MEHIC (SENAD) VS. COMP R. C. TWAY COMPANY , ET AL.
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RENDERED: MARCH 26, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001538-WC
SENAD MEHIC
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-05-69367
RC TWAY COMPANY;
HON. IRENE STEEN, ADMINISTRATIVE
LAW JUDGE; AND WORKERS'
COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, KELLER, AND LAMBERT, JUDGES.
KELLER, JUDGE: An Administrative Law Judge (ALJ) overruled Senad Mehic’s
(Mehic) motion to reopen. The Workers’ Compensation Board (the Board)
affirmed. It is from the Board’s opinion that Mehic appeals, arguing that the ALJ
erred when she found that his thoracic spine condition is not related to his work
injury; when she did not award him any benefits based on his psychological
condition; and when she failed to find that he has increased impairment and/or is
totally and permanently disabled. For the following reasons we affirm.
FACTS
1. Procedural Background
Mehic suffered a work-related back injury on August 15, 2005.
Following that injury, RC Tway Company1 (Tway) paid Mehic temporary total
disability benefits for approximately ten months and paid his medical expenses.
Approximately two months after Tway suspended payment of temporary total
disability benefits, the parties reached a settlement. As part of the settlement,
Tway agreed to pay Mehic $29.06 per week for a period of 1,804.19 weeks. The
parties agreed that this represented 5.28% of Mehic’s average weekly wage and
commuted the weekly benefits to a lump sum of $52,429.68. The parties also
agreed that Mehic had been assigned a 13% impairment rating by Dr. Morrasutti
for his back injury and that Mehic had been restricted to lifting 10 pounds, with no
repetitive bending or twisting or prolonged standing.
In January 2008, Mehic filed a motion to reopen alleging that his
disability had increased due to a psychiatric condition. Mehic also noted that
Tway had denied medical treatment. The Chief ALJ granted Mehic’s motion to
1
We note that the defendant/employer is referred in the underlying action as “Kentucky
Manufacturing RC Tway Company” and “RC Tway Company.” The petition for review uses the
name “RC Tway Company”; therefore, we will refer to the defendant/employer by that name.
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the extent that the matter was assigned to an ALJ for further adjudication. Tway
then filed a notice of claim denial, arguing that Mehic’s psychiatric condition was
not related to the work injury and that proposed medical treatment was not
reasonable or necessary.
As noted by the Board, Mehic did not specifically state in his motion
to reopen that his thoracic spine condition was at issue. However, during the
course of litigation, the parties presented proof and the ALJ and the Board made
determinations on this issue. Therefore, we will treat the issue of Mehic’s thoracic
spine condition as properly preserved.
2. Evidence Presented on Reopening
At the outset, we note that several of the medical reports filed by
Tway specifically address the reasonableness and necessity of medical treatment.
Because that is not an issue before us, we will not summarize that proof in any
great detail.
Mehic testified by way of deposition and at the formal hearing that he,
his brother, and another man owned a furniture business in Bosnia. In 1992,
apparently because of the war, Mehic and his family were forced to leave Bosnia.
They settled in Germany, where they lived as refugees until 2000. According to
Mehic, because he was a refugee, he was not permitted to work in Germany.
Furthermore, in 2000, he was told that he could no longer stay in Germany.
Therefore, Mehic and his family emigrated to the United States, settling in
Louisville, Kentucky. Approximately two months after arriving in Louisville,
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Mehic obtained a job at Tway, a manufacturer of truck trailers. Mehic worked for
Tway, performing medium to heavy manual labor, until his injury on August 15,
2005. He has not worked since then.
Following his injury, Mehic experienced pain in his low and mid
back, with occasional radiation into his leg and occasional numbness in his feet
and toes. He has treated with a number of physicians for his physical complaints,
undergoing physical therapy and pain management. Mehic testified that he
discussed surgery with Dr. Shields, but he chose not to have surgery because Dr.
Shields could not sufficiently guarantee a good result. At the time of the formal
hearing, Mehic’s treatment for his physical symptoms consisted primarily of the
use of narcotic pain medication. Despite his treatment, Mehic testified that his
pain had increased to the point that he is forced to spend three to four days a week
in bed.
