DARIO NAVARRO LOPEZ v. BARDSTOWN BARRELS, INC.; HON. JAMES L. KERR, ADMINISTRATIVE LAW JUDGE; WORKERS' COMPENSATION BOARD
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RENDERED: JUNE 11, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2003-CA-002043-WC
DARIO NAVARRO LOPEZ
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-97-89654
BARDSTOWN BARRELS, INC.; HON. JAMES
L. KERR, ADMINISTRATIVE LAW JUDGE;
WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; DYCHE AND KNOPF, JUDGES.
KNOPF, JUDGE.
Dario Navaro Lopez petitions for review from an
opinion of the Workers’ Compensation Board (Board) which
affirmed an order of the Administrative Law Judge (ALJ)
dismissing Lopez’s petition to reopen his 1997 workers’
compensation claim because Lopez had not met his burden of
proving a change of disability resulting from a worsening of
impairment due to the 1997 injury.
On appeal Lopez contends
that the ALJ’s decision was erroneous because ALJ Thomas A.
Nanney’s decision in the original litigation precludes
application of the “natural aging process” as a defense/bar to
his claim upon reopening.
For the reasons stated below we
affirm.
In 1995, Lopez began employment as a cooper for
Bardstown Barrels, Inc., in Nelson County, Kentucky.
Lopez
described his work at Bardstown Barrels as being heavy manual
labor.
On March 20, 1997, Lopez sustained an injury to his
lower back which occurred while he was lifting and moving heavy
oak whiskey barrels.
On October 6, 1997, Lopez filed a petition for
workers’ compensation benefits.
The claim was initially
assigned to an arbitrator, who rendered a benefit review
determination on February 26, 1998, awarding Lopez temporary
total disability benefits and concluding that Lopez had not yet
reached maximum medical improvement.
Upon a request for de novo review filed by Lopez, the
case was assigned to ALJ Nanney.
On August 14, 1998, ALJ Nanney
issued an opinion concluding that Lopez had sustained a back
strain as a result of the work injury; however, the ALJ accepted
the conclusion of university medical evaluator1 Dr. Gregory Gleis
that Lopez suffered a 0% impairment rating as a result of the
injury.
While the ALJ did award temporary total disability
benefits through December 1, 1997, based upon Dr. Gleis’s
1
See KRS 342.315.
2
impairment assessment, ALJ Nanney concluded that Lopez had not
suffered any permanent disability as a result of the injury.
Lopez was also awarded reasonable and necessary medical expenses
resulting from the March 1997 injury.
On May 30, 2000, Lopez filed a motion to reopen his
claim pursuant to KRS 342.125.
In his motion Lopez stated that
the medical condition of his low back had greatly deteriorated
and worsened to the point that he was now completely unable to
engage in work activity.
Lopez also stated that he had been
referred to and received care from a neurosurgeon, that the
neurosurgeon had requested additional diagnostic studies
including an MRI and CT scan and possibly a myelogram, but that
the responsible insurance carrier was refusing to approve these
procedures.
The ALJ assigned to the case initially held that the
motion was contrary to KRS 342.125(3) based upon the 1996
version of the statute.
On appeal, the Board reversed the ALJ
and held that the motion was not barred by KRS 342.125(3) in
light of the 2000 amendments to that statute.2
The Board thus
remanded the matter to the ALJ to address the merits of Lopez's
2
The 2000 amendments removed the pre-amendment two-year waiting
period for filing a motion to reopen.
3
motion to reopen.
In an opinion rendered October 26, 2001, this
Court affirmed the Board’s decision.3
In the meantime Lopez continued to seek treatment for
his back pain.
Dr. Stephen Glassman, an orthopedic surgeon,
diagnosed the pain as resulting from abnormalities at L3-4, and
on September 26, 2001, Lopez underwent L3-4 decompression and
fusion surgery.
On remand the case was assigned to ALJ James L. Kerr.
Proof taking thereafter proceeded, a benefit review conference
was held on September 12, 2002, and on September 25, 2002, a
formal hearing was held.
On December 30, 2002, ALJ Kerr issued
an opinion and order dismissing Lopez’s claim upon reopening on
the basis that he had not met his burden of demonstrating that
there had been a worsening of occupational disability as a
result of his March 1997 injury.
In reaching this decision, ALJ
Kerr relied upon the evaluation of Dr. Gleis who, just as he had
at the time of the original claim, determined that Lopez had an
impairment rating of 0% related to his March 20, 1997, injury.
On August 27, 2003, the Board entered an order affirming ALJ
Kerr’s decision.
This appeal followed.
