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Workers’
Compensation Board
OPINION
ENTERED: August 14, 2015
CLAIM NO. 201383845
ARMSTRONG WOOD PRODUCTS PETITIONER
VS. APPEAL FROM HON. WILLIAM RUDLOFF,
ADMINISTRATIVE LAW JUDGE
LOVENA OAKES
and HON. WILLIAM RUDLOFF,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
VACATING
AND REMANDING
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* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
STIVERS,
Member.
Armstrong Wood Products (“Armstrong”) seeks review of the March 18, 2015,
Opinion and Order of Hon. William J. Rudloff, Administrative Law Judge (“ALJ”) awarding
Lovena Oakes (“Oakes”) permanent partial disability (“PPD”) benefits enhanced
by the three multiplier pursuant to KRS 342.730(1)(c)(1) and medical benefits. Armstrong also appeals from the May 5, 2015,
Opinion and Order on Reconsideration overruling its petition for
reconsideration.
On appeal, Armstrong argues the ALJ misapplied the analysis
required by Fawbush v. Gwinn, 103 S.W.3d 5 (Ky. 2003) in awarding
enhanced PPD benefits pursuant to KRS 342.730(1)(c)(1). Armstrong challenges the initial determination
the three multiplier is applicable. It
contends the ALJ provided inadequate findings of fact to support his decision regarding
the applicability of the three multiplier and there is insufficient evidence to
support his determination enhancement by the three multiplier is more
appropriate. Armstrong argues there is
no indication Oakes cannot return to the same or greater wages for the
foreseeable future since she continues to work at her pre-injury job earning
the same or greater wages.
For reasons not raised by Armstrong, we vacate the ALJ’s
award of income and medical benefits and remand.
Oakes alleged a lower back injury occurring on May 3, 2013,
“due to cumulative trauma – performing repetitive movements.” During her November 10, 2014, deposition,
Oakes described her injury as follows:
A: We was on 3 inch wood, and the two
expediters I had for the first half of the day – they rotate too [sic] every
break, and we only get one break and one lunch – and they don’t – they wouldn’t
straighten the wood. And if it gets clogged up, it just comes all down at one
time on top of each other along with the hasko’s wood, and they don’t care if
they straighten it up or not. And I was in the first boxing station and I had
to – it could be two or three layers deep all the way back to the fifth boxing
station and you have got to – you’ve got to spread that out and try to pick up
the good wood in your charge and help wipe the 9’s and flip them over.
Q: So what happened on that date that..
A: The first half of the day they about
killed me. I just – I kept doing that the first half, and by lunch I was just
over the edge. And then it’s just too much, too much wood at one time, and
you’ve got to bend over there to try to get the little ones and sort out the
good wood from the bad; what’s going back to the hasko, and it just overtook
me.
Q: And so what happened to you when you
say it overtook you?
A: I got to hurting in my low back and
my hips and my legs and I couldn’t hardly straighten up, in severe pain. And it
just – the last round one- and a guy that is a grader, he came over there and
he’s really good at straightening the wood up and that helped me get through
the day. I just barely made it through the day.
Oakes testified she first went to Dr. Patrick Jenkins, her
family physician, and Armstrong sent her to Dr. Jeffrey Golden, both of whom
are with Lake Cumberland Medical Associates.
The medical records of Dr. Magdy El-Kalliny dated July 24,
2013, and November 13, 2013, were also introduced.
Oakes relied upon the February 3, 2014, independent medical
evaluation (“IME”) of Dr. Warren Bilkey who assessed a 5% impairment rating
pursuant to the 5th Edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (“AMA Guides”).
Armstrong introduced the December 4, 2014, report of Dr. J.
Rick Lyon.
Oakes testified at her deposition and at the hearing. Oakes is currently taking medication for the
symptoms from her May 3, 2013, injury.
She has only missed seven or eight days of work. She works approximately six days a week. Oakes testified Armstrong mandates she work
overtime at least three weeks out of the month.
As a result, she works forty-eight hours three weeks and forty hours one
week. She testified the job continues to
cause her significant pain and the only reason she continues to work is because
she has no other means of supporting herself.
