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September 25, 2015 201477833

Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED:  September 25, 2015

 

 

CLAIM NO. 201477833

 

 

OWENSBORO HEALTH REGIONAL HOSPITAL             PETITIONER

 

 

 

VS.       APPEAL FROM HON. JONATHAN R. WEATHERBY,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

JORDAN MCCARTHY 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.       Owensboro Health Regional Hospital (“OHRH”) appeals from the Opinion and Award rendered May 21, 2015 by Hon. Jonathan R. Weatherby, Administrative Law Judge (“ALJ”), and the order on reconsideration issued June 25, 2015, awarding temporary total disability (“TTD”) benefits, permanent partial disability (“PPD”) benefits, and medical benefits to Jordan McCarthy (“McCarthy”).

          On appeal, OHRH argues the ALJ erred in awarding TTD benefits from October 9, 2014, the date Dr. Michael Best stated she had reached maximum medical improvement (“MMI”), through February 10, 2015, the date she was evaluated by Dr. Jules Barefoot. We vacate the award of income benefits and remand for further findings of fact.

          McCarthy filed a Form 101 on October 10, 2014 alleging she injured her back on June 19, 2014 while working as a Certified Nursing Assistant (“CNA”) for OHRH as she caught a patient who had started to fall.  She also alleged on August 18, 2014 she developed low back pain while assisting a nurse in positioning a patient in bed.  The medical records attached to the Form 101 indicate she received treatment for complaints of pain in her low back, upper back, and left shoulder.  Prior to the work injury, McCarthy’s work history consisted of working briefly as a retail associate and as a CNA.

          McCarthy testified by deposition on February 24, 2015, and again at the hearing held March 24, 2015.  She is a resident of Owensboro, Kentucky.  She was born on October 27, 1990.  She obtained a GED and completed three years of college before obtaining her CNA certification.  She stated she is no longer able to perform the job duties required of a CNA due to problems stemming from the work injuries she sustained on June 19, 2014 and August 18, 2014. 

          McCarthy stated as a CNA she was required to “do vitals, collect specimens, bathe our patients, clothe our patients, take them to the restroom, do physical therapy, you know, any kind of hygiene.  We cleaned their rooms, stocked shelves, stocked rooms, charted.”  She stated she was also required to transfer patients.  McCarthy worked on a floor dedicated to convalescence from joint replacement surgery.

          On June 19, 2014, McCarthy was assisting in moving a patient from a bedside commode to a chair.  The patient had just undergone a knee replacement and had difficulty ambulating.  As the patient began to fall, McCarthy gripped the patient’s gait belt and positioned her into a chair.  She noticed immediate pain in her low back, upper back and left shoulder.  She reported the incident, completed her shift, and drove herself home.  The next day she attempted to return to work, but on the way there, the pain became so unbearable she went to the emergency room instead.  She was referred to Dr. Gayle Rhodes who prescribed medication and physical therapy.  She underwent eighteen sessions of physical therapy, and an MRI was ordered.  Dr. Rhodes eventually released her to return to work although she continued to experience neck, shoulder and back pain.

          McCarthy returned to work on August 18, 2014, and worked only three hours before she again developed back pain while assisting a nurse in positioning a patient in bed.  She attempted to return to Dr. Rhodes, but saw Dr. John Howard instead.  Dr. Howard eventually referred her to Dr. Jose Arias, a neurosurgeon, who did not think she was a surgical candidate.  She stated she then saw Dr. Salamah[1] on one occasion for her pain.  She has not returned to work at OHRH since August 18, 2014.

          Subsequent to her office visits with Drs. Arias and Salamah, McCarthy worked approximately three weeks for a jewelry store where she gift-wrapped packages.  She then began working as a bank teller where she is still employed. She stated she continues to have pain in her upper and lower back which she treats with over-the-counter medications.  She stated the low back pain is unrelenting, and radiates into both of her legs and feet.  She stated she also continues to experience pain in her upper back into her neck and both shoulders with accompanying numbness.

          In support of her claim, McCarthy filed records from OHRH which include the emergency room note of June 19, 2014.  On that date, McCarthy complained of pain in the upper, middle and low back, along with the left shoulder.  The note reflects she was to return to regular duty on June 21, 2014 with no lifting greater than ten pounds for seven days.  On June 24, 2014, she saw Dr. Rhodes who restricted her to no lifting, pushing or pulling greater than twenty pounds.  She continued to see Dr. Rhodes on July 1, 15 and 29, 2014 with ongoing complaints of low back, upper back and shoulder pain.  Dr. Rhodes eventually ordered an MRI.

