PUHOVAC (MAGBULA) VS. COMPENSATION HIGHLAND CLEANERS, INC. , ET AL.
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RENDERED: JUNE 20, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-001833-WC
MAGBULA PUHOVAC
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-04-67283
HIGHLAND CLEANERS, INC.;
WORKERS’ COMPENSATION BOARD; AND
JOHN B. COLEMAN, ADMINISTRATIVE
LAW JUDGE
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, KELLER AND MOORE, JUDGES.
MOORE, JUDGE: Honorable John B. Coleman, Administrative Law Judge
(ALJ), entered an Opinion and Order in favor of Appellee, Highland Cleaners,
Incorporated, the employer of Appellant, Magbula Puhovac. Puhovac appealed the
ALJ’s Opinion to the Kentucky Workers’ Compensation Board. In her appeal to
the Board, she argued that the medical evidence relied upon by the ALJ was so
deficient that it failed to meet the standard of substantial evidence. The Board
affirmed the opinion of the ALJ, concluding that the ALJ’s evidentiary findings
were not so unreasonable that they should be reversed as a matter of law.
Before this Court, Puhovac argues the Board erred in affirming the
ALJ’s reliance on the opinions of two doctors, Dr. Martyn Goldman and Dr.
Robert Sasser. Based on their testimony and reports, the ALJ found that Puhovac
had a pre-existing, active condition and as a result, sustained no recoverable injury.
We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On July 24, 2006, Puhovac filed a workers’ compensation claim
against Highland Cleaners. In her claim, she alleges she sustained multiple
injuries, during the course and scope of her employment, on November 23, 2004,
when she was struck by a company delivery van while it was backing up. At the
time she was hit, Puhovac was outside at the back of Highland Cleaners smoking a
cigarette while on break. The driver1 testified that the van was moving about two
to three miles per hour; that he had only let off the brakes; and that he had not
touched the gas pedal. The ALJ found the driver’s testimony credible, concluding
that Puhovac was hit at a very low rate of speed. Puhovac’s own testimony is
contradictory regarding whether or not she continued to smoke her cigarette after
the contact with the van. However, the impact did not knock her down; nor did the
van run over her.
1
The truck driver, Elmir Mujanovic, is Puhovac’s nephew.
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Puhovac alleges injuries from this accident consist of those to her
head, neck, back, arm, and hip, and she claims that she suffered from dizziness and
nausea. She further maintains that as a result of the accident, she no longer can
work and that her life has been reduced to basically sleeping and lying in bed. She
has seen multiple doctors since the incident.
Once Puhovac reported the accident, her supervisor, Wanda Wilburn,
accompanied Puhovac to seek medical treatment at the First Immediate Care
Center, located across the street from Highland Cleaners. Puhovac was diagnosed
with acute cervical myofascial strain and right shoulder contusion by the
physicians at First Immediate Care. Puhovac was then transported from First
Immediate Care to the University of Louisville Hospital. She was diagnosed with
cervical strain, shoulder contusion and head contusion. She was instructed to rest;
use ice for pain to her shoulder; and take Motrin every six to eight hours for pain.
Approximately a week after the incident, Puhovac visited her family
physician’s office, where both Dr. William Sasser and Dr. Walter Dixon have
treated her over the years. She was examined on this occasion by Dr. Dixon.2
Puhovac informed Dr. Dixon of pain in the right side of her head, her right
shoulder and her right hip. He diagnosed her with a concussion, dizziness,
headaches, abdominal pain, nausea and pain in her right side, right hip and right
shoulder. Dr. Dixon subsequently prescribed medication for Puhovac’s pain,
Dr. Dixon and Dr. Sasser worked out of the same office immediately following Puhovac’s
accident. Since that time, however, Dr. Dixon has subsequently left the practice.
2
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referred her to a neurologist, and provided her with excuses to be absent from
work.
