Workers’
Compensation Board
OPINION
ENTERED: May 29, 2015
CLAIM NO. 201301442
JEFFREY WILSON PETITIONER
VS. APPEAL FROM HON. JONATHAN
R. WEATHERBY,
ADMINISTRATIVE LAW JUDGE
H T HACKNEY CO., INC. and
HON. JONATHAN R. WEATHERBY,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
IN PART,
VACATING
IN PART & REMANDING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
ALVEY,
Chairman. Jeffrey Wilson (“Wilson”)
appeals from the Opinion on Remand rendered November 25, 2014 by Hon. Jonathan
R. Weatherby, Administrative Law Judge (“ALJ”) finding he sustained a temporary
injury and awarding medical benefits through May 30, 2013, with the exception
of a repeat left shoulder MRI. Wilson
also seeks review of the February 11, 2015 order denying his petition for
reconsideration.
On appeal, Wilson
argues the ALJ’s finding he sustained only a temporary injury is contrary to
the overwhelming evidence establishing he suffered a permanent injury as
defined by the Act warranting an impairment rating. He also argues the ALJ erred in failing to
adopt the impairment rating assessed by Dr. Warren Bilkey, and in failing to
award medical benefits beyond May 30, 2013.
Because substantial evidence supports the ALJ’s determination of a temporary
injury warranting no permanent partial disability (“PPD”) benefits, and no
contrary result is compelled, we affirm.
However, we vacate and remand for clarification regarding the duration
of Wilson’s entitlement to medical benefits.
In the original
decision rendered April 22, 2014, the ALJ adopted the 0% impairment rating
assessed by Dr. Robert Jacob, determined a repeat MRI was not medically
necessary, and found Wilson was not entitled to vocational rehabilitation
benefits. In the “Award” section of the
opinion, the ALJ awarded “such medical expenses including but not limited to provider’s
fees, hospital treatment, surgical care, nursing supplies, and appliances as
may be reasonably required for the cure and relief from the effects of the
work-related injury, not to include the MRI conducted in 2014.”
Wilson appealed, and in
an opinion rendered September 19, 2014, this Board vacated and remanded the
claim. We determined the ALJ “did not
make essential findings of fact and determinations necessary to support his
ultimate award of medical benefits. We
also conclude the ALJ’s analysis regarding ‘Injury as Defined by the Act/Benefits
Per KRS 342.730’ are unclear and deficient.”
After reviewing the definitions of “injury” and “objective medical
findings” pursuant to KRS 342.0011(1) and (33), as well as the case of Gibbs v. Premier Scale Co./Indiana Scale Co.,
50 S.W.3d 754 (Ky. 2001), this Board stated as follows:
In
the opinion, the ALJ stated Drs. Jacob and Guarnaschelli opined
Wilson’s subjective complaints are inconsistent with the diagnostic studies
conducted or the physical examinations performed, an opinion consistent with
the normal neurological findings noted by Dr. Raque. The ALJ specifically found “the
objective medical findings listed above are more convincing than the
independent medical examination conducted by Dr. Bilkey.” The ALJ then rejected Dr. Bilkey’s assessment
of impairment, and found Wilson sustained a 0% impairment rating based upon Dr.
Jacob’s opinion. At best, the ALJ’s
statements regarding whether Wilson sustained an injury are unclear. Although arguably the ALJ found Wilson did
not sustain an injury, in the award section of the opinion, he awarded medical
benefits for Wilson’s “work-related injury.”
Therefore,
the April 22, 2014 opinion does not contain a specific determination or
sufficient findings of fact and explanations regarding whether Wilson sustained
an injury as defined by the Act. The
evidence is conflicting regarding this issue and the parties identified “injury
as defined by the ACT” as a contested issue at the BRC. Importantly, Wilson requested additional
findings of fact addressing whether he sustained an injury in his petition for
reconsideration, which was summarily denied by the ALJ in the June 16, 2014
order. The ALJ’s findings regarding Wilson’s
subjective complaints are inconsistent with the diagnostic studies conducted or
the physical examinations performed. An
opinion consistent with the normal neurological findings noted by Dr. Raque
does not adequately address whether he sustained an injury as defined by the
Act. Therefore, the opinion and order is
vacated and the claim is remanded for a determination of whether Wilson
sustained an injury as defined by the Act pursuant to the above- referenced
analysis. If the ALJ finds Wilson did in
fact sustain an injury, he must also determine whether it was temporary or is
permanent.
