SHAWN C. DOTSON v. NARROWS BRANCH COAL COMPANY; ROBERT L. WHITTAKER, DIRECTOR OF SPECIAL FUND; HON. IRENE STEEN, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED: JUNE 29, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-002437-WC
SHAWN C. DOTSON
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-96-83155
v.
NARROWS BRANCH COAL COMPANY;
ROBERT L. WHITTAKER, DIRECTOR OF
SPECIAL FUND; HON. IRENE STEEN,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, JOHNSON AND TACKETT, JUDGES.
JOHNSON, JUDGE:
Shawn C. Dotson has filed a petition for review
of an opinion rendered by the Workers’ Compensation Board on
September 10, 1999.
Having concluded that the Board has not
“overlooked or misconstrued controlling statutes or precedent, or
committed an error in assessing the evidence so flagrant as to
cause gross injustice,” we affirm.1
1
Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685,
687-88 (1992).
Dotson, who was born August 9, 1972, has a high school
education and has worked as a general laborer in the coal mining
industry.
He was injured on July 29, 1996, when a piece of a
mine’s roof fell, striking him on the left side of his head and
shoulder.
Dotson claims the rock was about three inches to four
inches thick and measured four feet by six feet.
When Dotson was
struck by the rock, he went to the ground and the rock pinned him
there.
It took several co-workers to remove the rock from
Dotson, so he could be taken to the Appalachian Regional Hospital
(ARH) in South Williamson, where he was examined and released.
Dotson was subsequently treated by Dr. Prithan Kohli
and Dr. Craig Knox, who referred him to a pain treatment clinic,
where he was seen by Dr. L. Douglas Kennedy.
At the time of his
deposition, Dotson was treating with Dr. Kennedy.
When this case was submitted for a decision, Dotson was
still having problems with his neck and head; and he also
complained of continuing problems of nervousness.
Because of his
nervous condition, he was hospitalized at the ARH in South
Williamson around Easter of 1997; and since then he has received
treatment from Mountain Comprehensive Care.
Dotson indicated
that prior to this injury he had not had any serious injuries and
he had not had any previous problems with nervousness.
At the
time of the hearing, Dotson was taking Kolonopin, Amitriptyline,
and at times medications for pain and muscle relaxers.
He
complained of persistent headaches, stiffness and lack of motion
in the cervical spine.
Dotson said his condition had improved
some since the time of the injury; but he did not think that he
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was capable of holding any type of job.
He claimed he would like
to return to work sometime in the future.
Dotson submitted evidence from Drs. Kohli, Knox and
Kennedy regarding his physical injury and from Dr. David
Forrester regarding his psychiatric problems.
Dr. Kohli
diagnosed a sprain and a strain of the cervical spine and
prescribed Dotson pain medication and muscle relaxants.
MRI’s of
Dotson’s cervical and dorsal spine were essentially negative.
CT scan of his head was also negative.
A
On September 18, 1996,
Dr. Kohli noted that Dotson was very nervous.
He was still
having persistent symptoms, and his neurological examination was
essentially negative.
A bone scan taken on October 16, 1996, was
also found to be normal.
Upon the retirement of Dr. Kohli, Dotson began treating
with Dr. Knox, who examined him on October 23, 1996.
complaining of headaches, neck pain and poor balance.
Dotson was
He claimed
he had neck pain and headaches on a daily basis; he also felt
shaky and nervous.
Dr. Knox reported that Dotson occasionally
had some crying spells and felt down and out and somewhat
depressed.
Dotson’s sleep was poor and his appetite had
decreased.
On examination, Dr. Knox noted severe spasm of the
cervical paraspinous muscles, but his strength reflexes and
sensation were normal.
Dr. Knox felt that Dotson had sustained a
cervical sprain or a whiplash type injury.
Dr. Knox prescribed
Voltarin and Soma for Dotson; and stated that he would try to
gradually increase Dotson’s Doxepin up to 100 milligrams at
bedtime to see if that might help his depression, sleep and
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headaches.
1996.
Dotson was seen again by Dr. Knox on December 11,
Dr. Knox noted that Dotson was doing much better; and a
note from Dotson’s physical therapist reported that Dotson’s neck
range of motion had improved.
Dotson noted that the Voltarin had
helped the pain, and he was taking Doxepin, 75 milligrams, at
bedtime which helped his sleep and his depression.
On
examination, Dr. Knox noted Dotson’s neck range of motion
remained “strikingly limited.”
There was still some cervical
paraspinous muscle spasm and tenderness.
