Mirzaee v. United Parcel Service, No. 2006-CA-002045-WC (Ky. App. 10/26/2007), 2006-CA-002045-WC.

• Decision Date: 26 October 2007
• Docket Number: No. 2006-CA-002045-WC.,2006-CA-002045-WC.
• Parties: Farahnaz MIRZAEE, Appellant v. UNITED PARCEL SERVICE; Hon. Howard E. Frasier, Jr., Administrative Law Judge; and Workers' Compensation Board, Appellees
• Court: Kentucky Court of Appeals

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Farahnaz MIRZAEE, Appellant v. UNITED PARCEL SERVICE; Hon. Howard E. Frasier, Jr., Administrative Law Judge; and Workers' Compensation Board, Appellees

No. 2006-CA-002045-WC.

Court of Appeals of Kentucky.

October 26, 2007.

Petition for Review of a Decision of the Workers' Compensation Board Action No. WC-03-84215.

Robert M. Lindsay, Joseph D. Wibbels, Jr., Louisville, Kentucky, Brief for Appellant.

James G. Fogle, Anthony K. Finaldi, Ferreri & Fogle, PLLLC, Louisville, Kentucky, Brief for Appellee, United Parcel Service.

Before: NICKELL AND TAYLOR, JUDGES; PAISLEY,¹ SENIOR JUDGE.

OPINION

NICKELL, JUDGE:

Farahnaz Mirzaee ("Mirzaee") has petitioned for review of the September 1, 2006, opinion of the Workers' Compensation Board ("Board"). The Board affirmed the April 10, 2006, opinion and order of Administrative Law Judge Howard E. Frasier, Jr. ("ALJ"), dismissing Mirzaee's claim for disability and medical benefits against her employer, United Parcel Service ("UPS"), arising from an alleged July 24, 2002, work-related injury. We affirm.

I. FACTS

Mirzaee is a native of Iran. She was born on June 5, 1973, and is currently 35 years of age. She has resided in the United States since 1998 as a refugee, and lives in Louisville with her husband and two children. She obtained a high school education in Iran and attended banking management courses at Jefferson Community College. She was hired at UPS as a sorter in 2001. Her job duties were package handling and loading, which required lifting, standing and separating boxes. The weights she lifted varied.

On July 24, 2002, Mirzaee experienced the onset of pain in her hands and wrists while unloading packages weighing between sixty and one hundred pounds from a truck. She was initially seen in the emergency room at Baptistworx, where she reported a history of having experienced similar complaints since May 21, 2001. Later, she claims to have developed shoulder and neck pain. Even so, she continued to work at UPS from the alleged injury date until October 4, 2002.

Mirzaee filed her Form 101 Application for Resolution of Injury Claim ("Form 101") on September 29, 2003, alleging she suffered work-related injuries to her hands and neck on July 24, 2002. On January 15, 2004, an order granting her October 29, 2003, motion to amend her claim to include a shoulder injury was entered.

Though her Form 101 attributed the onset of her hand and neck complaints to a July 24, 2002, work-related lifting event, Mirzaee stated in deposition testimony that her cervical complaints did not arise until just prior to her initial examination by Dr. Wayne Villanueva on December 28, 2002, some five months later. Records from Baptistworx indicated Mirzaee had complained of pain in the right forearm and hand since May 21, 2001. She had revisited the emergency room on several occasions between April 10, 2002, and the date of her alleged injury at UPS with similar complaints. Much later, while taking medication prescribed by Dr. Gary Reasor for her cervical pain, Mirzaee suffered a life-threatening drug overdose on February 24, 2004. The drug overdose resulted in serious chronic medical conditions and substantial medical expenses in excess of $39,000.00.²

The August 29, 2002, medical report of Dr. John Gormley was attached to the Form 101 in support of Mirzaee's claim. She had been referred to Dr. Gormley "for further evaluation of left shoulder pain." His medical history recorded that she "had a similar injury on April 10, 2002, that resolved. . . ." Dr. Gormley noted "her main complaint is pain at the left arm and neck," and diagnosed Mirzaee with "1. Left bicipital tendinitis with referred pain/rule out rotator cuff tear. 2. Status post right arm strain."

Dr. Gormley's August 29, 2002, medical report also documented that "she was noted to be very depressed" when initially evaluated at Baptistworx on July 24, 2002, following the alleged injury. However, Mirzaee filed no motion to amend her claim to include a work-related psychiatric impairment until December 20, 2005, some forty-one months later. UPS objected to this motion and it was denied by the ALJ because it was untimely and unsupported by the medical evidence offered by Mirzaee.

UPS filed its Notice of Claim Denial or Acceptance on December 16, 2003. It denied Mirzaee's alleged injuries had arisen from and in the course of her employment and asserted she had failed to meet her burden of establishing any "injury" as defined under the Workers' Compensation Act ("Act").³ UPS admitted the alleged work-related lifting event was covered under the Act, but contended Mirzaee had suffered only a temporary aggravation. Even though it continued to contest Mirzaee's claim, UPS had already voluntarily paid $4,960.00 in temporary total disability ("TTD") benefits and $28,321.00 in medical expenses.⁴ UPS also asserted entitlement to any period of overpayment of TTD.

