EDIE M. SIMPSON v. FRANKLIN INSURANCE AGENCY, INC.; HON. JOHN B. COLEMAN, ADMINISTRATIVE LAW JUDGE AND WORKERS' COMPENSATION BOARD
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RENDERED: SEPTEMBER 21, 2007; 10:00 A.M.
TO BE PUBLISHED
MODIFIED: NOVEMBER 21, 2007; 2:00 P.M.
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-000578-WC
EDIE M. SIMPSON
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-01-95574
FRANKLIN INSURANCE AGENCY, INC.;
HON. JOHN B. COLEMAN,
ADMINISTRATIVE LAW JUDGE AND
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING IN PART, REVERSING
IN PART AND REMANDING
** ** ** ** **
BEFORE: ACREE, HOWARD AND LAMBERT, JUDGES.
HOWARD, JUDGE: Edie M. Simpson (hereinafter Simpson) petitions for review of a
decision of the Workers' Compensation Board which affirmed an award of permanent
partial disability benefits resulting from a work-related back injury and psychological
impairment. In her petition, Simpson asserts that the evidence compelled a finding of
total occupational disability and that the Administrative Law Judge further erred in
failing to award benefits for other alleged impairments. We affirm in part, reverse in part
and remand.
Simpson was born in 1961 and has a 12th grade education. She worked in
the insurance business since high school, obtained an insurance agent's license, and in
October 1994, purchased her own agency, the appellee Franklin Insurance Agency. On
January 2, 2000, Simpson sustained a work-related injury to her back when she lifted a
five gallon water jug onto a water cooler. She initially responded well to conservative
treatment and on February 8, 2000, was released to return to her regular activities. A few
weeks later, however, severe pain returned and on March 10, 2000, Simpson underwent a
lumbar laminectomy at L5-S1. In October 2000, she was referred to another orthopedic
surgeon who performed a repeat laminectomy on March 27, 2001. Shortly after the
second surgery, Simpson developed severe pain and could not feel her legs or use the
lower part of her body. On March 28, 2001, a blood clot in the spinal canal was
surgically removed. On March 31, 2001, she underwent yet another surgery to
decompress the L5 nerve root and to remove more of the blood clot. She was discharged
from the hospital on April 4, 2001, with diagnoses of recurrent herniated nucleus
pulposus at L5-S1, cauda equina syndrome and L5 nerve root compromise. Simpson
experienced foot-drop, continuing pain and depression. She attempted to return to work,
but eventually sold her insurance agency in 2002, and has not worked since May of that
year. She claims that as a result of the work-related injury, she sustained a permanent
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total disability that encompassed bowel, bladder and sexual complications, in addition to
her back injury. The employer's primary defense theory was that Simpson's January 2,
2000, work-related injury had resolved and her impairments were caused by a separate,
non-work-related injury.
The Administrative Law Judge, the Honorable John B. Coleman
(hereinafter the ALJ), found that Simpson was 23% impaired due to her back injury and
10% impaired due to her psychiatric impairment, resulting in a 31% combined whole
body impairment, and that this all resulted from her work-related injury and the resulting
treatment. The ALJ dismissed Simpson's claim for benefits for her urinary incontinence,
bowel problems, and sexual dysfunction, finding that she did not prove causation as to
these claimed impairments. Specifically, the ALJ stated the following:
[T]he plaintiff does claim a decrease in her bowel and bladder
functioning as a result of her work related low back injury. A
review of that evidence indicates that Dr. Evins diagnosed the
plaintiff with urgency/frequency syndrome, but could not
determine the cause of that condition. Dr. Concepcion
originally noted the plaintiff may have some inflammation
around the nerve roots going to the bladder, but the diagnostic
studies showed chronic inflammation and cystitis with small
blood clots in the bladder. He noted the inflammation and
clots were not caused by the work related injury and also that
the plaintiff had a drop in the bladder. In addition, he noted
the sexual dysfunction to potentially be related to the work
injury. The plaintiff bears the burden of proof and risk of
non-persuasion to convince the trier of fact as to each and
every element of her claim. Snawder v. Stice, Ky. App., 576
S.W.2d 276 (1979). In this particular instance, the medical
proof is not at all clear as to the cause of the plaintiff's
bladder, bowel, and sexual dysfunctions. The mere possibility
of a causal relationship is insufficient to permit a finding that
a medical condition is work related and therefore,
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compensable. Markwell and Hartz, Inc. v. Pigman, Ky., 473
S.W.2d 640 (1972); Marcum v. General Electric Company,
Ky., 479 S.W.2d 640 (1972); and Pierce v. Kentucky
Galvanizing Company, Ky. App., 606 S.W.2d 165 (1980). In
this case, while there is potential that these conditions are
related, the Administrative Law Judge has not been convinced
and as it is the plaintiff's burden of proof to show causation,
her claim for medical and income benefits for those
conditions must be dismissed.
