CHERYL NICHOLS v. FISCHER PACKING COMPANY; SPECIAL FUND; HONORABLE THOMAS A. NANNEY, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
SEPTEMBER 1, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000580-WC
CHERYL NICHOLS
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-96-75839
FISCHER PACKING COMPANY;
SPECIAL FUND;
HONORABLE THOMAS A. NANNEY,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, EMBERTON AND GUIDUGLI, JUDGES.
GUIDUGLI, JUDGE.
Cheryl A. Nichols (Nichols) appeals from an
opinion of the Workers’ Compensation Board (the Board) entered
February 4, 2000, which affirmed an opinion of the Administrative
Law Judge (ALJ) entered August 12, 1999, which denied Nichols’s
claim for income benefits for a cervical spine injury.1
We affirm.
Nichols was employed by Fischer Packing Company
(Fischer) as a quality assurance controller.
On September 23,
1996, she caught her foot on a floor pallet and fell.
Nichols
reported the accident to her supervisor, Garry Bork, on September
25, 1996, and to the company nurse on October 1, 1996.
On all of
the accident reports, Nichols indicated that when she fell she
hit her lower back on the floor pallet.
Nichols’s application
for benefits was filed on December 12, 1996.
Under “nature of
the injury,” Nichols stated “I incurred a herniated disk [sic], a
broken disk [sic], two protruding disks [sic], and nerve damage
to my lower back.”
Although the initial forms pertaining to Nichols’s
accident and injuries relate to the occurrence of a lower back
injury, Nichols testified at her deposition that when she fell
she hit not only her lower back but also her head.
Nichols
stated that she told Bork she hit her head, but she did not
indicate as such on the accident forms because she was more
concerned about her back.2
She further testified that following
the accident she had pain in her lower back and a headache which
lasted several days.
Nichols stated that she attempted to return
to work at Fischer on October 6, 1997, but could only work 2 ½
1
Although the ALJ denied benefits for the cervical spine
injury, he did award benefits based on a 40% occupational
disability rating for a lumbar spine injury resulting from the
same work-related accident. As neither party has appealed from
that portion of the award, we see no need to address Nichols’s
lumbar spine injury any further.
2
Bork testified at his deposition that Nichols told him she
fell and hit her lower back.
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days.
According to Nichols, she started having tremors at work
on October 9, 1997.
date.
She denied having tremors prior to that
Nichols testified that she told Dr. John Guarnaschelli
(Dr. Guarnaschelli), her treating physician, that she was having
pain between her shoulder blades but he never did anything for
it.
She indicated that this pain began in December 1996.
Nichols filed medical records and a Form 107 from Dr.
Guarnaschelli into the record.
According to Dr. Guarnaschelli’s
office notes, he began treating Nichols on October 9, 1996.
From
that date through October 16, 1997, it appears that Dr.
Guarnaschelli treated Nichols for lower back problems only as
there is no mention of cervical spine problems on the office
notes for this time period.
However, on November 11, 1997, Dr.
Guarnaschelli noted that Nichols had a:
multiple constellation of signs and symptoms
in addition to the back complaints. She has
a significant emotional component to her pain
control at this point as would be normal, but
again out of proportion, generalized shaking
and tremor, cannot be easily explained.
Dr. Guarnaschelli reported on November 19, 1997, that a total
columnar myelogram of Nichols’s spine was normal, but a postmyelogram CAT scan showed an expansion of the cervical cord at
C4-5.
Dr. Guarnaschelli also stated that Nichols’s symptoms were
“quite difficult to sort out,” and that she complained of low
back and neck pain along with headaches and shaking.
Nichols was seen again on November 24, 1997.
Dr.
Guarnaschelli indicated that an MRI showed “an area of cyst
formation that appears to be a syrinx.”
-3-
He further noted:
Her shaking is out of proportion to what one
could normally see. According to her and her
husband who accompanied her today, we have
reviewed the nature of her initial injury and
she does state that in addition to striking
her back, she also struck her head at the
same time. She denies other trauma, injury,
or fall to the head or neck that could be
potentially an etiology for this.
Apparently, from a medical viewpoint, I am
having extreme difficulty in explaining her
constellation of signs and symptoms. She
states that the shaking really began after
she returned to work for 2 ½ days and after
she was pulling and stretching opening the
door at work. The complaints of neck pain
and headaches are really difficult to place
on the basis of either her cervical or lumbar
disc disease.
. . . .
Now that the new lesion has developed in the
mid-cervical area.[sic] It is impossible to
say whether or not this has been a preexisting problem or in some fashion related
to trauma.