Dr. Knox noted the
limitation of motion of the neck was more dramatic than he would
normally expect, particularly since Dotson and the physical
therapist had noted an improvement in his neck range of motion.
Dr. Knox wrote: “I would wonder about some symptom
magnification.”
Dr. Knox indicated Dotson should return in three
months for a reassessment.
If there were no significant
improvement, Dr. Knox indicated he would recommend referral to a
pain clinic.
Dotson returned to Dr. Knox on March 17, 1997.
He
again indicated his neck pain and range of motion were improved;
physical therapy seemed to help.
Dr. Knox’s impression at that
time was that Dotson suffered a chronic cervical sprain secondary
to a work-related injury.
With the normal MRI and CT scan of the
head, he was surprised that Dotson was not doing any better.
Dotson’s neck range of motion had improved slightly.
Dr. Knox
stated: “I think there is a significant psychogenic component of
his neck limitation of movement and I also told him that his
tremors are probably due to anxiety.”
to Dr. Kennedy at the pain clinic.
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Dr. Knox referred Dotson
Dr. Knox doubted Dotson would
be able to return to work in the mines because he was probably
extremely fearful about having another accident.
Dr. Knox
thought anxiety was contributing significantly to Dotson’s
symptoms.
Dr. Kennedy, who was Dotson’s treating physician at the
time of the hearing, noted complaints of headaches, limited
cervical range of motion and tenderness over the occipital nerves
and splenius muscles bilaterally.
Dr. Kennedy believed Dotson’s
headaches were primarily stress induced.
Dr. Kennedy was deposed
on August 19, 1998; and at that time, he assessed Dotson with a
15% impairment to the whole person due to the injury to the
nerves, head and neck area and the headaches that Dotson
continued to experience.
Dr. Kennedy believed Dotson to be 100%
occupationally disabled for any job for which he had training and
that he was not a good candidate for vocational rehabilitation.
Dr. Kennedy’s prescribed treatment included nerve blocks and
medication.
Dr. Kennedy also noted that Dotson experienced
symptoms of depression, and he felt that Dotson should be tested
to determine whether he had received a brain injury in the
accident.
Dr. Kennedy had Dotson evaluated by Dr. Donald W.
Receveur, a neuropsychologist, who performed testing on October
14, 1998.
It was Dr. Receveur’s opinion that Dotson suffered
major depression and a significant post-traumatic stress
disorder.
Dr. Kennedy adopted Dr. Receveur’s findings and
included them in a Form 107-I completed on October 28, 1998.
At
that time, he indicated that Dotson would have a 10% impairment
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for injury to his nervous system with an additional 5% for the
severe nature of his pain.
He also indicated that Dotson
suffered from severe anxiety, depression and severe posttraumatic stress disorder.
Dr. Kennedy believed Dotson had
suffered a mild to moderate traumatic brain injury.
Under the
AMA Guidelines, Dotson was assessed with an impairment of between
15% and 29% for his psychological conditions.
Dr. Kennedy gave
Dotson a 25% disability rating based on the psychological
impairment.
When the injury to Dotson’s nerves and the
psychological impairment were combined, Dr. Kennedy assessed
Dotson’s whole person impairment at 31%.
Dr. Kennedy opined that
it would be an additional one to two years before Dotson would
reach maximum medical improvement.
Dotson also presented evidence from Dr. David
Forrester, a psychiatrist, who evaluated him on May 1, 1998.
Dr.
Forrester diagnosed Dotson with a post-traumatic stress disorder
as well as major depression.
Dr. Forrester assessed Dotson with
a 20% disability as a result of the psychiatric problems, and he
related the entirety of Dotson’s impairment to the incident at
work.
Dr. Forrester did not believe that Dotson could return to
underground coal mining since his injury was traumatic in nature;
and, in Dr. Forrester’s opinion, the incident precipitated a
significant anxiety disorder.
Dr. Forrester suggested that
Dotson should become involved in some hobbies or activities which
were not physically demanding and which would not increase his
pain, but would give him some sense of purpose and sense of
accomplishment.
Dr. Forrester thought Dotson would need ongoing,
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out-patient psychiatric treatment for years to come.
Without
this treatment, Dr. Forrester believed Dotson would be likely to
decompensate.
Narrows Branch Coal Company introduced evidence from
Dr. David Muffly, who evaluated Dotson on April 9, 1998.
Dotson
complained of intermittent pain to the back of the neck.
Dr.
Muffly noted that “he seems to get tension of the muscles and
then headache type pain.”
