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Golubic v. Allied Systems5/30/2003
NOT TO BE PUBLISHED
OPINION AFFIRMING
Frances E. Golubic has petitioned this Court for review of the December 11, 2002, opinion of the Workers' Compensation Board, which affirmed in part, reversed in part and remanded the July 31, 2002, opinion, order and award of the Administrative Law Judge. We affirm.
In Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685 (1992), the Supreme Court addressed its role and that of the Court of Appeals in reviewing decisions in workers' compensation actions. "The function of further review of the WCB in the Court of Appeals 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." Id., at 687- 88. We have reviewed the parties' briefs as well as the record, and have determined that the Board did not commit any error or misconstrue controlling statutes or precedent. As we cannot improve upon Board Member Gardner's excellent opinion, we shall adopt it as our own:
Frances E. Golubic ("Golubic") appeals and Allied Systems, Ltd. ("Allied") cross appeals from a decision of Hon. Lloyd R. Edens, Administrative Law Judge ("ALJ"), awarding Golubic permanent partial disability benefits and temporary total disability ("TTD") benefits for a work related low back injury . On appeal, Golubic contends the ALJ abused his discretion by relying on medical opinions that were incomplete, while Allied argues it is entitled to a credit for overpayment of TTD.
Golubic filed an Application for Resolution of Injury Claim on May 10, 2001, alleging an October 13, 1999 injury to her back, which occurred while off-loading vehicles from a car carrier. The issues on appeal, the extent of Golubic's impairment and the date she attained maximum medical improvement ("MMI"), are medical determinations requiring a primary focus on the medical evidence of record.
Shortly after the accident, Golubic was referred to Dr. Ellen M. Ballard for an initial evaluation, performed on November 11, 1999. Dr. Ballard's impression was lumbar strain and she recommended two and a half weeks of physical therapy. In a December 2, 1999 reevaluation, Dr. Ballard instituted a work hardening program to improve Golubic's condition before returning to regular duty work. However, on December 8, 1999, Golubic presented with persistent symptoms, prompting Dr. Ballard to order an MRI. Diagnostic testing revealed "anterolisthesis of L4 on L5 by about 5 to 6mm has diffuse disc bulging." On December 30, 1999, Dr. Ballard recommended daily walking and anticipated release to regular duty on January 17, 2000. Golubic complained of continued pain and Dr. Ballard recommended evaluation by a neurosurgeon.
Dr. Jonathan E. Hodes examined Golubic on January 31, 2000. Golubic presented with complaints of low back pain, right hip and right buttock pain, with intermittent pain that extends to the mid-thigh. Dr. Hodes noted the MRI demonstrated a mild anterolisthesis of L4 on L5 and he diagnosed lumbar strain and degenerative disc disease of the lumbar spine.
Golubic returned to Dr. Ballard on March 8, 2000. She stated physical therapy and work hardening had produced no positive results. Dr. Ballard recommended no repetitive bending, stooping, sitting or standing and referred Golubic to "Functional Recovery Program" for evaluation. Allied's carrier denied payment and apparently the evaluation was never performed. Golubic did not return to Dr. Ballard for follow up.
Dr. Martyn Goldman performed an independent medical examination on March 23, 2000, at the re
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