MAGOFFIN COUNTY BOARD OF EDUCATION V. DELORES OWENS, ET AL.Annotate this Case
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED ."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT . OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
RENDERED : JUNE 16, 2011
NOT TO BE PUBLISHED
,*uyrrmr Courf of "rnfurkV
BOARD OF EDUCATION
ON APPEAL FROM COURT OF APPEALS
CASE NO. 2009-CA-002128-WC
WORKERS' COMPENSATION NO. 07-72814
HONORABLE JOHN B . COLEMAN,
ADMINISTRATIVE LAW JUDGE ; AND
WORKERS' COMPENSATION BOARD
MEMORANDUM OPINION OF THE COURT
An Administrative Law Judge (ALJ) found that the claimant's need for
total shoulder replacement surgery resulted from her work-related shoulder
injury superimposed upon a pre-existing degenerative condition. The Workers'
Compensation Board and the Court of Appeals affirmed . Appealing, the
employer continues to assert that no substantial evidence supported the
finding of a causal relationship between the need for shoulder replacement
surgery and the claimant's injury.
We affirm. The ALJ acted within the authority granted a fact-finder and
rendered a decision that the medical evidence supported .
The claimant was born in 1947 and has a twelfth-grade education . She
began working for the defendant-employer in 1995 as an instructional aide .
She sought workers' compensation benefits for neck, left shoulder, and left
knee injuries that resulted from a slip-and-fall accident that occurred while she
was working on October 9, 2007 . Only the left shoulder condition is at issue
presently, more specifically, the extent to which her present condition and need
for surgery resulted from the work-related fall rather than her pre-existing
The record indicates that in July 2007 the claimant sought treatment
from Dr. Mary Ireland, an orthopedic surgeon, complaining of left shoulder
pain and a limited range of motion. Dr . Ireland referred the claimant to Dr.
Grant, who injected the shoulder with cortisone . Nothing indicated that future
shoulder surgery was contemplated .
The claimant testified that her symptoms resolved completely after the
injection and that she was able to move her left arm freely. She stated that she
did not seek further treatment or experience shoulder pain again until after the
work-related accident. She described the shoulder as being achy and sore
immediately after the accident but stated that the discomfort developed
gradually into a severe, steady pain that radiated into her neck and made it
difficult to raise and use her left arm.
After learning that the physician she saw initially was out of the network
included in her employer's insurance plan, the claimant sought treatment with
Dr. Albaree on October 18, 2007 for complaints of neck and left shoulder pain
that she related to the fall at work . X-rays revealed moderate degenerative
changes in the glenohumeral joint with hypertrophic changes in the humeral
head. Dr. Albaree released the claimant to light duty on October 25, 2007 . A
left shoulder MRI scan performed in November 2007 showed a tear in the
supraspinatus tendon as well as severe osteoarthritic changes in the shoulder.
It also showed joint effusion, a probable small contusion or area of
osteonecrosis of the humeral head, and focal fluid in the bicipal tendon sheath,
which was suggestive of tendinitis . Dr. Albaree noted in May 2008 that he had
treated the claimant with pain and anti-inflammatory medication as well as
physical therapy, all of which met with little success .
Dr. Best evaluated the claimant on the employer's behalf in June 2008 .
He noted a history of severe pre-existing degenerative changes in the left
shoulder but concluded that the work-related fall caused a left rotator cuff tear
from which she had reached maximum medical improvement (MMI) and
returned to her baseline status. He considered the claimant to be fully capable
of performing her previous duties with the exception of lifting more than 10
pounds. He attributed the need for joint replacement surgery to the preexisting degenerative condition rather than the injury ; did not consider her to
be a candidate for total joint replacement surgery due to the torn rotator cuff;
and did not consider her to be a candidate for rotator cuff surgery due to the
severe degenerative arthritis in her glenohumeral joint. Dr. Best assigned a 7%
permanent impairment rating based on loss of shoulder range of motion.
Dr. Sajadi evaluated the claimant on August 26, 2008 on referral from
Dr. Ireland . As recorded in his notes, the claimant reported that she received a
cortisone shot in the left shoulder in July 2007 for arthritis and that she was
"relatively asymptomatic" and had "full motion if not normal motion in that
shoulder prior to the fall ." Dr. Sajadi examined her and reviewed her medical
records, interpreting the MRI as showing a partial thickness supraspinatus
tear and possible coexistent rotator cuff tear. He diagnosed glenohumeral
arthrosis as well as a possible left rotator cuff tear. Dr. Sajadi attributed most
of her pain to the arthritic condition and thought that anything less than a
shoulder replacement, with or without a rotator cuff repair, would treat her
condition inadequately .
