she
needs surgical treatment of a protruded disc at the C6-7 level,
Dr. Ebert in fact stated in a note dated January 7, 2003, that
“[i]t will be between [Sebree] and her neurosurgeon on whether
they proceed with surgical intervention” as to the C6-7 disc.
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Since Sebree’s neurosurgeon, Dr. Berkman, recommended against
such surgical intervention, we are not persuaded that the
evidence compelled a finding in Sebree’s favor.
Hence, the
Board did not err by affirming the ALJ’s denial of additional
medical benefits.
The Board’s order is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE
INTERNATIONAL PAPER:
W. Douglas Myers
J. Michael Hearon
Hopkinsville, Kentucky
D. Gaines Penn
Bowling Green, Kentucky
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