Dr. Muffly stated that Dotson gets a
feeling of pressure and occasional sharp pain, but that he had no
history of radicular symptoms into the arms.
During the history-
taking portion of the examination, Dr. Muffly observed that
Dotson was able to move his neck normally without significant
stiffness.
The examination of Dotson’s cervical spine indicated
no cervical muscle spasms, but Dotson complained of tenderness at
the upper cervical area.
Dotson did have full flexion and
extension, right and left lateral bend, right and left rotation,
but he complained of pain at the limits of motion.
Dotson’s cervical spine were normal.
X-rays of
Dr. Muffly further noted
that a cervical MRI and dorsal spine MRI of Dotson dated August
29, 1996, were normal.
Dotson’s bone scan on October 16, 1996,
was normal, as was a CT scan of the head dated August 1, 1996.
Dr. Muffly’s assessment of Dotson was that he suffered muscular
cervical pain with no sign of herniated disk or nerve root
impingement.
Dr. Muffly assigned Dotson a 0% orthopedic
impairment, Category DRE I cervical-thoracic.
The only
restrictions Dr. Muffly would place on Dotson were avoidance of
frequent turning of the neck and overhead work requiring backward
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extension of the cervical spine.
Otherwise, Dr. Muffly opined
that Dotson could return to his previous work.
Dotson was examined on September 22, 1998, by Dr. Bart
Goldman on behalf of Narrows Branch Coal.
On physical
examination, Dr. Goldman noted that Dotson appeared extremely
stiff in his neck and upper back area.
Dotson held his neck
stiff and would not spontaneously move it but rather would turn
his whole body.
Dotson also held his shoulders up.
Dotson had
severe palpable muscle spasm in the cervical paraspinous muscles
from the base of the skull to the cervical thoracic junction.
Dr. Goldman noted that Dotson’s range of motion of his neck was
limited to about 50% of normal.
Dr. Goldman stated that the
range of motion appeared to be limited voluntarily; however,
Dotson’s muscle spasm did get worse with attempted range of
motion.
Dotson was evaluated by using the Ergasys/Matheson
Functional Testing Protocol.
The results indicated the presence
of at least some symptom magnification.
Dr. Goldman diagnosed
Dotson with a chronic cervical strain.
Dr. Goldman noted that
multiple evaluations of Dotson revealed no significant anatomical
problem.
However, Dotson did have objective findings of rather
significant muscle spasm.
Dr. Goldman believed Dotson had
reached maximum medical improvement; and he assigned a Dotson 5%
impairment for his cervical-thoracic condition.
Dr. Goldman
found no evidence of occipital neuralgia, and noted that Dotson
had no complaints of headache whatsoever at the examination.
Even with the evidence of symptom magnification on Dotson’s
functional capacity evaluation, Dr. Goldman believed Dotson
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should be able to do medium duty work.
Dr. Goldman did not
believe Dotson should be placed back in a job where he would be
required to turn or nod his head quickly.
It was Dr. Goldman’s
opinion that Dotson should be able to return to medium-type duty
initially with a gradual return to medium to heavy-duty over two
to three months.
Dr. Goldman did not feel that Dotson could
return to the mining industry, but that he could return to a
different type of work environment.
Pursuant to a request by Narrows Branch Coal, Dotson
was independently evaluated by Dr. David Schraberg, who is board
certified in psychiatry and neurology.
Dr. Schraberg performed a
psychiatric evaluation on Dotson on May 15, 1997, and a
reevaluation on October 7, 1998.
Dr. Schraberg noted that Dotson
and his wife had separated shortly before the initial evaluation
in 1997.
At the time of the second evaluation, Dotson had
reconciled with his wife; and it was noted that he had not needed
to take any types of anti-depressant medication for a year
proceeding the evaluation.
Following the second examination, Dr.
Schraberg believed Dotson had greatly improved; and Dr. Schraberg
opined that Dotson’s mental problems were, in fact, due to the
marital discord.
Dr. Schraberg did not believe that Dotson had
any psychological disability as a result of the injury which
would keep him from returning to his previous employment or any
other job.
Psychological testing indicated that Dotson had a
long-standing personality disorder and that he was engaged in
symptom magnification.
Dr. Schraberg stated that individuals
with Dotson’s profile often report much physiologic distress and
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difficulty adjusting psychologically.
Dr. Schraberg stated that
such persons commonly report that they feel weak, tired, tense,
fatigued and nervous much of the time.
He stated that there is a
tendency for their complaints to increase during times of stress
and abate when the stressor subsides.