Nichols’s last visit to Dr. Guarnaschelli was on
January 8, 1998.
Dr. Guarnaschelli did not believe that Nichols
was able to return to any form of work at this time, partly due
to her recovery from the lumbar surgery and partly due to “the
multiple constellation of signs and symptoms for which she is
currently being treated.”
According to the Form 107 completed by Dr.
Guarnaschelli on February 21, 1998, Nichols “was having primarily
complints [sic] of lower back, bilateral hip and bilateral leg
pain.”
Dr. Guarnaschelli indicated that he performed a bilateral
decompression of L4-5 and L5-S1 levels with a bilateral L5-S1
discectomy on December 10, 1996.
Dr. Guarnaschelli’s diagnosis
was “bilateral lumbar radiculopathy secondary to a central disc
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herniation with superimposed spinal stenosis at L5-S1 and L4-5,”
which he believed was caused by the work related accident.
Dr.
Guarnaschelli gave an impairment rating of 12-14%, 50% of which
he attributed to pre-existing degenerative disc disease.
In
regard to the impairment rating, Dr. Guarnaschelli stated that it
applied to Nichols’s lumbar spine only, and that “temors [sic] a
separate issue and not related.”
Nichols also introduced medical records and a Form 107
from Dr. Walter Olson (Dr. Olson).
In a letter dated March 20,
1998, Dr. Olson stated that Nichols told him she struck her back
and head when she fell.
Nichols complained of headaches, pain,
swelling of her neck and back, dizziness, tremors, trouble
swallowing, double vision, shortness of breath, wheezing,
coughing, memory problems, sleep disturbance, difficulty
concentrating, difficulty with appetite, problems with bowel and
bladder function, and muscle weakness.
symptoms to the tremors.
She related most of these
Dr. Olson assessed her condition as
follows:
The patient has a myoclonic disorder. The
rapid, tremor-like activity of the hands,
trunk and feet and legs while appearing in
general like a tremor, particularly with
respect to its frequency, nonetheless the
irregularity of the movement, both in
amplitude and in frequency, belie many
polymyoclonus. This is in fact then a
myoclonic disorder, not a tremorous one. By
the patient’s history the movement disorder
is time locked to the injury sustained and
the lesion discovered is a cervical posttraumatic syrinx unlikely to be a true syrinx
of congenital origin because of its irregular
borders. This, of course, supports posttraumatic syrinx. The cause of myoclonus can
be found anywhere from the cerebral cortex in
the peripheral most segment of the nerve
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involved. Since she has involvement from
shoulders down the lesion may be of cervical
spinal cord or above and a post-traumatic
syrinx adequately and aptly serves as cause
for her tremulousness. Since she continues
to have pain and some disability,
decompression of the syrinx may be of some
benefit.
In his Form 107 dated January 14, 1999, Dr. Olson noted
that surgery to decompress the spinal cord produced “beneficial
results.”
In regard to causation, he indicated that the cervical
problems were related to her work-related accident, stating:
Patient related the onset of the movement
disorder to the work injury, she had a posttraumatic syrinx at the level to explain the
movements and consistent with her story of
the injury.
Dr. Olson gave an impairment rating of 45-74%.
In regard to
restrictions, he indicated that Nichols “should not work near or
with dangerous or “open” machinery due to her myoclonus and
dystonia, and that she should not lift more than 20 pounds.”
Finally, Nichols submitted medical records from Dr.
Dante Morassutti (Dr. Morassutti).
According to office notes,
Dr. Morassutti first saw Nichols on May 11, 1998, on referral
from Dr. Olson.
Dr. Morassutti indicated that Nichols’s “current
symptoms began on October 15, 1997, when she began having diffuse
jerking of the upper and lower extremities as well as jerking of
her head.”
Dr. Morassutti indicated:
My impression is that this patient’s symptoms
are most likely coming from her spinal cord
syrinx. Although it is impossible to say
whether the syrinx was pre-existing prior to
her injury, the fact that she hit her back
and had what suggests that the syrinx was
likely post-traumatic, especially given the
time period between the time of the accident
and the onset of her symptoms.
-6-
On May 30, 1998, Dr. Morassutti performed a bilateral C4-5
laminectomy for intramedualry syrinx drainage and insertion of a
syringical subarachoid shunt.
On November 13, 1998, Dr.
Morassutti noted that Nichols had “improved significantly” since
surgery.
Nichols saw Dr. Morassutti again on December 21, 1998.