Because Oakes believes she will eventually be unable to perform her
current job, she is looking for other employment. Oakes testified her job is “too hard.” However, she refuses to take a less strenuous
job if it means she will earn less money. Oakes testified she performs her job
in constant pain and her pain level is currently at seven or eight.[1] She testified she is unable to work without
her medication which she takes at night so it is in her system the next
day. At the hearing, she testified she
has worked every day since her November 10, 2014, deposition. She is attempting to find a job which will
allow her to move around so she can walk off the pain. She intends to stay at Armstrong until she
finds another job.
In the March 18, 2015, decision, after briefly summarizing
the lay testimony, the records of Drs. Jenkins and El-Kalliny, and the medical
reports of Drs. Bilkey and Lyon, the ALJ entered, in relevant part, the
following findings of fact and conclusions of law:
I saw and heard the plaintiff Ms. Oakes
testify at length at the Final Hearing.
I sat a few feet from her and carefully observed her facial expressions
during her testimony, carefully listened to her voice tones during her
testimony and carefully observed her body language during her testimony. I am the only decision maker who actually saw
and heard Ms. Oakes testify. She was a
very open and stoic lady. I make the
determination that she was a credible and convincing lay witness and that her
testimony rang true.
. . .
Based
upon Ms. Oakes’ credible and convincing lay testimony, which is covered in
detail above, and the persuasive, compelling and reliable medical evidence from
Dr. Jenkins, her treating physician, which is covered in detail above, and the
persuasive, compelling and reliable medical evidence from Dr. El-Kalliny, the
plaintiff’s neurosurgeon, which is covered in detail above, as well as the
persuasive, compelling and reliable medical evidence from Dr. Bilkey, the
examining physician, which is covered in detail above, I make the determination
that Ms. Oakes suffered significant work-related injuries to her low back, as
well as radicular symptoms in her hip area and lower extremities, resulting
from her work activities for the defendant on May 3, 2013.
Since the parties agreed temporary total
disability (“TTD”) benefits were not owed, the ALJ concluded the issue of
entitlement to TTD benefits was moot.
The ALJ determined Oakes did not have a pre-existing active
disability.
Relative to the income benefits to
which Oakes was entitled, the ALJ entered the following findings of fact and
conclusions of law:
Dr. Lyon, the examiner selected by the defendant,
stated that it was his opinion that Ms. Oakes reached maximum medical
improvement as of the date Dr. El-Kalliny last treated her on November 13,
2013. Dr. Jenkins, the plaintiff’s treating physician, stated that the
plaintiff’s condition was work-related and placed restrictions on her that she
must be able to change positions at will, since she has pain in her back with
minimal lifting. Dr. Bilkey stated in his report that he does not think that
Ms. Oakes could continue with her work duties, although she appears to be
succeeding with them. Ms. Oakes testified that she is still being treated by
Drs. Jenkins and Golden and is still taking multiple prescription pain
medications. She also testified that she still has bad pain in her back, hips
and left leg. Due to her continuing painful symptoms at her present job, she
has applied for other jobs. Dr. Bilkey stated that based upon his examination
and review of the plaintiff’s medical records, she will sustain a 5% permanent
impairment to the body as a whole under DRE Category II of the AMA Guides to
the Evaluation of Permanent Impairment, Fifth Edition.
In this case I am required to conduct an analysis
under Fawbush v. Gwinn, 103 S.W.3d 5
(Ky.2003). Based upon the plaintiff’s sworn testimony, as covered above, which
I found to be credible and convincing, and the medical evidence from her
treating physician, Dr. Jenkins, as summarized above, and the medical evidence
from her treating neurosurgeon, Dr. El-Kalliny, as summarized above, as well as
the medical evidence from Dr. Bilkey, the examiner, all of which is persuasive
and compelling, I make the determination that the plaintiff cannot really
return to the type of work which she performed at the time of her work injury
in accordance with KRS 342.730(1)(c)1. I specifically rely on the plaintiff’s
credible and convincing lay testimony at the Hearing that she still has bad
pain in her back, hips and left leg while working and is taking multiple
prescription pain medications. I also rely heavily on the persuasive,
compelling and reliable medical evidence from Dr. Jenkins, her treating
physician, who stated that she must be able to change positions at will, since
she has pain in her back with minimal lifting. I make the determination that
the only reason that this lady continues working for the defendant is that that
is the only way she can make earn money to support her basic living expenses. I
make the determination that she has applied for other jobs, and that as soon as
she obtains an alternate job, she will do so.
