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Commonwealth
of Kentucky
Workers’
Compensation Board
OPINION
ENTERED: November 7, 2014
CLAIM NO. 201198832
DANCO TRUCKING CO., LLC PETITIONER
VS. APPEAL FROM HON. STEVEN BOLTON,
ADMINISTRATIVE LAW JUDGE
JAMES HOWARD;
COMMONWEALTH CHIROPRACTIC;
AYMAN ALBAREE; AND
HON. STEVEN BOLTON,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
IN PART
AND
REMANDING
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* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. Danco
Trucking Co., LLC (“Danco”) appeals from the May 27, 2014 Opinion, Award and
Order and the July 28, 2014 order denying its petition for reconsideration
rendered by Hon. Steven G. Bolton, Administrative Law Judge (“ALJ”). The ALJ found James Howard (“Howard”)
permanently totally disabled as a result of a January 10, 2011 injury. Danco argues the ALJ erred in finding Howard permanently
totally disabled and made insufficient findings regarding the award of medical
benefits. We affirm the finding of permanent
total disability and remand for additional findings regarding the award of
medical benefits.
Howard filed his claim on July 27,
2011 alleging he sustained a neck injury, concussion, whiplash, chest
contusions and a right shoulder injury on January 10, 2011. The injury occurred when a tire he was
inflating blew off the rim. His claim
was later amended to include hearing loss and psychological conditions.
Howard testified by deposition on
January 21, 2013 and at the hearing held March 24, 2014. He worked as a truck driver from 1977 through
1980, then as an equipment operator running drills, rock trucks and
dozers. He returned to truck driving in
1984. Beginning in 1993, he worked as a
welder/mechanic. He started with Danco
in 2008. The position required heavy
lifting, including tires and jacks that could weigh 150 pounds.
Howard continues to have pain in his
neck and shoulder on a daily basis. The
neck pain causes headaches and he feels light-headed and off-balance. He has trouble sleeping because of shoulder
pain. He has difficulty climbing,
stooping and crawling. His pain is
increased when leaning over, sitting for long periods, lifting a milk jug or
lifting anything above the waist and reaching.
He estimated he could sit for approximately thirty minutes to an
hour. Howard can no longer bow-hunt and
is unable to perform activities with his grandchildren. He developed depression and anxiety following
the work injury. He denied any prior
treatment or counseling for a psychological condition.
Dr. David Jenkinson performed an
independent medical evaluation (“IME”) on July 20, 2011 and opined Howard may
have had a minor soft tissue sprain or strain of his neck. However, Dr. Jenkinson concluded there is no objective
evidence of any significant injury, nor any abnormality to support Howard’s
subjective complaints. He believed
Howard requires no further medical treatment, has no need for restrictions, and
no impairment rating related to the work injury.
Dr. Anbu Nadar performed an IME on
October 5, 2011 and diagnosed a cervical strain with non-verifiable
radiculopathy, right shoulder strain with rotator cuff tendinitis, and chest
contusion. Dr. Nadar assigned a 12%
impairment rating pursuant to the American Medical Association, Guides to
the Evaluation of Permanent Impairment, 5th Edition (“AMA Guides”)
for the cervical spine with 30% attributable to his pre-existing active
condition. He also assigned a 4%
impairment for the shoulder condition.
Dr. Nadar stated Howard would have limitations in work activities that
require heavy lifting, pushing, pulling and overhead activity. In his opinion, Howard is unable to return to
his former employment.
Dr. Gregory Snider performed an IME on
October 6, 2011 and diagnosed soft tissue contusions of the face, chest and
neck, neck pain, and right shoulder pain.
Dr. Snider assigned a 4% impairment for the shoulder condition pursuant
to the AMA Guides but found no specific acute anatomic changes to the
cervical spine that would warrant an impairment rating. He felt Howard could return to work without
restrictions. Dr. Snider recommended use
of an anti-inflammatory medication for arthritic complaints. Dr. Snider’s March 12, 2013 deposition
testimony is consistent with his report.
After reviewing the IME reports of Drs. Nadar and Bilkey, Dr. Snider
indicated Howard’s impairment for the shoulder is between 4% and 11%.
Dr. Warren Bilkey performed an IME on
January 23, 2012 and diagnosed a cervical strain, muscle spasm affecting the
neck flexor muscles and right shoulder pain.
