Jennifer Creager v. Ford Motor Company ( 2020 )

IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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
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RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
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ACTION.
RENDERED: APRIL 30, 2020
NO'
2019-SC-000272-WC
JENNIFER CREAGER
ON REVIEW FROM COURT OF APPEALS
V. CASE NO. 2018-CA-000873-WC
WORKERS’ COMPENSATION BOARD NO. 16-WC-00561
FORD MOTOR COMPANY (LAP); APPELLEES
TANYA PULLIN, ADMINISTRATIVE LAW
JUDGE; AND
WORKERS’ COMPENSATION BOARD
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Jennifer Creager’s workers’ compensation case was dismissed after a
hearing before Administrative Law Judge (ALJ) Miller for lack of proof of causal
connection between two work incidents and her impairments. Having reviewed
the record and applicable law, we affirm the Court of Appeals which upheld the
dismissal of her claim.
I. BACKGROUND
Jennifer Creager is a 47-year-old female who has a high school diploma
and two years of college education. From 1992 until the alleged incidents,
Creager worked for Ford Motor Company in the paint repair department.
Creager had a history of back and neck conditions which were significant
enough for her to seek medical treatment prior to the dates in question. In
2004, Creager underwent an L5-S1 discectomy to treat low back pain.
Approximately five years later, in 2009, she began treating with Dr. Jeffrey
Berg for pain management and ongoing back pain. Her treatment included
epidural injections, trigger point injections, cervical traction and the use of
neck collars, physical therapy and daily narcotics to manage her pain.
While treating Creager for her lower back symptoms, Creager
complained to Dr. Berg of neck problems. On November 19, 2014, Creager
informed Dr. Berg that a few months earlier, she began suffering cervical pain.
Her chief complaint was “Right shoulder pain with numbness and tingling
down right arm into rt palm ad rt thumb and first 2 fingers, c/o pain starts
right buttock pain goes down right leg...also lower back pain.” On December 4,
2014, Dr. Berg ordered a cervical MRI and continued to treat Creager’s cervical
issues conservatively. The MRI revealed disc protrusions at C5-C6 and C6-C7
with moderate to severe right foraminal narrowing. Three days prior to the first
work incident in February 2015, Dr. Berg noted that Creager continued to have
increasing cervical, shoulder and right arm pain. He recommended epidural
shots and physical therapy.
Creager alleges two work-related injuries. The first injury occurred on
February 23, 2015. Creager stated she was raising a heat lamp and felt a
sharp pain in the back of her head, neck, upper back and into her right arm.
She subsequently received treatment at the Ford medical facility and followed
up with Dr. Berg. Creager sought treatment with Dr. Berg four days after this
incident. However, his notes indicated Creager presented with cervical and
right shoulder and right arm pain resulting from a physical therapy
appointment that aggravated her symptoms, with no mention of the work
incident.
The second work incident Creager complains of occurred on September
15, 2015. Creager testified that she attempted to lower a lift gate when she felt
a jerk in her neck, right shoulder and right arm. Creager stated she
experienced neck pain with symptoms radiating down her right upper
extremity as well as back pain. Additionally, she noted an increase of her low
back symptoms.
Following the September 2015 incident, Creager was referred to Dr.
Thomas Becherer, a neurosurgeon. Dr. Becherer noted that she had a history
of lumbar surgery and she complained of neck and right shoulder pain and
tingling in her forearms and first three fingers and low back pain. Based on
her MRI, Dr. Becherer recommended Creager undergo C5-C7 anterior cervical
discectomy and fusion surgery. Dr. Becherer performed two surgeries: first, a
lumbar laminectomy-discectomy, then a multi-level cervical fusion. Ultimately,
Dr. Becherer placed Creager at maximum medical improvement (MMI) and
released her to return to full work duty. She returned to work at Ford in a new
position as a job security representative.
Dr. Stacie Grossfeld examined Creager for an independent medical
examination (IME) on August 1, 2016. Dr. Grossfeld diagnosed preexisting
active conditions of degenerative joint disease involving the cervical and lumbar
spines with a cervical disc protrusion that had intensified with time. Dr.
Grossfeld noted that Creager had been undergoing pain management
therapies, including prescribed narcotics regarding active conditions in both
areas.
Dr. Grossfeld assigned a 5% impairment rating for the cervical and
lumbar conditions, however she indicated that neither injury was work-related.
Dr. Grossfeld opined that all medical treatment related to Creager’s active and
pre-existing conditions, as follows:
In summary, her current symptoms of neck and low
back symptoms appear to be the natural progression
of the natural history of her preexisting active
condition involving her cervical and lumbar spine.
She was on high dose narcotic. She was receiving
epidural injections. She was receiving intravenous
Versed, received Robaxin trigger point injections on a
regular basis prior to her work injury.
Dr. Grossfeld later completed a supplemental report in which she
disagreed with Dr. Warren Bilkey’s causation conclusion and stated:
Based on basic orthopedic knowledge, the MRI results,
and medical records; it is clearly revealed that the
causation was NOT work related. The causation is
based on her pre-existing disease and the natural
progression of the cervical and lumbar degenerative
disc disease.