If the
ALJ determines Wilson sustained only a temporary injury, he then must determine
whether he is entitled to temporary benefits pursuant to Robertson v. United Parcel Service, supra, and FEI Installation,
Inc. v. Williams, supra.
.
. . .
It
is well established an ALJ can award future medical benefits for a work-related
injury, although a claimant has reached maximum medical improvement and did not
have a permanent impairment rating resulting from the injury. See
FEI Installation, Inc. v. Williams, supra. Finally, if the ALJ determines he did not
sustain an injury, either permanent or temporary, as a result of the MVA,
Wilson is not entitled to indemnity or medical benefits and his claim must be
dismissed in its entirety. We do not
direct any particular result and the ALJ may make any determination which is
supported by the evidence. This Board’s
decision renders the remainder of Wilson’s arguments on appeal moot.
The September 19, 2014 Board opinion was not appealed by either party.
In the November 25, 2014 Opinion on
Remand, the ALJ provided the following additional findings:
1. The ALJ reiterates his reliance upon the
opinions of Drs. Racque[sic] and Jacob, and along with the objective medical
findings herein, finds that the Plaintiff suffered a temporary injury that has
resolved. The ALJ specifically relies
upon the findings of Dr. Jacob who concluded that the Plaintiff had no residual
musculoskeletal pathologic conditions attributed to the work injury as well as
no evidence of radiculopathy, chronic cervical sprain, or muscle spasms or
weakness upon examination.
2. The ALJ further finds in accordance with the
opinions of Drs. Jacob and Guarnaschelli that the Plaintiff’s subjective
complaints are not consistent with the objective medical findings and that as
of the May 30, 2013, as determined by Dr. Guarnaschelli, the Plaintiff showed
no objective signs of any harmful change to the human organism as a result of
the work-related motor vehicle accident of October 4, 2012.
The ALJ awarded medical
benefits as may reasonably be required for the “cure and relief from the
effects of the temporary work-related injury, not to include the MRI conducted
in 2014, and otherwise terminating on May 30, 2013 in accordance with the above
findings.”
Wilson filed a petition
for reconsideration essentially asserting the same arguments he now raises on
appeal. Wilson requested additional
findings of fact supporting the finding of a temporary injury, regarding the
appropriate impairment rating, and regarding payment for unpaid medical
bills. The ALJ summarily overruled
Wilson’s petition on February 11, 2015.
Wilson filed a Form 101
alleging he injured his neck, left shoulder and left arm in a work-related
motor vehicle accident (“MVA”) on October 4, 2012 while working for H.T.
Hackney Co. Inc. (“Hackney”) as a merchandising manager. Hackney subsequently filed a medical dispute
contesting a request for a repeat left shoulder MRI performed on February 1,
2014. Wilson, who is right handed, began
working for Hackney on September 11, 1992.
Wilson had worked as a merchandising manager for eight years at the time
of the MVA on October 4, 2012 which required him to travel to convenience
stores and set up products.
On October 4, 2012,
Wilson was waiting at a stop light when another vehicle rear-ended him. Wilson stated he experienced immediate pain
in his left shoulder, left arm and chest.
Wilson sought medical treatment approximately a week later at First Stop
Urgent Care when his symptoms did not subside.
He later sought treatment with Drs. George Raque and John
Guarnaschelli. Wilson underwent
conservative treatment, which he testified was unsuccessful. Surgery has not been recommended. Wilson testified his neck, left shoulder and
arm pain worsened throughout the course of treatment and he developed numbness
and tingling throughout his left arm and hand.
Wilson missed no work
following the MVA and continued his job as merchandising manager until June
2013. He delegated his lifting duties to
the employees he managed. In June 2013,
he became a sales representative with Hackney earning the same salary he earned
at the time of the accident. Wilson
indicated he has no difficulty performing the job as a sales representative
which is easier than working as a merchandising manager.