          McCarthy also filed the February 10, 2015 report of Dr. Jules Barefoot who evaluated her at her attorney’s request.  Dr. Barefoot diagnosed degenerative disc disease of the lumbar spine with non-verifiable radicular complaints.  He assessed a 7% impairment rating pursuant to the 5th Edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (“AMA Guides”).  Dr. Barefoot stated she would have difficulty with repetitive flexion/extension at the waist, and would also have difficulty with heavy lifting or carrying, and needed to change positions frequently.  He stated she should be referred to a pain management physician.  He stated she would not be able to return to work as a CNA.  Dr. Barefoot also noted Dr. Best had placed McCarthy at MMI.  However, he made no additional statement regarding when she attained MMI.

          Dr. Shelley Freimark of Holland, Michigan, performed a records review on August 13, 2014 at the request of OHRH.  Based upon her review of the records, she stated there was no objective reason McCarthy could not be released to work full duty.  She noted McCarthy had exceeded the maximum amount of physical therapy visits for a sprain/ strain, and no additional treatment was medically necessary.

          Dr. Best evaluated McCarthy on January 21, 2015 at OHRH’s request.  He noted the date of injury as June 19, 2014.  He diagnosed a cervical soft tissue sprain/strain – resolved, lumbar soft tissue sprain/strain - resolved, left shoulder sprain/strain – resolved.  He stated McCarthy’s injury caused her complaints.  He assessed a 0% impairment rating pursuant to the AMA Guides.  Regarding MMI, Dr. Best stated, “I do believe the patient to be at maximum medical improvement and certainly was so following the normal examination by Dr. Arias, neurosurgeon.  She is not a candidate for additional diagnostic testing.  She does not require cervical intervention.” 

          OHRH filed the October 9, 2014 office note of Dr. Arias.  He noted McCarthy complained of a four month history of pain affecting the left paraspinal sacral region.  He found no evidence of nerve root compression, spinal fracture or any other major abnormalities.  He stated as follows:

I unfortunately do not have anything else to suggest except some more time off with severe restrictions in regards to bending, lifting, pulling, pushing or testing. She is going to refrain from any of those activities for the next four weeks and determine whether there is any improvement at that point. I kept her off work for the next four weeks.

 

          A Benefit Review Conference (“BRC”) was held on March 24, 2015.  The BRC Order and Memorandum reflects the issues to be resolved were whether McCarthy retains the capacity to return to the type of work perform at the time of injury; benefits per KRS 342.730; work-relatedness/ causation; and TTD.

          The ALJ rendered a decision on May 21, 2015 awarding TTD benefits from June 19, 2014 to February 10, 2015; PPD benefits based upon the 7% impairment rating assessed by Dr. Barefoot, enhanced pursuant to KRS 342.730(1)(c)1; and medical benefits.  Specifically, the ALJ found as follows:

8.   The ALJ finds that the Plaintiff has credibly explained that she experienced stabbing pain while moving a patient and that she reported the injury within thirty minutes.  The Plaintiff was also credible in explaining her ongoing symptoms and the difficulty that she had with physical therapy.

 

 9.  The ALJ is presented with the medical opinions of Drs. Best and Barefoot with respect to the impairment of the Plaintiff. Dr. Barefoot diagnosed degenerative disc disease of the lumbar spine with non-verifiable radicular complaints and assessed a DRE Lumbar Category II and 7% impairment pursuant to the AMA Guides.  He apportioned the whole impairment to the June 2014 work injury.  Dr. Best noted a cervical strain, low back strain and a left shoulder strain, but issued a 0% whole person impairment.  He also determined that she could return to work after a work hardening program.

 

10.  The ALJ finds that Dr. Best’s report does not adequately explain the Plaintiff’s ongoing pain or the difficulty that she reported having with physical therapy.  The ALJ therefore finds that the opinion of Dr. Barefoot is more credible and is more consistent with the Plaintiff’s credible description of her continuing symptoms.

 

11.  The ALJ finds therefore based upon the opinion of Dr. Barefoot that the Plaintiff has suffered a work-related injury to the lumbar spine and that she has suffered a 7% whole person impairment as a result thereof.