In addition, I make the determination that the
plaintiff has continued working for the defendant earning the same or greater
average than she earned at the time of her work injury, as per KRS
342.730(1)(c)2. I rely upon the
plaintiff’s sworn testimony to that effect.
I also make the determination that
potentially both the 2 and the 3 multipliers could apply in this case and I
must determine which is appropriate. I also have to make the determination
whether Ms. Oakes is unlikely or likely to be able to continue earning a wage
that equals or exceeds her wage at the time of her work injury for the
indefinite future. Based upon the
plaintiff’s sworn testimony, as covered above, and the persuasive, compelling
and reliable medical evidence from Dr. Jenkins, her treating physician, as
covered above, I make the further determination that under the decision of the
Court of Appeals is Adkins v. Pike County
Board of Education, 141 S.W.3d 387 (Ky.App.2004), the Fawbush analysis includes a broad range of factors, only one of
which is the plaintiff’s ability to perform her current job. Under the Adkins case, the standard for the
decision is whether the plaintiff’s injuries have permanently altered her
ability to earn an income and whether the application of KRS 342.730(1)(c)1 is
appropriate. I make the determination that under the plaintiff’s sworn
testimony, as covered above, and the medical evidence from the treating
physician, Dr. Jenkins, as covered above, that it is unlikely that the
plaintiff will be able to continue for the indefinite future to do work from
which to earn such a wage. Based upon all of the above-cited factors, I make
the determination that the third prong of the Fawbush analysis applies here and that Ms. Oakes’ work-related
injuries have permanently altered her ability to earn an income, and that she
is unlikely to be able to continue for the indefinite future to do work from
which to earn such a wage. I, therefore, make the determination that the third
prong of the Fawbush analysis applies here and that under application the
plaintiff is entitled to the 3 multiplier under KRS 342.730(1)(c)1. I also rely
on the decision of the Kentucky Supreme Court in Adams v. NHC Healthcare, 199 S.W.3d 163 (Ky.2006).
Even though the award of PPD benefits
is based on a 5% impairment rating, the ALJ never made a specific finding as to
the impairment rating attributable to Oakes’ work injury. The ALJ noted Dr. Bilkey stated that based
upon a review of the medical records, Oakes sustained a 5% impairment rating to
the body as a whole pursuant to the AMA Guides. However, he did not at any point thereafter
state that he adopted the impairment rating of Dr. Bilkey or enter a finding
the work injury generated an impairment rating.
The remaining findings of fact are devoted solely to the analysis
required by Fawbush v. Gwinn, supra. There is no finding regarding the impairment
rating attributable to Oakes’ work injury.
Just as important, there is no finding of the date Oakes attained
maximum medical improvement (“MMI”).
Armstrong filed a petition for
reconsideration requesting additional findings to support enhancement of the
award by the three multiplier. It
requested the ALJ to cite to the specific portions of Oakes’ testimony and the
records of Drs. Jenkins and El-Kalliny upon which he relied. In addition, it requested the ALJ provide
additional findings of fact as to the portions of Dr. Bilkey’s report upon
which he relied. Armstrong also requested
additional findings of fact explaining the conclusion Oakes did not have the
physical capacity to return to her previous work when she testified she has
done so since the May 2013 injury.
Finally, Armstrong requested additional findings regarding the ALJ’s
analysis of the third prong of Fawbush v. Gwinn, supra.