Apparently this visit was related more to problems with her lower
back as opposed to the syrinx.3
Dr. Morassutti indicated as
follows:
I reviewed her office notes from Dr.
Guarnaschelli. On December 20, 1996 she had
bilateral decompression of the L4 and L5, S1
levels with a bilateral L5,S1 discectomy.
This was done for bilateral lumbar
radiculopathy secondary to central disc
herniation with superimposed spinal stenosis
at each of those levels. At the time it was
felt that she had an aggravation of a dormant
non-disabling condition by her injury on
September 23rd, 1996 and Dr. Guarnaschelli
gave her a 12 to 14 percent permanent whole
body impairment, according to the AMA
Guidelines. His notes indicate that her
tremors were a separate issue and not
related. I do not fully agree with this. He
also indicated a permanent restriction of no
lifting over twenty pounds.
Her first MRI of the cervical spine
indicating a syrinx was performed on December
21, 1997 over one year from the time of her
injury. The fact that she does not have a
Chiari malformation or other skull base
abnormality or spinal abnormality to cause a
secondary syrinx, I feel that her syrinx most
likely arose from her work related injury on
September 23, 1996. This is based on the
patient’s history that she hit her back and
her head at the time of the injury. There is
a possibility that the syrinx may have been a
3
Dr. Morassutti’s records show that Dr. Guarnaschelli
transferred treatment of Nichols’s lower back complaints to him.
-7-
dormant condition, however, I feel that this
is probably unlikely.
In a letter to Nichols’ attorney dated February 15, 1999, Dr.
Morassutti stated:
This letter is in regard to your inquiry as
to whether Mrs. Nichols’ cervical
syringomyelia is correlated to the injuries
that she sustained while working at the
Fischer Packing Plant in September of 1996.
Given the lack of a congenital lesion such as
a Chiari malformation, spinal cord or spinal
canal lesion which would lead to a cervical
syrinx, I would have to believe that her
cervical syrinx was the result of the trauma
sustained at the time of her above mentioned
accident. In particular, the patient gives a
history of also hitting her head which would
have likely caused a flexion or extension
movement of her cervical spine. The other
possibility is that the syrinx may have been
pre-existing and through the course of injury
and subsequent lumbar surgery there may have
been a change with her cerebral spinal fluid
dynamics which may have caused the syrinx to
become symptomatic. Given her marked
improvement with respect to her
minipolymyoclonus following decompression of
her syrinx, I feel confident that the syrinx
was responsible for tremor like symptoms.
Although a direct link to her injury with
respect to the cervical syrinx cannot be
directly proven, my belief is that the syrinx
was a result of her initial injury.
Fischer filed a medical report from Dr. Thomas Marshall
(Dr. Marshall) into evidence.
Dr. Marshall saw Nichols for an
independent medical examination on April 13, 1999.
Dr. Marshall
noted:
During this examination, this woman kept her
eyes partially closed, moved in a slow
shuffling manner, exhibited a gross tremor of
the left hand and leg for a short period of
time during the early part of the
examination, claimed sensory changes which
were inconsistent with anatomy, and carried
out functions inconsistently. It was my
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impression that she was consciously
attempting to mislead the examiner with this
dramatization.
. . . .
The following comments are made in response
to the questions submitted at the time of
this examination:
1.
Diagnosis:
1.
Chronic pain syndrome
Post op cervical and lumbar
laminectomies
2. In my opinion the syrinx found was a
congenital or idiopathic syrinx producing no
symptoms, either before or after the injury
of September 23, 1996. The tremors are part
of the dramatization characteristic of
chronic pain syndrome.
3. I do not believe that records show that
she suffered any work related injury to the
cervical spine. Functional impairment, under
the AMA Guidelines, would be estimated to be
13 percent impairment of the whole person as
a result of the two level cervical
laminectomy and second operative procedure.
4. It is my opinion that she does not have
any permanent impairment to her cervical
spine as a result of the work related injury,
nor is there evidence that a preexisting
dormant condition was aroused.
5. No further treatment of her cervical
spine injury is needed.
6. No restrictions are needed as a result of
her complaints of cervical spine injury.
In an opinion dated August 12, 1999, the ALJ found as
follows in regard to Nichols’s cervical condition:
The evidence establishes that plaintiff did
not give immediate notice of any alleged
injury to her cervical area immediately
following the incident, despite the fact that
she states that she hit her head and began
experiencing symptoms not long after the
incident. Further, the records indicate that
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plaintiff did not actually report a cervical
injury to her physicians until almost a year
after the injury. Neither Dr. Guarnaschelli
nor Dr. Marshall believed that plaintiff’s
cervical condition was causally related to
the original injury.
