RENDERED: JULY 1, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
HATZEL & BUEHLER, INC.
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-08-78270
GARY L. FULLER;
HON. JOHN B. COLEMAN,
ADMINISTRATIVE LAW JUDGE;
and WORKERS’ COMPENSATION
** ** ** ** **
BEFORE: ACREE, MOORE, AND NICKELL, JUDGES.
MOORE, JUDGE: Hatzel & Buehler, Inc. (Hatzel), appeals from the decision of
an administrative law judge (ALJ) awarding Gary Fuller permanent partial
disability (PPD) benefits based upon a 21% functional impairment rating, and the
opinion of the Workers’ Compensation Board affirming the ALJ’s decision. The
ALJ based Fuller’s award, in part, upon an alleged malunion of the calcaneus of
Fuller’s right foot following a comminuted fracture in that region. The sole issue
Hatzel raises on appeal is whether substantial evidence of record supported that
this condition existed. After careful review, we affirm.
FACTUAL AND PROCEDURAL HISTORY
On August 22, 2008, Fuller sustained an injury to his right foot during
the course and scope of his employment as an electrician with Hatzel. Fuller was
pulling a rope attached to a tugger (a device used to pull cable similar to a winch)
and in an attempt to stop the rope from coming loose from the tugger, Fuller was
pulled approximately twelve feet off of the ground and fell. Fuller experienced
immediate pain in his right foot, and his right foot was placed in a cast for
approximately nine weeks.
After filing his claim in this matter, Fuller submitted several medical
records regarding the nature of his injury. Included with these records is an August
27, 2008 treatment note from Dr. Rolando Cheng, who evaluated Fuller and
reviewed an x-ray of Fuller’s right ankle that was taken at Meadowview Hospital
on the date of Fuller’s injury. The treatment note states:
A lot of swelling around the R foot, especially around the calcaneus
Pain on range of motion with limitation;
Circulation of the R lower extremity is otherwise intact.
Dr. Cheng’s treatment note further states that the x-ray “shows R
ankle negative for acute fracture. Mild deformity of the calcaneus suggesting an
old fracture but see discussion above.”
However, in another treatment note of October 28, 2008, Dr. Cheng
stated that a subsequent CT scan of Fuller’s right foot
[s]how[ed] comminuted fracture of the calcaneus. It is
best seen on axial views and there is [sic] basically three
components. An anterior, posterior and anterior medial
component including the sustentaculum tali. There is
mild distraction of these fractures but the coronal and
sagittal views show that the impact upon this subtalar
joint is relatively minor with the posterior facet and
anterior facet joint intact with only slight variation at the
offset of the medial facet noted, otherwise.
The record also contains the report of Dr. Robert Johnson, who
consulted with Fuller on February 18, 2010. Dr. Johnson noted that Fuller’s
treatment records from Harrison Memorial Hospital between August 22, 2008, and
March 10, 2009, reflected that Fuller had sustained a comminuted fracture of the
calcaneus of the right foot that had progressively healed with some deformity. Dr.
Johnson noted that Fuller had consulted with Dr. Nicholas Gates on June 15, 2009,
and that Dr. Gates had diagnosed Fuller with right hindfoot pain secondary to
posttraumatic subtalar arthritis, calcaneal malunion and arthrofibrosis.
Next, Dr. Johnson reviewed a standing x-ray of Fuller’s right foot that
Dr. Gates had ordered on June 15, 2009. Dr. Johnson opined that the x-ray
malunion of the calcaneus, the loss of Bohler’s angle,
subtalar arthritis in the form of sclerotic bone but with
maintenance of the joint space. . . . There is a major
degree of calcification in the region of the sustentaculum
and the Bohler’s angle is virtually flat. There is fairly
good joint space but poor joint congruity.
Dr. Johnson also noted that Fuller had consulted with Dr. John Kelly
from September 8 through December 17, 2009,1 and that
Dr. Kelly states that the fracture appears well healed so
there is no apparent structural or orthopaedic [sic]
impairment that would prevent [Fuller from] returning to
work as an electrician.
Dr. Johnson also conducted a physical examination of Fuller. In light
of that examination and the records of Fuller’s prior treatment, Dr. Johnson
diagnosed Fuller with a “comminuted fracture of the right calcaneus with
malunion,” and stated that within reasonable medical probability Fuller’s injury
had caused this condition. Dr. Johnson assigned Fuller a whole person impairment
rating of 21%.
On March 4, 2010, Fuller was evaluated by Hatzel’s expert, Dr.
Joseph Zerga. In his own review, Dr. Zerga noted that Fuller’s hospital records
reflected that “Right ankle films were said to be negative for acute fracture. There
was a mild deformity of the calcaneous [sic] suggesting an old fracture.