In the May 5, 2015, Order denying the
petition for reconsideration, after providing the same summary of the lay and
medical testimony contained in the March 18, 2015, decision, the ALJ provided
the following:
I note that in the original Opinion and Order I specifically
determined that I relied upon the persuasive, compelling and reliable medical
evidence from Dr. Jenkins, the plaintiff’s treating physician, who stated that
Ms. Oakes must be able to change positions at will, since she suffers pain in
her back on minimal lifting. I note that
my reliance on Dr. Jenkins’ persuasive, compelling and reliable medical
evidence is supported by his treatment records, stating that the plaintiff must
be able to change positions at will on her job. Dr. Jenkins also stated that
Ms. Oakes has severe pain on minimal movement at work. Dr. Jenkins also noted that
Ms. Oakes has pain in her back with minimal lifting at work. Clearly, my
findings are specifically supported by substantial medical evidence from the
plaintiff’s treating physician, Dr. Jenkins. I note that the plaintiff’s job
requires her to pick up wood 12 inches to 48 inches long from a conveyor and
turn to place it in a box every 15 seconds and that that work activity requires
more than minimal movement in the plaintiff’s lifting at work. In addition, I
note that Dr. El-Kalliny has seen the plaintiff on two occasions in 2013 and
that he noted that the plaintiff had a history of significant pain in her low
back, radiating into both hips and her groin area. Dr. El-Kalliny also stated that the
plaintiff’s injury was work-related.
In addition, Dr. El-Kalliny stated that if Ms. Oakes could tolerate
doing her job he would not advise her to be off work. Dr. El-Kalliny prescribed
pain medication for the plaintiff’s condition. Dr. El-Kalliny stated that the
plaintiff’s pain is severe and she denied any relieving factors. Dr. El-Kalliny noted that objectively the
plaintiff has annular tears at L3-4, which explains her pain. I make the
determination that that plaintiff’s history and Dr. El-Kalliny’s objective
medical findings support my conclusion that the plaintiff cannot continue to do
the type of work she was performing and reviewed in conjunction with the
totality of the evidence, both lay and medical.
The defendant also
requests that I provide findings of fact concerning whether the plaintiff will
be unable to do her current job with the restrictions of change of positions at
will. I make the determination that the plaintiff testified in her deposition
and at the Hearing that she had to pick up pieces of wood every 15 seconds and
turn to put the wood in a box, and that she stated that she has to take two
steps to the conveyor and one step backward toward the box. She stated that she
has to stand throughout her work day. She stated that she is not able to sit
during her shift which would be a change of position from standing to sitting.
She stated that her job requires her to be on her feet throughout the entire
work day and that the requirements of her job do not permit her to change
positions at will. That was the sum
and substance of her testimony at the Final Hearing.
The defendant also requests that I provide
additional findings of fact as to what evidence from Dr. Bilkey I relied upon
in determining that the plaintiff cannot really return to the type of work that
she was doing at the time of her work injuries. I made the determination that Dr. Bilkey stated that he did not believe
that the plaintiff was at maximum medical improvement and that Dr. Bilkey
recommended that Ms. Oakes have an orthopedic examination and x-rays of her
left hip and that she may need other diagnostic tests. I made the determination that Dr. Bilkey
did not think that the plaintiff could continue with her work duties. The original Opinion and Order discusses the
above evidence from Dr. Bilkey. (emphasis added).
The defendant also requests that I make additional
findings of fact as to why the plaintiff does not have the physical capacity to
return to her previous work. In the original Opinion and Order, I made the
determination that the only reason that this lady continues working for the
defendant is because that is the only way she can earn money to support her
basic living expenses, and I further made the determination that she has
applied for other jobs and that as soon as she obtains an alternate job she
will do so. My determination on this
aspect of this case is supported by the persuasive, compelling and reliable
medical evidence from Dr. Jenkins, Dr. El-Kalliny and Dr. Bilkey, which is
covered in great detail in the original Opinion and Order. I make the determination that that evidence
relied upon in the original Opinion and Order constitutes more than substantial
evidence that the plaintiff does not have the capacity to return to her
previous work.
The defendant also requests additional
findings regarding the plaintiff’s inability to continue to earn the same or
greater wages for the indefinite future.
I note that in the original Opinion and Order I made the determination
that under the plaintiff’s sworn testimony, which was covered in detail and
which was credible and convincing lay testimony, as well as the persuasive,
compelling and reliable medical evidence from the plaintiff’s treating
physician, Dr. Jenkins, which is covered in detail, that it is unlikely that
the plaintiff will be able to continue for the indefinite future to do work
from which to earn such a wage. In the original Opinion and Order I made the
determination based upon substantial lay and medical evidence that the third
prong of the Fawbush analysis applied
in this case, and that the plaintiff is entitled to recover enhanced permanent
partial disability benefits under KRS 342.730(1)(c)1. I make the determination
that the plaintiff is between a rock and a hard place and that she continues to
suffer severe pain in her present job, but continues to work at that job with
the hope that she will find another job that is not as physically demanding and
that she has only herself to rely upon.