In light of the fact that plaintiff
apparently failed to give notice to her
employer despite her claims that she was
experiencing symptoms in her neck, plus the
fact that any mention of her neck condition
did not appear in the medical records until
almost a year after the incident, I believe
that she has failed to establish that she
gave due and timely notice of the cervical
injury. Also, she has failed to establish
that her cervical condition is related to the
incident of September 1996. Therefore, the
Defendant-Employer shall not be responsible
for any medial [sic] expense related to
plaintiff’s cervical condition, nor will any
impairment for said condition be considered
in the determination of plaintiff’s
occupational disability.
The Board affirmed the opinion of the ALJ in an opinion
dated February 4, 2000, in which it stated:
The ALJ dismissed this matter on two grounds.
One being notice, the second being lack of
causation. We believe that the significant
finding of the ALJ relates to causation.
While he makes reference to due and timely
notice and believing that there was evidence
to support his determination as it related to
notice, his primary reference to the lack of
communication on the part of Nichols to her
employer concerning any cervical spine
condition ultimately goes to his
determination that she failed to sustain her
burden of proof to establish a work-related
cervical spine injury. It is true, as
pointed out by Nichols, that the fact finder
must look at the totality of the
circumstances in reaching his conclusion.
See Jones vs. Newburg, Ky., 890 SW2d 284
(1994). It is clear by the ALJ’s opinion
that he analyzed the aggregate facts and came
to a point where there was a total divergence
of opinion as to whether there was a workconnectedness to the development of cervical
spine problems in 1997. Dr. Morasutti [sic]
-10-
and Dr. Olson believed there was. Dr.
Guarnaschelli and Dr. Marshall believed there
was not.
There can be no clearer direct
conflict in the evidence than one such as
this which was presented to the ALJ.
Ultimately, Nichols believes and asserts that
the ALJ should have relied upon the testimony
of Drs. Morasutti [sic] and Olson. While the
entirety of their conclusion is not based
upon the history they received, it is clear
that to a significant degree each of these
physicians reached the conclusion as to workrelatedness was [sic] based upon what they
were told by Nichols. If there is other
evidence of record which calls into question
the history, then the ALJ need not give
unquestioned credibility to that testimony.
Osborne vs. Pepsi Cola, Ky., 816 SW2d 643
(1991).
Both the documentation and the testimony from
Garry Bork could lead to the conclusion as
found by the ALJ that the history of Nichols
having struck her head was not totally
accurate. Her description of the initial
incident certainly would lead to a strong
implication that in falling after tripping
over the pallets that she landed with her low
back against a stack of pallets rather than
falling to the concrete floor.
None of the
records contemporaneous with the fall clearly
establish that she fell completely to the
floor striking her head. The ALJ further
noted that it was not until 1997, over one
year after the incident, that her treating
surgeon, Dr. Guarnaschelli, had any notations
concerning either headaches or cervical spine
problems. While Nichols testified that she
relayed certain information to Dr.
Guarnaschelli, the ALJ is within his
authority in concluding that the testimony he
deemed more credible indicated that the first
complaints related to the cervical spine were
over one year after the accident.
There was substantial evidence and very
direct evidence presented to the ALJ that
there was no work relationship between the
cervical spine problem and the work injury.
While there was evidence that would have
supported a finding of causation, that is
insufficient to alter the fact finder’s
decision on appeal. McCloud vs. Beth-Elkhorn
Corp., Ky., 514 SW2d 46 (1974). Although Dr.
-11-
Marshall assessed an impairment rating to the
cervical spine, such an assessment does not
lead to the inference that the impairment is
related to a work injury. Dr. Marshall was
unequivocal, in our opinion, in his
conclusion that there was no work
relationship. For these reasons alone, the
ALJ’s decision to dismiss the claim for
benefits associated with the cervical spine
condition is affirmed.
This appeal followed.
Nichols contends that the ALJ erred in finding that she
failed to give notice of the injury to her cervical spine.
We
disagree.
Pursuant to KRS 342.195(1), notice of a work-related
accident is to be given to the employer “as soon as practicable
after the happening thereof.”
