DIANA BOWEN v. HEALTH MANAGEMENT ASSOCIATES; HON. GRANT S. ROARK, ADMINISTRATIVE LAW JUDGE; AND KENTUCKY WORKERS' COMPENSATION BOARD
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RENDERED: AUGUST 17, 2007; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-000407-WC
DIANA BOWEN
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-03-94984
HEALTH MANAGEMENT ASSOCIATES;
HON. GRANT S. ROARK, ADMINISTRATIVE
LAW JUDGE; AND KENTUCKY
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
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BEFORE: ABRAMSON AND DIXON, JUDGES; ROSENBLUM,1 SENIOR JUDGE.
ABRAMSON, JUDGE: Diana Bowen petitions for review of a January 19, 2007 Order
of the Workers’ Compensation Board affirming the denial of Bowen’s claim for
permanent disability benefits. Bowen, who is a Licensed Practical Nurse, claims that
during the course of her employment for Health Management Associates (HMA) she
suffered two back injuries which have rendered her totally disabled. The Administrative
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Senior Judge Paul W. Rosenblum sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
Law Judge (ALJ) found, however, that the first injury was not work-related and that the
second was temporary only, not permanent. Nor did either injury, the ALJ further found,
cause a permanent psychological impairment. Bowen challenges all of these findings,
but, because we agree with HMA that Bowen’s contrary proof did not compel findings in
her favor, we affirm.
Bowen alleges that she suffered the first injury on May 1, 2002. At that
time she was thirty-six years old and had been working as an LPN for seven or eight
years, all but the first at the Paul B. Hall Medical Center in Paintsville, Kentucky. Bowen
claims that she was lifting a patient when she experienced a severe pain in her lower
back. She immediately reported her distress to her supervisor and sought treatment in the
hospital’s emergency room. She was treated with an anti-inflammatory, which enabled
her to finish her shift, but the pain remained serious. She promptly consulted her family
physician, and the MRI he ordered revealed a ruptured disk in the lumbar region of
Bowen’s back. Bowen underwent back surgery in late May 2002 and was able to return
to work that July. Bowen contends that the ALJ and the Board erred by not awarding her
benefits for at least a partial disability as a result of this episode.
As HMA correctly notes, a worker seeking permanent disability benefits
has the burden of proving every element of his or her claim, including, of course, the fact
of a permanent work-related injury. Robertson v. United Parcel Service, 64 S.W.3d 284
(Ky. 2001). Under our law, the ALJ is the finder of fact and “has the sole discretion to
determine the quality, character, and substance of evidence. . . . When the party with the
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burden of proof does not succeed before the ALJ, that party’s burden on appeal is to
show that the favorable evidence was so compelling that the decision to the contrary was
unreasonable.” Lanter v. Kentucky State Police, 171 S.W.3d 45, 51 (Ky. 2005) (citations
omitted). Bowen has not met this formidable burden.
In addition to Bowen’s testimony and evidence, the record includes proof
that Bowen had a significant history of lower back pain long before her alleged
workplace injury. At least once before, in 2000, her back pain had been severe enough to
necessitate a visit to the hospital’s emergency room, and apparently it was constant
enough so that Bowen regularly did her charting standing up and her co-workers were
aware that she had back problems. The record also indicates that, on the night of the
alleged injury, Bowen did not report, either to her supervisor, her co-workers, or to
emergency room personnel, that she had been lifting a patient when the pain struck. In
fact, in the emergency room she denied that the incident was work-related and arranged
to have her treatment there and her subsequent time off and surgery paid for by her health
insurer instead of filing a workers’ compensation claim. Bowen testified that she feared
retaliation if she filed a compensation claim, but the ALJ could properly note that fear
would not account for the fact that she did not mention any work-related aspects of the
incident to her supervisor or co-workers. In any event, the ALJ found that the pain
Bowen experienced in May 2002 and her need for surgery were not work-related but
were instead simply new ramifications of her pre-existing back ailments. In light of
Bowen’s history and her failure at the time of the alleged injury to attribute it to her work,
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we cannot say that the ALJ’s finding that this alleged injury was not work-related was
unreasonable or that Bowen’s proof compelled a contrary result.
Bowen returned to work in July 2002 and apparently resumed her full duties
without incident until February 14, 2003. Bowen testified that during her shift that day
she was attempting to remove the sheets from beneath a patient when she again suffered a
searing pain in the same place in her lower back. This time the pain was so great she
could barely stand. She was taken to the emergency room in a wheelchair and wound up
spending several days in the hospital. Bowen claims that since then her back pain has
never abated. She obtains some partial relief from pain medicines, but the constant pain
and its attendant depression prevent her from working, from helping around the house,
from engaging in hobbies, from attending church, and from sleeping. She presented
medical and psychological evidence tending to show that she is physically and
psychologically impaired and that her impairments have rendered her substantially, if not
totally, disabled.
Again, however, there was countervailing evidence. Following the
February 2003 episode, Bowen underwent several MRI’s and a nerve conduction exam,
none of which disclosed any physiological reason for Bowen’s on-going complaints. In
light of these studies and their own observations, most of the doctors who examined
Bowen believed that she had suffered only a lumbar strain or sprain which should have
resolved in a matter of months. Her continuing complaints of pain were accounted for
either as malingering or as a complication brought on by Bowen’s weight. One of the
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psychiatrists who examined Bowen concurred in these medical conclusions and opined
that Bowen was not psychologically impaired. She was, rather “disabling herself,” a
tendency exacerbated, the psychiatrist believed, by a “worrisome cocktail” of
medications, the justification for which had passed.
Relying on these latter opinions, the ALJ found that Bowen had not
suffered a new, permanent injury on February 14, 2003, but only a temporary sprain, and
further that the episode had not resulted in a permanent psychological impairment.
Again, although Bowen’s proof may have supported a different result, it did not compel
one. In light of the ample evidence that there was no physiological manifestation of the
February incident and the psychiatric testimony that Bowen was magnifying her
symptoms and “disabling herself,” we cannot say that the ALJ’s findings were
unreasonable.
Finally, Bowen contends that the ALJ erred by relying on one of the
medical reports which assigned her an impairment rating as a result of her surgery, but
assessed no additional impairment as a result of the February 2003 incident. According
to Bowen, the doctor who issued this report misapplied the AMA Guidelines by using the
DRE as opposed to the range-of-motion model for assessing impairments. We need not
address this contention, however, for the ALJ clearly did not rely on that portion of the
doctor’s report. Rather, the ALJ’s finding that Bowen did not suffer a permanent injury
in February 2003 rendered the impairment issue moot, and thus rendered irrelevant the
doctor’s alleged error.
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In sum, we reiterate that it is not this Court’s role to second guess the ALJ’s
credibility determinations or his or her choices among conflicting items of proof. Where,
as in this case, the ALJ’s findings reflect a reasoned and a reasonable interpretation of the
evidence, they will not be disturbed on appeal. Accordingly, we affirm the January 19,
2007, Order of the Workers’ Compensation Board.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Leonard Stayton
Inez, Kentucky
William A. Lyons
Lewis and Lewis Law Offices
Hazard, Kentucky
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