In 2007, because he began to experience depression, anxiety,
moodiness, and memory and concentration difficulties, Mehic began undergoing
psychiatric treatment. That treatment appears to consist of in-person therapy and
the use of anti-depressant medication. As with his physical symptoms, Mehic did
not note any significant improvement in his psychological condition with this
treatment.2
2
We note that Mehic testified at the formal hearing that he had been injured in a motor vehicle
accident approximately six weeks earlier. Because all of the medical evaluations took place
before this motor vehicle accident, it is not pertinent to this appeal.
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In support of his motion to reopen, Mehic filed medical records and/or
reports from Dr. Drljevic, Dr. Shields, Dr. Bilkey, and Dr. Carter. Tway filed
medical records and/or reports from Dr. Travis, Dr. Goldman, Dr. Shraberg, Dr.
Castro, and Dr. Kriss. Tway also filed the depositions of Drs. Shraberg and Kriss
as well as a copy of Mehic’s 2006 myelogram report. We will summarize the
pertinent parts of that medical proof below.
As noted by the Board, Dr. Drljevic’s records, which are handwritten,
are difficult if not impossible to decipher. However, from what we can decipher, it
appears that Dr. Drljevic treated Mehic for depression and related symptoms from
mid-September 2007 through July 2008. Mehic attached a copy of page 220 of
what we believe is the 5th Edition of the AMA Guides to the Evaluation of
Permanent Impairment to his motion to reopen. It appears that Dr. Drljevic circled
a number of items on this page indicating that Mehic has class three impairment in
the areas of affect and behavior, class two impairment in the areas of judgment and
thinking, and class one impairment in the areas of intelligence and perception. Dr.
Drljevic did not give, as far as we can tell, a definitive total impairment rating, nor
did she make a definitive statement regarding work-relatedness.
It appears from his records that Dr. Shields began treating Mehic in
June 2007, for complaints of back and leg pain. Dr. Shields noted that Mehic had
undergone physical therapy and two epidural blocks without any improvement in
symptoms. Following his initial examination, Dr. Shields made a diagnosis of low
back pain with S1 radiculopathy bilaterally “by history,” and he recommended a
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lumbar MRI. Tway initially denied Dr. Shields’s request for authorization but later
agreed to pay for that test, which revealed “modic” changes and narrowing at L5S1 with a bulging disc at L4-5. Based on these findings, Dr. Shields recommended
a myelogram, which Tway refused to authorize. This denial was, in part, the
genesis of Mehic’s motion to reopen. However, as previously noted, the
reasonableness and necessity of the recommended myelogram is not an issue
before us; therefore, we will not further review Dr. Shields’s records regarding that
recommended testing. We note that, in addition to the preceding, Dr. Shields’s
records contain a copy of the report of Mehic’s August 2005 thoracic spine MRI
which showed small disc protrusions at T7-9.
Dr. Bilkey performed an independent medical evaluation at the
request of Mehic’s attorney. Mehic complained to Dr. Bilkey of low back pain
with radiation into the lower extremities, midline mid back pain, and occasional
headaches. Following his review of the medical records and examination, Dr.
Bilkey made diagnoses of thoracic strain, resolved lumbar strain with
radiculopathy, myofascial pain, and de-conditioning. Dr. Bilkey related Mehic’s
conditions to the work injury and stated that Mehic should be confined to light
duty with no lifting of more than 10 pounds, no repetitive bending and twisting,
and no prolonged sitting, standing, or walking. Dr. Bilkey assigned Mehic a 5%
impairment rating for his thoracic spine and an 8% impairment rating for his
lumbar spine, for a total impairment of 13%.
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Dr. Carter performed an examination related to Mehic’s Social
Security claim. Mehic complained to Dr. Carter of low back pain with pain in his
legs and numbness in his feet and toes. Following his examination, Dr. Carter
made diagnoses of chronic low back pain, lumbar disc pathology, and no
radiculopathy. Dr. Carter stated that Mehic should avoid frequent or prolonged
stooping and lifting, squatting, climbing, crawling, or kneeling with the ability to
change positions as needed. Furthermore, he stated Mehic could lift up to 10
pounds occasionally.
Tway filed utilization review reports from Drs. Travis and Goldman.