The record includes a letter from Dr. Dixon dated November 30,
2005, regarding Puhovac’s condition. He opined that as a result of the accident,
Puhovac suffered a
contusion and multiple soft tissue trauma and no doubt
muscular skeletal type of injury which has put an
exascerbation [sic] on her back, lower back, right
shoulder, and hip areas. . . . Patient also sustained a head
injury and she may have even lost a block of memory as
a result of that injury. . . . In my mind the patients [sic]
condition definitely was exascerbation [sic] because prior
to that injury she was working her regular job with
minimal if any complaints. . . . Around spring of 2005
patient also developed some medical emergencies
including the possibilities of a stroke and also chest
pressure which necessitated evaluations. . . . Patient
continues to suffer from chronic soft tissue injuries
subsequent to the accident dated November 23rd, 2004.
From the citations to the record given to this Court by the parties, it is
difficult to determine when Puhovac first saw a neurologist. At some point she
was seen by neurologist Dr. Charles Oates. A note in the record dated October 3,
2005, by Dr. Oates stated that Puhovac would be off work for three months due to
a work related injury. A second note from Dr. Oates, dated May 19, 2006, stated
that
Magbula Puhovac had a severe injury after being hit by a
car. She has post-concussion syndrome causing memory
loss, dizziness, [sic] unsteady walking. She has multiple
injured body parts. She is on multiple medications that
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may cloud her memory. She will have significant
problems in memorizing information for citizenship.
The administrative record contains an electrodiagnostic report from
Dr. Vasudeva Iyer, dated August 3, 2005. His report included his impression as
follows: “[e]ssentially normal study with normal motor and sensory conduction in
the right upper and lower extremities. No denervation or myopathic changes were
seen upper or lower extremity muscles.”
On January 20, 2005, Dr. Gregory B. Nazar, a neuorosurgeon, after
examining Puhovac, wrote a letter to Dr. Dixon regarding his evaluation of her.
He reported that Puhovac’s diagnosis was consistent with soft tissue injuries in the
form of a lumbar and cervical sprain/strain. He believed her best option was to
continue with anti-inflammatory medications and physical therapy.
Puhovac was also seen by Dr. Jeffrey Popham, an orthopedic surgeon,
beginning on July 20, 2005. According to his records, Puhovac self reported that
she had no pain prior to the November 2004 accident. He treated her for cervical,
thoracic and lumbar strains. Puhovac reported visual disturbances, dizziness,
trouble walking, chest pain, and pain in the entire right side of her body. Dr.
Popham noted that Puhovac’s left lower leg is approximately 1.25 inches shorter
than the right. He prescribed Flexeril and Prednisone as needed and provided offwork slips for Puhovac from July 20, 2005 through February 1, 2006. He also
referred her to see Dr. Steve Carter, a chiropractor. Dr. Popham noted that
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throughout Puhovac’s visits with him, he saw little improvement and there was
“little [he] could do. [They] have to simply let her body heal itself.”
Puhovac, while under the care of Dr. Popham, had a bone scan
performed. The first two phases of the bone scan showed no abnormal activity.
On the third phase a small area of mildly increased activity was seen in the area of
Puhovac’s right third rib, but the cause and significance were unclear.
In his opinion, Dr. Popham felt that Puhovac was at maximum
medical improvement and there was nothing more he could do for her pain because
there was no discrete orthopedic lesion. He referred her to Dr. Larry Peters of Pain
Management.
Dr. Carter began treating Puhovac on September 20, 2005. He
reported that Puhovac has a severe musculoskeletal injury due to the November
2004 accident. He also noted that she had a complicated injury due to the severity
and other resulting medical illnesses.
On April 6, 2006, Dr. Christopher Nelson, by referral from Dr. Sasser,
performed a pain re-evaluation on Puhovac, which included an MRI. Puhovac had
seen Dr. Nelson previously on March 23, 2006, for a pain evaluation. Her
diagnosis was cervical facet syndrome; cervicogenic headache; cervical
degenerative disc disease; and myofascial pain syndrome.
Dr. Theodore M. Wandzilak, an ophthalmologist, also evaluated
Puhovac. Puhovac complained of decreased vision since the November 2004
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accident. Dr. Wanzilak noted that an MRI revealed Puhovac had a stroke, but it
was not known if the stroke was before or after the accident.
