SENAD MEHIC V. R.C. TWAY COMPANY, ET AL.Annotate this Case
NOT TO BE PUBLISHED OPINION
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PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
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RENDERED : JANUARY 20, 2011
NOT TO BE PUBLISHED
uyrrrar Courf of ~irufurkV
ON APPEAL FROM COURT OF APPEALS
CASE NO . 2009-CA-001538-WC
WORKERS' COMPENSATION BOARD NO . 05-69367
R. C. TWAY COMPANY;
HONORABLE IRENE STEEN,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
MEMORANDUM OPINION OF THE COURT
An Administrative Law Judge (AI.J) dismissed the reopening of this
settled claim, having found that the claimant failed to meet his burden of
proving increased disability due to his work-related injury. The Workers'
Compensation Board affirmed and the Court of Appeals affirmed the Board .
Appealing, the claimant asserts that the ALJ 'erred because no evidence
supported the finding that his thoracic condition was not work-related . He also
asserts that the ALJ erred by failing to award benefits for his psychological
condition and by failing to find increased disability at reopening.
We affirm. Having failed to meet his burden of proving every element of
his claim, the claimant must show on appeal that the favorable evidence was
so overwhelming as to compel findings in his favor. He has failed to do so.
The claimant was born in 1962 in Bosnia and has the equivalent of a
high school education with training in auto repair. He served in the Bosnian
military and then ran a furniture purchasing business with his brother that
had about 20 employees. In 1992 he emigrated from Bosnia to Germany,
where he was not permitted to work due to his refugee status. The claimant
came to the United States in 2000 and became employed by the defendant as a
laborer. He sustained a work-related low back injury on August 15, 2005,
while helping co-workers lift the fifty-three-foot-long base for a trailer side.
The record indicates that an MRI performed on the date of the injury
revealed multi-level lumbar spondylosis and a mild disc bulge at the L4-5
interspace . The claimant was referred to Dr. Morrasutti, a neurosurgeon, who
treated him conservatively but recommended surgery eventually. The claimant
declined the procedure. A June 2, 2006 letter to the claimant's attorney ,
indicates that Dr . Morrasutti assigned a 13% permanent impairment rating
based on the lumbar spine (DRE category III), using the 5th edition of the AMA
Guides to the Evaluation of Permanent Impairment. He attributed the entire
impairment to the work-related injury, noting that the injury caused preexisting dormant degenerative changes in the claimant's spine to become
The parties settled the claim for a "back" injury for previously-paid
temporary total disability (TTD) benefits and a lump sum of $52,429.68, which
was the product of 5.28% of his average weekly wage and a life expectancy of
1,804 .19 weeks . The only impairment rating reflected in the agreement was
the 13% assigned by Dr. Morrasutti . The claimant's restrictions at that time
included : no lifting more than 10 pounds ; no repetitive bending or twisting at
the waist more than three to four times per hour; and no prolonged standing
for more than thirty minutes without changing position. An ALJ approved the
agreement on August 8, 2006.
Dr. Castro saw the claimant in May 2007 at his family physician's
request. He reported a normal examination and diagnosed a musculoskeletal
The claimant was referred to Dr. Shields sometime in 2007 because Dr.
Morassutti left Louisville . Dr. Shields diagnosed lower back pain with S 1
bilateral radiculopathy. He ordered another MRI, but the employer denied the
request based on a report by Dr. Goldman . The report stated that the claimant
had no radicular findings despite his radicular complaints and recommended
that the request be denied as unnecessary.
Dr. Travis's July 2007 report noted that the 2005 MRI showed
degenerative changes that were normal for the claimant's age but "no evidence
of a frank herniated disc." Likewise, a lumbar myelogram and post-myelogram
CT scan performed in May 2006 revealed only mild, non-specific findings and a
broad-based herniated disc at L4-5 with no foramenal encroachment . Noting
that the studies indicated no need for surgery and no clear changes to explain
the continued back pain, Dr. Travis concluded that the claimant had been
"adequately studied" and that further studies would reveal only degenerative
The MRI, which was performed in September 2007 by agreement,
revealed abnormalities at L4-5 and L5-S 1 that were severe enough in Dr.
Shields' opinion to warrant considering surgery. He recommended a lumbar
and thoracic myelogram and post=myelographic CT scan and submitted
request for the procedures to utilization review . The employer denied the
request, again based on a report by Dr. Goldman. He stated that the MRI
showed no pathological changes to explain the continued low back pain and
recommended that the request be denied. Dr. Travis agreed .