Certain basic principles exist in a reopening of a
workers’ compensation claim.
3
First, the burden of proof falls
See Bardstown Barrels v. Lopez, Ky. App., 59 S.W.3d 480 (2001).
4
upon the party seeking reopening.4
Here, that party is Lopez.
Consequently, pursuant to the applicable version of KRS 342.125,
it was Lopez’s burden to prove that the effects of the injury of
March 20, 1997, had worsened since ALJ Nanney’s opinion of
August 14, 1998, so as to cause an increase in vocational
disability.
In ascertaining whether there has been a change, it
was the ALJ's obligation to analyze not only the evidence
presented at the time of reopening, but also the evidence
presented previously.5
Here, the comparison is to Lopez’s
condition at the time of the August 1998 decision with his
condition at the time of reopening.
In his August 14, 1998, opinion, ALJ Nanney made the
following relevant findings of fact and conclusions of law:
Addressing first the issue of any permanent
disability, this case is clearly governed by
the new provisions of KRS 342.730 as enacted
on December 12, 1996. As such, the medical
school evaluation performed pursuant to KRS
342.315 is entitled to presumptive weight.
While I am fully aware that the presumptive
weight provided for in this statute is a
rebuttable presumption, I do not believe
that the evidence in this case rebuts the
conclusions of Dr. Gleis. The mere fact
that Dr. Whobrey and Dr. Hurt found
different impairment ratings under the AMA
Guidelines in and of itself is insufficient
to rebut the testimony of Dr. Gleis. The
plaintiff indicates that Dr. Gleis’
4
Griffith v. Blair, Ky., 430 S.W.2d 337, 339 (1968).
5
W. E. Caldwell Co. v. Borders, 301 Ky. 843, 193 S.W.2d 453, 455
(1946).
5
assessment under the AMA Guidelines is
incorrect in that he makes reference to the
range of motion. However, Dr. Gleis’ final
opinion is based upon the lumbosacral DRE
Category 1, which calls for a 0% impairment.
It is my belief, based upon Dr. Gleis’
findings on examination that his conclusion
is appropriate under the AMA Guidelines. I
further note that Dr. Gleis’ opinion is
supported by the opinion of Dr. Hargedon who
also found a 0% impairment under the AMA
Guidelines. Finally, I clearly do not
believe that Dr. Whobrey’s 20% impairment is
consistent with the AMA Guidelines as
plaintiff only sustained a back strain.
Therefore, having determined that Dr. Gleis’
report is persuasive, I find there is no
basis for any permanent disability.
For purposes of our review, the significant fact to be
gleaned from the foregoing is that in the original review ALJ
Nanney accepted Dr. Gleis’ assessment that Lopez had a 0%
occupational disability rating as a result of his March 20,
1997, work injury.
Moving forward to the reopening, ALJ Kerr’s December
30, 2002, opinion contained the following relevant findings of
fact and conclusions of law:
The parties have preserved worsening of
condition/change in occupational disability
and if so, extent and duration as an issue.
The Administrative Law Judge notes that ALJ
Nanney found the plaintiff to have a 0%
impairment as a result of the March 20, 1997
injury, relying upon the K.R.S. 342.315
evaluation performed by Dr. Gleis. The
Administrative Law Judge finds it
significant that plaintiff was not working
at that time and he has continued not to
6
work. Further, plaintiff testified to
constant pain since the injury, including at
the time of decision by ALJ Nanney, and both
before and after surgery performed on
September 26, 2001. Plaintiff has continued
to testify that he is physically unable to
work. Medically, the Administrative Law
Judge notes the testimony of Dr. Nazar,
plaintiff’s treating physician who observed
on September 11, 2000 that plaintiff’s
condition had not changed since his initial
evaluation. Admittedly, this is prior to
plaintiff’s 2001 surgery but the
Administrative Law Judge cannot conclude
that plaintiff’s surgery in 2001 was the
result of his March 20, 1997 injury. The
Administrative Law Judge has considered the
testimony of the physicians testifying on
behalf of the plaintiff, but instead finds
the testimony of Dr. Gleis, the physician of
whom ALJ Nanney relied, to be probative and
credible. Dr. Gleis stated that the
plaintiff retains the same impairment rating
of 0% related to the March 20, 1997 injury
and that his L3-4 lumbar fusion and
decompression were not secondary to his
work-related injury. Perhaps the
Administrative Law Judge is most troubled by
what appears to [be] symptom magnification
upon plaintiff’s behalf has [sic] found by
various physicians. For example, Dr.
Shields stated that he had difficulty
matching plaintiff’s clinical picture to the
myleographic defect as of February 24, 2001.