Because the award of PPD benefits is
erroneous as a matter of law, it is vacated.
Specifically, we note in the March 18, 2015, decision and in the May 5,
2015, Opinion and Order ruling on the petition for reconsideration, the ALJ
never made a finding as to the impairment rating attributable to Oakes’
injury. As noted previously, the March
2015 decision contains no finding as to whether Oakes’ injury merited an
impairment rating. In the March 18,
2015, decision, the ALJ clearly acknowledges Dr. Bilkey’s opinion Oakes has a
5% impairment rating pursuant to the AMA Guides. However, he never states he adopts that
impairment rating. Similarly, in his May
5, 2015, Opinion and Order ruling on the petition for reconsideration, the ALJ
does not adopt Dr. Bilkey’s impairment rating.
Thus, the ALJ must make a finding as to whether Oakes has an impairment
rating attributable to the work injury.
In resolving this issue, the ALJ
cannot rely solely upon the opinions of Dr. Bilkey. In his February 3, 2014, report, Dr. Bilkey
diagnosed Oakes’ injury as a lumbar strain which is causing chronic low back pain. He also stated “the question was raised here
as to whether or not the work injury in reality caused an aggravation of an
orthopedic problem related to the left hip.”
Consistent with that diagnosis, Dr. Bilkey stated as follows:
I can’t say that Ms. Oakes
is at MMI. Although her lumbar spine has been dealt [sic] I think in an
adequate fashion, I think there is medical indication here for an orthopedic
evaluation regarding the left hip and pelvis. For this reason I would not be
placing Ms. Oakes at MMI now.
Significantly, Dr. Bilkey went on to state:
For now a permanent partial
impairment rating, based on today’s evaluation, physical exam and medical
record review, may be described. According to the AMA Guides to the Evaluation
of Permanent Impairment, Fifth Edition, Ms. Oakes satisfies criteria for a
Lumbar DRE Category II impairment as referenced on Table 15-3 of the Guides.
This allows for a range of impairment of 5-8%. Ms. Oakes has 5% whole person
impairment solely attributable to the 5/3/13 work injury.
PPI is predicated on MMI.
Should Ms. Oakes have further evaluation and treatment for her pain problem,
there may be a need to reassess permanent impairment after MMI status is
reached.
Dr. Bilkey’s report firmly establishes
that at the time he saw Oakes she was not at MMI. Thus, his impairment rating cannot be used by
the ALJ unless the ALJ finds Oakes was at MMI prior to the time she was seen by
Dr. Bilkey. 2.4 of Chapter 2 of the AMA Guides
states as follows:
An impairment should not be
considered permanent until the clinical findings indicate that the medical
condition is static and well stabilized, often termed the date of maximal medical improvement (MMI). It
is understood that an individual’s condition is dynamic. Maximal medical improvement
refers to a date from which further recovery or deterioration is not
anticipated, although over time there may be some expected change. Once an
impairment has reached MMI, a permanent impairment rating may be performed. The
Guides attempts to take into account
all relevant considerations in rating the severity and extent of permanent
impairment and its effect on the individual’s activities of daily living.
Without question, an impairment rating
cannot be assessed prior to attainment of MMI.
See Corbett v. Makers Mark
Distillery, Claim No. 2013-CA-001102-WC, rendered March 13, 2004,
Designated Not To Be Published. There,
the Court of Appeals stated:
Because Dr.
Morris opined Corbett had not reached MMI, the AMA Guides prohibited him
from assigning any impairment rating for any of Corbett’s
conditions.
In addition, contrary to Corbett’s novel
assertion, Dr. Morris never characterized his “10%” response to Question 4(a)
as a “procedural” impairment rating. He never conditioned his opinion that
Corbett had not reached MMI on whether recommended neurological evaluation was
provided. And, he never indicated he knowingly expressed an unauthorized and
infirm 10% “procedural” impairment rating with the reasonable expectation or
intention it would be legitimized and cured by a subsequent legal finding of
MMI, whether based on another physician’s contrary MMI opinion or non-provision
of recommended treatment.
