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Taylor v. McCoy Elkhorn Coal Corp.

Court of Appeals of Kentucky

July 27, 2018

GLADE TAYLOR APPELLANT
v.
MCCOY ELKHORN COAL CORPORATION; HON. CHRIS DAVIS, ADMINISTRATIVE LAW JUDGE; AND KENTUCKY WORKERS' COMPENSATION BOARD APPELLEES

          PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD ACTION NO. WC-13-56897

          BRIEF FOR APPELLANT RANDY G. CLARK, MICHAEL F. JOHNSON

          BRIEF FOR APPELLEE TERRI S. WALTERS, RACHEAL WAGNER KENNEDY

          BEFORE: COMBS, D. LAMBERT, AND NICKELL, JUDGES.

          OPINION

          LAMBERT, D., JUDGE

         Glade 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.

         I. FACTUAL AND PROCEDURAL HISTORY

         McCoy Elkhorn Coal Corporation ("MECC") operated a sub-surface mine at which Taylor worked. MECC initially hired Taylor in 2000 as a dead work boss[1] 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 disability.

         The 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[2] 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.

         Taylor's 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.

         Dr. 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.

          Taylor 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.

         Taylor 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.

         Taylor 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.

         During the prosecution of Taylor's claim for benefits, he underwent no less than five independent medical evaluations ("IME").

         Taylor 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.

         Dr. 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.

         MECC 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.

         Taylor's 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.

         MECC 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.

         Dr. 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.

         Taylor 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.

         The ALJ 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 ...


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