Dr. John Nehil completed an independent medical examination of
Puhovac on July 5, 2006. He summarized his report noting that Puhovac had a
year and a half history of neck and lower back pain that developed following the
work related accident. Puhovac’s evaluation revealed an underlying disc disease in
both the cervical and lumbar spine. He felt that the November 2004 accident
brought her degenerative disc disease of the lumbar spine and cervical spine into
“disabling reality.” Using the 5th Edition of the AMA Guidelines, Dr. Nehil gave
Puhovac a ten percent combined impairment to the body as a whole. Regarding
her neck injury, Dr. Nehil felt she had a five percent impairment to the body as a
whole “taken from DRE Cervical Category II.” Regarding her back pain, Dr.
Nehil felt Puhovac had a five percent impairment to the body as a whole taken
from the DRE Lumbar Category II. He concluded that she could not perform work
that would require her to stand for more than an hour at a time. She could only
perform work that allows her to stand and sit on an intermittent, regular basis
through the day where she would be able to change positions. Dr. Nehil advised
that Puhovac should avoid any type of repetitive twisting with her neck; she should
avoid repetitive bending and twisting with her lower back; and she should not lift
more than fifteen pounds.
Additionally, on October 30, 2006, Puhovac submitted to examination
by Dr. Goldman, an independent medical examiner. At that time, Dr. Goldman
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reviewed Puhovac’s medical history and records and conducted a physical
examination. After a careful and thorough review of Puhovac’s records and
physical examination, Dr. Goldman determined that Puhovac had a pre-existing
and active condition of chronic pain syndrome that affected her neck and back.
Subsequently, he concluded Puhovac did not sustain an injury as a result of the
November 23, 2004 incident.3 He determined that Puhovac’s subjective
complaints were inconsistent with his objective clinical and diagnostic findings.
Puhovac has a considerable amount of medical records from the year
2000 through the time when her claim was evaluated by the ALJ. Puhovac was
involved in automobile accidents in 2001 and 2002. She had a MRI of her spine in
February of 2002. It showed early degenerative disc disease at the L4-5 and L5-S1
levels. She had a very minimal annular bulging disc at L4-5 and a small rightsided disc protrusion present at L5-S1.
3
Injury is defined in K.R.S § 342.0011(1) to mean:
any work-related traumatic event or series of traumatic events,
including cumulative trauma, arising out of and in the course of
employment which is the proximate cause producing a harmful
change in the human organism evidenced by objective medical
findings. “Injury” does not include the effects of the natural aging
process, and does not include any communicable disease unless the
risk of contracting the disease is increased by the nature of the
employment. “Injury” when used generally, unless the context
indicates otherwise, shall include an occupational disease and
damage to a prosthetic appliance, but shall not include a
psychological, psychiatric, or stress-related change in the human
organism, unless it is a direct result of a physical injury[.]
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Dr. B.O. Rand, saw Puhovac in 2002, after a consultation was
requested by Dr. Sasser. His records include that in April of 2002, Puhovac had
sustained pain in her
head, neck, mid and low back, legs bilaterally down to
the ankles, and arms bilaterally from her shoulders to her
hands. There is also tingling in both arms and legs to the
ankles with tingling in both hands. She describes her
pain as constant in her head, neck, and back. Her leg and
arm pain is intermittent. She relates that her pain is
severe. Her pain is worse with lying down, getting up,
bending, with prolonged standing, and with urinary
frequency. Nothing makes her pain better. There is
tingling of both arms and legs as well as weakness in her
arms and hands. She has urinary frequency, but denies
any bowel dysfunction. When ambulating [sic] she notes
weakness and that her legs give out on her when walking.