Creager filed a claim for workers’ compensation benefits alleging work-
related injuries to her neck and low back relating to both the February 23,
2015 and September 15, 2015 incidents. Ford denied the claims, asserting a
lack of causation.
After a hearing, ALJ Miller rendered an order and opinion dismissing
Creager’s claim. ALJ Miller found:
There can be no question, after a complete review of
the medical evidence, that Ms. Creager was having
ongoing symptoms of cervical pain, with very similar
findings on MRIs, both before and after the work
incident of 2/23/2015 and 09/15/2015. I find the
incidents of 02/23/2015 and 09/15/2015, were not
the cause of her need for medical treatment, either as
an original injury or an (sic) “re-aggravation” of the
pre-existing conditions. For this finding I rely
primarily on Dr. Berg’s office chart/notes.
Creager filed a motion to reconsider. In an order on reconsideration, ALJ
Pullin agreed that Creager failed to establish work-related injuries. Creager
then appealed to the Worker’s Compensation Board (the Board) which affirmed
the ALJ’s order. Upon further review, the Court of Appeals affirmed.
II. STANDARD OF REVIEW
When the ALJ finds against the party having the burden of proof, the
appellant must then “show that the ALJ misapplied the law or that the
evidence in her favor was so overwhelming that it compelled a favorable
finding.”1 In Active Care Chiropractic, Inc. v. Rudd, we noted the proper
standard of review for workers’ compensation decisions.
We review statutory interpretation de novo. The well-
established standard for reviewing a workers’
compensation decision is to correct the Board only
where the Court perceives the Board has overlooked or
misconstrued controlling statutes or precedent, or
committed an error in assessing the evidence so
flagrant as to cause gross injustice. Finally, review by
this Court is to address new or novel questions of
statutory construction, or to reconsider precedent
when such appears necessary, or to review a question
of constitutional magnitude.2
It is within the broad discretion of the ALJ “to believe part of the evidence
and disbelieve other parts of the evidence whether it came from the same
witness or the same adversary party's total proof.”3 The ALJ is the sole fact
finder of all workers’ compensation claims.4 “KRS 342.285 designates the ALJ
as finder of fact and has been construed to mean that the fact-finder has the
sole discretion to determine the quality, character, weight, credibility, and
substance of the evidence, and to draw reasonable inferences from the
evidence.” 5 An ALJ abuses its discretion when the decision is “arbitrary,
1 Gray v. Trimmaster, 173 S.W.3d 236, 241 (Ky. 2005) (citing Special Fund v.
Francis, 708 S.W.2d 641, 643 (Ky. 1986)).
2 556 S.W.3d 561, 564 (Ky. 2018) (internal quotations and citations omitted).
3 Caudill v. Maloney's Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977).
4 Kentucky Revised Statute (KRS) 342.285(1).
5 Bowerman v. Black. Equipment Co., 297 S.W.3d 858, 866 (Ky. App. 2009).
unreasonable, unfair or unsupported by sound legal principles.”6 “It has long
been the rule that the claimant bears the burden of proof and the risk of
nonpersuasion before the fact-finder with regard to every element of a workers'
compensation claim.” 7 The claimant bears the burden of persuasion before the
ALJ, and it is up to the claimant to prove every element of their claim.
III. ANALYSIS
This Court has consistently held that if there is substantial evidence in
the record to support the ALJ’s findings, the findings will be upheld, even if
there is conflicting evidence in the record.8 Here, the ALJ thoroughly reviewed
multiple medical providers records, narrative reports, and IME reports
regarding Creager’s causality regarding any work-related injuries. The ALJ
weighed the credibility of all the medical opinions, including all the evidence
presented by both parties. In Caudill, this Court opined that the ALJ may
believe or disbelieve any testimony even if it came from the same witness.9
The claimant bears the burden to persuade the ALJ that she suffered
from work-related injuries.10 An employer is not responsible for a pre-existing
active condition that was ongoing at the time of a work-related incident.11 And
when there is an active pre-existing condition, there is a means for calculating
the increase in impairment related to any work-related injury.12
e Id.7 Magic Coal Co. v. Fox, 19 S.W.3d 88, 96 (Ky. 2000).
8 Kentucky Comm'n on Human Rights v. Fraser, 625 S.W.2d 852, 856 (Ky. 1981).
9 560 S.W.2d at 16.
10 Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984).
11 McNutt Const./First Gen. Servs. v. Scott, 40 S.W.3d 854 (Ky. 2001).
12 Finley v. DBM Technologies, 217 S.W.3d 261 (Ky. App. 2007).
Ford was able to present substantial evidence to support dismissal as
Creager had extensive medical records involving her back and neck pain.