Dr. Nadar evaluated the claimant in November 2008 . Having examined
her and reviewed medical records from Drs. Albaree, Ireland, Jenkinson, and
Sajadi, he diagnosed a left shoulder strain with rotator cuff tear and
degenerative arthritis in the left glenohumeral joint . He attributed her present
complaints to the work-related injury; found her to be at MMI secondary to
conservative treatment ; but thought that she probably would need both rotator
cuff repair and total joint replacement surgery. He assigned a 10% permanent
impairment rating "secondary to this claim," apportioning half to the preexisting degenerative arthritis .
Dr. Jenkinson evaluated the claimant on her employer's behalf in July
2009. He noted that she had what he described as a "markedly decreased"
range of motion in July 2007 and was diagnosed with osteoarthritis . He opined
that the work-related fall might have produced a "transient increase" in her left
shoulder symptoms but that it "should have resolved within three to four
weeks ." He attributed her present symptoms entirely to her pre-existing,
advanced glenohumeral osteoarthritis to which he assigned a 15% impairment
rating. He thought that she would benefit from shoulder replacement surgery,
the need for which he attributed entirely to the arthritic condition . He did not
think that she would benefit from surgery to repair what he characterized as
being a minor rotator cuff tear. Interpreting Dr. Nadar's report as indicating
that the 5% impairment rating apportioned to the October 2007 injury resulted
from the rotator cuff tear, Dr. Jenkinson stated that his own examination
revealed no evidence of a rotator cuff tear that contributed to the claimant's
present symptoms or accounted for part of her impairment rating.
The claimant continued to work when her claim was heard but with
lifting restrictions . She testified that neither physical therapy, nor injections,
nor the prescribed medications relieved her symptoms . The contested issues
included, among other things, whether the need for total shoulder replacement
surgery resulted from her injury.
Characterizing Dr. Nadar as being "a respected orthopedic surgeon," the
ALJ found his opinions that the claimant's present complaints and half of her
permanent impairment rating resulted from the injury to be "more convincing
in light of the credible history offered by the [claimant] herself." The ALJ
concluded from the testimonies of Drs . Nadar and Sajadi that the rotator cuff
and total shoulder replacement surgeries were compensable as they were
reasonable and necessary treatment for the effects of the injury superimposed
upon the pre-existing degenerative condition. Again relying on Dr . Nadar, the
ALJ found that the claimant's permanent impairment rating was 10%, half of
which resulted from the injury and half from the pre-existing degenerative
The employer's petition for reconsideration requested additional findings
of fact. The first request concerned evidence in Dr. Sajadi's notes from August
28, 2008, which the employer viewed as showing that the claimant's left
shoulder condition was not completely dormant and asymptomatic before the
injury. The second concerned what portions of the records of Drs. Nadar and
Sajadi the ALJ relied upon to find that the injury resulted in the need for
shoulder replacement surgery. Denying the request as being no more than a
re-argument of the merits, the ALJ noted that surgery was not recommended
until after the claimant's injury; that her condition did not return to its prior
status after the injury; and that Dr. Nadar attributed the claimant's complaints
to the combined effects of her injury and pre-existing condition.
The employer maintains on appeal that no substantial evidence rebutted
the opinions of Drs. Best and Jenkinson and supported the finding of
causation with respect to shoulder replacement surgery. The employer asserts
that only Drs . Best and Jenkinson addressed the causal relationship between
the need for the procedure and the October 2007 injury specifically . Moreover,
both opined that there was no causal relationship and the claimant failed to
offer a specific medical opinion to the contrary.
Relying on Dr. Sajadi's August 26, 2008 note, the employer argues that
the claimant's arthritic condition could not properly be characterized as being a
pre-existing dormant condition that the injury caused to be disabling. It also
argues that the ALJ lacked the necessary medical expertise to infer the
requisite causal relationship simply because Dr. Nadar reported that the
claimant's injury caused her present symptoms and half of her impairment
rating. Relying on Dr. Jenkinson's interpretation of Dr. Nadar's report, the
employer argues that the 5% impairment Dr. Nadar attributed to the injury
resulted from the torn rotator cuff.
