MUSIC (SAFIJA) VS. COMPENSATION EMERSON ELECTRIC , ET AL.
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RENDERED: JANUARY 8, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001653-WC
SAFIJA MUSIC
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-06-83104
EMERSON ELECTRIC; J. LANDON
OVERFIELD, ADMINISTRATIVE LAW
JUDGE; AND WORKERS' COMPENSATION
BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; DIXON, JUDGE; BUCKINGHAM,1
SENIOR JUDGE.
COMBS, CHIEF JUDGE: Safija Music appeals the dismissal of her workers’
compensation claim. Based on our examination of the record, we affirm.
Music is a refugee from Bosnia who speaks limited English.
Throughout these proceedings, she has communicated to doctors, lawyers, and the
Administrative Law Judge (ALJ) through an interpreter. On June 19, 2006, Music
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Senior Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
was employed as a utility worker for Emerson Electric. While lifting motors that
night, she experienced pain in her lower back. She informed her supervisor and
took some over-the-counter pain medicine. Music did not sleep the rest of the
night and reported her injury at work the next morning.
Emerson sent Music to the company physician, Dr. Masoud
Hamidian. After taking Music off work for four days, Dr. Hamidian recommended
that she return to light-duty work. Music returned to Dr. Hamidian on June 27,
2006. He took her off work and ordered an MRI. Dr. Hamidian could not
determine what caused Music’s pain and referred her to Dr. Scott Standard, a
neurosurgeon. Dr. Standard diagnosed her with bulging discs that he treated with
epidural steroid injections. In December 2006, he noted that Music did not have
any disc herniation, but he did not think she could work safely due to her pain.
Music was examined by Dr. Thomas O’Brien, an orthopedic surgeon
in February 2007. He found that she had pre-existing degenerative disc disease
and determined that her pain was not the result of a work injury. Additionally, he
observed that Music’s complaints were out of proportion with his objective
findings. He noted that her gait in the parking lot was different from her gait
during the examination. He noted other indications of malingering.
Dr. Norman Lewis first examined Music in July 2007. He determined
that she had both spastic and congenital scoliosis. He also diagnosed discogenic
lumbar sprain secondary to intervertebral disc injury and symptomatic disc
herniation. In August 2007, Dr. Lewis performed a three-level discography and
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discectomy. He advised Music to limit her activity and to refrain from work for
one month. Six weeks later, Dr. Lewis indicated that he believed Music had
reached maximum medical improvement. He did not release her for work.
In February and March 2008, Music underwent psychological
evaluations by Dr. Robert Sively. The second test was conducted because of
strong indications of malingering and poor effort in the first exam. Dr. Sively
found that Music had psychological and emotional problems that were not caused
by a work injury. He recommended that she seek further psychiatric treatment.
The second exam also revealed indications of malingering.
Another psychological evaluation was conducted in July 2008 by Dr.
James Walker. He found that Music had psychiatric impairment. However, he
believed that her problems most likely originated before the work injury, and he
attributed them to traumatic events that she had experienced in Bosnia. Dr. Walker
noted that Music needed regular, consistent psychiatric treatment. He also
observed that she “appeared to take every opportunity . . . to magnify, exaggerate,
and occasionally feign” symptoms. Music’s performance on other tests again
indicated malingering.
The parties agree that Emerson paid Music wages of $7,380.00 and a
total of $15,296.91 toward her medical expenses. The ALJ held a hearing to
resolve several contested issues: the probability of the occurrence of a workrelated injury; a medical fee dispute; Music’s average weekly wage; the extent and
duration of Music’s occupational disability, including applicable multipliers;
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causation of psychological impairment; and Music’s entitlement to additional
temporary disability benefits.
A hearing was held in February 2009. On April 3, 2009, the ALJ
rendered his findings and dismissed Music’s complaint after determining that a
work-related injury had not occurred. Music appealed to the Workers’
Compensation Board, which affirmed the ALJ. This appeal follows, and we affirm
the Workers’ Compensation Board.