We previously
summarized the relevant medical evidence as follows:
Wilson
filed the records from First Stop Urgent Care, indicating he treated from
October 11, 2012 to March 10, 2013. The
records note complaints of left chest, shoulder, neck and left arm pain, as
well as numbness and tingling throughout the left arm and hand. X-rays of the
left shoulder revealed no acute abnormality, and x-rays of the cervical spine
demonstrated mild degenerative disc disease with no acute findings. A left shoulder MRI is reported to
demonstrate subcoracoid bursitis, although it was not filed in the record. A cervical MRI was performed in October 2012,
however, there is neither a discussion of the results nor a copy of the report
contained in the records of First Stop Urgent Care. Wilson was treated conservatively with
medication, home exercises, heat and massage, and physical therapy. He was also referred to Norton Leatherman
Spine for a consultation. The most
recent note dated March 10, 2013 reflects a diagnosis of pain in the neck and
shoulder region. Wilson was returned to
work with restrictions of no lifting with the left arm in excess of five pounds
for two weeks.
Wilson
also filed the records of Dr. Raque, who he saw on two occasions. On February 16, 2013, Dr. Raque noted a
cervical MRI “revealed a left C6-7 disc herniation. It does flatten the anterior aspect spinal
cord or foraminal stenosis. There is no
signal change in the cord however in the cord deformity is not severe.” His examination revealed normal range of
motion in the neck, no tenderness, and an essentially normal musculoskeletal
and neurologic exam. He noted Wilson
complained of neck pain on flexion and turning to the left. Dr. Raque diagnosed cervical spondylosis
without myelopathy and recommended epidural steroid injection. On April 8, 2013, it was noted the first
injection relieved his pain by thirty percent, but a second injection worsened
his symptoms. Wilson was diagnosed with
a herniated cervical disc and neck pain, and prescribed pain medication.
Hackney
filed the records of Dr. Guarnaschelli, who treated Wilson on April 11, 2013
and May 28, 2013. Dr. Guarnaschelli
noted the neck and neurologic examinations were essentially normal, but there
was “some pain in reshifted the range of motion of the left paracervical
spinous processes paraspinous muscles and left shoulder . . . .” Dr. Guarnaschelli also noted his examination
did not support a finding of true radiculopathy or myelopathy. He opined Wilson sustained a musculoskeletal
and/or whiplash-related disorder for which he ordered cervical diagnostic
studies. On May 28, 2013, Dr.
Guarnaschelli noted cervical spine x-rays ruled out a fracture, dislocation or
spondylolisthesis; and a cervical MRI demonstrated mild degenerative changes
and osteophyte complex formation. He
determined Wilson is not a candidate for surgery after noting his diagnosis of
a whiplash-related disorder and pre-existing age-related degenerative disc
changes with no radiculopathy or myelopathy.
Wilson
filed the August 13, 2013 report of Dr. Warren Bilkey who diagnosed a “10/4/12
work related [MVA], cervicothoracic strain injury, myofascial pain involving
left scapular muscles.” He noted “MRI
findings are benign” and found no evidence of any surgical pathology affecting
the neck or shoulder. He also noted
there was considerable spasm involving the scapular musculature. Dr. Bilkey opined the above-referenced
diagnoses are due to the October 4, 2012 work injury. Dr. Bilkey stated Wilson has reached maximum
medical improvement and assessed a 7% impairment rating using the Cervical DRE
Category II, pursuant to the 5th Edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (“AMA Guides”). Dr. Bilkey restricted Wilson from lifting
over ten pounds with his left arm and recommended home exercises and medication
for pain control. He also found the
lifting restriction would preclude Wilson from returning to his usual work
duties performed prior to MVA.
Hackney
filed the January 17, 2014 report of Dr. Robert Jacob. He noted a left shoulder MRI was within
normal limits except for evidence of a subacromial bursitis. Diagnostic studies of the cervical spine
revealed age-related, multi-level degenerative changes and small disc
osteophyte complexes at C4-5 and C6-7, which are non-impinging and age
appropriate changes. Dr. Jacob noted the
records do not indicate Wilson manifested any radicular symptoms, verifiable or
non-verifiable, in the C5 or C7 nerve roots.