Ultimately, a CT scan was done in Cynthiana on 10/17/08 which did show a
comminuted fracture of the calcaneous [sic].” Dr. Zerga also reviewed Dr.
Cheng’s August 25, 2009 treatment note, stating, “[Dr. Cheng’s] note is a bit
Although Dr. Johnson’s report summarizes Dr. Kelly’s opinions, the record contains nothing
directly from Dr. Kelly.
confusing whether he feels [Fuller] has a new or old fracture, but the CT scan
eventually resolved that issue. It was a new fracture.” Dr. Zerga diagnosed Fuller
with “status post calcaneal fracture with residual plantar nerve damage resulting in
neuropathic pain, parethesias and numbness, which results in gait disturbance,” and
assigned Fuller a whole person impairment rating of 5%.
On May 25, 2010, another x-ray was performed on Fuller’s right foot.
In relevant part, the reviewing radiologist, Dr. Daniel Beineke, noted that there was
“possible soft tissue swelling laterally,” but that he saw “no bony abnormality,”
and “no evidence of recent or old fracture.” And, similar to Dr. Cheng’s treatment
note of August 27, 2008, Dr. Beineke concluded “Films negative for fracture.”
On June 2, 2010, Dr. Zerga supplemented his opinion of Fuller’s
condition, stating in relevant part:
[T]here have been impairment ratings given based on the
opinion that [Fuller] had a calcaneal fracture. This
opinion was somewhat conflicted in the records,
including Dr. Kelly’s records, who stated [Fuller] did not
have a fracture. Because of the conflicts, I recommended
a repeat x-ray of his right foot and ankle which was done
at Harrison Memorial Hospital on May 25, 2010.
Enclosed is a copy of that record. The x-ray of the right
ankle showed possible soft tissue swelling, but no bony
abnormality. The x-ray of the right foot was negative for
fracture. Therefore, there is no evidence of an active
Dr. Zerga also re-emphasized that he would assign Fuller a 5% whole person
The record contains nothing from Dr. Johnson regarding the May 25,
2010 x-ray. However, Hatzel did not depose Dr. Johnson, nor was Dr. Johnson’s
impairment rating critiqued by any other physician.
The main point of disagreement between Fuller and Hatzel, and the
source of the disparity between Dr. Johnson’s and Dr. Zerga’s respective ratings,
became whether Fuller had suffered a malunion from a calcaneal fracture.2 Upon
submitting this matter to the ALJ, Hatzel argued that Dr. Johnson’s rating of
Fuller’s impairment was invalid because Dr. Johnson had offered no opinion
regarding the May 25, 2010 x-ray. In a similar vein, Hatzel pointed out that Drs.
Zerga and Beineke had found no evidence of malunion. Hatzel urged that because
Drs. Zerga and Beineke were the only medical experts to incorporate a review of
the May 25, 2010 x-ray into their opinions, their opinions constituted the only
accurate evidence of Fuller’s condition. Nevertheless, after reciting the evidence
of record, the ALJ relied upon Dr. Johnson’s report and assigned Fuller a 21%
whole person impairment rating.
In its petition for rehearing, Hatzel took umbrage with a statement
contained within the ALJ’s twelve-page order:
I am convinced by the opinion of Dr. Johnson that the
plaintiff was appropriately assessed with a 21% whole
person impairment. Further, I am not convinced by the
opinion of Dr. Zerga that the plaintiff lacked evidence of
a fracture. A review of the records of Dr. Cheng clearly
Hatzel also argued that Dr. Johnson’s method of calculating Fuller’s disability rating failed to
comply with the rules set forth in the AMA guides, but the ALJ disagreed. On appeal before the
Board, the Board also disagreed with this argument. Hatzel does not reassert this argument in its
appeal before this Court.
indicate the plaintiff was treated for a fracture in the right
Dr. Zerga did not state or imply that the claimant never
had a fracture; instead, he only stated that, based on the
most recent x-ray, there is no evidence of an “active
calcaneal fracture,” thus ruling out the displacement.
Further, the radiologist report of the right foot x-ray
taken on May 26, 2010, clearly showed no evidence of a
displaced fracture. The 5th AMA Guides do not allow for
an undisplaced healed fracture of the hind foot to be
rated. Accordingly, the ALJ’s reasoning for rejecting the
opinions of Dr. Zerga is clearly erroneous.