Creager contends the Board erred in affirming the ALJ’s decision in finding no
work-related injuries and she now must establish that the ALJ’s findings were
clearly erroneous to warrant reversal.13 An agency’s findings are clearly
erroneous if arbitrary or unsupported by substantial evidence in the record.14
In rebuttal of Dr. Grossfeld’s IME opinions, Creager relies on Dr. Bilkey,
who assessed that Creager had sustained two work-related injuries. Dr. Bilkey
apportioned a range of fifteen to eighteen percent impairment as to Creager’s
cervical condition and that half was a pre-existing active condition or nine
percent. Dr. Bilkey assessed Creager’s lumbar spine condition with a twenty-
two percent impairment with half due to the work-related injury or eleven
percent. Combining impairments, Dr. Bilkey assessed Creager with a nineteen
percent whole person impairment relating to both injuries.
Dr. Bilkey provided an additional report on July 11, 2017, where he
reiterated that the injuries were work-related and assessed a twenty-eight
percent whole person impairment solely attributable to the two incidents.
Creager continues to largely rely on Dr. Bilkey’s assessments.
This difference of opinions is Creager’s argument to establish that the
ALJ made critical error in her decision to dismiss Creager’s claim for benefits.
Creager notes that in addition to Dr. Bilkey’s IME reports, Dr. Berg provided a
letter in February 2016 stating that the worsening spinal conditions were
caused by work-related repetitive lifting and bending.
13 W. BaptistHosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).
14 Ky. Comm'n on Human Rights, 625 S.W.2d at 856.
However, Creager has failed to establish that the ALJ’s findings were
arbitrary or unsupported by substantial evidence. The Board’s opinion
affirming the ALJ thoroughly examined the record, including the pre-existing
conditions observed by Dr. Berg and Dr. Grossfeld. The Board’s opinion
specifically stated:
ALJ Pullin also relied upon Dr. Berg’s treatment
records, as well as the opinions of Dr. Grossfeld, in
overruling Creager’s petition for reconsideration. Dr.
Grossfeld’s opinion, in conjunction with Dr. Berg’s
treatment records, constitute substantial evidence
supporting the determination Creager failed to prove
her cervical and lumbar conditions are related to the
February 23, 2015 and September 15, 2015 work
injuries. We find the ALJ acted within the scope of the
deference afforded to her, and a contrary result is not
compelled.
We acknowledge Creager is able to point to
conflicting evidence supporting her position on appeal.
However, the ALJ as fact-finder determines the
credibility of the evidence. It was the ALJ’s prerogative
to rely on Dr. Berg’s treatment records and Dr.
Grossfeld’s opinions in making her determination.
Therefore, her decision will not be disturbed.
The ALJ has the authority to thoroughly analyze each individual claim
and find one opinion more persuasive than the other. Here, the ALJ and Board
thoroughly reviewed this case, and deemed that there was substantial evidence
provided to support a decision to dismiss Creager’s claim. “If the reviewing
court concludes the rule of law was correctly applied to facts supported by
substantial evidence, the final order of the agency must be affirmed.”15
Additionally, Creager contends that the ALJ, the Board and the Court of
Appeals erroneously applied Finley in determining her pre-existing conditions
15 Kentucky Unemployment Ins. Comm'n v. Cecil, 381 S.W.3d 238, 246 (Ky.
2012) (citing Brown Hotel Co. v. Edwards, 365 S.W.2d 299 (Ky. 1962)).
were “impairment ratable.” Creager claims that Finley requires a numerical
impairment rating before establishing an active pre-existing condition. Creager
argues that the ALJ failed to discuss any impairment rating, and since there
was no numerical rating there is no pre-existing condition.
In reviewing the analysis by ALJ Pullin and ALJ Miller, we agree that
Finley was correctly considered in the present case. Specifically, ALJ Miller
noted that Creager did not sustain a work-related injury, therefore pre-existing
active impairment pursuant to Finley was not required to be addressed. ALJ
Pullin further addressed Finley opining, “[cjertainly disc protrusions and
surgeries make Appellant’s pre-existing cervical and lumbar spine conditions
impairment ratable just prior to the alleged injury dates...” This Court has
held that consistent with Finley an active pre-existing condition must be both
symptomatic and impairment ratable pursuant to the American Medical
Association’s Guidelines immediately before any work-related injury.16
Therefore, because Creager failed to meet the work-related threshold, Finley is
not applicable.
IV. CONCLUSION
Having reviewed the record, we find no error. The ALJ's factual findings
were supported by substantial and credible evidence, and the ALJ's conclusion
was the result of an appropriate application of the authorities to those facts.
16 Wetherby v. Amazon.com, 580 S.W.3d 521, 527 (Ky. 2019) (citing Finley, 217
S.W.3d at 265).
The Board properly adopted the findings of the ALJ and the Court of Appeals
did not err in affirming the Board’s opinion. We likewise affirm the Court of
Appeals.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Wayne C. Daub
Louisville, Kentucky
COUNSEL FOR APPELLEE:
George T. Kitchen, III
Louisville, Kentucky
COUNSEL FOR WORKERS’ COMPENSATION BOARD:
Michael W. Alvey
Frankfort, Kentucky
ADMINISTRATIVE LAW JUDGE:
Hon. Tanya Gaye Pullin
Frankfort, Kentucky