Dr. Jacob stated the disc protrusions are small and are not clinically
relevant. Dr. Jacob noted his
examination demonstrated a completely normal cervical spine, normal upper
extremity neurological exam, and normal left shoulder, chest wall, and shoulder
girdle exam with no evidence of muscle spasm.
Dr. Jacob stated as follows regarding diagnosis and injury:
My diagnosis
for Mr. Wilson’s neck, shoulder, and left arm pain are subjective complaints of
pain without objective findings. Based
on the physical evidence, the impact was minimal and he was wearing a seatbelt,
no airbag deployment, and he sought no medical attention for one week. He has preexisting age-related degenerative
cervical spine disease which has been neither aggravated nor exacerbated by the
auto accident. Although he underwent
treatment for neck complaints following the accident, his subjective complaints
in my opinion were out of proportion to his objective findings and mechanism of
injury. I do not find any residual
musculoskeletal pathologic conditions that could be attributed to this accident
and no evidence of radiculopathy, chronic cervical sprain, or muscle spasms or
weaknesses.
It is my
opinion based on my evaluation, review of his medical records and diagnostic
studies that he had not sustained a harmful change to the human organism as
evidenced by objective medical findings.
Dr.
Jacob opined Wilson qualified for a Cervical DRE Category I, and assessed a 0%
impairment rating pursuant to the AMA Guides. He opined Wilson is capable of returning to
his former position without any lifting restrictions, and he declined to
recommend additional medical management or diagnostic testing.
On appeal, Wilson
argues the ALJ erred in finding his work-related injury was only temporary,
asserting the overwhelming medical evidence compels a finding of a permanent
injury. Wilson asserts the ALJ failed to
consider the clinical findings noted in the First Stop Urgent Care records, Dr.
Raque’s interpretation of the cervical MRI and diagnosis, Dr. Guarnaschelli’s
examination findings, Dr. Bilkey’s finding of decreased cervical range of
motion and spasms, and Dr. Jacob’s findings of decreased cervical range of
motion. Wilson asserts the above-referenced
evidence compels a finding of a permanent injury.
Wilson also argues the
ALJ erred in adopting the impairment rating of Dr. Jacob, who placed him in the
DRE category I warranting a 0% impairment rating. Pursuant to the 5th Edition of the
American Medical Association, Guides to the Evaluation of Permanent
Impairment (“AMA Guides”), Wilson argues he qualifies for the DRE
cervical category II. In a similar
argument, Wilson asserts the impairment rating assessed by Dr. Jacob cannot be
relied upon since it contradicts his own examination findings.
Wilson argues because
he sustained a permanent injury warranting PPD benefits, he is also entitled to
continuing medical benefits. In the
alternative, Wilson argues he is entitled to continuing medical benefits for
his temporary injury, and the ALJ erred in limiting his award through May 31,
2013.
Finally, Wilson argues
the ALJ failed to address his request for an order directing Hackney to pay
outstanding medical bills from First Stop Urgent Care.
As the claimant in a workers’ compensation case, Wilson
bore the burden of proving each of the essential elements of his cause of
action before the ALJ, including injury as defined by the Act and entitlement
to benefits. Snawder v. Stice,
576 S.W.2d 276 (Ky. App. 1979). Since he
was unsuccessful in his burden, the question on appeal is whether the evidence
is so overwhelming, upon consideration of the record as a whole, as to compel a
finding in his favor. Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984). “Compelling evidence” is
defined as evidence so overwhelming no reasonable person could reach the same
conclusion as the ALJ. REO Mechanical v. Barnes,
691 S.W.2d 224 (Ky. App. 1985).
As fact-finder, the ALJ has the sole
authority to determine the weight, credibility and substance of the
evidence. Square
D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993). Similarly, the ALJ
has the sole authority to judge all reasonable inferences to be drawn from the
evidence. Miller v. East Kentucky Beverage/Pepsico, Inc., 951 S.W.2d 329
(Ky. 1997); Jackson v. General Refractories Co., 581 S.W.2d 10 (Ky.
