MAIL CONTRACTORS OF AMERICA v. CECIL RAY, JR.; HON. SHEILA LOWTHER, CHIEF ADMINISTRATIVE LAW JUDGE; JEFFREY T. SAMPSON; AND WORKERS' COMPENSATION BOARD
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RENDERED: MARCH 19, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002261-WC
MAIL CONTRACTORS OF AMERICA
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-00-53850
v.
CECIL RAY, JR.; HON. SHEILA LOWTHER,
CHIEF ADMINISTRATIVE LAW JUDGE;
JEFFREY T. SAMPSON; AND
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, DYCHE, and KNOPF, Judges.
COMBS, JUDGE.
Mail Contractors of America (MCA) petitions for
review of a decision of the Workers’ Compensation Board which
affirmed an award of permanent partial disability benefits to
Cecil Ray, Jr.
The sole issue presented for our review is
whether the Board accurately assessed the medical testimony
relied upon by the Administrative Law Judge (ALJ) in rendering
her opinion and award.
Having reviewed the record, we are
unable to find any error in the Board’s assessment of the
evidence -- much less any flagrant error.
See, Western Baptist
Hospital v. Kelly, Ky., 827 S.W.2d 685 (1992).
Thus, we affirm.
As the relevant facts and evidence are fully and
completely set forth in the Board’s opinion of September 24,
2003, it is unnecessary to summarize those facts yet again.
In
essence, Ray was injured while operating a tractor- trailer as
an employee of the appellant on January 16, 2001.
He suffered
neck and back pain as a result of the accident and underwent
disc fusion surgery on December 28, 2001.
In his claim for workers’ compensation benefits, MCA
argued that Ray failed to establish that it was the accident
that caused his back problems; consequently, MCA contended that
Ray was not entitled to any permanent disability benefits.
It
also argued that Ray’s surgery was not medically necessary.
However, based on the testimony of Dr. Alexander Hawkins, who
performed the surgery, and the report authored by Dr. Frank
Wood, the IME physician, the ALJ decided both issues in Ray’s
favor and awarded him benefits based on a 25% impairment rating.
In affirming the award, the Board concluded that there
was substantial evidence to support the ALJ’s decision.
in complete agreement with the Board.
We are
The following portions of
Dr. Wood’s report support the ALJ’s conclusion with respect to
causation:
-2-
There is a causal relationship between the
Jan. 16, 2001 accident and the Dec. 28, 2001
surgical procedure. There is documentation
that [Ray] complained of right-sided neck
and shoulder pain immediately after the
injury, and there is the suggestion that
those complaints continued until the time of
the surgery.
There is no objective documentation in the
records provided, or in the history given by
the examinee, to suggest any pre-existing
active impairment prior to the time of the
Jan. 16, 2001 motor vehicle accident.
. . .
Based upon the available information, to a
reasonable degree of medical certainty,
there is a causal relationship between
[Ray’s] current complaints and the reported
injury. [Ray] had a pre-existing dormant
condition, cervical spondylosis, which was
brought to disabling reality and aggravated
by the Jan 16, 2001 injury. There is no
history of prior complaints of neck
problems, and there are no medical records
provided to document any previous treatment
for neck problems.
Dr. Hawkins likewise testified that the accident
aggravated a dormant, pre-existing condition -- further
supporting the ALJ’s finding with respect to the issue of
causation.
The surgeon’s testimony also supports the
determination of the ALJ that the surgery was reasonable and
necessary.
Based on the results of medical tests, including
MRI’s and x-rays, and the fact that eight months of conservative
treatment failed to ameliorate Ray’s pain and numbness, Dr.
Hawkins believed that surgical intervention was indicated.
-3-
Despite the substantial evidence to support the ALJ’s
award, MCA contends that the expert opinions supporting the
ALJ’s decision are not competent.
It alleges that the medical
evidence “was based on [Ray’s] unbelievable and inconsistent
stories.”
(Appellant’s brief, p. 14).
It cites Osborne v.
Pepsi-Cola, Ky., 816 S.W.2d 643 (1991), for the proposition that
the ALJ was required to disregard the evidence establishing
causation.
As noted in her opinion and award, the ALJ was well
aware of the inconsistencies in Ray’s accounts of the accident
and of his penchant for symptom magnification.
Nevertheless,
she believed that he sustained a compensable injury as a result
of the work-related vehicular accident.
The Board correctly
rejected MCA’s contention that the ALJ was required to disregard
the medical opinions.
Rather, it accurately stated the law in
Osborne v. Pepsi-Cola, supra, as permitting but not requiring
the ALJ to disregard medical opinions based on an imperfect
history.
Finding no error, the opinion of the Board is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Douglas W. Becker
Louisville, Kentucky
Jeffrey T. Sampson
Louisville, Kentucky
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