Simpson appealed to the Workers' Compensation Board (hereinafter the
Board), which affirmed the ALJ's award in a 2-1 decision. The majority of the Board
discussed the evidence relating to Simpson's claims of bowel, bladder, and sexual
dysfunction as follows:
Although we find the evidence to be very persuasive, and
would have most likely made a finding of disability for the
bowel, bladder and sexual dysfunctions, we cannot say that it
reaches the "overwhelming” or “compelling” standard. . . .
We are acutely aware of the deference to be given to the ALJ
in such a case as this, as set out in the cases cited above.
And, while the evidence, unrebutted, is very persuasive, we
cannot overstep our bounds and reverse the ALJ. The ALJ
may choose to believe part of the evidence and disbelieve
other portions of the evidence whether the evidence came
from the same witness or from the same party's total proof.
Board Member Cowden, in his dissent, stated as follows:
It is clear to the undersigned that the medical evidence
demonstrates causation and work relatedness as it applies to
the bowel, bladder, and sexual dysfunction allegations and is
not contradicted by any other evidence on this issue. To this
extent, the evidence stands unrebutted. Moreover, a reading
of the ALJ's opinion provides no basis or reasoning for
dismissing this evidence. It is error for the fact finder to
reject uncontradicted medical evidence of record without
providing a sufficient explanation for his rejection.
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Commonwealth v. Workers' Compensation Board of
Kentucky, 697 S.W.2d 540, Ky. App. (1985). See also
Mengel v. Hawaiian-Tropic Northwest & Central
Distributors, Inc., 618 S.W.2d 184, Ky. App. (1981) and
Collins v. Castleton Farms, 560 S.W.2d 830, Ky. App.
(1977). For this reason, I would remand this matter back to
the ALJ to make additional findings as it applies to
compensability of the bowel, bladder, and sexual elements of
the claim. To the same extent, if the ALJ finds that sufficient
evidence exists in the record to support causation as it applies
to these three elements of the claim, the ALJ should also
address the potential effect that these conditions have on
Simpson's ability to perform work on a sustained basis as a
result of the injury in question.
This petition for review followed. Our task in this review is to correct the
Board only if it overlooked or misconstrued controlling law, or so flagrantly erred in
evaluating the evidence so as to cause a gross injustice. Western Baptist Hosp. v. Kelly,
827 S.W.2d 685 (Ky. 1992). The ALJ "has the sole authority to determine the quality,
character, and substance of the evidence." Square D Co. v. Tipton, 862 S.W.2d 308, 309
(Ky. 1993). The ALJ may reject any evidence and may believe or disbelieve evidence,
including medical evidence. Magic Coal Co. v. Fox, 19 S.W.3d 88 (Ky. 2000). Where a
claimant fails to convince the ALJ and the Board that his or her burden of proof was met,
the claimant must demonstrate on appeal that the evidence was so overwhelming as to
have compelled a favorable finding. Special Fund v. Francis, 708 S.W.2d 641 (Ky.
1986).
Most on point with this case, the ALJ, as the fact finder, may reject
uncontradicted medical evidence, but only when he supports that decision with a
reasonable explanation. Commonwealth v. Workers' Compensation Bd. of Kentucky, 697
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S.W.2d 540 (Ky.App. 1985); Collins v. Castleton Farms, Inc., 560 S.W.2d 830 (Ky.App.
1977). In Collins, this court quoted 3 A. Larson, Workmen's Compensation Law, §80.20
(9th ed. 1976), to state:
The Commission [now the ALJ] may even refuse to follow
the uncontradicted evidence in the record, but when it does
so, its reasons for rejecting the only evidence in the record
should appear e.g., that the testimony was inherently
improbable, or so inconsistent as to be incredible, that the
witness was interested, or that his testimony on the point at
issue was impeached by falsity in his statements on some
other matters. Unless some explanation is furnished for the
disregard of all uncontradicted testimony in the record, the
Commission may find its award reversed as arbitrary and
unsupported.
Collins, 560 S.W.2d at 831.
Neither party contested the ALJ's findings and award relating to Simpson's
low back injury and her psychiatric condition. However, Simpson asserts that the
evidence compelled findings that her bowel, bladder and sexual dysfunctions are
compensable and that she has sustained a total occupational disability. While we
disagree that the evidence compelled a finding of total disability or a finding that her
bowel dysfunction was a result of her work-related injury, we conclude that this action
must be remanded for findings on the undisputed medical evidence relating to Simpson's
bladder and sexual dysfunctions.
