VINCENZO'S, INC. V. JUDY JO SLAUGHTER; DENIS S. KLINE, Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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RENDERED: March 17, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-001165-WC
VINCENZO'S, INC.
V.
APPELLANT
PETITION FOR REVIEW OF A DECISION OF
THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-94-26138
JUDY JO SLAUGHTER; DENIS
S. KLINE, Administrative
Law Judge; and WORKERS'
COMPENSATION BOARD
APPELLEES
OPINION AFFIRMING
* * * * * * * *
BEFORE:
GUDGEL, Chief Judge; GUIDUGLI and TACKETT, Judges.
GUDGEL, CHIEF JUDGE:
This matter is before us on a petition for
review of an opinion of the Workers’ Compensation Board (board),
which reversed and remanded an opinion and award of an
Administrative Law Judge (ALJ) in a reopening proceeding.
The
ALJ denied the worker’s claims for additional medical and
disability benefits.
We have reviewed the record, the opinions of the ALJ
and the board, the petition for review, and the response thereto.
Essentially, appellant employer contends that the evidence did
not compel a finding in favor of appellee Judy Jo Slaughter, and
that the board therefore erred by reversing the ALJ’s decision.
However, the board in fact reversed the ALJ because it determined
that the ALJ had an erroneous understanding of the medical
evidence, which it then relied upon in denying Slaughter’s
claims.
Contrary to appellant’s argument, the board did not
substitute its judgment as to the weight, credibility, and/or
sufficiency of the evidence for that of the ALJ.
Rather, it
merely remanded the matter to the ALJ for entry of a new award
consistent with an error-free interpretation of the medical
evidence.
Having reviewed the record herein, we find ourselves in
complete agreement with the board’s opinion.
Hence, we adopt
that opinion, written by Board Member Jonathan Stanley, as our
own as follows:
Petitioner, Judy Jo Slaughter (“Slaughter”),
appeals from an opinion and order rendered on
January 8, 1999 by the Hon. Denis S. Kline,
Administrative Law Judge (“ALJ”), denying her
request for additional disability and medical
benefits on reopening against the respondent,
Vincenzo’s Inc. (“Vincenzo’s”). Now on
appeal, Slaughter argues that the ALJ in his
decision exhibited an erroneous understanding
of the evidence and therefore should be
reversed.
Slaughter was born on October 1, 1942
and is a resident of Louisville, Kentucky.
She has a tenth grade education and no
vocational or specialized job training. In
1958, Slaughter began working as a waitress
for various restaurants. She also worked for
a brief period as a factory worker for a
printing company. After her children were
born in the early 1960s, Slaughter left
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public sector employment to raise her family.
During this time, she worked occasionally as
a teacher’s assistant for her son’s school
and at a day care owned by her cousin. She
reentered the workforce in the 1980s as a
caterer in the Jewish community for Mr.
Pollack, who had contracts with multiple
Jewish Synagogues. Slaughter worked for Mr.
Pollack for a year and a half before going to
work for Vincenzo’s, another catering
company. During her first year of employment
with Vincenzo’s, when business was slow,
Slaughter also worked sporadically for
another caterer in Prospect, Kentucky
conducting outside barbecues.
On June 3, 1994, Slaughter suffered a
work-related injury when she slipped and fell
on a wet floor, fracturing her right hip.
She ultimately entered into a settlement
agreement with Vincenzo’s in August 1995
based upon a 3 percent disability. No
application for benefits was ever filed.
After a period of recovery, in May 1996,
Slaughter attempted to return to work as a
caterer in time for the Kentucky Derby. She
worked three Derby parties during a two-week
span. However, because of increasing
problems, which Slaughter relates to her
original accident, she was unsuccessful and
has not returned to work since.
Following the Derby parties in 1996,
Slaughter again sought medical attention.
Initially, this treatment was denied by
Vincenzo’s insurance company. Finally,
Slaughter was permitted medical care in July
1996, and temporary total disability (“TTD”)
benefits were re-instituted for a period of
six weeks.
In April 1997, Slaughter, this time with
the assistance of counsel, filed a motion to
reopen alleging increased medical and
occupational disability due to the effects of
her June 3, 1994 injury. Slaughter
specifically alleged continuing pain in her
right hip, which has spread to her low back,
both buttocks, and left leg.
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On October 16, 1997, Slaughter’s claim
was ordered reopened by Chief ALJ Donna
Terry. Ultimately, petitioner’s claim was
assigned to ALJ Kline for adjudication.
In addition to Slaughter’s testimony at
the hearing and by deposition, evidence
before the ALJ consisted of the deposition
and various medical records of Dr. David P.