He was not sure Howard had reached maximum medical improvement for the
shoulder condition, and for this reason assigned no impairment rating. Dr. Bilkey indicated Howard should avoid
anything other than sedentary work, as well as overhead or repetitive work with
his right upper extremity. Dr. Snider
assigned an 8% impairment for the cervical strain injury pursuant to the AMA Guides.
Leah P. Salyers, MS, CRC, LPC,
performed a vocational evaluation on February 16, 2012 and opined Howard’s
symptoms and limitations preclude him from performing his past employment or
other work for which he is suited by his experience, training, and existing
skills or abilities on a sustained basis.
His limitations would preclude a successful vocational adjustment to
other work or completion of a retraining program. Likewise, Ms. Salyers opined Howard would not
be able to sustain full-time, unskilled work in the regional or national labor
market.
Ralph M. Crystal, Ph.D. performed a vocational
evaluation on March 30, 2012. He opined
Howard could perform a wide range of jobs and would be a good candidate for
vocational retraining. Dr. Crystal
indicated Howard could return to his usual and customary work and does not have
a loss of employability or earning capacity.
Leigh Ann Ford, Ph.D. performed a
psychological evaluation on February 24, 2012.
She diagnosed a pain disorder related to a medical condition and a depressive
disorder. In her opinion, Howard’s
psychological complaints are a direct result of the work-related physical
injury. Dr. Ford assigned a 5%
impairment for the psychological condition pursuant to the Fifth and Second
editions of the AMA Guides.
Dr. Douglas D. Ruth performed a
psychological evaluation on April 19, 2012.
He indicated that if Howard did not undergo treatment, he would have a
4% psychiatric impairment with 2% attributable to depression from unemployment
and 2% attributable to a pre-existing anxiety condition.
Julie Helfen, Au.D., performed an audiological
evaluation on November 12, 2012 and assigned an 8% impairment pursuant to the
AMA Guides. She stated Howard’s
pattern of high frequency hearing loss is consistent with noise exposure.
Daniel R. Schumaier, Ph.D., CCC-A,
performed an audiological evaluation on February 6, 2013 and assigned a 4%
impairment pursuant to the AMA Guides.
He indicated the impairment is the result of long-term noise exposure
during his work career and recreational noise exposure from shooting guns.
Dr. Raleigh Jones and Dr. Persis J.
Ormond performed a university evaluation on April 5, 2013 and found a 10%
impairment pursuant to the AMA Guides related to Howard’s occupational
exposure to noise. Dr. Jones recommended
Howard avoid further exposure to noise without hearing protection.
The ALJ found Dr. Snider most
persuasive regarding Howard’s physical injuries and accepted his 4% impairment
rating for the shoulder condition. The
ALJ accepted the opinion of the university evaluators regarding Howard’s
hearing loss, noting it is entitled to presumptive weight. Relying on Dr. Ford, the ALJ concluded
Howard’s psychological condition is directly related to the physical
injury. He determined Howard did not
have a pre-existing disability/impairment.
Finally, with respect to the extent of Howard’s disability, the ALJ was
persuaded by the opinion of Ms. Salyers that his symptoms and limitations
preclude the performance of his past employment or other gainful activity for
which he is suited by experience, training, existing skills or abilities on a
sustained basis. The ALJ further found
these limitations would preclude a successful completion of a retraining
program resulting in gainful employment, including performance of sustained, full-time
unskilled work activity in the regional or national labor market. Additionally, the ALJ found as follows:
Further, given his age,
education, lack of diversified training and work experience as well as the
general economy in his home region, I find Mr. Howard to have a permanent
disability rating of a physical, hearing and psychological nature and
resultantly has a complete and permanent inability to perform any type of work
as a result of those injuries, and is therefore permanently totally disabled
from all work in a competitive economy.
The ALJ
awarded medical expenses “incurred for the cure and relief of the effects of
the work injuries”. However, he ruled
treatments provided by Commonwealth Chiropractic and by Dr. Ayman Albaree had
been “totally ineffective” and were not medically reasonable or necessary. Danco’s subsequent petition for
reconsideration, raising the same arguments it now raises on appeal, was
denied.
On appeal, Danco argues the ALJ abused
his discretion and erred in finding Howard permanently totally disabled. It objects to the ALJ’s consideration of the
general economy in Howard’s “home region” and of his disability rating from his
psychological and hearing loss claims.
Danco notes no restrictions on his return to work status were placed on
Howard regarding those conditions. Further, Danco emphasizes that Dr. Snider only
assigned a rating for the shoulder condition, which was the impairment rating
adopted by the ALJ. However, the ALJ
seemingly took into consideration the physical restrictions recommended by Drs.