Simpson first argues, citing Jones v. Brasch-Barry General Contractors,
189 S.W.3d 149 (Ky. App. 2006), that the medical evidence was uncontradicted because
Dr. Gaw provided the only medical evidence which should have been considered. She
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argues that he was the sole physician providing evidence consistent with the AMA
Guides relating to her urinary and sexual neurological deficits. We believe Simpson
reads Jones too broadly. The issue before the court in Jones concerned the appropriate
assessment of an impairment rating consistent with the AMA Guides as required by KRS
342.0011 and KRS 342.730. We do not interpret Jones as holding that a doctor's
testimony relating to diagnosis or causation must be in strict conformity with the AMA
Guides in order to be considered. We must therefore consider all of the medical evidence
on these issues.
While the Board treated the claims of bowel, bladder and sexual
dysfunction together, we believe the medical evidence differs on those claims. The
ALJ's refusal to award benefits for the alleged bowel impairment should be affirmed for
two reasons which do not apply to the other two claimed impairments. First, no doctor
directly testified that the bowel problem was brought about by Simpson's work-related
injury. Therefore, she failed to sustain her burden of proof as to this claim. Second,
substantial medical evidence supports the ALJ's finding that Simpson's claimed bowel
problems were not work-related. Dr. Nichols, an orthopedist, examined Simpson to
determine her impairment from her low back injury. In his June 28, 2002, letter, Dr.
Nichols stated that Simpson "is reporting no bowel dysfunction." More important, Dr.
Concepcion, a urologist, was asked directly if he believed Simpson's bowel problems
were related to her work-related injury and answered, “Not really.” We therefore affirm
the Board in rejecting the claim as to the alleged bowel impairment.
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However, we agree with the Board that the medical evidence relative to
Simpson's claims of bladder and sexual dysfunction was uncontradicted. As to the claim
of bladder dysfunction, Dr. Gaw testified that Simpson has a 9% whole person
impairment due to her "urinary system neurological deficit," and that this was due to her
work-related injury. Dr. Nichols stated in his June 28, 2002, letter that Simpson "is
reporting episodes of 'bladder leakage.' I have no records of her treatment for this
disorder, but if this is indeed the case, the patient is entitled to an additional impairment
rating which should be combined with her present impairment rating. . . ."
The ALJ cited Dr. Concepcion as supporting his rejection of Simpson's
bladder-related claim. But we believe he misread Dr. Concepcion's testimony. Dr.
Concepcion noted that prior to the second surgery for her work-related injury, Simpson
reportedly experienced mild stress incontinence; after the surgery she experienced
significant urge incontinence and he diagnosed her as having diminished bladder
capacity and an "uninhibited bladder." He stated that Simpson did not have any other
conditions that could cause her urological problems, and concluded, “It was all very
temporally related to the fact that before she started having the back surgery, she had a
fairly normal pattern, after these events transpired, she had this problem.”
Later, Dr. Concepcion testified, with regard specifically to Ms. Simpson's
bladder complaints, “Obviously, I thought this was related to previous surgery.” He
further opined that he felt Dr. Gaw's 9% impairment rating "was on the low side." As
noted by the ALJ, Dr. Concepcion mentioned other possible causes for Ms. Simpson's
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bladder complaints, but he then stated that she did not have any of those other conditions.
We do not find his testimony to be equivocal in any way.
Dr. Evins, a urologist, saw Simpson on October 4 and 21, 2002. In his
letter dated January 27, 2003, Dr. Evins stated that she "has a very complicated overall
medical picture . . . due to the fact that she has had a previous back injury and possibly
has some cauda equina syndrome." Dr. Evins stated that during the bladder evaluation,
Simpson had "excellent flow rate . . . no uninhibited bladder constrictions and we were
unable to demonstrate leakage on the patient with coughing . . . ." Dr. Evins opined that
her "incontinence appeared to be primarily urgency type incontinence," and that he found
no neurological disease in her bladder. Dr. Evins concluded that Simpson had "urgencyfrequency syndrome, cause undetermined. I cannot determine if it is directly related to
any kind of trauma or not." We do not believe that Dr. Evins' testimony contradicts the
other evidence of causation and work-relatedness; he simply had no opinion on that
issue.
Although there was less evidence as to Simpson's claims of sexual
dysfunction, we find that evidence to be uncontradicted as well. Dr. Gaw assessed
Simpson with a 9% whole body impairment due to her sexual dysfunction, and directly
attributed her loss of normal sexual function to her work-related injury. Dr. Concepcion
stated that Simpson's sexual problems were potentially related to her injury and also
testified about his conversation with a gynecologist who found that Simpson had an
"impressive" neurological finding on the left side of her pelvis. We do not believe Dr.
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Concepcion contradicted Dr. Gaw's testimony. Rather, like Dr. Evins' testimony referred
to above, Dr. Concepcion simply failed to state a clear opinion of his own with regard to
the claim for sexual dysfunction.