I. STANDARD OF REVIEW .
The claimant bore the burden of proof and risk of non-persuasion before
the ALJ with regard to every element of her claim.' KRS 342 .285 provides that
the ALJ's decision is "conclusive and binding as to all questions of fact" and,
together with KRS 342 .290, prohibits the Board or a reviewing court from
substituting its judgment for the ALJ's "as to the weight of evidence on
questions of fact." Thus, the ALJ has the sole discretion to determine the
quality, character, and substance of evidence. 2
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
' See 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 . 1979) .
2 Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985) .
same party's total proof 3 KRS 342 .285(2) and KRS 342 .290 limit
administrative and judicial review to determining whether the ALJ "acted
without or in excess of his powers ;"4 whether the decision "was procured by
fraud ;" 5 or whether the decision was erroneous as a matter of law. 6 A finding
that favors the party with the burden of proof must be affirmed if supported by
substantial evidence, i.e., if the finding was reasonable under the evidence .?
Evidence that would have supported but not compelled a different decision is
an inadequate basis for reversal on appeal. 8
Contrary to the employer's argument, nothing required the ALJ to rely on
the history that Dr. Sajadi recorded in July 2008 regarding the claimant's
description of her condition as of July 2007 or to conclude from that history
that her shoulder remained symptomatic immediately before she fell in October
2007. The ALJ found the claimant to be credible . She testified that her
shoulder symptoms and limited range of motion resolved completely after the
injection she received in July 2007 ; that the symptoms she experienced after
3 Caudill v. Maloney's Discount Stores, 560 S.W .2d 15, 16 (Ky. 1977) .
4 KRS 342 .285(2)(a) .
5 KRS 342 .285(2)(b) .
6 KRS 342 .285(2)(c), (d), and (e) . See also American Beauty Homes Corp. v. Louisville &
Jefferson County Planning & Zoning Commission, 379 S.W.2d 450, 457 (Ky. 1964) .
7 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) .
8 McCloud v. Beth-Elkhom Corp., 514 S .W.2d 46 (Ky. 1974) .
she fell in October 2007 differed from those in July 2007 ; and that she began
to experience constant and severe shoulder pain only after she fell.
Whether the claimant's injury, pre-existing degenerative condition, or
their combined effects necessitated shoulder replacement surgery was a
medical question to be answered from the medical evidence.9 Drs . Best and
Jenkinson stated specifically that the need for shoulder replacement surgery
resulted solely from the claimant's pre-existing degenerative condition . Dr.
Jenkinson agreed with her experts that shoulder replacement surgery would
help to alleviate her impairment but attributed her present complaints and
permanent impairment rating entirely to the effects of the pre-existing arthritic
condition . Convinced by the claimant's testimony that the symptoms she
experienced in July 2007 had resolved before she fell at work, the ALJ
exercised the prerogative of a fact-finder to interpret Dr. Nadar's report and to
find his opinion with respect to causation to be more persuasive than those of
Drs . Best and Jenkinson .
Nothing precluded the ALJ from interpreting Dr. Nadar's statements
reasonably or drawing reasonable inferences from them . Although Dr. Nadar
failed to state specifically that the claimant's need for shoulder replacement
surgery resulted from her work-related injury, he attributed her present
shoulder complaints to the injury; attributed her impairment rating equally to
the injury and pre-existing degenerative condition; and, like Dr. Sajadi,
9 See Mengel v. Hawaiian Tropic Northwest and Central Distributors, Inc., 618 S.W.2d
184 (Ky. App . 1981) .
recommended both rotator cuff and shoulder replacement surgery to treat her
present shoulder conditions . Unlike Dr. Jenkinson, the ALJ interpreted the
statements to mean that Dr. Nadar attributed the compensable portion of the
claimant's impairment and the need for surgery to the effects of the injury
"superimposed on her pre-existing degenerative condition." The interpretation
was reasonable and provided adequate support for the decision finding
shoulder replacement surgery to be compensable .
The decision of the Court of Appeals is affirmed.
All sitting. All concur.
COUNSEL FOR APPELLANT,
BOARD OF EDUCATION :
Gregory Lonzo Little
Ferreri 8v Fogle
300 East Main Street
Lexington, KY 40507
COUNSEL FOR APPELLEE,
DELORES OWENS :
Randy G . Clark
Clark 8s Johnson
P.O . Box 1529
Pikeville, KY 41502