She has been seen by Dr. Sasser. She has been
evaluated with an MRI of the neck and back on 2/22/02,
and a CT scan of the rain [sic] at Louisville Imaging on
1/24/02. She has been treated with two months of
physical therapy by Dr. Sasser which did not help, as
well as medications which did not help.4
Also after her 2001 automobile accident, Puhovac was treated at the
pain clinic at Norton Suburban Hospital in April of 2002. The records from the
pain clinic include that Puhovac reported that her lower back pain had been
increasing in severity since her 2001 accident. She reported bilateral lower
extremity and hip pain with paresthesia occasionally in both thighs and some
weakness of her “lower extremity” at times. She received two epidural injections
at the pain clinic to relieve her pain.
4
A.R. at p. 171.
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Puhovac’s medical records before and after the 2004 incident include
those of Dr. Sasser and Dr. Dixon, her family physicians. Dr. Sasser noted, both in
his medical records and again at deposition, that during the time period of 2000
through late 2002, Puhovac was diagnosed and treated for chronic pain
management. Dr. Sasser explained that when a patient is treated for chronic pain
management, the patient’s symptoms are expected to continue permanently.
Specifically, Dr. Sasser testified in his deposition as follows:
Q.
Okay. What I’m trying to figure out from your
point of view, Dr. Sasser, is between the period of time
we’ve discussed, from I guess 2000 through, you know,
the late 2002 and then some additional complaints in
2003 but then none until 2004, what I want to know from
you is from your standpoint, do you think that prior to
this incident in November of 2004 that Magbula had a
chronic and active neck and low back condition that was
–
A.
Sure.
Q.
-- being treated by this office?
A.
Oh, yes.
Q.
You’re pretty definite in your opinion that [sic] in
that regard?
A.
Yes.
Q.
What -- you mentioned earlier that when you
made referrals to pain management and the notes label it
chronic, this is a condition in the neck and the back that
you expected to continue indefinitely?
A.
Yes.
Q.
Did that appear to be what in fact happened?
A.
Correct.
Q.
Is it then accurate to say that this incident
occurring November of 2004 could have served as a
temporary exacerbation of that preexisting chronic, active
neck and back condition?
A.
Yes.5
5
A.R. at pp. 312- 313.
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And, on cross examination by Puhovac’s attorney, Dr. Sasser testified that
Q.
. . . So, Doctor, would it be fair to say that as far
as presenting problems go, the last time that she
presented to you before the 11-23-04 work-related
incident was 5-14-02?
A.
Correct.
Q.
-- for that neck and back pain?
A.
Yes.
Q.
Okay. So basically she didn’t present for neck
and back pain for it looks like about a two-and-a-half
year period –
A.
That’s correct.
Q.
--is that correct?
A.
Yes.
Q.. Okay. So prior to 5-14-02 after she was presented
to you on fairly regular basis –
A.
Yes, sir.
Q.
-- for neck and back pain? And then after –
A.
I don’t know where she was.
Q.
Right. Then, again, after 11-4—or excuse me, 1130-04, after that point in time she again started presenting
regularly –
A.
Correct.
Q.
--to you for neck and back pain? So basically
there was a two-and-a-half year period where she wasn’t
presenting to you for neck and back pain?
A.
That’s correct.
***
Q.
Okay. Now, you testified earlier that it was your
opinion
that her condition was continuous and active?
A.
Yes.
Q.
Is that your opinion still despite the fact that she
hadn’t seen a doctor for two and a half years or hadn’t
presented to you for two and a half years for neck and
back pain prior to her injury in this case?
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A.
Well, I can only tell you every time I’ve seen her
[sic].
Q.
Okay.
A.
She’s complained of – it may not be neck or back
but it’s pain somewhere.
Q.
Right. But—
A.
She also complains a lot of belly pain.
Q.
But as far as neck and back condition, do you have
any documentation that was active at the time of her –
A.
No.
Q.
--injury?
A.
No.
Q.
Okay. And you don’t have any information that
was active for the two years prior to that injury, do you?
A.
That’s correct.6
Highland Cleaners’ attorney, on re-direct questioning, asked Dr. Sasser the
following:
Q.
. . . But you’ll agree with me that following
January of 2002 you continued to treat neck and low
back pain –
A.
Yes.
Q.