The Board specifically stated that the medical evidence that Simpson's
bladder and sexual dysfunction were caused by her work-related injury was “unrebutted.”
After a thorough review of the record, we agree. The ALJ is permitted to disbelieve
unrebutted medical evidence, but if he does so he must provide a sufficient explanation
for his disbelief. Collins v. Castleton Farms, Inc., supra. No such explanation was given
in this case, only a characterization of the evidence as “not at all clear.” To the contrary,
we agree with the Board, which described this evidence as “unrebutted” and “very
persuasive.” We believe the Board erred in its application of the law, by not following
Collins and remanding this matter to the ALJ for further findings relative to his rejection
of this unrebutted evidence. The ALJ has the authority to disbelieve such evidence, but
he must state sufficient reasons for doing so.
Simpson has argued that an unpublished Kentucky Supreme Court opinion,
Thornton v. Volt Services Group, No. 2004-SC-000442-WC (rendered June 16, 2005),
cited pursuant to CR 76.28(4), holds that, at least as to medical evidence, the ALJ must
accept unrebutted evidence, and has no discretion, even to disbelieve such evidence and
state his reasons for doing so. In effect, she argues that Thornton overrules Collins and
that entire line of cases. The Supreme Court in Thornton stated,
When medical experts differ concerning the proper
application of the Guides and an injured worker's impairment
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rating, it is the ALJ's function to weigh the conflicting
evidence and to decide which is more persuasive. . . .
(citations omitted) When medical evidence is uncontradicted,
the ALJ may not disregard it. See Mengel v. HawaiianTropic Northwest and Central Distributors, Inc., supra.
Thornton, No. 2004-SC-000442, slip op. at 8.
We do not read Thornton so broadly as Simpson suggests, for two reasons.
First, the Supreme Court opinion in Thornton, on its face, does not say that it overrules
any prior cases, and the Supreme Court did not choose to publish its opinion. Second,
the Thornton opinion cites with approval Mengel v. Hawaiian-Tropic Northwest and
Central Distributors, Inc., 618 S.W.2d 184 (Ky. App. 1981), which should be fairly
considered to be in the same line of cases with Collins. This Court in Mengel stated the
general rule that the finder of fact should not “disregard” uncontradicted medical
evidence, but also observed that, “There are some situations in which a board decision
will be upheld on review when the board has made findings contradicting the medical
testimony.” Mengel, 618 S.W.2d at 186. We therefore conclude that Collins v. Castleton
Farms, Inc., supra. is still the controlling law on this question, and that while the ALJ
may not “disregard” uncontradicted medical evidence, he may disbelieve such evidence
and therefore decline to follow it, but only if he states sufficient reasons for doing so. He
did not state any such reasons in this case.
Simpson also contends that the evidence compelled a finding of total
occupational disability because there is no evidence that she is capable of performing
sedentary work. We disagree. It was within the ALJ's prerogative to discredit Simpson's
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account of her pain due to self-limiting behavior, and sufficient evidence supports his
finding that Simpson is capable of sedentary work.
Simpson further asserts that the ALJ erred in relying on the testimony of
Dr. Granacher, a forensic psychiatrist, to determine the vocational effects of her
impairment. Dr. Granacher opined that Simpson had a "10% whole body psychiatric
impairment." Dr. Granacher further stated that "within reasonable medical probability,
Edie Simpson does not require psychiatric restrictions upon job performance." The
Board correctly concluded that Dr. Granacher's opinion fell within his field of expertise,
and the ALJ did not err in relying on that evidence.
Simpson finally contends that the ALJ erred in relying on a utilization
review report from Dr. Gerilyn Metoyer. The utilization review report was included in
the employer's list of its evidence in the May 26, 2006, hearing order, and the hearing
order was signed by both Simpson and the employer. Simpson objected to the filing of
the medical reports of Dr. Metoyer and other physicians based on the procedure used to
file the reports, but not on the basis argued to the Board or to this court. This alleged
error was not preserved for our review. Breeding v. Colonial Coal Co., 975 S.W.2d 914
(Ky. 1998).
This claim is remanded to the ALJ for additional findings relating to the
compensability of Simpson's claims for bladder and sexual dysfunction. If he disbelieves
the unrebutted medical evidence as to those claims, he shall state his reasons for doing
so, pursuant to Collins v. Castleton Farms, Inc., supra. If, after considering the evidence
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of record, the ALJ finds that Simpson has work-related bladder and sexual dysfunction,
then he should determine the effect on Simpson's ability to work. In all other respects,
the opinion of the Workers' Compensation Board is affirmed.
ALL CONCUR.
BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE, Franklin Insurance Agency,
Inc.:
Norman E. Harned
Bowling Green, Kentucky
R. Brent Vasseur
Paducah, Kentucky
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