The focus of these reports is primarily on the reasonableness and necessity of the
myelogram recommended by Dr. Shields. Therefore, we will not summarize either
report at length. We do note, however, that Dr. Travis stated Mehic’s August 2005
lumbar MRI was normal for a man Mehic’s age and his August 2005 thoracic MRI
showed only small disc protrusions at T7-9 with no cord contact or compression.
Dr. Travis stated that Mehic’s September 2007 MRI showed “a normal progression
of age related degenerative changes with no focal findings . . . and no significant
pathological changes.” According to Dr. Travis, these test results revealed only
degenerative changes, which are not related to Mehic’s work injury.
In his utilization review report, Dr. Goldman stated that the medical
records revealed no significant change in Mehic’s symptoms and that there was no
indication for surgery or additional testing. Dr. Goldman also noted that Mehic’s
previously assessed 13% impairment rating related to Mehic’s lumbar spine.
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Dr. Shraberg performed an independent medical evaluation at the
request of Tway’s attorney. Mehic complained to Dr. Shraberg of feelings of
helplessness, sadness, uselessness, and irritability. Dr. Shraberg’s examination
revealed a depressed and flat affect and he indicated that Mehic’s primary
psychological symptoms are related to difficulty adapting to this culture, his longterm use of narcotic medication, and isolation due to limited English language
skills and unemployment. Dr. Shraberg made diagnoses of adjustment disorder of
adult life associated with situational stressors related to difficulty adapting to this
culture and strained family relationships. He also stated that Mehic suffers from a
mood disorder probably induced by use of narcotic medication. Dr. Shraberg
assigned Mehic a GAF of 70 and a 0% impairment rating and stated that Mehic’s
condition is not related to the work injury.
Dr. Castro’s May 31, 2007, report indicates that Mehic complained of
low and mid back pain that interfered with his sleep and his ability to perform
some activities of daily living. Following his examination, Dr. Castro made a
diagnosis of musculoskeletal strain. Dr. Castro noted Mehic’s work injury but did
not directly address whether Mehic’s symptoms are related to the work injury or
whether Mehic has any impairment or restrictions.
Dr. Kriss performed an independent medical evaluation at the request
of Tway’s counsel. Mehic complained to Dr. Kriss of diffuse bilateral lower
thoracic and low back pain with occasional radiation into his legs. Following his
examination and review of Mehic’s medical records, Dr. Kriss made diagnoses of
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thoracic and lumbar strains with no evidence of nerve root compression,
radiculopathy, spinal cord compression, or myelopathy. Dr. Kriss recommended
weaning Mehic from narcotic medication, exercise, and a back brace to be worn
when driving or active. Dr. Kriss stated that Mehic’s complaints were out of
proportion with his objective findings, noting that Mehic’s ability to move was
much greater when distracted than when formally tested. Although Dr. Kriss
testified he could not definitively say that Mehic was voluntarily exaggerating his
symptoms, he stated that Mehic has “given up” on himself.
Regarding the diagnostic studies, Dr. Kriss testified that they revealed
degenerative changes at multiple levels in the lumbar spine with no nerve root
compression, disc herniation, or other major structural problems. As to the
thoracic spine, Dr. Kriss stated that Mehic’s studies showed small disc herniations
with no nerve impingement. Dr. Kriss stated that these degenerative findings were
not the result of the work injury.
Dr. Kriss assigned Mehic a 5% whole person lumbar spine
impairment rating but no thoracic spine impairment rating because Mehic’s
symptoms did not correlate with examination findings or diagnostic studies and
were too diffuse. Furthermore, Dr. Kriss stated that the “mechanism of injury is
pretty well disposed to causing a lumbar permanent harmful change, but not”
thoracic because it takes a significant amount of torque to injure the thoracic spine.
Finally, Mehic’s 2006 myelogram report indicates that he has disc
bulging at L2-4, a disc herniation at L4-5, and slight disc degeneration at L5-S1.
