PETITION FOR REVIEW OF A DECISION OF THE WORKERS'
COMPENSATION BOARD ACTION NO. WC-13-56897
FOR APPELLANT RANDY G. CLARK, MICHAEL F. JOHNSON
FOR APPELLEE TERRI S. WALTERS, RACHEAL WAGNER KENNEDY
BEFORE: COMBS, D. LAMBERT, AND NICKELL, JUDGES.
LAMBERT, D., JUDGE
Taylor appeals an order of the Kentucky Workers'
Compensation Board ("WCB"), which affirmed the
denial of the benefits Taylor had sought based on an
allegedly work-related neck injury. Taylor asserts that the
evidence relied upon by the Administrative Law Judge
("ALJ") contained sufficient inaccuracies to
preclude the ALJ from such reliance. After careful review, we
hold that the ALJ improperly relied on unsubstantial evidence
and reverse the WCB.
FACTUAL AND PROCEDURAL HISTORY
Elkhorn Coal Corporation ("MECC") operated a
sub-surface mine at which Taylor worked. MECC initially hired
Taylor in 2000 as a dead work boss for the mine's third
shift, though Taylor eventually worked his way up to a
position as mine foreman. Taylor worked in that capacity on
the dates of his injuries until physical disability ended his
working days on December 10, 2013. Taylor had been a 37-year
veteran of the coal mining industry at that point. Taylor
alleges that two separate work-related injuries caused his
first of such injuries occurred on March 5, 2013, when, while
carrying a heavy bucket of plaster in each hand, Taylor
struck his head on a beam and fell, twisting his back and
neck. He had appointments with his primary care provider,
nurse practitioner Crystal Blair in April, May, and August of
2013, but did not complain of any back or neck ailments.
According to his hearing testimony, he did not miss work
solely as a result of this injury, though he amended this
testimony to reflect that he later missed work due to an
accumulation of factors including this injury. Taylor first
sought treatment specifically for persistent lower back pain
on November 1, 2013, with Dr. Michael Trivette.
second injury occurred on December 10, 2013. Taylor was
performing an inspection approximately three miles into the
mine when the battery powering the carrier he was riding
died. The mine tunnel had an extremely low ceiling, which
necessitated that Taylor walk in a hunched position on his
way back to the surface. While attempting to traverse a steep
incline, Taylor fell, twisting around as he went. Ultimately,
Taylor came to a stop when he hit a wall. Because the fall
occurred so late in his shift, Taylor reported the injury to
his supervisor and went home. The next day Taylor went to the
emergency room at the Pikeville Medical Center, where MRIs of
both his lumbar and cervical spine were performed.
Trivette ordered that x-rays be performed while Taylor was at
Pikeville Medical Center. The lumbar x-rays revealed mild
degenerative disc disorder, which the MRI also showed.
However, the MRI further revealed a herniation at the L5-S1
disc space and stenosis. A referral to a neurosurgeon is
noted on the MRI report. Taylor also saw Dr. Trivette again
the next day for back pain.
sought treatment at Hometown Family Care on December 19,
2013, because the medications prescribed to him by Dr.
Trivette offered "minimal relief," according to his
medical records. He complained of pain in his back, which
radiated into his right thigh.
saw a neurosurgeon, Dr. Duane Densler, on December 24, 2013.
Dr. Densler's report indicated complaints of both back
and neck pain. Dr. Densler continued treating Taylor, though
an eventual surgery was performed by another neurosurgeon.
visited Hometown Family Care on February 18, 2014, for a
follow-up for unrelated chest pain and nausea, but "back
pain" and "disc herniation" were also included
in his diagnoses for this visit. There was no mention of neck
pain at this time.
the prosecution of Taylor's claim for benefits, he
underwent no less than five independent medical evaluations
first saw an orthopedic surgeon, Dr. David Muffly, on June
27, 2014. Dr. Muffly noted that Taylor admitted to delaying
treatment for his injuries sustained in his March 5 fall out
of fear that he would miss a bonus at work, and that he
eventually sought treatment from Dr. Trivette when the pain
grew unbearable. Dr. Muffly reported cervical disc
degeneration as well as protrusion at the C4-C5 disc space,
causing cervical strain. Dr. Muffly concluded that the lumbar
disc herniation and the cervical strain were related to the
incidents of March 5 and December 10, 2013. Dr. Muffly
assigned Taylor a whole person impairment ("WPI")
rating of 11% for the two injuries: 5% for his neck
impairment and 6% for his lower back impairment.
