Kimberly Morconi v. Kenton Co. Bd. of Education ( 2022 )

RENDERED: DECEMBER 9, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-1051-WC
KIMBERLY MORICONI APPELLANT
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-18-93632
KENTON COUNTY BOARD OF
EDUCATION; DR. BRIAN
BRATHWAITE; HONORABLE
STEPHANIE KINNEY,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION
BOARD APPELLEES
OPINION
AFFIRMING
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BEFORE: COMBS, LAMBERT, AND TAYLOR, JUDGES.
COMBS, JUDGE: The Appellant, Kimberly Moriconi, appeals from an opinion of
the Workers’ Compensation Board (the Board) affirming the dismissal of her claim
for medical benefits by the Administrative Law Judge (ALJ). After our review, we
affirm.
On January 7, 2020, Moriconi, a bus driver for the Kenton County
Board of Education (KCBOE), filed a Form 101/Application for Resolution of
Injury Claim. Moriconi alleged that she sustained multiple injuries to her spine
and upper extremities -- as well as anxiety and panic attacks -- as the result of a
February 15, 2018, motor vehicle accident (MVA) that occurred in the course and
scope of her employment.
The claim was litigated. Moriconi relied upon the report of Dr.
Hughes, a neurologist, who performed an Independent Medical Examination (IME)
on her behalf. KCBOE relied upon its own IME reports from Dr. Bender, an
orthopedic surgeon, and Dr. Ruth, a psychiatrist. The Board’s Opinion contains a
detailed summary of their reports, which we have reviewed and need not repeat
here.
On March 18, 2022, the ALJ conducted a final hearing. After the
hearing, the parties settled the case except for the issue of the compensability of
medical expenses, which was reserved for the ALJ to decide. The Form
110/Agreement as to Compensation, approved April 5, 2022, reflects as follows:
The parties acknowledge and agree that this is a
compromised settlement of a disputed claim. . . .
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Plaintiff’s claims for all medical expenses for
treatment of her alleged low back injury, neck
injury, and psychological injuries shall be decided
by the Administrative Law Judge. . . . Aside from
compensability of medical expenses, there are no
other contested issues.
By opinion and order rendered April 26, 2022, the ALJ dismissed
Moriconi’s claim for additional medical benefits with prejudice as follows in
relevant part:
This ALJ examined and weighed the conflicting
evidence in this claim carefully. After doing so, this ALJ
finds Moriconi did not sustain a permanent cervical or
low back injury as a result of the work-related motor
vehicle accident. Additionally, this ALJ finds Moriconi
does not suffer from a work-related psychiatric condition.
In making these findings, the ALJ relied on Drs. Bender
and Ruth.
This ALJ considered Dr. Hughes’ opinions but
found cause to reject those. First, Dr. Hughes diagnosed
a work-related psychiatric condition that caused panic
attacks and loss of sleep. However, he incorrectly noted
Moriconi did not experience those symptoms prior to the
work accident. His history was incorrect and impacted
the persuasiveness of his causation opinion under Cepero
v. Fabricated Metals Corp., 132 S.W.3d 839 (Ky. 2004).
Secondly, Moriconi’s lumbar and cervical MRI did
not show any acute findings as explained by Dr. Bender.
These studies showed degenerative changes, which in
some instances may be compensable. However,
Moriconi experienced prior symptoms that were not
disclosed to Dr. Hughes. Also, Dr. Hughes did not
review Dr. King’s[1] prior treatment notes. As a result,
1
Dr. King is a chiropractor.
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this ALJ finds Dr. Bender’s opinions are more persuasive
because he reviewed more relevant treatment records and
had a clearer understanding of Moriconi’s prior
treatment. Consequently, Moriconi’s claim for additional
medical benefits is dismissed with prejudice.
On April 29, 2022, Moriconi filed a petition for reconsideration. By
Order of May 17, 2022, the ALJ denied the petition as an improper re-argument of
the merits.
Moriconi appealed to the Board, which affirmed by opinion rendered
on August 5, 2022, as follows:
Substantial evidence supports the ALJ’s
determination Moriconi’s injuries are not work-related,
the contested procedures are therefore not compensable,
and a contrary result is not compelled. The ALJ was
confronted with the conflicting opinions of Drs. Hughes,
Bender, and Ruth. Both Drs. Bender and Ruth opined
Moriconi’s injuries were not caused by the MVA, while
Dr. Hughes opined they were. The ALJ chose to rely
upon Drs. Bender and Ruth, in conjunction with the
treatment records, in determining there was no work-
related causation. Accordingly, based on the entirety of
the evidence reviewed, the ALJ found Dr. Bender’s
opinions more persuasive. Dr. Bender’s opinion
constitutes substantial evidence supporting the ALJ’s
determination.
The Board determined that the ALJ sufficiently outlined the evidence
upon which she relied, and it agreed with her reasoning for doing so. The Board
disagreed with Moriconi’s argument that the ALJ failed to properly analyze
whether her pre-existing conditions were dormant or active, explaining as follows:
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By accepting the 0% impairment rating assigned by Drs.
