BOBBY RICHARDSON v. COCA COLA ENTERPRISES, INC.; SPECIAL FUND; HON. JAMES L. KERRY, ADMINISTRATIVE LAW JUDGE; and WORKERS' COMPENSATION BOARD
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RENDERED: June 12, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
NO. 97-CA-1921-WC
BOBBY RICHARDSON
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
NO. WC-95-003788
COCA COLA ENTERPRISES, INC.;
SPECIAL FUND;
HON. JAMES L. KERRY,
ADMINISTRATIVE LAW JUDGE; and
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING IN PART - REVERSING AND REMANDING IN PART
* * * * *
BEFORE:
ABRAMSON, GARDNER and GUIDUGLI, Judges.
GUIDUGLI, JUDGE.
Bobby Richardson (Richardson) appeals from an
opinion of the Workers' Compensation Board (the Board) rendered
July 3, 1997, which affirmed the opinion and order of the
Administrative Law Judge (ALJ) entered February 1, 1997,
dismissing his claim.
We affirm in part and reverse and remand
in part.
Richardson has been employed by appellee, Coca Cola
Enterprises, Inc. (Coca Cola) since 1972.
He started with Coca
Cola as a driver, and his job included driving, delivering, and
stocking shelves.
He worked as a driver until 1978, when kidney
problems caused him to miss three months of work.
He returned to
work as a case packer; his job consisted of making sure bottles
were properly packed in cases.
Approximately one year later he
became a load supervisor responsible for checking the trucks as
they returned to the facility.
performing any of these jobs.
He had no physical trouble
He was only required to lift and
unload trucks when he worked as a driver.
In 1985, the facility stopped bottling soft drinks.
For approximately two months he helped with the loading of the
delivery trucks.
He had difficulty doing this work because of
his kidney problems.
He denied having back problems that kept
him from doing this work.
He then began working as a double
bottom driver, which involved driving a truck from Paducah to
Hopkinsville.
The only physical part of this job involved using
a dolly to connect the truck trailers and raising the trailer
doors.
trucks.
He was not responsible for loading or unloading the
Richardson testified that the dolly and the truck doors
were heavy, but denied having physical problems performing the
job.
In 1992, Richardson began having neck problems.
A
cervical fusion was performed and he missed approximately three
months of work.
There were no allegations that his neck problems
were work-related and no workers' compensation claim was filed.
On May 23, 1994, Richardson was in the process of
unhooking a set of doubles with a dolly when the dolly handle
struck him across his lower back.
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Richardson testified that the
force of the blow knocked him to his knees.
He continued to work
and reported the accident the next morning.
He started having
back pain that night.
Some days it was better, some days it was
worse, but Richardson continued to work.
Richardson did not seek
medical treatment for his back until January 25, 1995, when he
saw his family physician.
date.
He did not return to work after that
Back surgery was performed on July 7, 1995.
Although he
had some relief following surgery his back still bothers him and
he does not feel there is any job he can physically perform.
Richardson introduced the medical records of Dr. Thomas
Spagnolia (Dr. Spagnolia), a neurosurgeon.
Dr. Spagnolia
performed Richardson's earlier cervical fusion.
He first saw
Richardson for his low back complaints on February 13, 1995.
On
that date, Richardson complained of left-sided lower back pain
and also pain radiating into his left leg.
He ordered a
myelogram and CT scan which showed a narrowing of the L5-S1 nerve
root foramen but no nerve root amputation.
When conservative
treatment failed, a left-sided L5-S1 foraminotomy was performed
on July 7, 1995.
Although surgery provided some relief,
Richardson still reported lower back pain.
Dr. Spagnolia
indicated that "[i]t appears, within reasonable medical
probability, that his work related accident brought into
disabling reality his condition."
Dr. Spagnolia assessed a 10%
impairment to the body as a whole.
Richardson also introduced a one page letter from Dr.
Monte Rommelman (Dr. Rommelman) into evidence.
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Dr. Spagnolia's
records indicate that Dr. Rommelman saw Richardson on September
29, 1995 and October 9, 1995.
Dr. Spagnolia referred Richardson
to Dr. Rommelman for pain management.
According to Dr.
Rommelman's letter:
After a review of the medical records and
patient history, it is my opinion, within
reasonable medical certainty, that the
accident of May 23, 1994, brought into
disabling reality a dormant degenerative
condition in Bobby Richardson's back and
caused the need for his surgery performed by
Dr. Spagnolia on July 7, 1995.
Dr. Rommelman did not offer an impairment rating.
Coca Cola introduced the medical records of Dr. Leon
Ensalada (Dr. Ensalada).
August 27, 1996.
Richardson was seen by Dr. Ensalada on
Richardson told Dr. Ensalada that his back pain
began immediately on May 23, 1994, but that he did not experience
pain in his left leg for another three months.
According to Dr.