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STANDARD OF REVIEW
The ALJ has the sole discretion to determine the quality, character,
and substance of the evidence and may reject any testimony and believe or
disbelieve various parts of the evidence regardless of whether it comes from the
same witness or the same party’s total proof. Paramount Foods, Inc. v. Burkhardt,
695 S.W.2d 418, 419 (Ky. 1985); Caudill v. Maloney’s Discount Stores, 560
S.W.2d 15, 16 (Ky. 1977). If the party with the burden of proof fails to convince
the ALJ, that party must establish on appeal that the evidence was so
overwhelming as to compel a favorable finding. Special Fund v. Francis, 708
S.W.2d 641, 643 (Ky. 1986). When reviewing one of the Board's decisions, this
Court will only reverse the Board when it has overlooked or misconstrued
controlling law or so flagrantly erred in evaluating the evidence that it has caused
gross injustice. Western Baptist Hospital v. Kelly, 827 S.W.2d 685, 687-88 (Ky.
1992). With the preceding in mind, we address the issues raised by Mehic on
appeal.
ANALYSIS
Mehic first argues that the ALJ erred when she found that his thoracic
spine condition was not related to the work injury. We disagree. Kentucky
Revised Statute (KRS) 342.0011(1) defines injury as “any work-related traumatic
event or series of traumatic events, including cumulative trauma, arising out of and
in the course of employment which is the proximate cause producing a harmful
change in the human organism evidenced by objective medical findings.”
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In support of his argument, Mehic points to Dr. Kriss’s statement in
his report that Mehic suffered lumbar and thoracic strains as a result of the work
injury. That is true. However, Dr. Kriss testified that the mechanism of injury was
“well disposed” to cause “a lumbar permanent harmful change, but not really for
thoracic.” Furthermore, Dr. Kriss testified that, while it is possible Mehic’s
thoracic spine MRI findings are related to the work injury, it is not probable. That
testimony is supported by Dr. Travis’s statement that Mehic’s diagnostic testing
revealed only nonwork-related degenerative changes. Thus, there is sufficient
evidence of record to support the ALJ’s finding that Mehic’s thoracic spine
condition is not related to the work injury and the evidence does not compel a
finding to the contrary.
Mehic next argues that the ALJ erred by not finding a work-related
psychological condition. In support of this argument, Mehic first states that “Dr.
Drljevic’s opinion stands for the fact that [his] problems are work-related.”
Having reviewed Dr. Drljevic’s records, we are not convinced that her opinion is
as clear as Mehic would like. However, even if it is that clear, Dr. Shraberg stated
that Mehic’s psychological condition is not related to the work injury. While
Mehic has done a yeoman’s job of drawing lines connecting his various symptoms
to the work injury, the simple fact is that Dr. Shraberg’s opinion is evidence of
substance upon which the ALJ could rely. The evidence to the contrary does not
compel a finding in Mehic’s favor.
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Finally, Mehic argues that this matter should be remanded to the ALJ
for a finding regarding his current impairment and whether he is permanently and
totally disabled. The ALJ addressed this issue when she found that Mehic had not
met his burden of proof because he had not shown a change of condition. While
Mehic may not agree with or like the ALJ’s conclusion, she made adequate
findings in this regard, and we see no reason to remand for additional findings. In
doing so, we note that the restrictions imposed on reopening – no lifting of more
than ten pounds, no repetitive bending or twisting, and no prolonged sitting,
standing, or walking – do not differ significantly, if at all, from those imposed by
Dr. Morrasutti prior to settlement. Furthermore, although Dr. Bilkey assigned
Mehic a 5% impairment rating related to his thoracic spine condition, the ALJ
found that condition is not related to the work injury. Therefore, any impairment
rating is also not related. As a final point on this issue, we note that Mehic’s total
impairment from Dr. Bilkey is the same as that imposed by Dr. Morrasutti and that
Dr. Bilkey attributed only 8% of his total impairment rating to Mehic’s lumbar
spine, which is a significant improvement from Dr. Morrasutti’s lumbar spine
impairment rating of 13%. Thus, the ALJ’s finding that Mehic failed to establish
any increase in his lumbar spine impairment rating or any decrease in his ability to
perform work activity is supported by the evidence and cannot be disturbed on
appeal.
CONCLUSION
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Having reviewed this matter, we must conclude that Mehic failed to
overcome the steep burden of establishing that the evidence compelled a finding in
his favor; therefore, we affirm the Board.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Wayne C. Daub
Louisville, Kentucky
Stanley S. Dawson
Louisville, Kentucky
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