When – as in this case – a claimant does not file a petition for
rehearing, Kentucky Revised Statute[s] (KRS) 342.285 decrees that the ALJ is the
conclusive finder of fact, preventing the Board from substituting its judgment for
that of the ALJ. Similarly, when reviewing decisions of the Board, we may correct
it only if it “has overlooked or construed controlling statutes or precedent, or
committed an error in assessing the evidence so flagrant as to cause gross
injustice.” Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).
In workers’ compensation cases, “the claimant bears the burden of
proof . . . before the fact-finder with regard to every element of a . . . claim.”
Magic Coal Co. v. Fox, 19 S.W.3d 88, 96 (Ky. 2000). If a claimant has been
unsuccessful before the ALJ, “the issue on appeal is whether the evidence in that
party’s favor is so compelling that no reasonable person could have failed to be
persuaded by it.” Carnes v. Tremco Mfg. Co., 30 S.W.3d 172, 176 (Ky. 2000).
That is the standard which we must apply in the case before us.
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Music argues that the evidence in the record compels reversing the
Board’s affirmation of the ALJ’s findings. First, she contends that because the two
psychologists gave Music impairment ratings based upon the injury, we are
required to reverse the Board under Mengel v. Hawaiian-Tropic Nw. and Cent.
Distrib., Inc., 618 S.W.2d 184 (Ky. App. 1981). She also argues that Emerson’s
payment of some of her medical expenses and wages unequivocally proves that her
injury was work-related.
We are not persuaded that Mengel is decisive in this case. In Mengel,
this Court held that the Board erred when it substituted its own judgment for that of
two medical opinions which were in agreement with one another. It reversed the
Board because it found “no competent substantial evidence to support the board’s
finding[.]” Id. at 187. Both doctors in Mengel had treated a work-related injury,
and both found subsequent injuries to be causally connected to that initial injury.
No other doctors offered conflicting opinions.
By contrast, in this case, Dr. Sively reported that he was unable to
determine how much of Music’s psychiatric problems were attributable to her
injury. Nonetheless, he provided a disability rating range, qualifying the result by
stating that he was not sure if he had applied the guidelines appropriately.
Similarly, Dr. Walker conditioned his 3% impairment rating by stating that it was
accurate only if “she had recovered well from these prior serious stressors, as she
indicates[.]”
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This court recently held that “[a]n impairment rating is but one piece
of the total evidence that the ALJ, as fact-finder, must evaluate for ‘quality,
character, and substance’ and, in the exercise of his discretion, either accept or
reject.” Greene v. Paschall Truck Lines, 239 S.W.3d 94, 109 (Ky. App. 2007). It
is not a factor that overrides all other evidence. It has long been held that the ALJ
is the “sole judge of the weight and inferences to be drawn from the evidence,” and
he can choose which pieces of evidence to believe or disbelieve. Garrett Mining
Co. v. Nye, 122 S.W.3d 513, 518 (Ky. 2003) (citations omitted).
We are persuaded that the same reasoning should be applied to
Music’s second argument; i.e., that the payment of benefits and wages by Emerson
Electric was conclusive of a work-related injury. However, the payment was nonmedical evidence that was merely one part of a lengthy record. It was within the
ALJ’s province to determine the weight of that evidence.
The ALJ in this case did not find that Music had suffered a workrelated injury. After reading her deposition and observing her testimony, he
concluded that Music was not credible. He also cited her inconsistent descriptions
of the injury to various doctors. The record contains reports from other doctors
indicating that Music’s lasting pain was not the result of a work injury. Several of
the doctors documented examples of Music’s exaggerating symptoms and even
malingering. There was enough evidence in the record to support the ALJ’s
decision, and Music has not presented evidence that compels a reversal.
We affirm the decision of the Workers’ Compensation Board.
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ALL CONCUR.
BRIEF FOR APPELLANT:
NO BRIEF FOR APPELLEE
Phillipe W. Rich
Louisville, Kentucky
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