The claimant filed a motion to reopen on January 11, 2008, alleging
greater disability since the settlement due to a gradual worsening of his back
condition and the development of a psychiatric condition. He requested an
order compelling the employer to authorize the treatment prescribed by Dr.
Shields as well as an increase in income benefits. Attached to the motion were
a report by Dr. Drljevic, who opined that the claimant had a psychiatric
impairment from depression due to his back problems, and the December 2007
utilization review report by Dr. Goldman. The motion was granted to the extent
that the matter was set for further adjudication.
The report of an examination performed by Dr. Carter for the Department
of Disability Determinations in September 2007 indicated that the claimant
complained of severe back and bilateral leg pain that was worse on the left and
of numbness on the bottom of his feet. He noted that the claimant was in no
distress; got on and off the examination table without difficulty ; and had a
normal gait but moved slowly. He opined that the claimant suffered from
chronic back pain with evidence of spondylosis and facet arthropathy at L4-5S 1 but found no evidence of radiculopathy.
Dr. Bilkey evaluated the claimant in May 2008 and concluded that his
injury caused a thoracic and lumbar strain with lumbar radiculopathy that
had resolved; myofascial pain; and his present deconditioned state . He noted
that the claimant no longer wished to have the two-level fusion recommended
by Dr. Shields . He thought that the claimant would not be a good surgical
candidate and saw no reason for further diagnostic testing. Like Dr . Morrasuti,
Dr. Bilkey assigned a 13% impairment rating to the work-related injury, but he
based the rating on impairments to both the thoracic spine (5%) and the
lumbar spine without findings of radiculopathy (8%) . He considered the
restrictions imposed by Dr . Morrasutti to be appropriate and would limit the
claimant to light-duty work.
Dr. Kriss evaluated the claimant for the employer in June 2008 . He
characterized the thoracic and lumbar changes that were evident on imaging
studies as being degenerative and naturally occurring. He recommended that
the claimant be weaned from narcotic pain medication and muscle relaxers and
that they be used only occasionally for severe flare-ups. Dr. Kriss assigned a
5% impairment rating to the lumbar injury but declined to rate the thoracic
complaints because they did not correlate with the pathology. Moreover, he did
not think it probable that the thoracic disc bulges resulted from the August
2005 injury. He considered further diagnostic studies to be unnecessary.
Noting the enormous inconsistency between the claimant's subjective
complaints and the objective findings, he opined that the claimant had "given
up" and decided that he was disabled although his work-related injury was
relatively mild .
Dr. Shraberg evaluated the claimant's psychiatric complaints for the
employer in April 2008 . He considered the claimant's main problem to be
psychosocial and due . to his language and cultural barriers, his inability to
integrate into society, and family relationship stressors . He diagnosed
moderate depression and a mood disorder, probably induced by the use of
narcotic medications and problems with acculturation, and recommended that
the use of narcotics be tapered. He noted specifically that Lortab undermined
the benefit of the Wellbutrin prescribed for depression and that it could cause a
depressive overlay and rebound pain that was worse than the actual pain from
the injury. He stated that the claimant was not at maximum medical
improvement from a psychiatric standpoint but that the August 2005 accident
did not cause a psychiatric impairment.
The parties stipulated that the employer paid TTD benefits voluntarily
from August 16, 2005 through June 9, 2006 . The employer also paid medical
benefits in excess of $12,156.06.
The ALJ found that the claimant's actual impairment rating at settlement
was 13% as assigned by Dr. Morrasutti because the record contained no other
rating. The ALJ also found that he would have been entitled to enhanced
benefits under KRS 342 in other words, that he lacked the physical
capacity to return to the type of work performed at the time of his injury.
Noting that his present medical findings were "no different than they were
initially," the ALJ found that he failed to meet his burden of proving increased
disability at reopening and dismissed the claim. The ALJ reasoned that even
Dr. Bilkey found no evidence of true radiculopathy and assigned no more than
an 8% impairment rating to the lumbar spine . Moreover, not only did Dr.
Carter assign restrictions that varied little from those assigned by Dr.