KRS 342.190 requires that the
notice be in writing, and that it state “the time, place of
occurrence, nature and cause of the accident . . . [and] the
nature and extent of the injury sustained[.]” These two statutes
have been construed together “to mean that notice of injury must
be given, and this mean notice of ‘the specific injury for which
the employee is claiming compensation.’” Reliance Diecasting
Company v. Freeman, Ky., 471 S.W.2d 311, 312 (1971), citing
Proctor and Gamble Manufacturing Co. v. Little, Ky., 357 S.W.2d
866 (1962).
Nichols bears the burden of proving that she gave
timely notice of the accident.
Buckles v. Kroger Grocery &
Baking Co., Ky., 134 S.W.2d 221, 224 (1939).
In this case, Nichols fell in September 1996.
All of
the notice and accident reports completed by Nichols claimed that
she sustained an injury to her lower back.
Although Nichols
stated that she told Bork she fell and hit her back and head,
-12-
Bork testified that he was told she hit her back only.
Despite
Nichols’s testimony that she told Dr. Guarnaschelli about neck
pain as early as December 1996, his office notes make no mention
of complaints of neck problems until November 1997, some fourteen
months after the accident.
In fact, Nichols made no claim that
her neck problems were related to her fall
until November 24,
1997, when she told Dr. Guarnaschelli that she struck both her
head and lower back when she fell.
We would further point out
that at the time Dr. Guarnaschelli first noted Nichols’s
complaints of neck problems, he had been treating her well over a
year.
Under this set of facts, we cannot find that Nichols gave
notice of her neck injury “as soon as practicable after the
happening thereof.”
In so holding, we are mindful of the fact that Nichols
did notify Fischer in regard to her lower back injury and that
“notice of a physical injury carries with it notice of all things
which reasonably may be anticipated to result from it.”
Blue
Beard Mining Co. v. Litteral, Ky., 236 S.W.2d 936, 938 (1951).
However, we do not believe that notice that Nichols fell and hit
her lower back was reasonably sufficient to notify Fischer that
she injured her neck as well.
Even if we were to find that Nichols gave timely notice
of her neck injury, she bears the burden of proof and risk of
persuasion before the ALJ as finder of fact in regard to the
causation of her neck problems.
Wolf Creek Collieries v. Crum,
Ky. App., 673 S.W.2d 735, 736 (1984).
As Nichols was the
unsuccessful claimant below, she must show that the evidence
-13-
before the ALJ was “so overwhelming as to compel a finding in
[her] favor” in order to prevail on appeal.
Paramount Foods,
Inc. v. Burkhardt, Ky., 695 S.W.2d 418, 419 (1985).
In order to
be compelling, the evidence must be such that “no reasonable
person could reach the same conclusion as the ALJ.”
Daniel v.
Armco Steel Company, L.P., Ky. App., 913 S.W.2d 797, 800 (1995).
Nichols cannot meet this burden merely by showing that the record
contains some evidence which would warrant reversal in her favor.
Special Fund v. Francis, Ky., 708 S.W.2d 641, 644 (1986).
Where
conflicting evidence is offered, the decision as to which
evidence to believe is left to the discretion of the ALJ.
Caudill v. Maloney’s Discount Stores, Ky., 560 S.W.2d 15, 16
(1977).
The fact that we may have decided an issue differently
based on the evidence presented does not compel reversal, and we
are not to substitute our judgment for that of the ALJ as to the
weight of the evidence presented.
Francis, 708 S.W.2d at 644.
Having reviewed the record on appeal, we believe that
the evidence presented does not compel a different result.
Neither Dr. Guarnaschelli nor Dr. Marshall believed that
Nichols’s fall caused the injury to her cervical spine, and the
ALJ relied on their opinions in reaching his decision.
The fact
that Dr. Morassutti and Dr. Olson may have believed otherwise
does not require reversal.
Having considered the parties’ arguments on appeal, the
opinion of the Worker’s Compensation Board is affirmed.
EMBERTON, JUDGE, CONCURS.
COMBS, JUDGE, DISSENTS BY SEPARATE OPINION.
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COMBS, JUDGE, DISSENTING: I disagree with the majority
opinion and would reverse the Board and the ALJ.
The Board
itself noted that the notice issue was not critical; the majority
opinion resurrects that issue and places undue emphasis on it.
More importantly, in my assessment, the evidence of this woman’s
injury is so overwhelming as to compel a contrary finding.
Consequently, I would reverse and remand.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, FISCHER
PACKING COMPANY:
D. Berry Baxter
LaGrange, KY
Laurie A. Goetz (Kemp)
Louisville, KY
BRIEF FOR APPELLEE, SPECIAL
FUND:
Joel Zakem
Frankfort, KY
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