1979). The 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. Magic Coal Co. v. Fox, 19
S.W.3d 88 (Ky. 2000); Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999). Mere evidence contrary to the ALJ’s decision
is not adequate to require reversal on appeal.
Id.
In order to reverse the decision of the ALJ, it must be shown there was
no substantial evidence of probative value to support his decision. Special Fund v. Francis, 708 S.W.2d
641 (Ky. 1986).
The Board, as an appellate tribunal, may not usurp the ALJ’s
role as fact-finder by superimposing its own appraisals as to the weight and
credibility to be afforded the evidence or by noting reasonable
inferences that otherwise could have been drawn from the
record. Whittaker v. Rowland, 998 S.W.2d 479, 481 (Ky.
1999). So long as the ALJ’s ruling with
regard to an issue is supported by substantial evidence, it may not be
disturbed on appeal. Special
Fund v. Francis, supra.
Pursuant to the
directives of this Board, the ALJ clarified he found Wilson sustained a
temporary injury relying primarily upon the opinions of Drs. Jacob and
Raque. Because the ALJ adequately
addressed this Board’s request, and his determination of a temporary injury is
supported by substantial evidence and no contrary result is compelled, we will
not disturb his determination on appeal.
Since the rendition of Robertson v. United Parcel Service, 64 S.W.3d 284 (Ky.
2001), this Board has consistently held it is possible for an injured worker to
establish a temporary injury for which temporary
benefits may be paid, but fail to prove a permanent harmful change to the human
organism for which permanent benefits are payable. In Robertson, the ALJ determined the claimant failed to
prove more than a temporary exacerbation and sustained no permanent disability
as a result of his injury. Therefore,
the ALJ found the worker was entitled to only medical expenses the employer had
paid for the treatment of the temporary flare-up of symptoms. The Kentucky Supreme Court noted the ALJ
concluded Robertson suffered a work-related injury, but its effect was only
transient and resulted in no permanent disability or change in the claimant's
pre-existing spondylolisthesis. The
Court stated:
Thus, the claimant was not entitled to income benefits for
permanent partial disability or entitled to future medical expenses, but he was
entitled to be compensated for the medical expenses that were incurred in
treating the temporary flare-up of symptoms that resulted from the incident. Id.
at 286
It is well established
an ALJ can award future medical benefits for a work-related injury, although a
claimant has reached maximum medical improvement and did not have a permanent
impairment rating resulting from the injury.
See FEI Installation, Inc.
v. Williams, 214 S.W.3d 313 (Ky. 2007).
In this instance, the
ALJ relied upon the records of Dr. Raque and the opinion of Dr. Jacob in
determining Wilson sustained a temporary injury due to the October 4, 2012
work-related MVA. On February 16, 2013,
Dr. Raque noted a cervical MRI demonstrated a C6-7 disc herniation, but demonstrated
no signal change in the cord. His
examination revealed normal range of motion in the neck, no tenderness, and an
essentially normal musculoskeletal and neurologic exam. He noted Wilson complained of neck pain on
flexion and turning to the left. Dr.
Raque diagnosed cervical spondylosis without myelopathy and recommended
epidural steroid injection. On April 8,
2013, the physical examination was essentially normal, with the exception of
complaints of increased pain on flexion of the neck and turning from side to
side. Wilson was diagnosed with a
herniated cervical disc and neck pain, and prescribed pain medication.
In his January 17, 2014
report, Dr. Jacob found Wilson had a normal cervical examination, normal upper
extremity neurological examination, normal left shoulder, chest wall and
shoulder girdle examination. He likewise
found no evidence of muscle spasm in any of the cervical, shoulder girdle or
chest wall musclulature. He reviewed the
medical records, and noted Dr. Raque’s examination on February 16, 2013
revealed a full range of motion in the neck without tenderness, and a normal
neurological examination. Dr. Jacob
reviewed Wilson’s diagnostic studies, and noted the osteophyte complexes at
C4-5 and C6-7 were small, non-impinging, age-appropriate changes, and
clinically not relevant. Dr. Jacob noted
there was no medical evidence of stenosis or manifestation of any true
radicular symptoms. He found the impact
from the MVA minimal. He stated Wilson’s
pre-existing age-related degenerative cervical spine disease was neither
aggravated nor exacerbated by the MVA.