Ensalada's records, Richardson denied any prior back problems.
Dr. Ensalada did not believe there was a causal relationship
between Richardson's lumbar radiculopathy and the work-related
accident.
However. Dr. Ensalada did believe there was a
correlation between Richardson's problems and "his
nonoccupationally related, pre-existing active lumbar
degenerative disease, including lumbar spondylosis and foraminal
stenosis."
Dr. Ensalada also felt that Richardson's condition
was not aggravated by his accident.
Dr. Ensalada stated:
I base my opinions in this regard on a number
of considerations, including: First, Mr.
Richardson's foraminal stenosis, which is a
narrowing of the opening through which his
spinal nerve root exited, is a
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nonoccupationally related active degenerative
condition which progresses over time from an
asymptomatic state to a symptomatic state.
Second, the mechanism of Mr. Richardson's
injury of record, as he describes it, would
not likely injure his neural foramen, a
structure which is well below the surface of
his back. Third, Mr. Richardson's
radiculopathy, manifested by his radicular
leg pain and subjective numbness, did not
begin until at least three months following
his 05/23/94 injury of record.
Dr. Ensalada gave Richardson an impairment rating of 10% and
attributed 100% of Richardson's impairment to the presence of
pre-existing, active degenerative disease.
Coca Cola also introduced the medical records and
deposition testimony of Dr. Gregory Lansford (Dr. Lansford).
According to Dr. Lansford's medical records, he diagnosed
Richardson with lumbar degenerative disc disease, lumbar
spondylosis, foraminal stenosis, and radiculopathy.
also assigned an impairment rating of 10%.
Dr. Lansford
Dr. Lansford believed
that Richardson's degenerative changes were asymptomatic prior to
the accident, but also indicated that it was unusual for his
symptoms to appear five months after the accident.
At his deposition, Dr. Lansford testified that
Richardson's foraminal stenosis was a degenerative condition
caused by overgrowth of the facet joint which caused compression
of the nerve root.
He stated that Richardson's back problems
were caused by a degenerative condition and it was difficult for
him to connect Richardson's accident to his problems.
In Dr.
Lansford's opinion trauma is not a likely cause of spinal
stenosis.
If the stenosis was caused by the accident,
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Richardson's symptoms should have manifested earlier than five
months after the accident.
However, Dr. Lansford acknowledged
that Richardson had complained of back pain immediately after the
accident; and agreed that Richardson's condition had been
aggravated to the point that he was experiencing back pain.
In
reference to the work-related accident, Dr. Lansford stated that
"at least by his history, it caused his back pain.
Now how his
leg pain factors into that, I can't say with medical certainty
that that caused that, no."
Dr. Lansford also stated:
I believed his lumbar condition was a
degenerative process which is basically a
natural process of aging. it is sometimes
accelerated in people who do a lot of
repetitive bending, lifting, stooping.
It's hard for me to correlate the accident he
described five months prior to the onset of
leg pain as being the direct cause of his
needing surgery since the symptoms didn't
occur until five months later.
Out of the 10% impairment rating. Dr. lansford testified that
"half of his impairment would be related to his underlying
condition and half would be apportioned to his operation."
Coca Cola also introduced the deposition of Kevin
Demumbree (Demumbree), who witnessed Richardson's accident.
Demumbree testified that the dolly handle weighed approximately
five to eight pounds.
He stated that when the handle hit
Richardson he grabbed his back and yelled something like "dang
that smarted" or "that hurt."
He did not fall to his knees.
In an opinion entered February 11, 1997, the ALJ
indicated that he found the testimony of Dr. Lansford and Dr.
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Ensalada more credible and believable and held that "the
radiculopathy complained of by the plaintiff in January of 1995
did not manifest itself as a result of the May 23, 1994 injury."
The ALJ also found that Richardson "had ongoing active
degenerative processes in his spine which were evident by his
need for neck fusion in 1992," and that the accident did not
cause the injury to the neuroforamina.
The ALJ held that
Richardson failed to meet his burden of proof on the issue of
causation and dismissed his claim.
In an opinion rendered July 3, 1997, the Board affirmed
the opinion of the ALJ.
The Board found that the evidence
presented did not compel a finding in favor of Richardson and
that the ALJ's opinion was supported by substantial evidence.
to Richardson's argument that the ALJ erred in failing to
As
consider his low back complaints separate from his low back
radiculopathy, the Board found that "there are no causation
opinions regarding Richardson's low back pain.
Since causation
is a necessary element of Richardson's claim, his failure to
produce evidence of causation regarding the low back pain is
necessarily fatal."
This appeal followed.
We agree with the Board's findings concerning
Richardson's lumbar radiculopathy and adopt as our own that
portion of the Board's opinion as set forth below:
The claimant in a workers' compensation
case bears the burden of proving each of the
essential elements of his claim. Snawder v.