Although these individuals
are focused on their physical complaints, they also report that
they feel depressed and anxious.
or abdominal discomfort.
They commonly report headaches
Dr. Schraberg noted that many people
with personality disorders who are having problems in their
marriages will go into the hospital as a way of getting attention
and, to some extent, pity from the spouse, with the hope that
this will bring the spouse back.
Dr. Schraberg saw nothing in
the records to suggest Dotson suffered from post-traumatic stress
disorder.
It was his opinion that Dotson was not in need of
treatment for his psychological problems and that he had reached
maximum medical improvement.
After summarizing the evidence, the ALJ made the
following findings relevant to this appeal:
Based upon the record herein, it is the
finding of this ALJ that Plaintiff has failed
to sustain his burden of proof to show that
he, in fact, suffers from any occupational
disability due to the injuries herein. The
credible testimony indicates that diagnostic
testings reveal absolutely no abnormalities
relative to Plaintiff’s neck, but rather that
his headaches and neck complaints are more
related to muscle spasms due to tension.
Additionally, I note that the record contains
evidence of severe symptom magnification
Plaintiff’s part [sic]. Likewise, I find no
evidence to support an award of an
occupational disability relative to a
psychiatric problem, and, certainly, a large
part of Plaintiff’s mental problems, if any
he has, are attributable to the marital
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discord he has gone through as well as the
loss of a close friend.
Dotson filed a petition for reconsideration pointing
out that the ALJ in her opinion had summarized evidence from Dr.
Joseph Zerga which was not a part of the record in this case.
Dotson requested the ALJ to strike the evidence from Dr. Zerga
and to enter new findings of fact, conclusions of law and
judgment without considering Dr. Zerga’s evidence.
Dotson
further requested specific findings regarding the compensability
of his medical treatment for his psychological condition.
The ALJ entered an order striking the evidence from Dr.
Zerga from the record.
The ALJ stated that she had not relied
upon Dr. Zerga’s opinion “as there was sufficient evidence from
other physicians to dismiss Plaintiff’s claim, particularly from
Drs. Muffly and Shraberg [sic].”
The ALJ then ordered the
remainder of the opinion and dismissal to stand as previously
entered.
Dotson then filed his request for more specific
findings concerning his petition for reconsideration.
Dotson
asked the ALJ for specific findings regarding the future medical
expenses related to his psychiatric problems.
On June 16, 1999,
the ALJ entered an order referring Dotson to paragraph 7 of the
opinion and dismissal, which contained the summary of evidence
from Dr. Schraberg.
The ALJ then stated, “[s]pecifically this
ALJ relied upon Dr. Shraberg [sic] in concluding that Plaintiff
does not suffer from any work-related psychiatric problems.
Therefore, there is no compensable medical coverage for that
aspect of Plaintiff’s claim.”
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On appeal to the Workers’ Compensation Board, Dotson
argued that the ALJ’s order and dismissal must be reversed and
remanded with specific instructions to find an amount of
occupational disability and for an order requiring future medical
bills to be paid.
Dotson contended that the ALJ did not set out
basic facts she had used to support her ultimate conclusions.
He
further contended that it was obvious the ALJ did indeed rely
upon evidence from Dr. Zerga, since the ALJ talked about negative
studies, and one of those studies from Dr. Zerga had been
summarized by the ALJ in her opinion.
Dotson further contended
that the ALJ failed to specifically set forth the evidence she
had relied upon.
Further, Dotson took issue with the ALJ’s
conclusion that his headaches and neck complaints were more
related to muscle spasms due to tension.
Dotson contended this
finding was not supported by the evidence and was based upon an
incorrect interpretation of the evidence.
Dotson claimed that no
doctor stated that the muscle spasms in his neck were due to
tension.
With regard to the compensability of expenses for the
psychological condition, Dotson argued that the evidence showed
he was having at least some problems related to the rock fall;
and that even if only a portion of his current psychiatric
difficulties were related to the rock fall, he was entitled to
medical expenses for his anxiety.
Dotson pointed out that it was
not necessary for his psychological condition to produce
disability in order for his medical expenses to be compensable.
The Board affirmed the ALJ.
Dotson makes these same arguments in
his petition for review to this Court.