 

12.  Dr. Best has determined that the Plaintiff is incapable of returning to the same type of work and his opinion is consistent with the stated belief of the Plaintiff.  The ALJ notes that even Dr. Best recommended work hardening and Dr. Friemark recommended that she continue with a home exercise program.  Dr. Arias admitted that he was unable to recommend anything but continued time off.  All of these doctors appear to show some reluctance to releasing the Plaintiff to work.  The ALJ therefore finds that Dr. Barefoot’s opinion is again the most credible.

 

13.  The ALJ therefore finds that the Plaintiff does not retain the ability to return to the same type of work.

 

Temporary Total Disability

 

14.  Temporary total disability means the condition of an employee who has not reached maximum medical improvement from an injury and has not reached a level of improvement that would permit a return to employment…KRS 342.0011(11)(a)

 

15.  The ALJ notes that Dr. Best opined that the Plaintiff reached maximum medical improvement after the examination by Dr. Arias although Dr. Arias opined that [sic] needed an additional four weeks off to assess the level of improvement.  This lends credibility to the opinion of Dr. Barefoot who assessed an impairment rating as of February 10, 2015.  The ALJ therefore finds that the Plaintiff reached maximum medical improvement as of February 10, 2015.

 

          OHRH filed a petition for reconsideration on June 1, 2015 arguing the evidence of record only establishes McCarthy was entitled to TTD benefits through October 9, 2014, and no such benefits should have been awarded after that time.

          The ALJ issued an order on June 25, 2015 denying the Petition for Reconsideration.  He stated the Petition for Reconsideration was merely a re-argument of the merits of the claim.  The ALJ additionally stated he found, “Dr. Barefoot disagreed with Dr. Best and his IME date was a proper basis for the determination of MMI.”

          We first note the ALJ’s determination regarding the award and calculation of PPD benefits is not challenged on appeal, and is therefore affirmed.  We additionally acknowledge an ALJ has wide range discretion in reaching his determination. Seventh Street Road Tobacco Warehouse v. Stillwell, 550 S.W.2d 469 (Ky. 1976); Colwell v. Dresser Instrument Div., 217 S.W.3d 213, 219 (Ky. 2006).  KRS 342.285 designates the ALJ as the finder of fact, and he is granted the sole discretion in determining the quality, character, and substance of evidence.  Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985).  The ALJ, as fact-finder, may choose whom and what to believe and, in doing so, 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 party’s total proof. Caudill v. Maloney’s Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977); Pruitt v. Bugg Brothers, 547 S.W.2d 123 (Ky. 1977). 

          However, such discretion is not unfettered.  In reaching his determination, the ALJ must also provide findings sufficient to inform the parties of the basis for the decision 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 Mining Co., 634 S.W.2d 440 (Ky. App. 1982); Big Sandy Community Action Program v. Chafins, 502 S.W.2d 526 (Ky. 1973).

          As both this Board and the Kentucky Court of Appeals noted previously, temporary total disability is defined as the condition of an employee who has not reached MMI from an injury and has not reached a level of improvement permitting a return to employment.  KRS 342.0011(11)(a).  This definition has been determined by our courts to be a codification of the principles originally espoused in W.L. Harper Construction Company v. Baker, 858 S.W.2d 202, 205 (Ky. App. 1993), wherein the Court of Appeals stated generally:

TTD is payable until the medical evidence establishes the recovery process, including any treatment reasonably rendered in an effort to improve the claimant's condition, is over, or the underlying condition has stabilized such that the claimant is capable of returning to his job, or some other employment, of which he is capable, which is available in the local labor market. Moreover, . . . the question presented is one of fact no matter how TTD is defined.

 

          Both prongs of the test in W.L. Harper Const. Co., Inc. v. Baker, supra, must be satisfied before TTD benefits may be awarded.   In Central Kentucky Steel v. Wise, 19 S.W.3d 657, 659 (Ky. 2000), the Court further explained, “[i]t would not be reasonable to terminate the benefits of an employee when he is released to perform minimal work but not the type that is customary or that he was performing at the time of his injury.”  In other words, where a claimant has not reached MMI, TTD benefits are payable until such time as the claimant’s level of improvement permits a return to the type of work he was customarily performing at the time of the traumatic event. 

          In Magellan Behavioral Health v. Helms, 140 S.W.3d 579 (Ky. App. 2004), the Court of Appeals instructed  until MMI is achieved, an employee is entitled to a continuation of TTD benefits so long as he remains disabled from his customary work or the work he was performing at the time of the injury.  The Court stated as follows:

In order to be entitled to temporary total disability benefits, the claimant must not have reached maximum medical improvement and not have improved enough to return to work.