Morrasutti, the claimant's work status was no different than in the initial
claim. The ALJ noted the presence of degenerative changes in the claimant's
thoracic spine but found there to be insufficient evidence to link them either to
his work or his lower back injury. Noting that the claimant made no attempt to
return to work, the ALJ found that he suffered from a situational depression
caused by a lack of work rather than his work-related injury. The claimant
appealed following the summary denial of his petition for reconsideration .
A claimant bears the burden of proof and risk of non-persuasion before
the fact-finder with regard to every element of his claim. I Although
KRS 342 .285 permits an appeal to the Board, it provides that the ALJ's
1 Roark v. Alva Coal Corporation, 371 S.W .2d 856 (Ky. 1963) ; Wolf Creek Collieries v.
Crum, 673 S.W.2d 735 (Ky.App. 1984) ; Snawder v. Stice, 576 S .W.2d 276 (Ky.App.
decision is "conclusive and binding as to all questions of fact" and that the
Board "shall not substitute its judgment for that of the [ALJ] as to the weight of
evidence on questions of fact." KRS 342.290 limits the scope of review by the
Court of Appeals to that of the Board and also to errors of law arising before
KRS 342 .285 means that the fact-finder, rather than the Board or
reviewing court, has the sole discretion to determine the quality, character, and
substance of evidence. 2 As fact-finder, an ALJ may reject any testimony and
believe or disbelieve various parts of the evidence, regardless of whether it
comes from the same witness or the same adversary party's total prooL3
Although a party may note evidence that would have supported a different
decision, such evidence is not an adequate basis for reversal on appeal . 4 When
the party with the burden of proof fails
to convince the ALJ, the party's burden
on appeal is to show that overwhelming favorable evidence compelled a
favorable finding, i. e., that no reasonable person could fail to be persuaded by
the favorable evidence . 5 The claimant failed to meet that burden.
The claimant argues first that no evidence supported the finding that his
thoracic spine condition was not work-related . We disagree . The evidence did
2 Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 41.8 (Ky. 1985).
3 Caudill v. Maloney's Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977) .
4 McCloud v. Beth-Elkhorn Corp., 514 S .W.2d 46 (Ky. 1974) .
5 Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986) ; Mosley v. Ford Motor Co.,
968 S .W. 2d 675 (Ky. App . 1998) ; REO Mechanical v. Barnes, 691 S.W.2d 224 (Ky.
App. 1985) .
not compel a finding that the condition was work-related and supported a
finding that it was not.
The ALJ found that the claimant failed to meet his burden to prove that
the degenerative changes found in his thoracic spine were work-related or
resulted from the August 2005 injury. The ALJ concluded as a consequence
that they were not work-related and dismissed any claim for a thoracic spine
injury. The decision was reasonable . Dr. Morrasutti assigned a 13%
impairment rating in the initial claim based solely on the lumbar spine. Dr.
Travis testified at reopening that the degenerative changes in the claimant's
spine were non-work-related . Although Dr. Kriss testified that the August
2005 injury caused a lumbar and thoracic strain, he also testified that the
mechanism of injury was likely to cause a permanent harmful change only to
the lumbar spine and not to the thoracic spine. He also considered it
improbable that the thoracic spine MRI findings resulted from the work-related
The claimant argues next that the ALJ erred by failing to render an
award for his psychiatric condition and by failing to find increased disability .
Again, we disagree . The evidence did not compel a finding that the claimant's
psychiatric condition resulted from his injury or a finding that his disability
was any greater at reopening than at settlement .
Dr. Shraberg's opinions indicate clearly that the claimant's depression
resulted in part from a lack of work, but Dr. Shraberg also testified that the
depression was unrelated to the claimant's August 2005 injury. Although the
claimant's injury clearly accounted for his lack of work during the period of
TTD, Dr. Shraberg's testimony provided substantial evidence that his present
lack of work resulted from his failure to seek employment rather than from
work-related disability . Absent compelling evidence that the claimant's lumbar
spine impairment increased since the settlement; that his thoracic spine
impairment was work-related, or that his psychiatric impairment was workrelated, the evidence did not compel a finding of increased disability at
The decision of the Court of Appeals is affirmed.
All sitting. All concur.
COUNSEL FOR APPELLANT,
SENAD MEHIC :
Wayne C. Daub
600 West Main Street
Louisville, KY 40202
COUNSEL FOR APPELLEE,
R.C. TWAY COMPANY:
Stanley Shields Dawson
Fulton 8s Devlin
2000 Warrington Way
Louisville, KY 40222