Bender and Ruth, she implicitly rejected Moriconi’s
contention that the work injury aroused her pre-existing
condition. Additionally, Dr. Bender specifically opined
Moriconi had an 8% active pre-existing condition, which
the ALJ also implicitly adopted. Thus, the ALJ
adequately considered the evidence, provided a sufficient
analysis, and a contrary result is not compelled.
Moriconi argued that Dr. Bender’s causation opinion was unreliable
because it was based upon his review of Dr. King’s records, which -- according to
Moriconi -- were incomprehensible. The Board was not persuaded and addressed
that argument as follows:
We note Moriconi filed a Motion to Strike Dr. King’s
records before the ALJ, which she denied. The
admissibility of the records was not raised on appeal.
Since those records were admitted into evidence over
Moriconi’s objection, this argument goes to the weight of
the evidence. We note Dr. Bender was not deposed;
therefore, other than his report, there is no evidence
specifically establishing what portion of Dr. King’s
records he relied upon in reaching his determination. We
find Dr. Bender’s opinions constitute substantial
evidence upon which the ALJ could rely, and we will not
disturb her determinations.
Moriconi has appealed. Our standard of our review is well settled as
set forth by Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992):
The function of further review of the [Board] in the Court
of Appeals is to correct the Board only where [this] 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.
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Moriconi argues that the Board did not address whether Dr. Bender’s
opinions should be considered substantial evidence because of his reliance upon
Dr. King’s records. We disagree. As noted above, the Board found that Dr.
Bender’s opinions constitute substantial evidence.
[T]he rule is: The claimant bears the burden of proof
and risk of persuasion before the [ALJ]. If he succeeds in
his burden and an adverse party appeals . . . , the question
before the court is whether the decision of the [ALJ] is
supported by substantial evidence. On the other hand, if
the claimant is unsuccessful before the [ALJ], and he
himself appeals . . . , the question before the court is
whether the evidence was so overwhelming, upon
consideration of the entire record, as to have compelled a
finding in his favor.
Wolf Creek Collieries v. Crum, 673 S.W.2d 735, 736 (Ky. App. 1984).
Moriconi believes that Dr. Bender’s opinions are tainted because he
relied upon Dr. King’s records. Therefore, she argues that the Board should have
determined that the ALJ’s findings based upon Dr. Bender’s opinions were
erroneous as a matter of law. We disagree.
After KCBOE filed Dr. King’s treatment records, Moriconi filed a
motion to strike on grounds that the records were illegible and incomprehensible.
In response, KCBOE explained that Dr. King’s records were relevant and
probative in light of Moriconi’s deposition testimony, which was vague regarding
her prior treatment with Dr. King. KCBOE contended that although portions of the
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records were difficult to read, they provided clarity regarding the dates of
chiropractic treatment prior to the accident. By order of April 6, 2020, the ALJ
denied Moriconi’s motion to strike Dr. King’s records. As the Board noted, the
admissibility of Dr. King’s records was not raised as an issue on appeal. Thus any
argument goes to the weight of the evidence. We agree.
“Where, as here, the medical evidence is conflicting, the question of
which evidence to believe is the exclusive province of the ALJ.” Square D Co. v.
Tipton, 862 S.W.2d 308, 309 (Ky. 1993). As was her prerogative, the ALJ elected
to believe Dr. Bender.
KRS[2] 342.285 provides that an ALJ’s 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 the Board. Thus, the court
explained in Paramount Foods, Inc. v. Burkhardt, 695
S.W.2d 418 (Ky. 1985), and Caudill v. Maloney’s
Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977), that an
ALJ has the sole discretion to determine the quality,
character, and substance of evidence and that 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 proof.
FEI Installation, Inc. v. Williams, 214 S.W.3d 313, 316 (Ky. 2007).
2
Kentucky Revised Statutes.
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Moriconi contends that the ALJ failed to perform an appropriate
analysis of whether her pre-existing changes were dormant or active. She also
contends that the Board failed to address the issue. We disagree on both counts.
As noted above, the Board explicitly addressed the issue and concluded that a
contrary result was not compelled. We agree with the Board’s analysis; i.e., that
by relying upon Dr. Bender, who assigned an 8% active pre-existing condition, the
ALJ implicitly rejected Moriconi’s contention that the work injury aroused a pre-
existing, dormant condition.
Moriconi also argues that the ALJ ignored the claimant’s own
uncontroverted testimony. “[T]he testimony of an interested witness does not bind
the fact-finder even when it is uncontradicted. Thus, the [claimant’s testimony]
would permit but does not compel a favorable finding.” Miller v. Square D Co.,
254 S.W.3d 810, 814 (Ky. 2008).
Our review does not reveal that the Board overlooked or misconstrued
controlling statutes or precedent -- or that it committed any error in assessing the
evidence.
Therefore, we affirm.
ALL CONCUR.
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BRIEF FOR APPELLANT: BRIEF FOR APPELLEES:
Gregory N. Schabell Scott M. Guenther
Covington, Kentucky Covington, Kentucky
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