 

          . . . .

 

     The second prong of KRS 342.0011(11)(a) operates to deny eligibility to TTD to individuals who, though not at maximum medical improvement, have improved enough following an injury that they can return to work despite not yet being fully recovered.  In Central Kentucky Steel v. Wise, [footnote omitted] the statutory phrase ‘return to employment’ was interpreted to mean a return to the type of work which is customary for the injured employee or that which the employee had been performing prior to being injured. (Emphasis added)

 

Id. at 580-581.

                   In Double L Const., Inc. v. Mitchell, 182 S.W.3d 509, 513-514 (Ky. 2005), the Supreme Court elaborated as follows:

As defined by KRS 342.0011(11)(a), there are two requirements for TTD: 1.) that the worker must not have reached MMI; and 2.) that the worker must not have reached a level of improvement that would permit a return to employment.

 

          . . . .

 

Central Kentucky Steel v. Wise, supra, stands for the principle that if a worker has not reached MMI, a release to perform minimal work rather than ‘the type that is customary or that he was performing at the time of his injury’ does not constitute ‘a level of improvement that would permit a return to employment’ for the purposes of KRS 342.0011(11)(a). 19 S.W.3d at 659.

 

 

          Here, Dr. Barefoot made no determination of when McCarthy reached MMI.  The fact he assigned an impairment rating pursuant to the AMA Guides, as pointed out by the ALJ, merely means he made an assessment McCarthy had reached MMI, but does not speak as to when she may have reached that plateau.  The only commentary Dr. Barefoot provided regarding MMI was his reference to Dr. Best’s finding.  The ALJ must make a determination based upon the evidence of record to determine when McCarthy may have reached MMI.  Whether it is based upon Dr. Best’s assessment, Dr. Arias’ statement he had restricted McCarthy for four additional weeks or some other medical information of record, the determination must be based upon the evidence.  We direct no particular result, and the ALJ may award TTD benefits during the appropriate time period supported by the evidence. 

          That said, this Board is permitted to sua sponte reach issues even if unpreserved but not raised on appeal. KRS 342.285(2)(c); KRS 342.285(3); George Humfleet Mobile Homes v. Christman, 125 S.W.3d 288 (Ky. 2004).  We first note that although McCarthy alleged two dates of injury in the Form 101, the ALJ merely stated, “The ALJ finds therefore based upon the opinion of Dr. Barefoot that the Plaintiff has suffered a work-related injury to the lumbar spine and that she has suffered a 7% whole person impairment as a result thereof.”  The ALJ must make a determination regarding each alleged date of injury, determine whether she sustained an injury on each date, and whether the injury or injuries are temporary or permanent.  Likewise, the ALJ must determine to which date of injury the assessed impairment rating is applicable.

          Finally, the award of PPD benefits must begin on the date of the injury as determined by the ALJ, to be interrupted by any periods TTD benefits are paid. See Sweasy v. Wal-Mart Stores, Inc., 295 S.W.3d 835 (Ky. 2009). The ALJ began the award of PPD benefits the day after TTD benefits ended on February 10, 2015.  This is incorrect.  The ALJ must begin the PPD benefits awarded commencing from the date of injury, interrupted by any appropriate period, or periods, of TTD benefits pursuant to Sweasy. 

          Accordingly, the ALJ’s decision rendered May 21, 2015 and the June 25, 2015 order on reconsideration by Hon. Jonathan R. Weatherby, Administrative Law Judge, are AFFIRMED IN PART and VACATED IN PART.  This claim is REMANDED for entry of an amended opinion and award in conformity with the views expressed herein.

          ALL CONCUR.

 

 


COUNSEL FOR PETITIONER:

 

HON JOHN C MORTON

PO BOX 883

HENDERSON, KY 42419

 

COUNSEL FOR RESPONDENT:

 

HON DANIEL CASLIN

3201 ALVEY PARK DRIVE WEST

OWENSBORO, KY 42303

 

ADMINISTRATIVE LAW JUDGE:

 

HON JONATHAN R WEATHERBY

PREVENTION PARK

657 CHAMBERLIN AVENUE

FRANKFORT, KY 40601

 

 



[1] Although Dr. Salamah (no first name provided) was mentioned in McCarthy’s deposition, his office notes were not filed as evidence.