He continued to question the correlation
between plaintiff’s symptoms and diagnostic
tests through at least April 24, 2001.
While Dr. Glassman, a Spanish speaker,
eventually performed surgery, his office
note of May 21, 2001 states that plaintiff
is “histrionic.” Overall, it appears to the
undersigned that plaintiff had very little
wrong with him at the time of Judge Nanney’s
decision and despite a complicated medical
course, continues to have little wrong with
him as caused by the work-related injury.
Accordingly, the Administrative Law Judge
7
concludes that the plaintiff has not met his
burden of proof of a worsening of
conditioning/increase in occupational
disability and his claim upon reopening must
be dismissed.
Hence ALJ Kerr determined that, upon reopening, Lopez
retained a 0% occupational disability rating.
In summary, ALJ
Nanney, relying upon Dr. Gleis’ assessment, concluded that Lopez
had a 0% occupational disability rating, and, upon reopening,
ALJ Kerr, again relying upon Dr. Gleis’ assessment, concluded
that Lopez had a 0% occupational disability rating.
The fact-finder, the ALJ, rather than the reviewing
court, has the sole discretion to determine the weight,
credibility, quality, character, and substance of evidence and
the inference to be drawn from the evidence.6
discretion to choose whom and what to believe.7
The ALJ has the
The ALJ may
reject any testimony and believe or disbelieve various parts of
the evidence, regardless of whether it came from the same
witness or the same adversary party's total proof.8
Although a
party may note evidence which would have supported a conclusion
contrary to the ALJ's decision, such evidence is not an adequate
6
Paramount Foods, Inc. v. Burkhardt, Ky., 695 S.W.2d 418, 419
(1985).
7
Addington Resources, Inc. v. Perkins, Ky. App., 947 S.W.2d 421,
422 (1997).
8
Caudill v. Maloney's Discount Stores, Ky., 560 S.W.2d 15, 16
(1977).
8
basis for reversal on appeal.9
In instances where the medical
evidence is conflicting, the sole authority to determine which
witness to believe resides with the ALJ.10
Where the decision of the fact-finder is in opposition
to the party with the burden of proof, that party bears the
additional burden on appeal of showing that the evidence was so
overwhelming it compelled a finding in his favor and that no
reasonable person could have failed to be persuaded.11
In such
cases, the issue on appeal is whether the evidence compels a
finding in his favor.12
To be compelling, evidence must be so
overwhelming that no reasonable person could reach the same
conclusion as the ALJ.13
In this case, the expert medical witnesses presented
conflicting medical opinions regarding Lopez’s occupational
disability rating.
Lopez presented medical testimony that there
had been a worsening of his occupational disability since the
original decision; however, Dr. Gleis determined that there had
9
10
McCloud v. Beth-Elkhorn Corp., Ky., 514 S.W.2d 46 (1974).
Pruitt v. Bugg Brothers, Ky., 547 S.W.2d 123, 124 (1977).
11
Mosely v. Ford Motor Co., Ky. App., 968 S.W.2d 675, 678
(1998).
12
Paramount Foods at 419; Daniel v. Armco Steel Co., L.P., Ky.
App., 913 S.W.2d 797, 800 (1995).
13
REO Mechanical v. Barnes, Ky. App., 691 S.W.2d 224, 226
(1985).
9
not.
In such cases, it is the function of the ALJ to resolve
the conflict in the opinions.14
In light of Dr. Gleis’ medical
opinion that there had not been a worsening of Lopez’
occupational disability, and because Lopez must show a worsening
of his occupational disability in order to reopen his case, we
are not persuaded that the evidence is so overwhelming as to
compel a decision in favor of Lopez.
With regard to Lopez’s contentions that the ALJ’s
decision was erroneous because ALJ Nanney’s decision in the
original litigation precludes application of the “natural aging
process” as a defense/bar to his claim upon reopening, we agree
with the Board:
Lopez interprets the ALJ’s decision on
reopening as a dismissal of his claim based
on the exclusion for the natural aging
process set out in KRS 342.0011(1).
Reasoning that a negative finding with
respect to the applicability of that
exclusion was implicit in ALJ Nanney’s
finding of a work-related injury, Lopez
argues that the doctrine of res judicata
applies to this issue, which may not be
reconsidered by ALJ Kerr.
. . . .
Lopez argues that ALJ Kerr erred by
addressing the issue of the natural aging
process and reaching a conclusion disparate
from ALJ Nanney’s. This argument fails for
a multitude of reasons. ALJ Nanney’s
finding of a work-related injury is not
tantamount to his rejection of Dr. Gleis’
14
Pruitt v. Bugg Brothers, supra.