-- for months specifically and had an MRI done
and a CT scan done here in February of ’02 then
continuing on into April of ’02. I think you’re still
diagnosing in the office neck pain, back pain, and chronic
pain, chronic disk problems?
A.
Yes.
Q.
Correct? So as I understand, again when you
reached the level at this office of somebody treating for a
chronic problem, entering chronic pain management, do
you expect that their symptoms are going to continue
permanently?
A.
Essentially, yeah.
Q.
Because a person comes to your office and doesn’t
necessarily present specifically for those conditions at an
office, it might be a sore throat or a burn of their thigh,
does that necessarily mean that they’re no longer having
the neck or back problem?
6
A.R. at pp. 319-323.
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A.
No. It’s just not – they didn’t complain of them.7
In sum, Dr. Sasser described Puhovac as having a chronic and
permanent pain condition prior to the November 2004 incident. He considered that
this condition would continue permanently and that the incident in November 2004
may have temporarily aggravated her pre-existing chronic condition.
In her deposition testimony, Puhovac stated that she was in an
automobile accident in November of 2001. She stated that her neck pain after that
accident was “just short” and “after the few massage (sic), was good to me.”8 She
testified she did not experience neck or back pain after the 2001 accident although
she attended physical therapy.
Puhovac’s testimony about her injuries sustained in the 2001 accident
is contradicted by the medical records of the doctors who treated her at that time,
including Dr. Rand and Dr. Sasser. Their records include that Puhovac reported
her pain as severe and that neither physical therapy nor medication were helping
her.
Puhovac also testified to the second automobile accident in September
of 2002.
She called receiving injections in her back after the accident from Dr.
Rand. From Dr. Rand’s records, these injections appeared to have been
administered after the 2001 automobile accident.
7
A.R. at pp. 324-325.
8
A.R. at p. 120.
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Regarding the 2004 work-related accident, Puhovac testified that she
suffered injuries to her right shoulder, right side, head, eye, back and neck. She
stated her condition was much better at the time of her deposition than it was at the
time of her accident. At the time of her deposition, she was seeing a chiropractor
twice a week, taking twelve or thirteen medications and seeing a neurologist. Dr.
Sasser was her family physician at the time. Puhovac testified that she did not take
any medications prior to the accident at work.
At the hearing before the ALJ in this matter, Puhovac testified that she
feels pain all the time and her neck, eye, spine, low back, whole right arm and right
leg hurt. She also testified that she has problems with balance and cannot sit or
walk for long periods of time. Puhovac testified that she takes pain and
depression medication. She testified that she cannot do anything anymore. She
stated that her life is basically reduced to sleeping and lying in bed. She does drive
small distances.
The ALJ included a summary of all the medical evidence in his
Opinion and Order. He primarily relied on the opinion of Puhovac’s family
physician, Dr. Sasser and independent medical examiner, Dr. Goldman, in
dismissing Puhovac’s claim. The ALJ also concluded that Puhovac was hit at a
very low rate of speed by the van. The Workers’ Compensation Board affirmed
the ALJ’s Opinion, despite the fact that the Board disagreed with the reliance on
Dr. Goldman’s opinion. The Board nonetheless concluded that the opinion of Dr.
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Sasser, Puhovac’s family physician, constituted substantial evidence. We turn now
to this court’s standard of review.
II. STANDARD OF REVIEW
When reviewing the Board’s decisions, this Court will only reverse
when the Board has overlooked or misconstrued controlling law or so flagrantly
erred in evaluating the evidence that it has caused gross injustice. Daniel v. Armco
Steel Company, 913 S.W.2d 797, 798 (Ky. App. 1995). To review the Board’s
decision properly, we must ultimately review the ALJ’s underlying opinion. If the
ALJ found in favor of the employee, who had the burden of proof, then we must
determine whether the ALJ’s findings were supported by substantial evidence.
Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986); see also Wolf Creek
Collieries v. Crum, 673 S.W.2d 735, 736 (Ky. 1984). The Supreme Court of
Kentucky has defined substantial evidence as some “evidence of substance and
relevant consequence, having the fitness to induce conviction in the minds of
reasonable men.” Smyzer v. B.F. Goodrich Chemical Co. 474 S.W.2d 367, 369
(Ky. 1971) (citation omitted). In other words, substantial evidence is “evidence
which would permit a fact-finder to reasonably find as it did.” Francis, 708 S.W.2d
at 643. As the finder of fact, the ALJ, not this Court nor the Board, has the sole
discretion to determine the quality, character and substance of the evidence.
Whittaker v. Rowland, 998 S.W.2d 479, 481 (Ky. 1999) (citing Paramount Foods,
Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985)). Not only does the ALJ weigh
the evidence, but the ALJ may also choose to believe or disbelieve any part of the
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evidence, regardless of its source. Whittaker, 998 S.W.2d at 481 (citing Caudill v.
Maloney’s Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977)).
III. ANALYSIS
The question on appeal before this Court is whether or not there was
substantial evidence to support the ALJ’s dismissal of Puhovac’s claim. The ALJ
reviewed and summarized the multitude of medical evidence in the record, which
contained several contradictory medical evaluations. In his final analysis and
conclusion, the ALJ referenced the medical records of Dr. Sasser and of the
independent medical examiner, Dr. Goldman, when he concluded the van that
struck Puhovac did not cause a harmful change in the human organism as
evidenced by objective medical findings. See KRS 342.0011(1). Because
Puhovac has the burden of proving each element of her claim to the ALJ and the
ALJ found she was unsuccessful, the question before this court is whether or not
the evidence compels a different conclusion. Wolf Creek Colleries, 673 S.W.2d at
736.
DR. GOLDMAN
The ALJ relied upon the opinion of Dr. Goldman and his
determination that the incident of November 23, 2004, caused no harmful change
to Puhovac’s condition and did not result in any functional impairment of her.
Citing Cepero v. Fabricated Metals Corp., 132 S.W.3d 839, 842 (Ky. 2004),
Puhovac argues that the ALJ’s reliance on Dr. Goldman’s conclusions cannot
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constitute substantial evidence because Dr. Goldman’s opinion was based on a
substantially inaccurate medical history.
To make her point, Puhovac specifically references a medical record
from Dr. Sasser upon which Dr. Goldman relied. This particular medical record
had a handwritten date of March 24, 2006, which upon review could easily be
mistaken for March 24, 2004. The parties later agreed, during the course of Dr.
Sasser’s deposition, that the date was, in fact, March 24, 2006. However, Dr.
Goldman’s review of the records evidences he believed the date read March 24,
2004, which was inaccurate. Specifically, in Dr. Goldman’s report, he notes a
medical record with a date of “3/24/2004” where Puhovac complained of neck and
shoulder pain and an MRI of the cervical spine was ordered. In his report, Dr.
Goldman wrote “Answers to Specific Questions” as follows:
Q: “In your opinion, are the symptoms Puhovac
complains of presently in her neck and low back more
accurately caused exacerbations of a pre-existing
condition, given her prior treatment and prior motor
vehicle accident to the same areas?”
A: It is my opinion that her current symptomatology is
due to the normal aging changes in her cervical and
lumbar spine, which were symptomatic prior to this
injury of 11/23/04, for a period of some four years, from
September 2000 through at least March 2004.”
Accordingly, Dr. Goldman’s reference to a March 2004 medical
record is inaccurate, making it appear as though Puhovac was actively in treatment
for back pain from September 2000 through March 2004. The deposition
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testimony of Dr. Sasser, however, clarified that the date of the record was actually
March of 2006. And, this clarification was noted and apparently taken into
consideration by the ALJ in his Opinion and Order.9
Despite the inaccurate date of the medical record as reported by Dr.