Joseph Zerga, a neurologist, performed an independent medical
evaluation on Taylor on October 7, 2014. Dr. Zerga reported
that Taylor told him the pain was most intense in the sacral
coccygeal area. Dr. Zerga also reported normal range of neck
movement during conversation, and further noted that Taylor
"does not have any evidence of significant cervical or
lumbar spine disease." He diagnosed Taylor with coccyx
pain and assigned a 3% WPI rating.
also sent Taylor to see Dr. G. Chris Stephens on October 31,
2014. Dr. Stephens noted that Taylor reported neck pain,
which radiated into his right shoulder, and back pain which
extended into his legs. Dr. Stephens noted Taylor's
"chronic neck pain secondary to moderately severe
cervical spondylosis" and noted his complete
disagreement with Dr. Zerga's assessment, going as far as
to say that he was uncertain as to how Dr. Zerga reached his
conclusions, given that they reviewed the same records. Dr.
Stephens noted Taylor's multiple appointments with Blair
during the period between March and November of 2013, and
that Taylor had either failed to mention or explicitly denied
back and neck symptoms. Ultimately, Dr. Stephens concurred
with Dr. Muffly that Taylor's condition was work-related
and assigned a 5% WPI to both the cervical and lumbar
injuries. Dr. Stephens, however, included a caveat
that Taylor's failure to seek medical attention for the
eight months following the March injury reflected poorly on
his chances for full benefits.
claim for benefits was abated at one point while he had
surgery on his neck. The surgery was approved by MECC's
workers' compensation insurance carrier, as were
temporary total disability benefits. Dr. Norman Mayer
performed this surgery, which involved fusion of several of
Taylor's cervical vertebrae, on July 24, 2015.
then sent Taylor to Dr. Timothy Kriss for an IME on December
23, 2015. Dr. Kriss listed the evidence he had reviewed in
preparing the report, which included the MRI studies taken
just after Taylor's December fall, x-ray images taken
after his December fall and after his surgery, the treatment
records from Taylor's visits with Blair, Drs. Trivette,
Densler, Mayer, and other treating physicians, and the IME
reports prepared by Drs. Zerga and Stephens. Dr. Kriss did
not mention reviewing Dr. Muffly's IME report.
Kriss reported that Taylor exhibited signs of symptom
exaggeration, which seemingly prompted him to disregard
Taylor's account of his March fall and the symptoms
following that event. Dr. Kriss also noted in his report that
Taylor had failed to timely notify MECC of the March fall,
though MECC had stipulated on the record more than one year
prior to Dr. Kriss' IME that it had received timely
notice of the fall. Relying entirely on the medical records,
Dr. Kriss concluded that Taylor's neck injuries were not
work-related, but dormant pre-existing conditions which
became symptomatic following his injuries. Dr. Kriss opined
that it made no medical sense whatsoever for an individual
who suffered a significant back injury to not suffer symptoms
for eight months. Dr. Kriss assigned Taylor a whole person
impairment rating of 25% but noted that the rating was based
entirely on the outcome of Taylor's surgery, which Dr.
Kriss concluded was to repair damage in his cervical spine
resulting not from work-related injuries, but from the
natural process of aging. Dr. Kriss assigned a 5% whole
person impairment rating for Taylor's lumbar injury. Dr.
Kriss also concluded that Taylor was medically capable of
returning to work, and that he had no objective medical basis
for imposing restrictions.
saw Dr. Muffly again after the surgery, on February 4, 2016.
At that time, Dr. Muffly noted that Dr. Mayer said the fusion
was not yet solid and needed more time to improve. Dr. Muffly
noted the records that he had reviewed, which included Dr.
Stephens' IME (which discussed the eight-month delay in
treatment after the March fall). Dr. Muffly opined that
Taylor's cervical symptoms, which were directly caused by
his work-related injuries from March 5 and December 10 of
2013, progressively worsened to the point that surgical
correction became necessary. In assessing Taylor's
post-surgery condition, Dr. Muffly assigned Taylor a whole
person impairment rating of 27% and opined that he could not
return to his previous employment even with stringent
restrictions on lifting, bending, and working overhead.
agreed with Dr. Kriss' findings and denied Taylor's
claims relating to his cervical impairment entirely. Instead,
the ALJ awarded temporary total disability benefits to Taylor
based on Dr. Muffly's 6% impairment rating to his lumbar
spine, and permanent partial disability benefits based on the
same impairment. The ALJ specifically noted in the Opinion,
Award, and Order that he disbelieved the portion of Dr.
Muffly's report relating to the cervical impairment being
work-related because Dr. Muffly was not aware of all the
circumstances at play. The ALJ noted a "complete lack of
supporting evidence that a work incident took place [on March
5, 2013], and more significantly that the Plaintiff not ...