10
opinions with respect to the effects of the
natural aging process. The work-related
arousal of a pre-existing dormant condition
related to the natural aging process is a
compensable event for which benefits may be
awarded. McNutt Construction/First General
Services v. Scott, Ky., 40 S.W.3d 854
(2001). Of course, ALJ Nanney never
directly addressed the issue of the “natural
aging process,” nor did ALJ Kerr in his
decision on reopening. Just as an outright
rejection of Dr. Gleis’ opinion with respect
to the natural aging process cannot be
inferred from ALJ Nanney’s finding of a
work-related injury, a whole-hearted
acceptance of that opinion cannot be
inferred from ALJ Kerr’s dismissal of the
claim on reopening.
It is nonetheless clear that neither ALJ
Nanney, nor ALJ Kerr, found the
abnormalities at the L3-4 level of Lopez’s
spine to be proximately caused by the work
injury at issue. ALJ Nanney expressly
rejected the opinions of Dr. Whobrey, who
gave a percentage rating based upon
instability at the L3-4 level, noting that
Lopez “only sustained a back strain.” ALJ
Kerr concluded that Lopez’s surgery was not
necessitated by that work-related back
strain. In other words, even if the
doctrine of res judicata applied in this
instance, we find no inconsistency between
the opinion and award of ALJ Nanney in the
original litigation and the opinion of ALJ
Kerr on reopening. That being said, we are
careful to note that we do not believe the
doctrine of res judicata has any application
here.
Res judicata, or claim preclusion, and
collateral estoppel, or issue preclusion,
are companion doctrines that both have some
application to workers’ compensation claims.
See W. E. Caldwell Co. v. Borders, 301 Ky.
843, 193 S.W.2d 453 (1946) and Stambaugh v.
Cedar Creek Mining Co., Ky., 488 S.W.2d 681
11
(1972). Basic to both doctrines, however,
is the concept of identity. For purposes of
this discussion, it is collateral estoppel
and identity of issues that is relevant.
Whether a claimant has experienced a change
of disability as shown by a worsening or
improvement of impairment since the date of
an original award or order – the standard
for reopening pursuant to KRS 342.125(1)(d)
– can never be the proper subject of either
claim or issue preclusion. The reopening
standard is defined in terms of change,
which runs counter to the concept of
identity inherent in the preclusion
doctrines.
In other words, even if ALJ Nanney’s
decision could properly be summarized as
rejecting Dr. Gleis’ opinion with respect to
the natural aging process, that would not
preclude ALJ Kerr from determining that the
surgical procedure performed after rendition
of the original opinion and award was not
necessitated by the work injury. Res
judicata could not operate to mandate a
determination by ALJ Kerr one way or the
other with respect to an operation and
related impairment that did not occur until
some three years after the opinion by ALJ
Nanney. By its very nature, the reopening
of a claim on those grounds set out in KRS
342.125(1)(d) contemplates a change in
circumstances for which one party or the
other is entitled to have the extent and
duration of the claimant’s condition
reconsidered. Cf. Central City v. Anderson,
Ky. App., 521 S.W.2d 246 (1975).
For the forgoing reasons the decision of the Workers’
Compensation Board is affirmed.
DYCHE, JUDGE, CONCURS.
COMBS, CHIEF JUDGE, DISSENTS AND FILES SEPARATE
OPINION.
12
COMBS, CHIEF JUDGE, DISSENTING:
I respectfully
dissent from the well-written majority opinion, which correctly
notes the heavy burden of proof incumbent upon Mr. Lopez to
produce compelling evidence in order to refute the adverse
decision of the ALJ.
I believe that the record does contain
such compelling evidence and that it was erroneously disregarded
by the second ALJ in dismissing the motion to reopen.
At the time of the 1998 decision, the diagnosis of Dr.
Gleis of back strain with a 0% impairment rating was the
evidence that ALJ Nanney elected to believe over contrary
findings of the other physicians, Dr. Whobrey (who assessed a
vastly divergent impairment rating of 20%) and Dr. Hurt
(assigning a 10% rating).
As properly noted by the majority
opinion, it was the function of the ALJ to resolve the
contradiction among the medical opinions and in so doing to
exercise his prerogative to pick and choose among the
conflicting items of evidence and to determine that which he
found credible.
Arguably, ALJ Nanney reached a fair assessment
of Lopez’s condition based on the evidence before him in 1998.
As noted in the appellant’s brief, the diagnostic studies in
existence at that time were “rather limited.”
brief, p. 1).