Rouben, the depositions and medical records
of Dr. Stephen Kirzinger, the medical report
of Dr. Gregory Gleis, and the medical records
of Dr. Steven Reiss.
Dr. Rouben first saw Slaughter upon
referral from Dr. Robert Beanblossom on June
4, 1994 for treatment. Dr. Rouben initially
diagnosed the petitioner as suffering from an
intertrochanteric fracture of her right hip
and an injury to her right knee. Slaughter
subsequently underwent a open reduction and
internal fixation for her hip fracture and an
arthroscopy of her right knee. Over time,
Dr. Rouben opined, Slaughter’s hip fracture
healed, but she continued to experience pain
in the right thigh and weakness in the right
leg. She also noticed an indentation of the
right buttock due to atrophy. Finally, Dr.
Rouben determined that Slaughter reached
maximum medical improvement on August 1,
1995. He released her to full and
unrestricted duty at that time.
In approximately January 1996, Slaughter
reported to Dr. Rouben that she began to
notice an indentation of her left buttock.
She was placed back into physical therapy in
May 1996 for treatment of the left hip, which
caused pain to radiate into the left leg.
Her pain was described as being located in
her low back, buttocks, right hip, right
anterior and posterior thigh, in the medial
and lateral aspect of the right thigh, and in
the left posterior thigh. Initially, Dr.
Rouben was uncertain of the etiology of
petitioner’s gradually increasing complaints.
By letter dated October 1, 1996, Dr.
Rouben referred Slaughter to Dr. Stephen
Kirzinger for purposes of helping him
determine the plausible etiology of the
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atrophy of her left gluteal musculature. Dr.
Rouben specifically requested information
from Dr. Kirzinger as to whether there was a
direct connection between her left buttock
muscular deficiency and the fall that she
experienced in June 1994. Subsequently, an
MRI dated November 8, 1996 demonstrated that
Slaughter had desiccation at the L4-5 and
L5-S1 disk levels. There was also evidence
of a central disk herniation with
subligamentous herniations at both L4-5 and
L5-S1. EMG studies reveal a mild S1
radiculopathy. In a progress note dated
November 18, 1996, Dr. Rouben noted that Dr.
Kirzinger had attributed Slaughter’s gluteal
nerve palsy directly to the contusion she
sustained when she fell on her buttock and
fractured her hip in 1994. At his
deposition, taken August 24, 1998, Dr. Rouben
testified that in his opinion, the only
explanation for the changes involving
Slaughter’s left buttock muscle loss and
associated weakness was her 1994 fall at
work. Specifically, Dr. Rouben stated that,
“Given the fact that there is no integral
evidence of either a persistent pressure
injury to the nerve or a new traumatic injury
to the nerve, I would have no other
explanation to it.” In a progress record
dated November 27, 1996, Dr. Rouben
permanently restricted Slaughter to a “sit
down job or light duty job,” as a result of
her ongoing progressive problems.
Dr. Kirzinger testified that he first
examined Slaughter on October 29, 1996. He
subsequently treated her on a fairly regular
basis until 1997. He then began treating her
again regularly during the last few months of
1998. Dr. Kirzinger described Slaughter’s
ongoing problems as a flair up of the
symptoms associated with her 1994 accident.
Following an EMG and MRI scan, Dr. Kirzinger
diagnosed Slaughter as having an inferior
gluteal nerve injury on the left side
resulting in weakness and atrophy of the
gluteus maximus muscle and symptoms on the
right side consistent with a S1 nerve root
contusion. These findings, in Dr.
Kirzinger’s opinion, were directly
attributable to the events of June 1994. Dr.
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Kirzinger assessed a total impairment to
Slaughter’s body as a whole of 14 percent.
Of this amount, 6 percent was attributable to
the claimant’s left side problems. Two
percent represented her previous impairment
secondary to her right hip fracture. Dr.
Kirzinger opined that Slaughter remains
temporarily totally disabled due to her
injuries.
Dr. Gleis performed an independent
medical evaluation (“IME”) at the request of
Vincenzo’s on December 22, 1997. Following
his evaluation, he diagnosed Slaughter as
suffering from a right hip fracture with
minimal loss of range of motion, right thigh
pain secondary to the right hip fracture, and
subcutaneous atrophy at the left and right
upper outer quadrants of the buttock
attributable to either IM injections or
direct contusions from her fall. He also
diagnosed low back pain, hypesthesia
compatible with right saphenous nerve
distribution and radiculopathy, all of
unknown etiology. With regard to Slaughter’s
fractured right hip only, Dr. Gleis assessed
a 2 percent impairment to the body as a
whole.