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The claimant in a workers’ compensation action has the
burden of proving his entitlement to benefits.2
Where the party
who bears the burden of proof is unsuccessful before the ALJ, the
question on appeal is whether the evidence compels a different
result.3
Compelling evidence is defined as evidence that is so
overwhelming no reasonable person could reach the same conclusion
as the ALJ.4
It is not enough for Dotson to show there is merely
some evidence that would support a contrary conclusion.5
So long
as the ALJ’s decision is supported by any evidence of substance,
it cannot be said the evidence compels a different result, and
the ALJ’s findings may not be reversed.6
The ALJ, as fact-
finder, has the sole authority to determine the weight,
credibility, substance and inferences to be drawn from the
evidence.7
The Board may not substitute its judgment for that of
the ALJ as to the weight to be accorded factual issues before the
ALJ.8
We believe the Board correctly addressed Dotson’s
arguments on appeal; and we adopt the following discussion from
its opinion:
2
Snawder v. Stice, Ky.App., 576 S.W.2d 276 (1979).
3
Wolf Creek Collieries v. Crum, Ky.App., 673 S.W.2d 735
(1984).
4
REO Mechanical v. Barnes, Ky.App., 691 S.W.2d 224 (1985).
5
McCloud v. Beth-Elkhorn Corp., Ky., 514 S.W.2d 46 (1974).
6
Special Fund v. Francis, Ky., 708 S.W.2d 641 (1986).
7
Paramount Foods, Inc. v. Burkhardt, Ky., 695 S.W.2d 418
(1985).
8
KRS 342.285.
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We believe there is substantial evidence
to support the ALJ’s finding of no
occupational disability due to the injury.
As summarized above, there was extensive
testing, including MRIs, x-rays, CAT scans
and a bone scan, which were all normal. Dr.
Knox, one of Dotson’s treating physicians,
stated the neurological exam was normal. Dr.
Muffly assigned a 0% functional impairment.
In our opinion, this is substantial evidence
supporting a conclusion that there was no
occupational disability as a result of
Dotson’s physical condition. We believe
evidence from Dr. Schraberg is substantial
evidence to support a finding that there is
no occupational disability based upon the
psychiatric condition. Dr. Schraberg
diagnosed an acute stress reaction which had
resolved and a personality disorder with
symptom magnification. It was his opinion
that any emotional problems Dotson had were
due to his marital difficulties. In the
second evaluation, he stated these had
resolved. He found no need for further
treatment of a psychiatric condition. In
response to the petition for reconsideration,
the ALJ stated she relied upon Drs. Muffly
and Schraberg, as was her prerogative as fact
finder. We find no merit in Dotson’s
argument that the ALJ misinterpreted the
evidence in stating that his headaches and
neck complaints were more related to muscle
spasms and tension. Dr. Kennedy and Dr.
Schraberg both stated that Dotson’s headaches
were tension in nature. Dr. Muffly also
noted that Dotson seems to get tension of the
muscles and then headache type pain. The
ALJ’s statement is therefore a permissible
inference. We also believe the ALJ, through
the Opinion and Dismissal and the two orders
entered subsequently, set out sufficiently
the basis for her decision. Finally, we
disagree with Dotson’s arguments concerning
the compensability of medical expenses for
the psychiatric condition. Again, evidence
from Dr. Schraberg supported a finding that
there were no medical expenses related to the
work injury. He found a pre-existing
personality disorder and stated he believed
Dotson’s psychiatric problems were related to
stress from his marital difficulties which
had resolved. He did not feel any further
treatment was necessary. While there was
conflicting medical evidence that would have
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permitted a finding that some portion of his
psychiatric problems were related to the work
injury, we do not believe the evidence
presented compelled a finding in Dotson’s
favor.
We also conclude that the record contains no compelling
evidence which would prevent a reasonable person from reaching
the same conclusion as the ALJ in this case.
As noted by the
Board, though some medical evidence was presented in Dotson’s
favor as to his psychiatric condition being related to his work
injury, the mere introduction of such evidence does not warrant a
finding for Dotson.
Further, we find the ALJ did meet the
requirements of Mosely v. Ford Motor Co.9 by setting out the
facts she used to support her ultimate conclusions.
“The
function of further review of the WCB in the Court of Appeals is
to correct the Board only where the the [sic] Court perceives the
Board has overlooked or misconstrued controlling statutes or
precedent or committed an error in assessing the evidence so
flagrant as to cause gross injustice.”10
We find no such error.
Accordingly, the opinion of the Workers’ Compensation
Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, NARROWS
BRANCH COAL COMPANY:
Randy G. Clark
Pikeville, KY
9
Brent Turner
Pikeville, KY
Ky.App., 968 S.W.2d 675, 677-78 (1998).
10
Western Baptist, supra at 687-88.
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