(Appellant’s
Nonetheless, despite a limited award, ALJ Nanney
specifically found that Lopez had sustained a compensable work
injury.
13
Compounding the heavy burden of proof borne by Lopez
is his inability to communicate in English, a fact which also
frustrated his medical diagnosis until medical treatment was
rendered in 2000 by Dr. Steven Glassman, the only treating
physician who was fluent in Spanish.
Not only was the language
barrier an impediment to initial medical diagnosis; but it also
served as a basis for Dr. Gleis to question his credibility,
charging him with “symptom magnification,” or, as the saying
goes, literally adding insult to an obviously painful injury.
I agree with appellant’s very fine analysis of McNutt
Construction/First General Services v. Scott, Ky., 40 S.W.3d 854
(2001), and its precedential impact on this case.
ALJ Nanney
based his decision solely on the diagnosis of work-related back
strain and made a modest award accordingly, never addressing the
“natural aging process” of the pre-existing degenerative changes
also noted in the report of Dr. Gleis.
Appellant is correct in
arguing that McNutt, decided in 2001, would require compensation
for an injury that aroused into disabling reality a dormant,
degenerative condition attributable to the natural aging
process.
Medical evidence amassed between the 1998 opinion of
ALJ Nanney and the 2002 opinion of ALJ Kerr clearly and
compellingly verified diagnoses originally rejected by ALJ
Nanney.
The record reveals that on December 3, 1997, Dr. Vickie
14
Whobrey diagnosed “a chronic lumbar strain with bilateral
fractures of the pars interarticularis at L3.”
Appellee Bardstown Barrels, p. 4.)
(Brief of
On April 10, 1998, Dr. James
Hurt also diagnosed degenerative disk disease at L3-4.
As early
as 1997, an MRI revealed “evidence of a loss of disk height at
L3 disk level with a diffuse annular disk bulge.”
p. 7.)
(Same brief,
We cannot say that ALJ Nanney erred at the time in
disregarding this body of evidence in favor of that reported by
Dr. Gleis.
We must conclude, however, that the later medical
evidence clearly revealed the erroneous conclusion of Dr. Gleis.
Those early diagnoses of implication of L3-4 were confirmed by
subsequent medical testing:
“A repeat MRI done on June 2, 2000
revealed evidence of disk degeneration and bulge at the L3-4
interspace with the development of a left pericentral annular
tear.”
(Same brief, p. 7.)
A CT scan of February 7, 2001,
revealed “evidence of a diffuse post lateral disk bulge
protrusion at the L3-4 interspace….”
(Id.)
Still uncertain of the overall clinical match-up
between symptoms and test results, Dr. Christopher Shields
referred Lopez to Dr. Steven Glassman, an orthopedic surgeon who
spoke Spanish.
Dr. Glassman and Dr. Shields performed surgery
on L3-4 on September 26, 2001.
15
Incredibly, this subsequent medical history was
rejected upon re-opening.
The medical testing and surgery
intervening between the 1998 and 2002 opinions compels a
consideration of whether the degenerative back condition
suffered by Lopez was exacerbated into painful reality by his
injury.
The evidence rejected by ALJ Nanney in 1998 was
subsequently validated but still erroneously rejected by ALJ
Kerr in 2002, who, in all good faith, believed he was bound by
the doctrine of issue preclusion.
I believe that ALJ Kerr was at liberty to consider
this case in light of McNutt, supra, which also intervened timewise between the two opinions in this case.
ALJ Kerr penned an
excellent analysis of res judicata and collateral estoppel –- a
summary worthy of hornbook quality.
However, the fact is that
ALJ Nanney found a work-related injury that he did not analyze
in terms of the natural aging process and its impact on a preexisting degenerative condition.
After subsequent testing,
diagnosis, and surgery confirmed what ALJ Nanney overlooked and
omitted, ALJ Kerr was not barred from addressing this issue.
Indeed, compelling evidence required that he do so pursuant to
McNutt:
Where work-related trauma causes a dormant
degenerative condition to become disabling
and to result in a functional impairment,
the trauma is the proximate cause of the
16
harmful change; hence, the harmful change
comes within the definition of injury.
Id. at 859.
The McNutt court then stated its conclusion:
that disability which results from the
arousal of a prior, dormant condition by a
work-related injury remains compensable
under the 1996 Act….
Id.
(Emphasis added.)
I agree with Appellant’s prayer for relief and
consequently would remand this case to an ALJ for consideration
of the arousal of degenerative changes caused by his workrelated injury.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Ben T. Haydon, Jr.
Haydon & Dockter
Bardstown, Kentucky
Michael P. Neal
Louisville, Kentucky
17
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