Goldman, his ultimate determination that Puhovac had a prior existing condition is
nonetheless supported by other evidence in the record, including the records and
deposition of Dr. Sasser. Medical evidence illustrates that Puhovac suffered from
chronic pain and sought treatment for chronic pain management prior to the date of
the incident. Even though Dr. Sasser did not specifically treat Puhovac for neck or
back pain for a period of two and one-half years before the 2004 incident, he
testified that Puhovac had been previously diagnosed with chronic pain and he
expected that this was a permanent diagnosis. He also testified that every time he
saw her, including the two and one-half years before the 2004 incident, she always
complained of pain somewhere. Dr. Sasser’s testimony is highly relevant, given
that the medical records from Puhovac’s other treating physicians for the 2004
incident do not indicate that they had treated her before then nor that they were
aware of her prior diagnosis of a chronic pain condition.
Dr. Goldman performed a thorough evaluation of Puhovac’s medical
records from the year 2000 through the time he conducted his own physical
examination. Despite the discrepancy with the evaluation dated March 24, 2006,
looking at the objective medical and clinical evidence of his own physical
9
A.R. at p. 609.
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evaluation, he concluded that Puhovac’s subjective complaints did not align with
the objective medical evidence in her case. Accordingly, notwithstanding the
inaccurate medical record citation, Dr. Goldman believed Puhovac’s subjective
complaints were inconsistent with the objective medical evidence presented.
Specifically, he concluded as follows:
Q: In your opinion, are Ms. Puhovac’s subjective complaints
consistent with your objective clinical and/or diagnostic
findings?
A: No.
The question before us is in light of the inadequate medical record
relied on partly by Dr. Goldman and in light of Dr. Sasser’s records, does
substantial evidence exist to support the ALJ’s decision? Substantial evidence is
defined as “evidence which would permit a fact-finder to reasonably find as it did.”
Francis, 708 S.W.2d at 643. As the fact-finder, the ALJ has the sole discretion to
determine the quality, character and substance of the evidence. Whittaker, 998
S.W.2d at 481.
The ALJ, as the fact-finder, has discretion to pick and choose which
evidence he deems credible to rely upon. Whittaker, 998 S.W.2d at 481. In this
instance, given Dr. Goldman’s independent examination and ultimate opinion that
Puhovac’s subjective complaints were inconsistent with medical evidence, we
cannot say that the ALJ’s reliance upon Dr. Goldman’s opinion is unreasonable.
This is especially so wherein Dr. Sasser’s medical records and testimony support
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that Puhovac had a pre-existing condition of chronic pain and always complained
of pain somewhere in her body every time he saw her.
The ALJ determined that Dr. Sasser’s opinion that Puhovac’s chronic
pain condition in her neck, shoulders, back and head were pre existing and active
prior to the November 23, 2004 incident, to be credible. As both a treating
physician and a family physician who had seen Puhovac over a number of years,
Dr. Sasser’s opinion and testimony provides a foundation of substantial evidence
to support the ALJ’s decision. This is especially so given that Dr. Sasser saw
Puhovac for diagnosis and treatment within a week of the incident.
Because Dr. Sasser was a treating physician and also a family physician of
Puhovac, it is easy to comprehend the reason for the ALJ’s reliance upon his
records and testimony more so than other physicians who have treated Puhovac
only occasionally at best. Thus, we cannot say the ALJ’s reliance upon the records
and testimony of Dr. Sasser is unreasonable.
Moreover, much of Puhovac’s testimony concerning her prior
automobile accidents and resultant medical treatment was inconsistent with the
medical records submitted for the ALJ’s review. Additionally, the ALJ determined
that Puhovac was hit by the van at a very low rate of speed, certainly indicating
that he did not believe the evidence supported a finding that the incident could
have caused the severe injuries of which Puhovac complained.
The record contains contradictory evidence as to the extent and
severity of Puhovac’s injuries as a result of being stricken by the van. Given that
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the ALJ is the finder of fact, so long as his interpretation of the evidence is
reasonable, his findings cannot be disturbed on appeal. Accordingly, because Dr.
Sasser and Dr. Goldman’s medical reports and testimony provide a reasonable
foundation for the decision of the ALJ, we will not disturb his conclusions on
appeal. Thus, we affirm.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Richard E. Neal
Louisville, Kentucky
Brian T. Gannon
Louisville, Kentucky
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