UPS also submitted a surveillance videotape recorded on September 12 and 13, 2002, and the deposition of Steven Thomas ("Thomas"), the private investigator who conducted the surveillance. In the tape, Mirzaee was observed driving her car and grocery shopping. Thomas testified Mirzaee was able to load groceries into her car and then transfer those groceries into her residence without assistance. He also testified Mirzaee displayed no limited range of movement and no outward signs of pain.

Mirzaee attempts to mitigate the impact of the surveillance videotape by explaining it was obtained soon after she sustained her alleged work-related injuries and while she continued to work. She asserts the effects of her work-related injuries have worsened over time and now cause chronic, debilitating pain and physical limitations that prevent her from engaging in any work and severely limit her activities of daily living. In addition to filing this workers' compensation claim, she has applied for Social Security disability benefits.

Mirzaee has seen a constellation of medical care providers and specialists. Her Form 105, Plaintiff's Chronological Medical History, dated September 17, 2003, which was also attached to her Form 101, indicated her neck complaints had been treated by: Baptistworx (4/10/02-6/23/03); Dr. Gormley (8/29/02-12/26/02); Dr. Kittie George (9/16/02-12/26/02); Baptist Hospital East (9/24/02-1/26/03); Dr. Villanueva (10/28/021-/22/03); C.M. Kleinert Institute (12/20/02-3/14/03); and Dr. Reasor (1/8/03-present). By the close of proof the record indicates she had also been treated or evaluated by numerous other medical care providers and specialists, including: Dr. Elizabeth Rouse (08/21/02); @Work Physical Therapy (9/17/02-10/7/02); Dr. Charles Hargett (9/23/03); Baptist Hospital East (9/24/02-present); Dr. Darius Ghazi (2/27/03); Dr. Jeffrey Frank (2/24/04); Dr. Charles Bensenhaver (2/24/04-3/6/04); Dr. Frank Wood (4/1/04 and 5/17/04); Healthsouth (1/10/05); Dr. Ellen Ballard (9/15/04; 12/13/04; 3/15/05); and Dr. David Changaris (7/11/05-10/7/05).

After numerous extensions of time for the submission of proof, a final hearing was held on February 21, 2006. The ALJ entered his forty page opinion and order on April 10, 2006, dismissing Mirzaee's claim. Twenty-five pages were devoted to a detailed summary of the voluminous record.⁵ He then painstakingly explained the rationale for his findings of fact and conclusions of law with exhaustive citations to the contradictory lay and medical evidence. Specifically, the ALJ's extensive findings of fact included:

(a) Mirzaee's Credibility.

"The undersigned finds that the Plaintiff's testimony is not credible in light of the medical evidence and the videotape evidence."

(b) Weight of Medical Evidence.

"The undersigned finds that the medical reports of Dr. Wood, Dr. Ghazi, and Dr. Ballard are more credible than the opinions of Dr. Reasor and Dr. Changaris."

(c) Injury.

"The type of part-time work done by the Plaintiff for UPS could certainly result in a traumatic or repetitive motion injury to her neck, shoulders, and hands. However, the Plaintiff has not met her burden of proof to show any objective medical findings that her activities of July 24, 2002, have resulted in any permanent injury."

"The undersigned finds that the Plaintiff has failed to meet her burden of proof of a work-related injury based upon objective medical findings to her neck, arms, back, or hands on July 24, 2002."

(d) Temporary Medical Condition.

"At best, based upon the medical evidence close in time to the date of injury, the Plaintiff may have had a temporary, muscle strain of some type to her arms and hands. The undersigned finds that any muscle strain caused by her injury of July 24, 2002, has resolved by the date that she reached MMI on May 19, 2003."

(e) Causation (Work-Relatedness).

"In regard to causation, the undersigned finds that the Plaintiff has not met her burden of proof to show a permanent, work-related injury to her neck, arms, and hands as a result of the work activities of July 24, 2002."

(f) Notice.

"The undersigned finds that the Plaintiff has failed to give timely notice of any possible injury to her cervical spine. While Mrs. Mirzaee did give timely notice of a possible injury to her arms and hands, no credible evidence exists that any injury to the neck was of a type of gradual injury that would not have been known to the Plaintiff until revealed by a physician."

(g) Medical Expenses.

"As a result, the undersigned finds that the drug overdose for taking medications prescribed for a non-work related cervical condition is also nonwork-related and therefore not compensable. . . . Moreover, the undersigned also finds that the drug overdose of the Plaintiff was not a result of a miscommunication with Dr. Reasor, but an affirmative act of Mrs. Mirzaee to take vastly more pills than she was prescribed. . . . The undersigned is not making any finding regarding whether the Plaintiff had a suicide attempt, only that Plaintiff...