Stice, Ky.App., 576 S.W.2d 276 (1979). Where
the party with the burden of proof is
unsuccessful before the ALJ, the question on
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appeal becomes whether the evidence compels a
contrary finding. Wolf Creek Collieries v.
Crum, Ky.App., 673 S.W.2d 735 (1984).
Compelling evidence is defined as evidence
which is so overwhelming no reasonable person
could reach the same conclusion as the ALJ.
REO Mechanical v. Barnes, Ky.App., 691 S.W.2d
224 (1985). It is not enough for Richardson
to show that there is merely some evidence
which would support a contrary result.
McCloud v. Beth-Elkhorn Corp., Ky., 514
S.W.2d 46 (1974). As long as the ALJ's
opinion is supported by any evidence of
substance, it cannot be said that the
evidence compels a different result. Special
Fund v. Francis, Ky., 708 S.W.2d 641 (1986).
The ALJ, as fact finder, has the sole
authority to determine the weight,
credibility, substance, and inferences to be
drawn from the evidence. Paramount Foods,
Inc. v. Burkhardt, Ky., 695 S.W.2d 418
91985). Where the evidence is conflicting,
the ALJ may choose whom and what to believe.
Pruitt v. Bugg Brothers, Ky., 547 S.W.2d 123
(1977). The ALJ may choose to believe parts
of the evidence and disbelieve other parts,
even when it comes from the same witness or
the same party's total proof. Caudill v.
Maloney's Discount Stores, Ky., 560 S.W.2d 15
(1977). Furthermore, this Board may not
substitute its judgment for that of the ALJ
in matters involving the weight to be
afforded the evidence on questions of fact.
KRS 342.285(2).
Richardson first attacks the credibility
of Dr. Ensalada, pointing out that he limits
his practice primarily to disability
evaluations. Arguments such as this have no
place before this Board. As noted above, the
ALJ alone may determine the weight and
credibility to be afforded particular
testimony. Paramount Foods, Inc. v.
Burkhardt, supra. This Board may not
substitute its judgment in such matters. KRS
342.285(2). Richardson also argues that Dr.
Ensalada's opinion is entitled to no weight
because he describes the preexisting
conditions in Richardson's low back as being
active, but he gives no basis for this
opinion, and no support for it can be found
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anywhere in the record. We agree with
Richard (sic) that the preexisting
spondylosis and foraminal stenosis to which
Dr. Ensalada refers do not appear to meet the
definition of a preexisting, active condition
as pertains to Kentucky Workers' Compensation
Law. A condition is considered a
preexisting, active condition if it produces
a degree of occupational disability prior to
the occurrence of the work-related injury.
See, Wells v. Bunch, Ky., 692 S.W.2d 806
(1985). However, it is quite common for
physicians and workers' compensation lawyers
to use the same words in different contexts.
Thus, the preexisting conditions to which Dr.
Ensalada refers may well be medically active
without being actively disabling prior to
Richardson's May 1994 injury. Therefore, we
find no error with the ALJ's reliance upon
Dr. Ensalada's opinions.
However, we disagree with the Board's conclusion that
there are no causation opinions regarding Richardson's lower back
pain and that Richardson failed to meet his burden of proof
regarding this lower back pain.
Richardson testified that he had
no back pain prior to the accident, that his back pain started
immediately after the accident, and that his pain fluctuated from
day to day.
In Dr. Lansford's opinion, Richardson's back pain
was caused by the accident and half of his impairment rating is
related to the underlying condition.
We agree with Richardson's contention that the issue in
this case is whether Richardson was injured in the course of his
employment and, if so, the extent of his disability.
While we
agree with the Board that Richardson did not meet his burden of
proof regarding causation of his lumbar radiculopathy, our review
of the testimony in this case shows that Richardson did meet his
burden of proof in regard to the causation of his lower back
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pain.
As such, the ALJ erred in not rendering findings regarding
Richardson's low back pain separate from his lumbar
radiculopathy.
The ALJ's finding as to failure to prove
causation in regard to Richardson's back pain is not reasonable
under the evidence presented and as such, is clearly erroneous.
Special Fund v. Francis, Ky., 708 S.W.2d 641, 643 (1986).
Having considered the parties' arguments on appeal, the
opinion of the Board is affirmed in part and reversed in part,
and this matter is remanded to the ALJ for further proceedings in
accordance with this opinion.
We hope this negates any concerns
counsel for Richardson may have concerning the status of
appellate review after Western Baptist Hospital v. Kelly, Ky.,
827 S.W.2d 685 (1992).
GARDNER, JUDGE, CONCURS.
ABRAMSON, JUDGE, CONCURS IN RESULT ONLY.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, COCA COLA:
Charles A. Saladino
Paducah, KY
David B. Wrinkle
Paducah, KY
BRIEF FOR APPELLEE, SPECIAL
FUND:
David W. Barr
Louisville, KY
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