Dr. Jacob found Wilson’s subjective complaints out of proportion to the
objective findings and mechanism of injury.
Dr. Jacob found no residual musculoskeletal pathologic conditions
attributable to the MVA, and no evidence of radiculopathy, chronic cervical
sprain, or muscle spasms or weaknesses.
Dr. Jacob concluded Wilson has not sustained a harmful change to the
human organism as evidenced by objective medical findings.
Based upon the above-referenced
evidence, the ALJ could reasonably conclude Wilson sustained only a temporary
injury. Wilson’s ability to point to
other medical evidence in the record supporting his contention of a permanent
injury is insufficient for reversal on appeal.
Taken together, the Dr. Jacob’s opinion and the records of Dr. Raque
constitute substantial evidence supporting the ALJ’s determination Wilson
sustained a temporary injury due to the October 4, 2012 work-related accident
warranting no impairment rating, and no contrary result is compelled.
We likewise find no
error in the ALJ’s determination Wilson’s temporary injury resulted in a 0%
impairment rating, based upon opinions of Dr. Jacob. In Kentucky
River Enterprises, Inc. v. Elkins, 107
S.W.3d 206, 210 (Ky. 2003), the Kentucky Supreme Court explained the assessment
of impairment ratings and the proper interpretation of the AMA Guides are medical questions solely within the province of medical
experts. See also KRS 342.0011(11)(a), (35) and (36); and KRS
342.730(1)(b). For that reason, an ALJ
is not authorized to arrive at an impairment rating by independently
interpreting the AMA Guides. George Humfleet Mobile
Homes v. Christman, 125 S.W.3d 288 (Ky. 2004). Rather, the improper interpretation of the AMA Guides and assessment of an impairment rating
pursuant to the AMA Guides are medical questions
reserved only to medical witnesses. Kentucky
River Enterprises, supra, Lanter v. Kentucky State Police,
171 S.W.3d 45, 52 (Ky. 2005). Therefore,
while an ALJ may elect to consult the AMA Guides in
assessing the weight and credibility to be accorded an expert’s impairment
assessment, as finder of fact, he is never required to do so. George Humfleet, supra.
In his report, Dr.
Jacob concluded Wilson only qualified for the DRE category I, and assessed a 0%
impairment rating. Dr. Jacob expressly
stated he arrived at his conclusions utilizing the AMA Guides, Table
15-5, page 392. In support of this
conclusion, Dr. Jacob noted at the time of his examination, Wilson had no
significant clinical findings, no muscular guarding, no motion segment
integrity, and no other indication of impairment related to the injury. Dr. Jacob also stated his review of the
medical records revealed no physician identified a specific nerve root
involvement, and all of those reviewed noted normal neurological
examinations.
We conclude Dr. Jacob’s
opinion and impairment rating constitute a sufficient basis
from which the ALJ could reasonably infer the assessed impairment pursuant to
the 5th Edition of the AMA Guides. Dr. Bilkey’s differing impairment assessment
merely represents conflicting evidence which the ALJ in his role as fact-finder
was free to accept or reject.
Contrary to Wilson’s
argument on appeal, this case is distinguishable from Jones v. Brasch-Barry
General Contractor’s, 189 S.W.3d 149 (Ky. App. 2006). In Jones, a physician, during
cross-examination, admitted the claimant’s injury fell within the parameters of
one category of impairment but placed him in a higher category, explaining the
AMA Guides were flawed and served no more than
guidelines. Here, two physicians have
provided conflicting impairment ratings.
Neither party pursued additional testimony nor was an admission made by
Dr. Jacob stating he disregarded the AMA Guides in
assessing an impairment rating.
Likewise, neither party chose to depose the physicians regarding their
opinions.