Slip Op. at 18.
Although neither party has raised this issue, this Board is
permitted to sua sponte reach issues
even if unpreserved. KRS 342.285(2)(c);
KRS 342.285(3); George Humfleet Mobile Homes v. Christman, 125 S.W.3d
288 (Ky. 2004).
On remand, the ALJ may rely upon the impairment rating of
Dr. Bilkey if he determines Oakes attained MMI prior to the date Dr. Bilkey saw
her and concluded she was not at MMI. As
noted by the ALJ, Dr. Lyon stated in his report that Oakes had attained MMI on
November 13, 2013, the date of her final consultation with Dr. El-Kalliny. Similarly, Dr. El-Kalliny’s November 13,
2013, record appears to reflect he believed MMI was reached when he saw her on
November 13, 2013. Should the ALJ find November
13, 2013, is the date of MMI, then he is free to rely upon Dr. Bilkey’s
impairment rating.
Therefore, because the ALJ did not
make a specific finding as to an impairment rating attributable to the work
injury, the award of benefits must be vacated.
On remand, the ALJ must make an initial determination of the date Oakes
reached MMI. The ALJ must then enter a
finding of fact as to whether Oakes has an impairment rating due to the work
injury. We specifically note the ALJ
stated on page ten of his May 5, 2015, Opinion and Order ruling on the petition
for reconsideration that he previously determined Dr. Bilkey stated he did not
believe Oakes was at MMI and recommended that Ms. Oakes have an orthopedic
examination and x-rays of her left hip. We
emphasize the ALJ did not find Oakes was not at MMI on the date Dr. Bilkey saw
her. Rather, he stated he made the
determination Dr. Bilkey did not believe she was at MMI. Thus, the ALJ cannot rely on Dr. Bilkey’s
impairment rating without first determining Oakes reached MMI prior to February
3, 2014, the date of Dr. Bilkey’s independent medical evaluation.
Significantly, Armstrong does not
contest the finding Oakes sustained a May 3, 203, work injury. Consequently, on remand, the ALJ must
determine whether Oakes has a permanent impairment as a result of the injury
and then enter the appropriate award.
Lest there be no misunderstanding, on remand,
the ALJ must first determine the date of MMI.
Then he must determine whether Oakes has a permanent impairment as a
result of the work injury. There shall
be no award of TTD benefits as the ALJ has already determined the issue of entitlement
to TTD benefits is moot. Further, there
shall be no additional evidence taken.
The ALJ shall enter a final decision by determining whether Oakes is
entitled to PPD benefits as a result of her injury and enter the appropriate
award based on that determination and no more.
Should the ALJ find Oakes has a permanent impairment, he shall cite to
the medical evidence he has relied upon in support of this finding.[2] Similarly, regardless of whether he
determines Oakes has a permanent impairment, the ALJ shall determine the extent
of the medical benefits to which Oakes is entitled. The absence of a permanent impairment rating
does not necessarily preclude an award of future medical benefits.
If the ALJ determines MMI was
attained prior to Dr. Bilkey’s report and adopts Dr. Bilkey’s impairment
rating, he shall then determine whether a Fawbush v. Gwinn, supra,
analysis is necessary.
As a final note, should the ALJ again conduct
an analysis pursuant to Fawbush v. Gwinn, supra, we believe his previous
analysis as to the first and third prong is insufficient.
Accordingly, the award of income and
medical benefits as set forth in the March 18, 2015, Opinion and Order and the
May 5, 2015, Opinion and Order on Reconsideration is VACATED. This matter is REMANDED to the ALJ solely for the
purpose of entering a final decision on the merits in conformity with the views
expressed herein.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON STEVEN GOODRUM
HON IAN GODFREY
771 CORPORATE DR STE 101
LEXINGTON KY 40503
COUNSEL
FOR RESPONDENT:
HON MARK D KNIGHT
P O BOX 49
SOMERSET KY 42502
ADMINISTRATIVE
LAW JUDGE:
HON WILLIAM J RUDLOFF
400 E MAIN ST STE 300
BOWLING GREEN KY 42101