The ALJ denied Hatzel’s petition. On appeal before the Board, Hatzel
argued that Dr. Johnson’s rating of Fuller’s impairment did not constitute
substantial evidence, and that the ALJ had, therefore, erred in relying upon it in
calculating Fuller’s award. As it did before the ALJ, Hatzel again pointed out that
Drs. Zerga and Beineke had found no evidence of malunion and urged that because
Drs. Zerga and Beineke were the only medical experts to incorporate a review of
the May 25, 2010 x-ray into their opinions regarding Fuller’s condition, their
opinions were uncontroverted; therefore Dr. Johnson’s opinion was invalid. Also,
Hatzel argued that the ALJ must have misunderstood the opinions of Drs. Zerga
and Beineke because otherwise the ALJ would never have relied upon Dr.
The Board affirmed the ALJ’s opinion in its entirety. This appeal
followed, and Hatzel reasserts the same argument described in the preceding
We preface our own analysis of Hatzel’s argument by stating that the
standard for appellate review of a Board decision “is limited to correction of the
ALJ when the ALJ has overlooked or misconstrued controlling statutes or
precedent, or committed an error in assessing the evidence so flagrant as to cause
gross injustice.” Bowerman v. Black Equip. Co., 297 S.W.3d 858, 866
(Ky.App.2009) (citing W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88
As to Hatzel’s contention that the ALJ was required to rely upon the
opinions of Drs. Zerga and Beineke and disregard the opinion of Dr. Johnson
because the opinions of Drs. Zerga and Beineke were “uncontroverted,” it is the
ALJ's function to consider all of the relevant evidence, to determine the character,
quality, and substance of a physician's statements and to draw reasonable
inferences from them. Therefore, an ALJ may choose to reject even
uncontradicted medical testimony if the choice is supported by a reasonable
explanation. Commonwealth v. Workers' Compensation Bd. of Kentucky, 697
S.W.2d 540 (Ky. App. 1985); see also Collins v. Castleton Farms, Inc., 560
S.W.2d 830 (Ky. App. 1977).
That aside, the issue in this matter is not whether an ALJ chose to
disregard uncontradicted medical evidence. The issue is whether it was proper for
the ALJ to favor a less-recent medical opinion from one physician over a more
recent medical opinion from another. Certainly, the date of a medical opinion and
the information available to the physician who renders it are factors bearing upon
its weight as evidence. But, Hatzel did not cite authority prohibiting an ALJ from
relying upon an older medical opinion that conflicts with a newer one. Indeed,
“where the medical evidence is conflicting, the sole authority to determine which
witness to believe resides with the ALJ.” Staples, Inc. v. Konvelski, 56 S.W.3d
412, 416 (Ky. 2001) (citing Pruitt v. Bugg Brothers, 547 S.W.2d 123 (Ky. 1977)).
With the foregoing in mind, the Board’s reasoning behind affirming
the ALJ’s decision is not indicative of clear error. We agree with the Board’s
reasoning and adopt it as our own:
Here, the ALJ chose to rely on the impairment assigned
by Dr. Johnson, whose methodology went unquestioned.
We are satisfied Dr. Johnson’s opinion constitutes
substantial evidence supporting the ALJ’s decision.
Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418
(Ky. 1985). We have noted on numerous occasions that
mere arguments by counsel as to the weight to be
afforded the evidence are insufficient to require rejection
of an impairment rating. We also find no merit in
Hatzel’s argument that merely because Dr. Zerga and a
radiologist reviewed a more recent x-ray, the ALJ would
be required to reject Dr. Johnson’s opinion. Clearly, past
x-rays were not conclusive as to the nature of Fuller’s
injury. Even Dr. Zerga acknowledged there was some
question initially as to whether Fuller sustained a fracture
and even whether there had ever been a fracture. A CT
scan was obtained which Dr. Zerga acknowledged was
proof that a comminuted fracture did result from the
work injury. Some disagreement continued as evidenced
by the radiologist’s report of the May 25, 2010 x-ray
which indicates there was “no evidence of recent or old
It does not appear the ALJ was confused on this issue.
The ALJ’s summary of Dr. Zerga’s reports clearly
indicates the ALJ understood Dr. Zerga diagnosed a
fracture. Further, in summarizing the supplemental
report, the ALJ specifically noted Dr. Zerga “did not find
any evidence of an active calcaneal fracture.” The ALJ’s
statement that, “I am not convinced by the opinion of Dr.
Zerga that the plaintiff lacked evidence of a fracture”
obviously referred to Dr. Zerga’s opinion as to what was
shown on the May 25, 2010 x-ray. The ALJ was well
within his role as fact finder in accepting the opinion of
Dr. Johnson and in rejecting the opinion of Dr. Zerga
regarding impairment. There being substantial evidence
to support the ALJ’s selection of Dr. Johnson’s
impairment rating, we may not conclude otherwise.
For these reasons, the respective decisions of the ALJ and Board are
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Douglas A. U’Sellis