With the above determinations
in mind, we vacate and remand on the issue of entitlement to future medical benefits
for the effects of Wilson’s work-related temporary injury, though not for the
reasons he has argued. Here, the ALJ
limited the award of medical benefits, stating he found Wilson’s subjective
complaints were inconsistent with the objective medical findings and “that as
of the (sic) May 30, 2013, as determined by Dr. Guarnaschelli, the Plaintiff
showed no signs of any harmful change to the human organism as a result of the
work-related motor vehicle accident of October 4, 2012.” However, a review of the May 30, 2013 office
note from Dr. Guarnaschelli reveals he did not make such a finding, and in fact
recommended the continuation of conservative treatment. On May 30, 2013, Dr. Guarnaschelli noted
Wilson presented for a follow-up visit and second surgical opinion regarding a
work-related injury. After noting
Wilson’s past medical history and medication intake, Dr. Guarnaschelli stated
as follows:
EXAM: NEUROLOGIC/MUSCLULOSKELETAL:
Atypical neck and upper shoulder discomfort following a work-related
injury
REVIEW OF DIAGNOSTIC DATA
Initial
and followup x-rays of the cervical spine to rule out a fracture dislocation or
spondylolisthesis as well as a repeat MRI scan of the cervical spine showing
evidence of mild degenerative changes and osteophyte complex formation
ASSESSEMENT AND PLAN
Mr.
Wilson is a 49 yr/o male patient following a work-related injury with clinical
findings of a whiplash related disorder and radiographic findings of
pre-existing age-related degenerative disc changes. In the absence of any clear-cut radiculopathy
or myelopathy I believe it is best to avoid any considerations for surgical
intervention. I have advised followup
with his personal physician and a common sense approach with home exercises
conditioning and other conservative measures for management.
(original
emphasis)
The ALJ’s statement Dr.
Guarnaschelli found Wilson showed no signs of a harmful change to the human
organism due to the October 4, 2012 work accident is inconsistent with the May
30, 2013 note. KRS 342.020(1) provides
liability for medical benefits exists “for so long as the employee is disabled
regardless of the duration of the employee’s income benefits.” The Kentucky Supreme Court has concluded
“disability exists for the purposes of KRS 342.020(1) for so long as the
work-related injury causes impairment, regardless of whether the impairment
rises to a level that it warrants a permanent impairment rating, permanent
disability rating, or permanent income benefits.” FEI Installation, Inc. v.
Williams, 214 S.W.3d at 318-319.
Therefore, we vacate the
award of medical benefits and remand the claim for the ALJ to clarify his
finding regarding the duration of entitlement to medical benefits, and to
provide an analysis consistent with FEI Installation, Inc. v. Williams, supra.
Finally, we address
Wilson’s contention the ALJ did not specifically address Hackney’s failure to
pay outstanding medical bills from First Stop Urgent Care in his award of
temporary medical benefits through May 31, 2013. In light of our determination regarding the
appropriate period of medical benefits above, it would be speculative of the
Board to address this specific argument.
However, assuming the ALJ awards medical benefits beyond March 10, 2013
(the last recorded visit of record at First Stop Urgent Care), a general award
of medical benefits would encompass treatment received at First Stop Urgent
Care for the cure and relief from the effects of the temporary work-related
injury, excluding the repeat MRI.
For the foregoing
reasons, the November 25, 2014 Opinion on Remand and the February 11, 2015
order on reconsideration rendered by Hon. Jonathan R. Weatherby, Administrative
Law Judge, are hereby AFFIRMED IN PART,
VACATED IN PART. This claim is REMANDED for additional findings and
entry of an amended opinion and award in conformity with the views expressed
herein.
ALL
CONCUR.
COUNSEL
FOR PETITIONER:
HON CHRISTOPHER P EVENSEN
6011 BROWNSBORO PARK BLVD, STE A
LOUISVILLE, KY 40207
COUNSEL
FOR RESPONDENT:
HON LYN DOUGLAS POWERS
1315 HERR LANE, STE 210
LOUISVILLE, KY 40222
ADMINISTRATIVE
LAW JUDGE:
HON JONATHAN R WEATHERBY
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601