Bilkey and Nadar, who assigned impairment ratings for the cervical
condition. According to Danco, the ALJ
did not adequately explain how the shoulder injury, alone, renders Howard permanently
totally disabled.
An
ALJ has wide discretion
in granting or denying an award of permanent total disability. Colwell
v. Dresser Instrument Div., 217 S.W.3d 213 (Ky. 2006). Although the record contains proof supporting
a different conclusion, there was substantial evidence presented to the
contrary. As such, the ALJ acted within
his discretion to determine which evidence to rely upon, and it cannot be said
the ALJ’s conclusions are so unreasonable as to compel a different result. McCloud
v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974).
Danco argues the ALJ erred in
rendering his award of medical benefits.
It again notes the only impairment for the physical injury was assessed
for the shoulder condition. Danco argues
the ALJ’s findings are not specific enough in addressing the body parts for
which it has liability.
We find it necessary to remand this
matter for additional findings regarding the award of future medical
benefits. The ALJ addressed specific
contested medical treatment from Dr. Albaree and chiropractic treatment. However, that finding does not conclusively
resolve the issue of future medical care for physical conditions other than the
shoulder. While the ALJ stated he found
Dr. Snider persuasive regarding the physical injury, that finding is not
sufficient to apprise the parties of the basis for his decision regarding the
compensability of the cervical condition to allow for meaningful review. Kentland Elkhorn Coal Corp. v. Yates,
743 S.W.2d 47 (Ky. App. 1988); Shields v. Pittsburgh and Midway Coal Min.
Co., 634 S.W.2d 440 (Ky. App. 1982).
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 authorized. Robertson v. United
Parcel Service, 64 S.W.3d 284 (Ky. 2001).
It is also possible to sustain a permanent injury that does not warrant
an impairment rating but requires ongoing treatment. FEI Installation, Inc. v. Williams, 214 S.W.3d 313 (Ky. 2007). In Mullins v. Mike Catron
Construction/Catron Interior Systems, Inc., 237 S.W.3d 561 (Ky. App. 2007),
the Court of Appeals addressed FEI Installation, Inc. v. Williams, 214
S.W.3d 313 (Ky. 2007), and noted the ALJ is entitled to exercise his or her
discretion in making a determination regarding future medical benefits. Where there is evidence the claimant will not
require future medical treatment for any effects of his work-related injury, an
award of medical benefits is not required.
Mullins v. Mike Catron Construction/Catron Interior Systems, Inc.,
id.
Dr. Snider diagnosed neck pain, but
found no objective anatomic change and did not assign an impairment rating for
the cervical condition. He stated no
further formal medical treatment was required, but recommended an
anti-inflammatory should be taken on a regular basis for the arthritic complaints. The ALJ found no pre-existing
impairment. However, if a work injury
arouses previously dormant non-disabling degenerative changes necessitating
treatment, the degenerative condition is compensable. McNutt Construction/First General Services
v. Scott, 40 S.W.3d 854 (Ky. 2001).
On remand, the ALJ must determine whether Howard sustained an arousal of
a dormant arthritic condition or a temporary or permanent cervical injury, as
discussed herein, and award appropriate medical benefits, if any, for the
cervical condition.
Accordingly, the May 27, 2014 Opinion,
Award and Order and the July 28, 2014 order denying its petition for
reconsideration rendered by Hon. Steven G. Bolton, Administrative Law Judge are
AFFIRMED IN PART and this matter is REMANDED for additional findings
regarding the award of future medical benefits in conformity with the views
expressed herein.
ALL
CONCUR.
COUNSEL
FOR PETITIONER:
HON JAMES W HERALD
P O BOX 1350
PRESTONSBURG, KY 41653
COUNSEL
FOR RESPONDENT:
HON WILLIAM GROVER ARNETT
PO BOX 489
SALYERSVILLE, KY 41465
RESPONDENTS:
DR AYMAN ALBAREE
906 EAST MOUNTAIN PARKWAY
SALYERSVILLE, KY 41465
COMMONWEALTH CHIROPRACTIC
91 OAK RIDGE CT
PRESTONSBURG, KY 41653
ADMINISTRATIVE
LAW JUDGE:
HON STEVEN BOLTON
PREVENTION PARK
657 CHAMBERLIN AVE
FRANKFORT, KY 40601