Dr. Reiss, who saw Slaughter on December
12, 1996, also opined that petitioner’s [sic]
has left gluteal atrophy. However, he was
uncertain as to the etiology.
As stated above, on January 8, 1999, the
ALJ rendered an opinion dismissing
Slaughter’s claim for additional TTD or
permanent disability benefits. In so doing,
the ALJ stated that he specifically relied
solely upon the testimony of Dr. Rouben. The
ALJ stated in relevant part as follows:
The first issue presented is
whether the plaintiff’s current
complaints and problems are related
to her June 3, 1994 work injury.
Of course, any problem which is
directly related to her hip
fracture is related to her work
injury. It is also noted that Ms.
Slaughter has been complaining of
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right leg pain since her initial
treatment with Dr. Rouben, and I
believe that any treatment which
she received for right leg pain in
[sic] compensable. I will
specifically conclude that the left
gluteal nerve injury and any
associated complaints including
left leg pain are not compensable.
I found the testimony of Dr. Rouben
to be most persuasive. I did not
find Dr. Kirzinger’s testimony to
be [at] all credible.
The plaintiff has requested
additional total disability
benefits and medical expenses. She
has failed to convince me that she
has any period of temporary total
disability for which she had not
been compensated. Again, I will
rely upon the testimony of Dr.
Rouben.
The final issue is whether she
has had an increase in her
occupational disability since
August of 1995. Again, based upon
the testimony [of] occupational
disability [by] Dr. Rouben, I will
conclude that she has not had an
increase. She has failed to
present any credible medical
evidence which would support a
conclusion that the restrictions
placed upon her activities at this
time are any greater than they were
in August of 1995. Her claim for
any additional permanent partial
disability benefits is DENIED.
Now on appeal, Slaughter argues that (1)
the ALJ erred in finding that her left hip
and lower extremity problems, as well as her
low back condition, are not related to her
work-related fall on June 3, 1994, and (2)
the ALJ also erred in finding that Slaughter
failed to show an increase in her
occupational disability upon reopening. In
making these arguments, Slaughter
specifically cites to the fact that the ALJ
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relied exclusively on Dr. Rouben in reaching
his conclusions. Petitioner further argues
that given Dr. Rouben’s opinion as expressed
in his deposition, the ALJ exhibited an
erroneous understanding of the evidence and
therefore should be reversed. We agree.
While we recognize that the ALJ, as fact
finder, has the sole authority to determine
weight, credibility, substance, and
inferences to be drawn from the evidence, we
also acknowledge that the parties are
entitled to findings of fact based [on] a
correct understanding of the evidence.
Paramount Foods, Inc. v. Burkhardt, Ky., 695
S.W.2d 418 (1985); Cook v. Paducah Recapping
Service, Ky., 694 S.W.2d 684 (1985). The ALJ
by law must support his ultimate conclusions
with correct facts taken from the evidence.
Shields v. Pittsburg & Midway Coal Mining
Co., Ky. App., 634 S.W.2d 440 (1982).
Given the ALJ’s reliance on Dr. Rouben
to support his rulings, the Board must
conclude that the dismissal of Slaughter’s
reopening may have resulted from an erroneous
understanding of Dr. Rouben’s testimony and
medical records. Whitaker v. Peabody Coal
Co., Ky., 788 S.W.2d 269 (1990). The ALJ
expressly cites to Dr. Rouben’s opinions as
his grounds for concluding that Slaughter’s
left gluteal nerve palsy with associated
symptoms of radicular pain, weakness, and
atrophy are not work related. However, Dr.
Rouben specifically testified in direct
opposition to the ALJ’s finding.
Furthermore, ALJ Kline also relied solely on
Dr. Rouben as the basis for concluding that
Slaughter is not entitled to an increase in
her occupational disability since her August
1995 settlement. However, the uncontradicted
evidence reflects that although in August
1995 Dr. Rouben was of the opinion that
Slaughter could return to her normal and
customary job activities as a caterer without
restrictions, by November 1996 Dr. Rouben had
restricted Slaughter to light and sedentary
activities only. Given these facts, Dr.
Rouben’s testimony and findings with regard
to causation and increased disability
constituted an insufficient basis upon which
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to dismiss the petitioner’s claim. For these
reasons, this claim shall be remanded for
further consideration by the ALJ.
The board’s opinion is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR JUDY JO SLAUGHTER:
James R. Wagoner
Louisville, KY
Thomas A. Dockter
Bardstown, KY
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